(Represented by ASTI)
Minister for Education and Science & North Presentation Secondary School, Cork
1.1 This dispute concerns a claim by Ms Catherine Murphy that she was discriminated against by the Minister for Education and Science and North Presentation Secondary School on the ground of disability, contrary to the provisions of the Employment Equality Act 1998, when she was not paid an allowance for supervision and substitution duties during a period when she was hospitalised.
1.2 The Association of Secondary Teachers Ireland (ASTI), on behalf of the complainant, referred a claim to the Director of Equality Investigations on 1 October 2003 under the Employment Equality Acts 1998 and 2004. Following an unsuccessful mediation process, and in accordance with her powers under section 75 of the Acts, the Director then delegated the case on 27 January 2005 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Submissions were sought from both parties, and a joint hearing was held on 24 March 2006. At the hearing, both ASTI and the first-named respondent acknowledged that the second-named respondent had no role in withholding the payment from the complainant. Correspondence subsequent to the hearing concluded on 7 April 2006.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant has been employed as a teacher of Business Studies, Mathematics and Accounting in North Presentation School (the School) since 1970. Between 1970 and 2001 she participated in supervision and substitution duties to the same extent as her colleagues. The issue of payment for supervision and substitution duties arose during industrial action undertaken by ASTI in 2001, which is described further in the summary of the first-named respondent's case (at 3.1 - 3.4 below). As part of the resolution of the industrial action, it was agreed in 2002 that an hourly rate would be paid to teachers carrying out supervision and substitution duties. An ex gratia lump sum payment was to be made to teachers in respect of such duties carried out during the 2001-2002 school year, and the complainant says this included a goodwill gesture for previous service rendered by teachers.
2.2 The complainant became seriously ill in 2001, ultimately requiring transplant surgery in August of that year. She remained on sick leave until May 2002, making a full recovery. She wrote to the Department of Education and Science (the Department) in June 2003, requesting payment of the lump sum applicable to supervision and substitution duties in the 2001-2002 school year. By letter of 13 August 2003, the Department refused to make this payment on the basis that it related to the period 1 September 2001to 4 March 2002. Its records indicated that the complainant had been absent from 1 September 2001 to 17 May 2002, and was therefore not available to engage in supervision and substitution duties during the relevant time.
2.3 The complainant says that she has been treated less favourably than an able-bodied colleague, who was in a position to perform the duties and who was paid the relevant allowance. She says she had always performed the duties prior to her disability, and continued to do so following her return from sick leave. She says it was the mere fact of her disability that prevented her from performing the duties during the period September 2001 to March 2002.
2.4 The complainant asserts that it is a new departure to withhold a core element of a teacher's salary because of absence due to disability. She says that the regulations governing payment of salary to teachers (Rules of the Payment of Incremental Salary to Secondary Teachers, 1958) provide that salary is paid for a fixed period of time while the teacher is on sick leave. She says that such payments include allowances for posts of responsibility, duties obviously not carried out by teachers on sick leave.
2.5 The complainant says that a practice of not paying the supervision and substitution allowance to teachers on maternity leave during the 2001-2002 school year was reversed following a Rights Commissioner decision in a claim under the Maternity Protection Act 1994, and similarly that a practice of withholding half of the allowance from job sharers was found to be in breach of the Protection of Employees (Part-time Work) Act 2001 by the Labour Court (Department of Education and Science and Vourneen Gallagher, Determination No PTD047).
2.6 The complainant points out that the Department's Circular Letter PPT 02/03, governing payment of the allowance, states "The Department of Education and Science will arrange for the payment to be made to each teacher who has been certified by the Principal/Board of Management as having engaged in voluntary supervision/substitution over and above the timetabled hours on the basis that they have demonstrated a willingness to co-operate with and have assisted in the provision." The Principal of each school was provided with a form listing all serving teachers, and was required to certify either that the duties had been carried out or draw a line through the name of teachers who had not carried them out.
2.7 In relation to the complainant, the Principal of the School did not draw a line through her name, but appended a handwritten note indicating that she was on sick leave during the relevant period. The complainant says that she met the spirit and, in large part, the letter of the requirements of the Circular Letter by virtue of her willingness to participate in voluntary supervision and substitution.
2.8 The complainant says that section 29 of the Act guarantees a right to equal remuneration, and section 30 guarantees an implied term in a contract of employment concerning equal treatment which overrides anything to the contrary. She also argues that the actions of the Department are contrary to section 31 of the Act, which prohibits indirect discrimination. She submits that the Equality Officer must find in her favour, and seeks payment of €1,000 allowance as a remedy for the Department's breach of the provisions of the Acts.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The Department says that the issue of payment for supervision and substitution duties was highlighted during the ASTI industrial action on a 30% pay claim. It was agreed that this issue should be addressed by the Teachers' Conciliation Council as it affected all teachers. An offer of an hourly rate for the duties was put to the three teacher unions in September 2001. The offer was accepted by the Irish National Teachers' Organisation (INTO) but rejected by the Teachers' Union of Ireland (TUI) and ASTI. The Standing Committee of ASTI then instructed its members to withdraw from carrying out the duties with effect from 4 March 2002, and the union withdrew from further discussions on the proposed scheme. Some TUI members in community and comprehensive schools also withdrew from the duties with effect from 4 March 2002.
3.2 Following further discussions assisted by a facilitator, a revised rate of payment was proposed in April 2002. This was agreed and accepted by the INTO and the TUI, and endorsed by the Teachers' Side at the Teachers' Conciliation Council. This rate of payment was to apply for the academic year 2002-2003 onwards. In relation to payment for the academic year 2001-2002, all parties acknowledged that the level of the duties carried out by individual teachers differed both in individual schools and between schools, and that the only practical and pragmatic way of rewarding teachers was by way of ex gratia payment. Ultimately agreement was reached that an amount of €1,270 would be paid to teachers carrying out the duties for the full school year, and a lesser amount of €1,000 would be paid to those who withdrew from the duties on 4 March 2002. The payments were to be made pro rata to eligible job-sharing and part-time teachers.
3.3 The Department says that qualification for payment required certification by the Principal, and payment issued to the relevant teachers on the basis of Circular Letter PPT22/02. The Department says the terms of the Circular Letter were quite clear: eligible teachers were those who had demonstrated a willingness to co-operate with and had assisted in the provision of supervision and substitution during the academic year 2001-2002. The Department says the payment did not have any regard to work done in any previous year.
3.4 ASTI subsequently re-engaged in the process, and its members accepted the package on 4 March 2003. In discussing the operational details of its members' resumption of supervision and substitution duties, agreement was reached that payment of an ex gratia allowance in respect of 2001-2002 would apply in the same way as previously decided, that is €1,000 for eligible wholetime teachers, with pro rata payment for job-sharing and part-time teachers. The arrangements were outlined in Circular Letter PPT02/03.
3.5 In relation to the complainant's application for the allowance, the Department says that she was not certified by the Principal as having carried out the work for the period in question as she was not in attendance in the school at the time. The Department rejects the contention that it is in breach of section 29 or section 30 of the Act. It says that supervision and substitution duties are separate from her existing contract with the School, and involve payment for additional work over and above contracted teaching hours. In this regard, the Department argues that the ex gratia payment is not an allowance in the nature of pay but payment for actual work delivered.
3.6 The Department claims there is no basis whatsoever for the contention that payment of the allowance was a goodwill gesture for previous services rendered by teachers. It points out that ASTI was not a party to the discussions leading up to the final agreement, having withdrawn from the process at an earlier stage. It says that the TUI had sought retrospection for the 2001-2002 academic year, and this was agreed as the discussions had been ongoing during that year. The Department says that at no stage was it either argued or agreed that the payment would relate to previous years.
3.7 The Department points out that the two cases referred to by the complainant in support of her argument were taken under different legislation, and cannot be taken as precedent. In any case, it argues that the circumstances were very different from the complainant's situation. With regard to the Maternity Protection Act claim, the Department says the claimant was actually teaching during part of the period covered by the allowance. She successfully argued that, as the allowance was not intended to reflect the quantum of hours done by any individual teacher, she should be paid the full amount. The Department says the complainant in this case was clearly unable to carry out the duties during any part of the period in question.
3.8 The Department says the claim under the Protection of Employees Act was taken by a work-sharing teacher who claimed that she should be paid the full allowance. The Labour Court found that payment was based on the bona fide understanding that teachers would have undertaken supervision and substitution duties in proportion to their contract hours. However, the claimant in that case had actually carried out the same amount of work as her wholetime colleagues, and was accordingly awarded the full allowance. The Department says the same arguments do not apply to the complainant's circumstances in this case.
3.9 The Department concludes that the complainant was paid her full salary and allowances while on sick leave. It says the supervision and substitution scheme involves payment for additional work over and above contracted teaching hours. It says two conditions must be satisfied to qualify for payment for the 2001-2002 academic year: the teacher is required to have demonstrated a willingness to co-operate with and have assisted in supervision and substitution during the academic year. While there was no question regarding the complainant's willingness to co-operate with supervision and substitution, she did not actually carry out the duties due to her unavailability.
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties. As previously stated, the complainant's representative and the Department both accepted that the School was not the appropriate respondent for the purposes of this complaint, and I so find.
4.2 The complainant alleged that the respondent discriminated against her on the ground of disability contrary to the provisions of the Employment Equality Act 1998. Section 6 of the Act provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the nine discriminatory grounds, including disability.
4.3 The Department argued that the allowance was not an allowance in the nature of pay but payment for actual work delivered. This distinction does not appear to be strictly relevant. The Act defines remuneration in section 2 (1) as
...any consideration, whether in cash or in kind, which the employee receives, either directly or indirectly from the employer in respect of the employment...
Accordingly, it is clear that the allowance is remuneration in terms of the provisions of the Act.
4.4 The facts in this case are not in dispute. It is common cause between the parties that the complainant suffered a disability as defined in the Act. The only point at issue, therefore, is whether the withholding of the allowance by the Department constituted discrimination on the disability ground in terms of the Act.
4.5 The Labour Court has dealt extensively with the responsibilities of respondents in dealing with employees with disabilities. In A Government Department and An Employee (Ms B) (Determination No EDA061), the Court said "The proscription of discrimination on grounds of disability is not absolute. If a person is, by reason of a disability, unable to fully undertake the duties of a position they may, in accordance with section 16 (1) of the Act, be lawfully refused employment or promotion into that position..." The Court went on to say that the applicability of that qualification is restricted by section 16 (3) of the Act, which imposes a duty on an employer to reasonably accommodate the needs of an employee with a disability, by providing special treatment or facilities to enable the employee to carry out the duties of the position.
4.6 The complainant's representative in this case confirmed at the hearing that it was not being argued that the Department failed to provide reasonable accommodation to enable the complainant to carry out supervision and substitution duties. Rather, what was being argued was that the Department's refusal to pay the allowance constituted direct discrimination in terms of section 29 and 30, and indirect discrimination in terms of section 31, of the Act.
4.7 Section 28 (1), enumerating specific provisions as to equality on grounds other than gender, provides that C and D represent two persons who differ in relation to any of the eight other grounds. Section 30 (1) states that a contract of employment shall be taken to include a non-discriminatory equality clause, being a term other than one relating to remuneration or pension rights, where it is not expressly or otherwise included. As remuneration is specifically excluded from the scope of the section, I am satisfied that I must consider the applicability of section 29 (direct discrimination) and section 31 (indirect discrimination).
4.8 Section 29 (1) provides
It shall be a term of the contract under which C is employed that, subject to this Act, C shall at any time be entitled to the same rate of remuneration for the work C is employed to do as D who, at that...time, is employed to do like work by the same...employer.
"Like work" in the context of the Act is broadly defined in section 7 (1) as being the same work, similar work or work of equal value. In this case, the complainant was unavailable to carry out any of the relevant work, that is the supervision and substitution duties. While it is agreed that this was due to her disability, I cannot find that she was carrying out like work, for the purposes of section 29. I find, therefore, that she was not directly discriminated against by the respondent.
4.9 Section 31 (1) provides that an employee shall be indirectly discriminated against where a provision relating to employment operates to the disadvantage of C, as compared to D, where the provision cannot be justified as reasonable in all the circumstances of the case. It would appear that the provision which allegedly put the complainant at a particular disadvantage was the necessity to actually carry out supervision and substitution duties. I have considered the provisions of the Act in this regard and I am unable to find any support for the argument that an employee with a disability must be paid in relation to work not carried out. As stated previously, section 16 imposes on employers a duty to provide reasonable accommodation to enable an employee with a disability to carry out his/her duties. However, the section is quite explicit in its provision that an employer is not required to recruit, promote or retain an employee in a position if the person is not fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position. By analogy, it would appear that an employer should not be required to remunerate an employee where the relevant duties are not carried out. In this case, the complainant was unavailable to undertake, and incapable of undertaking, supervision and substitution duties.
4.10 The complainant's representative argued that payment of the allowance was intended to include a goodwill gesture for teachers who had carried out supervision and substitution duties unpaid for a number of years before the agreement was concluded. While not directly relevant to a claim of discrimination, it may be reasonable to assume that something of this sort was in the minds of those concluding the agreement. On the other hand, I note the respondent's point that ASTI was not a party to the agreement, having withdrawn from the process, and I am satisfied that there is no actual provision to that effect contained in the agreement. It was extremely unfortunate that the complainant had carried out the relevant duties over a period of several years without pay, and was then unable to undertake the duties in the first year that payment became available. I do not find, however, that the refusal to pay the complainant the ex gratia allowance for supervision and substitution duties in the academic year 2001-2002 constituted discrimination on the disability ground.
5.1 Based on the foregoing, I find
(i) that the Minister for Education and Science is the appropriate respondent for the purposes of this claim;
(ii) that North Presentation Secondary School is not the appropriate respondent for the purposes of this claim; and
(iii) that the Minister for Education and Science did not discriminate against Ms Murphy contrary to the provisions of the Employment Equality Act 1998.
27 July 2006