Supreme Court quashes Labour Court finding that teacher had contract of service with Minister due to tripartite funding system.

THE SUPREME COURT

Record No. 2017/47

Clarke C.J.

O’Donnell J.

McKechnie J.

MacMenamin J.

Dunne J.

Between/

The Minister for Education and Skills

Applicant/Appellant

and

The Labour Court

Respondent

and

Anne Boyle and Committee of Management of Hillside Park Pre-School

Notice Parties/Respondents

Judgment of Mr. Justice Clarke, Chief Justice delivered the 1st November, 2018

1. Introduction

1.1 The unusual triangular or tripartite arrangement whereby much education in Ireland is funded and controlled has given rise to a

number of important and difficult legal questions over the years. The practical manner in which that system operates is not in dispute,

but the legal rights and obligations which derive from it have given rise to difficult issues. While it will be necessary to refer to the

facts of this case in due course and while there is one aspect of the relationship between the parties to this case which is, perhaps,

somewhat different to what might be described as an entirely typical situation in the field, nonetheless the broad system applies in a

very great number of situations within the State-funded educational system.

1.2 At its most basic, schools are under the management and day-to-day control of management boards or the like, although the

precise structure may vary somewhat as and between primary and secondary schools. In very many cases the salaries of all teachers

are, however, paid directly by the applicant/appellant (“the Minister”) with the terms and conditions of employment being agreed from

time to time between the Minister and representatives of teachers, or, in the absence of such agreement, being fixed by the Minister.

Even in the case of fee-paying secondary schools, a significant number of teachers’ salaries are paid in that way by the Minister with

the fees contributed by parents going to additional expenditure, whether relating to the employment of a larger number of teachers

than governmental schemes support or additional facilities or courses.

1.3 At its simplest, the triangular or tripartite system means that, for the purposes of ordinary day-to-day control including hiring,

allocation of duties and the like, teachers have their contractual relations with a board of management. The relationship of the

majority of teachers (that is, those who are paid by the Minister) with their paymaster can, however, complicate matters to the

extent that legal issues can arise as to how to characterise as a matter of law the relationship between a teacher whose salary is

paid by the State and the Minister who is responsible for making those payments and, to a very large extent, also fixes the terms on

which those payments are to be made.

1.4 It will again be necessary to set out in somewhat greater detail the way in which courts and other bodies with decision-making

power in the employment law field have approached those legal issues. However, the narrow question which arises on the facts of

this case concerns the proper legal characterisation of that relationship for the purposes of the Protection of Employees (Part-Time

Work) Act 2001 (“the 2001 Act”). In simple terms, the question is as to whether the Minister can be regarded as an employer of the

first named notice party/respondent (“Ms. Boyle”) for the purposes of that legislation, or at least for the purposes of that legislation

insofar as it relates to financial or pay matters.

1.5 That question has been before a rights commissioner, the Labour Court, the High Court on judicial review and the Court of Appeal.

The decision of the Labour Court was in favour of Ms. Boyle and held that the Minister was an employer for those purposes. Both the

High Court and the Court of Appeal refused the Minister an order quashing that decision on the grounds of being erroneous in law. It is

as against that decision of the Court of Appeal that the Minister has brought an appeal to this Court. In order to understand the

precise basis on which the matter comes before this Court, it is, perhaps, appropriate to start with a brief outline of the course of

these proceedings to date.

2. The Course of the Proceedings to Date

2.1 In 2009, Ms. Boyle sought access from the Minister to the National School Teachers’ Superannuation Scheme (“the

Superannuation Scheme”). This scheme was established under the Teachers Superannuation Act 1928, and provides pension benefits

to teachers employed in national schools. The Minister refused access to Ms. Boyle on the basis that she was not a national school

teacher employed in a national school. Rather, Ms. Boyle was a qualified secondary teacher who was working as a teacher at Hillside

Park, which was a pre-school for children from the traveller community

2.2 On the 16th March 2009, Ms. Boyle brought a complaint to a rights commissioner seeking that the terms and conditions of the

Superannuation Scheme be applied to her. She argued that she was being treated less favourably than what she asserted was a full-

time comparator, being a national school teacher working in an “Early Start” unit in a primary school. This unfavourable treatment was

said to be contrary to s. 9(1) of the 2001 Act. Ms. Boyle argued in support of this position that she was a relevant part-time

employee as she and her comparator shared the same employer, namely the Minister. The rights commissioner concluded that the

Minister was not Ms. Boyle’s employer within the meaning of s. 3(1) of the 2001 Act, nor an associate employer within the meaning of

s. 7(5) of that Act. For reasons which will become clear, it was essential in the context of this claim that Ms. Boyle and her asserted

comparator had the same or an associated employer. The rights commissioner therefore rejected the complaint as not well founded.

2.3 Ms. Boyle appealed the decision of the rights commissioner to the Labour Court. In its decision, the Labour Court first addressed

the issue of whether the Minister ought to be regarded as Ms. Boyle’s employer for the purpose of her complaint. The Labour Court

stated that it was bound by the decision of the High Court in Catholic University School v. Dooley [2010] IEHC 496. The Labour Court

concluded that, as a consequence of the decision in Dooley, the Minister was to be regarded as Ms. Boyle’s employer. Secondly, the

Labour Court considered whether Ms. Boyle and her chosen comparator were engaged in like work for the purposes of s. 9(1) of the

2001 Act. Ultimately, the Court concluded that Ms. Boyle and her comparator were both employed by the Minister, thus satisfying s.

7(2)(a) of the 2001 Act. Furthermore, the Court concluded that Ms. Boyle and her comparator were engaged in work of equal value

within the meaning of s. 7(3)(c) of the 2001 Act. Consequently, the Labour Court concluded that Ms. Boyle’s complaint was well

founded and that the decision of the rights commissioner ought to be reversed. The Labour Court directed that the Minister should

admit her to the Superannuation Scheme, effective from the 21st September 2008, and pay her €10,000 in compensation.

2.4 The Minister subsequently sought to challenge that decision of the Labour Court by way of judicial review in the High Court,

arguing that the Labour Court acted contrary to fair procedures, acted ultra vires, and that it erred in law in concluding that Ms.

Boyle and her chosen comparator were both employees of the Minister. It followed, it was said, that the Labour Court was incorrect

to direct that Ms. Boyle be admitted to the Superannuation Scheme and also that the Labour Court erred in awarding compensation

for discrimination found to have been suffered by Ms. Boyle. The High Court (O’Malley J.) (Minister for Education and Science v. The

Labour Court and ors. [2015] IEHC 429) concluded that school teachers whose salaries are publicly funded must be deemed, for the

purposes of the 2001 Act, to be employed by the Minister. Consequently, the High Court upheld the finding of the Labour Court to the

effect that Ms. Boyle was employed on the same basis as national school teachers, that Ms. Boyle had been treated less favourably

than her full-time comparator, and that she was therefore entitled to redress under the 2001 Act. However, the High Court held that

the Labour Court was not empowered to order that Ms. Boyle be admitted to the Superannuation Scheme. The matter was remitted

to the Labour Court for further consideration as regards the question of compensation.

2.5 The Minister appealed the above decision of the High Court to the Court of Appeal. The Court of Appeal (Hogan J.) (Minister for

Education and Skills v. Anne Boyle and ors. [2017] IECA 39) agreed with the ultimate conclusions of O’Malley J. in the High Court

regarding the status of the Minister as employer of both Ms. Boyle and her comparator. In particular, Hogan J. concluded that the

relationship between the Minister and Ms. Boyle gave rise to an implied contract of employment between the two parties in relation to

pay-related matters. The Court of Appeal further agreed with the High Court in holding that the Labour Court was not empowered to

order Ms. Boyle’s admittance to the Superannuation Scheme.

2.6 While it will be necessary to analyse the reasoning of the various relevant bodies or courts in due course, it is appropriate next to

turn to the basis on which the Minister obtained leave to appeal to this Court.

3. The Grant of Leave to Appeal

3.1 On the 29th March 2017, the Minister applied for leave to appeal to this Court, which leave was granted on the 19th June 2017

(Minister for Education and Skills v. The Labour Court and ors. [2017] IESCDET 58). The Court granted leave to the Minister to

pursue the appeal on the following ground:-

“[W]hether, in all the circumstances of this case, the Minister can be said to be an employer of Ms. Boyle in relation to

pay related matters for the purposes of the 2001 Act.”

3.2 Ms. Boyle did not seek leave to cross-appeal on the question of admittance to the Superannuation Scheme. That issue, therefore,

no longer forms part of the case.

3.3 While the issue on which leave was granted is substantially one of law, it is necessary to consider that legal question against the

backdrop of the facts which, as noted earlier, were not in serious contention. I therefore set out the agreed facts.

4. The Agreed Facts

4.1 Hillside Park was a segregated pre-school in Galway which provided for children from the travelling community. It was set up in

1981 by a committee under the patronage of the local bishop. That committee (“the Management Committee”) is the second named

notice party but did not take an active role in these proceedings as it is, in effect, now defunct. Ms. Boyle worked in Hillside from

1989 until the pre-school closed in 2011. Hillside opened for 3 hours’ a day, five days’ a week during the normal school year. During

her time there, Ms. Boyle was the only teacher in the school.

4.2 Hillside Park was managed by the Management Committee which was a voluntary committee. The Management Committee

controlled Ms. Boyle in the discharge of her duties. It should be noted that the Management Committee was not a Board of

Management in respect of a recognised school, as provided for in Part IV of the Education Act 1998. Furthermore, as was noted

above, while Ms. Boyle was qualified to teach in a post-primary school, she was not a qualified national school teacher. Hillside Park

was not a national school, nor any other type of recognised school within the meaning of the Education Act 1998. It should be further

noted that Ms. Boyle was herself a member of the Management Committee, and that correspondence between the Minister and the

Committee was often sent to Ms. Boyle’s home address.

4.3 Funding for traveller pre-schools was provided by the Minister by means of a grant to assist management committees in engaging

staff. Ms. Boyle’s salary was discharged both from the grant which the Management Committee received from the Minister and from

funds of the Management Committee which were raised through fundraising efforts. The grant from the Minister equated to 98% of

the salary of a national school teacher pro rata to the number of hours worked. The grant was paid by the Minister into a bank

account held in the name of the Management Committee. This included the amount payable as employer’s PRSI. The Minister also paid

a per capita grant in respect of the children enrolled in the pre-school and an equipment grant to the Management Committee. Ms.

Boyle’s entitlement to sick leave, maternity leave, annual leave and compassionate leave was determined by the extent to which the

grant payable by the Minister provided for such leave periods.

4.4 In 2006, as a result of a new traveller education strategy, there was a change in educational policy to the effect that inclusive

pre-school education of children was favoured over segregation of traveller children. The Minister decided to cease grant-aiding

segregated pre-schools for children from the travelling community following the announcement in 2009 of a universal pre-school

scheme which was to commence the following year.

4.5 As noted above, the complaint at the heart of these proceedings was brought by Ms. Boyle to a rights commissioner on the 16th

March 2009.

4.6 In 2011, following the cessation of funding for segregated traveller pre-schools, and the death of the founder of the school (Mr.

Neylon), Hillside Park closed. Ms. Boyle received a redundancy payment of €18,000 directly from the Minister in the summer of 2011.

This equated to her statutory redundancy entitlement.

4.7 As is clear from the above, for at least the vast majority of her time at Hillside Park Ms. Boyle’s salary was not paid directly by the

Minister. Rather, an arrangement was come to between the Minister and Hillside Park to the effect that the Minister would pay a grant

equating to 98% of the salary of a national school teacher to cover Ms. Boyle’s salary, with Ms. Boyle’s entitlements to annual leave,

sick leave and the like being determined in effect by the Department of Education (“the Department”). It follows that there was a

significant engagement between the parties from time to time concerning aspects of Ms. Boyle’s entitlements. A brief history of that

engagement is also potentially of relevance to the issues which arise in this case.

4.8 As noted above, Ms. Boyle was a member of the Management Committee. As it happens, some of the correspondence referred to

below is addressed to the Committee, or the chairperson, but was sent to Ms. Boyle’s home address. Similarly, it appears that in some

instances Ms. Boyle received correspondence addressed directly to her at her home address rather than receiving the correspondence

on behalf of the Committee.

4.9 Between 1989 and 1992, Ms. Boyle was paid an hourly rate. In 1992, however, the Minister introduced a scheme establishing

“Pro-Rata Pay and Conditions for Eligible Part-Time Teachers in Special Schools and other Institutions”. The scheme was open only to

part-time teachers who were wholly or mainly dependent for their livelihood on their earnings from part-time teaching, and who were

fully qualified, or part-time teachers who, though not fully qualified, had been sanctioned in their posts by the Department and who

had at least one year’s service prior to 1st September 1990. The pro rata aspect was by reference to the earnings of full-time

national school teachers.

4.10 The terms of the scheme specifically stated that it did not provide for any amendments to the then current regulations in

relation to superannuation. It also stated that, “The employment or re-employment of a teacher under the scheme is a matter for the

employer i.e. the Management Authorities of Special Schools or other Institutions.”

4.11 On the 30th September 1992, a letter was sent to Ms. Boyle from the Department setting out the differences in her entitlements

under the existing part-time teacher rate and the new scheme referred to above. The letter advised Ms. Boyle that “the main

advantage of the EPT [Eligible Part-Time] scheme is the fact that you will be on a fixed annual salary which will continue to be paid

during periods of sick leave or maternity leave.” Ms. Boyle’s application to the scheme was acceded to.

4.12 Ms. Boyle became an “Eligible Part-Time” teacher in 1992. Her salary was set at the first point of the scale with an allowance for

her degree and her H.Dip. Ms. Boyle was informed that, as she was not a fully qualified national teacher, she would remain on this

point of the scale.

4.13 On the 26th April 1996, a letter was sent to Ms. Boyle from the Department concerning her application to receive an allowance

for a master’s degree in education, which degree had been conferred on Ms. Boyle in 1995. Ms. Boyle was advised that, as it was not

possible to hold three qualification allowances under the existing salaries scale for teachers, her master’s qualification would be

substituted for one of the two existing allowances. Consequently, the grant payable in respect of Ms. Boyle’s salary was increased.

4.14 In 2000, the Minister decided that, due to a shortage of teachers, qualified secondary teachers taking up posts in national

schools in a temporary or substitute capacity would be paid at a rate applicable to qualified primary teachers. This was set out in

Circular 0024/2000. Ms. Boyle successfully applied to be included in the new arrangement and accordingly was placed on the second

point of the scale. Thereafter, the incremental salary scale was applied to her and she continued to progress through the incremental

scale for the rest of her employment. However, the grant remained capped at 98% of what would have been payable had she been

employed by a national school.

4.15 As noted above, the way in which the grant provided by the Minister was disbursed was via a system of payment of a grant to

the school as opposed to direct payment to the teacher to whom the grant related. However, in 2008 the Department issued Circular

2008/88, which altered the grant system on a phased basis to direct payments to the teacher. This was done with a view to reducing

the administrative burden on schools and also to help ensure the terms of the 2001 Act were fully implemented for part-time

teachers. This new direct payment system was implemented in January 2011 for traveller pre-schools.

4.16 On the 12th January 2010, a letter was sent from the Department to the chairperson of the Management Committee explaining

that the grant in respect of Ms. Boyle’s salary was reduced proportionately so as to reflect the reduction in the salary of national

school teachers provided for under the Financial Emergency Measures in the Public Interest (No. 2) Act 2009 (“FEMPI”).

4.17 In November 2010, in a Circular (0070/2010) sent by the Department, it was explained, in relation to a question as to whether

certain staff who had not been subject to the pension levy introduced in earlier legislation were subject to pay reductions under

FEMPI, that all staff employed by a recognised school or VEC come within the definition of public servant “solely for the purposes of

the Act.” Under the heading of “Categories of Staff who will now be affected” the Circular referred to “Teachers employed in Traveller

preschools”.

4.18 Against that factual backdrop it is then necessary to look at the relevant legal issue which arose at each stage of these

proceedings. The legal framework operates within the ambit of the 2001 Act to which it is now necessary to turn.

5. The 2001 Act

5.1 It is first appropriate to look at the relevant provisions of the 2001 Act itself. The long title of the 2001 Act states that it is an

act “to provide for the implementation of Directive 97/81/EC of 15 December 1997 [the part-time workers Directive] …”.

5.2 Section 9(1) of the Act provides:-

“Subject to subsections (2) and (4) and section 11(1), a part-time employee shall not, in respect of his or her conditions of

employment, be treated in a less favourable manner than a comparable full-time employee.”

5.3 Section 7(1) defines the term “part-time employee” as follows:-

“‘part-time employee’ means an employee whose normal hours of work are less than the normal hours of work of an employee who is a

comparable employee in relation to him or her;”

5.4 Section 3(1) defines the term “contract of employment” as meaning:-

“(a) a contract of service or apprenticeship, and

(b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency

within the meaning of the Employment Agency Act, 1971, and is acting in the course of that business, to do or perform personally any

work or service for a third person (whether or not the third person is a party to the contract),

whether the contract is express or implied and, if express, whether it is oral or in writing;”

5.5 The term “employee” is defined as:-

“… a person of any age who has entered into or works under (or, where the employment has ceased, entered into or worked under) a

contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee

employed by that employer; and for the purposes of this Act, a person holding office under, or in the service of, the State (including

a civil servant within the meaning of the Civil Service Regulation Act, 1956 ) shall be deemed to be an employee employed by the

State or Government, as the case may be, and an officer or servant of a local authority for the purposes of the Local Government

Act, 1941 , or of a harbour authority, health board or vocational education committee shall be deemed to be an employee employed

by the authority, board or committee, as the case may be;”

5.6 The term “employer” is defined as follows:-

“‘employer’ means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works

under (or, where the employment has ceased, entered into or worked under) a contract of employment, subject to the qualification

that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is

liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual's

employer;”

5.7 Section 7(2) of the 2001 Act makes provision for the identification of a “comparable employee” in relation to a part-time

employee:-

“(2) For the purposes of this Part, an employee is a comparable employee in relation to the employee firstly mentioned in the definition

of “part-time employee” in this section (the “relevant part-time employee”) if—

(a) the employee and the relevant part-time employee are employed by the same employer or associated employers and one of the

conditions referred to in subsection (3) is satisfied in respect of those employees,

(b) in case paragraph (a) does not apply (including a case where the relevant part-time employee is the sole employee of the

employer), the employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to

the relevant part-time employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable

employee in relation to the relevant part-time employee, or

(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the

relevant part-time employee is employed in and one of the conditions referred to in subsection (3) is satisfied in respect of those

employees,

and references in this Part to a comparable full-time employee in relation to a part-time employee shall be construed accordingly.”

5.8 Section 7(3) of the 2001 Act goes on to provide:-

“(3) The following are the conditions mentioned in subsection (2)—

(a) both of the employees concerned perform the same work under the same or similar conditions or each is

interchangeable with the other in relation to the work,

(b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the

other and any differences between the work performed or the conditions under which it is performed by each, either are

of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and

(c) the work performed by the relevant part-time employee is equal or greater in value to the work performed by the

other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and

working conditions.”

5.9 Section 16 of the 2001 Act makes provision for the making of complaints under the Act to a rights commissioner. Section 17

concerns appeals from decisions of a rights commissioner to the Labour Court.

5.10 It is important, therefore, to note the structure of the Act. In order for a successful claim to arise under the legislation it is

necessary that one of the three conditions set out in s. 7(2) of the 2001 Act is met. As can be seen, each of those provisions

involves a comparison with what is described in the legislation as a comparator who is in substance a full-time employee meeting the

conditions set out in one or other of the sub subsections of s. 7(2).

5.11 As already noted, in the circumstances of this case, a decision was made under s. 7(2)(a) which requires both the claimant

employee and the comparator to be in the same employment. As also noted earlier, the comparator in this case was a qualified

national school teacher who worked in an “Early Start” unit for pre-school age children within a national school. Thus, in order for the

Labour Court to have been correct to come to the conclusion that s. 7(2) was met, it would be necessary also to conclude that both

Ms. Boyle and that other relevant teacher had the same or an associated employer, with it following that, for practical purposes, it

would be necessary to determine that, as a matter of law, both could be regarded as being in the employ of the Minister.

5.12 It is in that specific legal context that the question of whether it can properly be said that Ms. Boyle was, at least for financial

and pay purposes, an employee of the Minister comes into proper focus. That is, thus, the net issue which this Court has to

determine.

5.13 As part of the process of considering that question, it is necessary to have regard to a number of decisions of both courts and

other bodies in the employment law sphere which have considered the status of persons in the triangular or tripartite teacher type

arrangements which are at the heart of these proceedings and their legal relationship with the Minister for the purposes of other

legislation. I would propose, therefore, to review the case law on other legislation in that context.

6. The Case Law on other Legislation

6.1 In their submissions, counsel for Ms. Boyle have highlighted at least two instances where they argue that the Minister has

accepted that he is the appropriate respondent to claims made by teachers on pay-related matters. Firstly, under the Payment of

Wages Act 1991 (“the 1991 Act”) and secondly under the Employment Equality Acts 1998-2015 (“the Employment Equality Acts”).

6.2 Sullivan v. The Department of Education [1998] E.L.R. 217 is a decision of the Employment Appeals Tribunal, on appeal from a

decision of a rights commissioner, concerning a complaint made under the 1991 Act. The claimant teacher argued that she had been

wrongly denied access to a particular qualification allowance and that this amounted to an unlawful deduction of wages within the

meaning of the 1991 Act. The Minister contended among other things that he was not the employer of the claimant, but was merely a

“paying agent”. At this stage, it is worth briefly setting out the relevant provisions of the 1991 Act before turning to the decision of

the Tribunal.

6.3 Section 1(1) of the 1991 Act defines the term “contract of employment” as follows:-

“(a) a contract of service or of apprenticeship, and

(b) any other contract whereby an individual agrees with another person to do or perform personally any work or service

for a third person (whether or not the third person is a party to the contract) whose status by virtue of the contract is

not that of a client or customer of any profession or business undertaking carried on by the individual, and the person

who is liable to pay the wages of the individual in respect of the work or service shall be deemed for the purposes of this

Act to be his employer,

whether the contract is express or implied and if express, whether it is oral or in writing;”

6.4 The term “employee” is defined as:-

“[A] person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of

employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by

that employer; and for the purpose of this definition, a person holding office under, or in the service of, the State (including a member

of the Garda Síochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act

1956, shall be deemed to be an employee employed by the State or the Government, as the case may be, and an officer or servant of

a local authority for the purposes of the [Local Government Act 2001 (as amended by the Local Government Reform Act 2014)], a

harbour authority, [the Health Service Executive] or [a member of staff of an education and training board] shall be deemed to be an

employee employed by the authority, [Executive] or [board], as the case may be;”

6.5 Finally, the term “employer” is defined as:-

“[T]he person with whom the employee has entered into or for whom the employee works under (or, where the employment has

ceased, entered into or worked under) a contract of employment;”

6.6 The Tribunal rejected the Minister’s argument in Sullivan that he was not the employer of the complainant for the purposes of the

1991 Act. The Tribunal set out its conclusions in this regard in the following terms:-

“The Tribunal does not accept that the Department is not the employer. The board of management or other managing

authority of a school may well have a role in the day to day running of the school and indeed in engaging teachers,

interviewing etc. The reality is that such boards of management or other managing authority in relation to state schools

have little or no role when it comes to the question of remuneration of teachers which is a most important element and

aspect of the relationship between teachers and their employers. The Tribunal considers that the role of the Department

of Education goes beyond that of ‘paying agent’. The Department is empowered to negotiate teachers' salaries and

qualification allowances and makes policy decisions in relation to the type of degree which Ms Sullivan and other teachers

have studied for in relation to the status of such degree as regards qualification allowances. The Department has a role in

the whole area of maintaining appropriate pupil/teacher ratio indirectly and regulates the number of teachers in any

particular school as in the scheme of redeployment. If ultimately redeployment in the case of any particular teacher

cannot be settled by agreement, the Minister is empowered to withhold the grant of the sum of money which would go

towards paying that particular teacher's salary and effectively has the power to deprive a particular teacher of his or her

salary.”

6.7 Later, in its decision in Sullivan, the Tribunal stated:-

“Furthermore because of the minimal role which the board of management or other managerial authority exercises in

relation to the whole question of teachers' remuneration especially in the case of a full-time teacher it follows that where

a teacher has a complaint/query in relation to his or her salary or takes issue with it the teacher in question is likely to

end up dealing with the Department and not the school. When it comes to the question of remuneration, for the

Department to say that it is not the employer would effectively mean that as far as the question of remuneration would

go the teacher would have no employer which is inconceivable. If a deduction is made from a teacher's salary the school

is likely to say that it, having no role in the question of payment of remuneration, cannot be considered to have made

such deduction and the Department may say that it is not the employer for the purposes of any aspect of the teacher's

employment. It is inconceivable that all of the teachers in the country should not have the benefit of the Payment of

Wages Act 1991. It is difficult to see how the board of management could, short of ordering the Department to make a

deduction, actually make a deduction from any particular teacher's remuneration.”

6.8 Thus, counsel for Ms. Boyle place reliance on the conclusions of the Tribunal in this context as supporting their argument that the

Minister is Ms. Boyle’s employer for the purposes of the 2001 Act. Indeed, it was pointed out that the Minister now accepts the

conclusions of the Tribunal in Sullivan in this regard. However, it must be noted that there are differences in the wording of the

relevant definitions in the 1991 Act and the 2001 Act, and the Minister points to these differences as justification for distinguishing

claims arising under each Act from one another. In particular, the definition of “contract of employment” in the 1991 Act refers to:-

“[A]ny other contract whereby an individual agrees with another person to do or perform personally any work or service

for a third person (whether or not the third person is a party to the contract) whose status by virtue of the contract is

not that of a client or customer of any profession or business undertaking carried on by the individual, and the person

who is liable to pay the wages of the individual in respect of the work or service shall be deemed for the purposes of this

Act to be his employer, whether the contract is express or implied and if express, whether it is oral or in writing;”

(Emphasis added)

6.9 Such a deeming clause is absent from the definition of “contract of employment” in the 2001 Act. It is important to note,

however, that the 2001 Act does have a different deeming provision concerning agency workers. Counsel for the Minister suggested

that the presence of one deeming provision but the absence of a deeming provision such as appears in the 1991 Act points strongly

against any contract of employment being implied or deemed to exist with a person liable to pay wages.

6.10 Counsel for Ms. Boyle also refer to the decision of the Workplace Relations Commission (“WRC”) in Horgan and Keegan v.

Department of Education and Skills and others (Workplace Relations, decision number DEC-E2016-041, 4 March 2016). The dispute in

that case concerned a claim by the complainants, who were primary school teachers, that they were discriminated against by the

Department of Education and Skills, the Department of Finance, the Department of Public Expenditure and Reform, the Government of

Ireland, Ireland and the Attorney General on the grounds of age in relation to their rates of remuneration. They contended that they

performed “like work” to a named comparator and were entitled to equal remuneration under the Employment Equality Acts. Again, an

aspect of this decision was the question of whether the respondents were the proper respondents for the purpose of the applicable

legislation.

6.11 Section 77(4)(b) of the Employment Equality Act 1998 (“the 1998 Act” which forms part of the Employment Equality Acts) states

that, “In this Part, in relation to a case referred under any provision of this section”, “the respondent” is defined as the person “who

is alleged to have discriminated against the complainant or, as the case may be, who is responsible for providing the remuneration to

which the remuneration term relates or who is responsible for providing the benefit under the equality clause or who is alleged to be

responsible for the victimisation.”

6.12 Section 2(1) of the 1998 Act defines “employer” as:-

“‘employer’, subject to subsection (3), means, in relation to an employee, the person with whom the employee has entered into or for

whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;”

6.13 Subsection (3) states:-

“For the purposes of this Act—

(a) a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the

Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956, shall be

deemed to be an employee employed by the State or Government, as the case may be, under a contract of service,

(b) an officer or servant of a local authority for the purposes of the Local Government Act, 1941, a harbour authority, a

health board or a vocational education committee shall be deemed to be an employee employed by the authority, board or

committee, as the case may be, under a contract of service, and

(c) in relation to an agency worker, the person who is liable for the pay of the agency worker shall be deemed to be the

employer.”

6.14 At para. 3.1 of the WRC decision in Horgan and Keegan, it is noted that the respondents submitted that they were not the

correct respondents, and that the correct respondents were the boards of management of the schools where the complainants were

working at the time they referred their claims. However, later in the decision, at para. 4.1, the WRC notes:-

“The complainants named six respondents who, in their written submissions, they contend are all have responsibility for

the pay of the complainants. Whilst in their written submission the respondents contended that the correct respondents

are the Boards of Management of the schools where the complainants were first appointed as teachers. At the hearing

the Department of Education and Skills conceded that they were responsible for the remuneration of the complainants.”

6.15 Again, counsel for Ms. Boyle argue that this creates a somewhat strange situation in that the Minister has acknowledged that he

is the proper respondent to claims made by teachers in relation to pay-related matters arising under the Employment Equality Acts

but does not acknowledge the same in relation to Ms. Boyle’s claim under the 2001 Act. However, counsel for the Minister submit that

the Minister has merely acknowledged that he is the appropriate respondent within the definition of that term in the Employment

Equality Acts. The Minister submits that this is not the same as conceding that the Minister comes within the definition of “employer”

as that term is used in the 2001 Act. The Minister submits that there is therefore no inconsistency in approach between the stance

taken in relation to the Employment Equality Acts and that adopted in the present case. It should, however, be noted that there

would be a significant question about the extent to which a court could properly be influenced in objectively construing a statute

even if it were shown that a party, such as the Minister, had adopted inconsistent interpretations of similarly worded legislative

provisions.

6.16 At this stage it might also be useful to refer to the decision of the High Court in Dooley. That case concerned a claim under the

2001 Act brought by part-time teachers who were paid by their school out of privately raised funds. They chose as their comparators

full-time teachers at the same school but whose salaries and benefits were paid by the Department of Education. There was no

dispute as to the fact that the claimants were treated less favourably. The Labour Court upheld the claim and the school appealed to

the High Court on a point of law. An aspect of the appeal in the High Court was a question as to whether the claimants had chosen

an appropriate comparator for the purposes of the 2001 Act. This in turn required an analysis of whether it could be said that the

claimants and their comparators were employees of the same employer.

6.17 In her judgment in the High Court, Dunne J. engaged in an analysis of the relevant legislative provisions and case law,

particularly the decision of the Supreme Court in O’Keeffe v. Hickey [2008] IESC 72. O’Keeffe concerned the issue of vicarious liability

in the context of the tripartite relationship between teacher, school and the Department. Dunne J. stated in this regard:-

“There is no doubt that the school is the employer of the claimants. Bearing in mind the decision in O’Keeffe v Hickey, it

appears that the school is also the employer of the chosen comparators for the purpose of issues of vicarious liability.

That decision highlights the unusual tripartite relationship between the Department funded teacher, the Department and

the school. However, the provisions of s. 24 of the Education Act 1998 are also of importance. S. 24 (3) makes it clear

that the task of appointing teachers funded by the State falls on the board of management of a school. S. 24 (5) of the

Act makes it clear that the terms and conditions of teachers funded by the State shall be determined by the Minister,

with the concurrence of the Minister for Finance.

In a private school there will be a cohort of Department funded teachers and usually there will also be a cohort of

privately paid teachers. The paymaster for each cohort is different. In the case of O’Keeffe v Hickey to which I have

referred above, the unusual nature of the tri-partite agreement was described; the Board of management was found to be

the employer of the teacher concerned in that case which involved the question of vicarious liability although the teacher

was paid by the Department. There is no tri-partite arrangement in the case of the claimants.”

6.18 Dunne J. later went on to consider the decision in Sullivan, which was referred to above. Dunne J. stated:-

“The decision in the case of Sullivan v Department of Education highlights the different and complicated employment

arrangements as between Department funded teachers and privately funded teachers. One wonders what relief, if any,

could have been obtained by the claimant in the case of Sullivan v Department of Education had she pursued her case

against the school concerned as opposed to the Department. It is hard to see how the Tribunal in that case could have

come to any other conclusion. The recognition of qualifications and the payment of a qualification allowance was always a

matter to be dealt with by the Department of Education, because it set the criteria for the payment of that allowance.

That case provides one small example of the different contractual arrangements that exist between Department funded

teachers and the school in which they are employed and privately funded teachers and the school in which they are

employed.”

6.19 Dunne J. concluded that the Department had to be viewed as the employer of the chosen comparators in Dooley. This conclusion

was expressed as follows:-

“Although the chosen comparators appear to come within the definition of comparable full-time employees as defined in

the legislation, I have come to the conclusion that because of the fact that the Minister determines the terms and

conditions of the Department funded teacher and the school determines the terms and conditions of the privately paid

teachers, the Labour Court has fallen into error in finding that the claimants were entitled to choose a full time

Department funded teacher as a comparator. The school has no hand, act or part in determining the salary and other

terms and conditions of the Department funded teacher. In determining the employer for the purpose of the legislation in

relation to agency workers, the legislation expressly provides that the party paying the worker is, for the purposes of the

legislation, the employer. I think the school is in an analogous position. I do not accept that the chosen comparators have

the same type of employment contract or relationship as the claimants with the school. To that extent, it seems to me

that the Department has to be viewed as the employer of the chosen comparators for the purpose of the legislation.”

6.20 It might be noted that the decision in Dooley was followed by Hedigan J. in Blackrock College v. Browne [2013] IEHC 607.

However, it should be said that the operative part of the judgment of Dunne J. in Dooley was concerned with whether the chosen

comparators had the same type of employment contract. The Court found that the Labour Court was in error in determining that the

claimants in that case were entitled to choose a full-time Department funded teacher as a comparator. The clear and obvious

comparator in that case was a full-time privately funded teacher. There was however no discrimination between those two groups. It

is clear that the result in Dooley can be sustained without the conclusion that the Minister was the employer in that case. The

analysis relating to the identity of the claimant’s employer for the purposes of the Act was, to that extent, obiter, for the claim would

have failed on the basis of the choice of an inappropriate comparator in any event.

6.21 Having reviewed the relevant case law I now propose to analyse the issues which arise.

7. Analysis

7.1 Counsel for the Minister did draw attention to the fact that different language was used by various decision makers and courts to

describe the legal nature of the relationship between Ms. Boyle and the Minister in the circumstances of this case. The Labour Court

simply considered itself bound by the decision of the High Court in Dooley. O’Malley J., in the High Court in this case, concluded that

persons in a position such as Ms. Boyle “must be deemed” to be employed by the Minister. Hogan J., writing for the Court of Appeal,

concluded that the relationship between the parties gave rise to an implied contract of employment in relation to pay related matters.

7.2 I am not, however, convinced that too much turns on the different language used. In substance each of the tribunals or courts

concerned were required to consider whether the relationship was such as to bring the Minister within the ambit of employer for the

purposes of the 2001 Act. It seems to me to follow that the provisions of that Act must be central to any analysis. As noted earlier it

is necessary, in order for a sustainable decision of breach of the 2001 Act to arise, that both the claimant and the comparator are

employees and, in the case where, as here, the finding is made under s. 7(2)(a), that they are employees of the same or an

associated employer. An employee is defined by reference to someone who has “a contract of employment”. That term is in turn

defined as being a contract of service or apprenticeship or, in circumstances not relevant to this case, certain situations arising in the

context of employment agency.

7.3 It follows, therefore, that in order for a claimant under the 2001 Act to succeed, at least in circumstances where reliance is

placed on s. 7(2)(a), then that person must have a contract of service with the same employer as the comparator put forward.

7.4 It seems to me to follow that the real question which arises is as to whether there is any sense in which it can be said that Ms.

Boyle, and indeed the primary teacher comparator put forward, can be said to have a contract of service with the Minister. If that

cannot be said to be the case as a matter of law, then it is clear that no finding of breach of the 2001 Act can properly be made in

the circumstances of this case. The net question is, therefore, whether the unusual relationship which exists between a teacher, a

board or committee of management and the Minister can properly be construed as involving, at least in part, a contract of service

between a teacher and the Minister. In addition, there is the added question which arises where, as here, the Minister did not always

pay the teacher directly but rather paid a grant to a school based on a calculation by reference to the teacher’s salary, bearing in

mind of course that this system was gradually phased out (see para. 4.15 above). Before going on to consider that question it is

appropriate to look to the reasons why both the High Court and the Court of Appeal were satisfied that the Labour Court was correct

to conclude as it did.

8. The Decisions of the High Court and the Court of Appeal

8.1 As noted previously, the decision of the High Court was delivered by O’Malley J. The trial judge began her analysis by reviewing

the relevant authorities, including O’Keeffe v. Hickey, Dooley, and the decision of this Court in McEneaney v. Minister for Education

[1941] I.R. 430. She went on to note that much of the focus in the authorities is on the relationship between the school management

and the teacher. O’Malley J. states:-

“… it is clear beyond argument that the former holds responsibility for hiring, discipline and dismissal. These aspects are

the ones that are likely to give rise to issues of vicarious liability, since that is a concept that is related to control of an

employee’s behaviour. Questions as to the responsibility of the State for the actions of teachers have been answered in

the light of this aspect of the triangular relationship.”

8.2 O’Malley J. then turned to the question of funding of the education system in Ireland, noting that this system is funded to a

significant degree by the State. However, it is further noted that the State has a large degree of control over the conditions under

which the funds it provides may be disbursed, particularly with regard to the paying of teachers’ salaries:-

“[The State] sets the rules according to which it pays the salaries of teachers, where they are not paid out of privately

sourced funds. Salaries will not be paid by the Department unless the teachers chosen by the management have the

qualifications required by the Department, and unless the allocation of posts by the Department to the school in question

permits appointments to be made. The rates of pay, including allowances for qualifications, posts of responsibility and so

on, are negotiated by the Department in a collective bargaining process under the auspices of a statutory body (the

Teaching Council) rather than being set by the individual school management bodies negotiating with individual teachers.

In other words, the Department carries out, in respect of State funded teachers, the role normally carried out by an

employer with regard to payment of employees.”

8.3 O’Malley J. further noted the point made above, in the context of the EAT decision in Sullivan, to the effect that the State now

concedes that it is to be considered the employer for the purposes of the Payment of Wages Act 1991. O’Malley J. stated:-

“It is of course the case that the definitions in that Act are different to those under consideration, but the definition from

the Payment of Wages Act (set out at paragraph 50 above), is premised on the concept of a person who is ‘liable to pay

the wages’. The Minister is, therefore, accepting that he is that person. This position is now confirmed by the provisions

of the Education Act, 1998 as amended, s. 24 of which provides for the powers of the Minister in relation to teachers’

pay.

This, in my view, is one of the results of the unique tripartite arrangement in relation to education in this State. In

relation to teachers whose salaries are paid by the State the role of employer is, uniquely, split. Part of it is played by the

management of an individual school and part by the Department of Education. The former has the right to hire, discipline,

dismiss and generally direct a teacher in the day-to-day running of the school. The Department, on the other hand, sets

the rules about, and pays, the salaries. Since it thereby takes on what would normally be the rights of an employer in

relation to pay, it follows, in my view, that it carries the legal duties of an employer associated with pay.”

8.4 Following this discussion, O’Malley J. went on to consider the factual reality of how the tripartite relationship between teacher,

school and State operates. She stated:-

“If the Department did not act in this manner, it is difficult to imagine how the school system could function. It is not just

the sheer impracticality of making individual members of boards of management legally responsible for teachers’ payment

issues in State funded schools – if that were the law, and it was known to be such by members of school boards, it would

seem unlikely that they would be willing to act. The situation in this regard is as the Supreme Court [in McEneaney] saw it

in 1940s Ireland, when it described the proposition put forward by the Minister as ‘quite at variance with reality’. There is

also the fact that the school boards, unlike other employers, do not have control over the salary rates paid to their

employees. It is therefore difficult to see how they could be responsible for paying them. As Dunne J. said of the EAT

decision in Sullivan, that case could hardly have been decided any other way, given the unlikelihood that a claim could be

made against the school in relation to a matter controlled by the Department.”

8.5 Regarding the fact that Ms. Boyle was not employed in a school recognised under the Employment Act 1998, O’Malley J. did not

consider this to support the Minister’s contention that he was not Ms. Boyle’s employer:-

“… there is no legislation, or other rule of law, to prevent the Minister from entering into the kind of arrangement under

which Ms. Boyle was employed for over twenty years. During that time, she was paid at a rate determined by the

Minister. In accordance with rules promulgated from time to time by the Minister, she was paid qualification allowances by

the Department, put on a twelve-month salary with provision for sick leave and maternity leave, put on an incremental

scale, and, ultimately, paid redundancy. While she was still in employment the Department adopted a policy of phasing in

direct payment to teachers in her position, rather than via the management committee. All of this is consistent with the

legal responsibility of an employer for pay-related issues.

The Minister argues that Ms. Boyle has no entitlement to a pension because she was not a national school teacher, and

the pension scheme is limited to national school teachers. It seems to me that this is a matter that goes to the

appropriateness of the remedy rather than Ms. Boyle’s substantive rights under the Act. If one accepts, as I do, that for

the purposes of the Act she must be deemed to be employed by the Minister, then what she has to do is demonstrate

that she has been treated less favourably than full-time employees who are doing comparable work within the definition of

the Act. The Labour Court found in her favour on this aspect, and that finding is not challenged in these judicial review

proceedings. The mere fact that she worked in a different type of establishment cannot in itself be a bar to redress, and

the Minister would bear the burden of showing that there was objective justification for the different treatment.”

8.6 As a result of the foregoing, O’Malley J. concluded that school teachers whose salaries are publicly funded must be deemed, for

the purposes of the 2001 Act, to be employed by the Minister for Education.

8.7 The decision of the High Court was appealed to the Court of Appeal. As noted earlier, Hogan J. delivered the judgment of that

Court. Hogan J. engaged in a review of the jurisprudence concerning the tripartite relationship between teacher, school and the

State. In particular, it might be noted that Hogan J., in considering McEneaney and Fox v. Higgins [1912] 46 I.L.T.R. 222, referred to

“a note of realism” in these early Supreme Court decisions “looking beyond the contractual formalities to the substance of that

relationship.”

8.8 Following this review of the authorities, Hogan J. turned to consider the question of whether the Minister is an employer of Ms.

Boyle for the purposes of the 2001 Act. At the outset, Hogan J. stated that there is no easy answer to that question:-

“Specifically, the nature of the triangular pact identified by Gibson J. in Fox over 100 years ago still defies any standard

conceptual analysis, at least for the purposes of the general law of contract.”

8.9 Hogan J. went onto consider the fact that it is the Minister who pays the salary of the teacher and all other employment benefits.

Furthermore, Hogan J. noted that when the decision was taken in 2009 to cut the pay of public servants, it was not suggested that

as teachers “were not employees of the Minister, the Oireachtas had no business in interfering with the contractual arrangements

agreed between schools and their employees.” Hogan J. went on to state:-

“That in itself should be a powerful practical indicator that the national school teachers are, indeed, employees of the

Minister, at least for the purposes of pay-related issues arising from social and employment legislation such as the 2001

Act which has been enacted for the benefit of such employees. One might otherwise ask: why is the Minister engaged in

the payment of these salaries and benefits for persons who are for all purposes the employees of others? This is scarcely

gratuitous benevolence on the part of the Minister, but rather reflects an underlying reality which transcends the formal

contract of employment between the school and its teachers.”

8.10 Hogan J. then turned to O’Malley J.’s analysis in the High Court with regard to how the triangular or tripartite relationship should

be viewed in different legal contexts and in particular the practical division of labour between the board of management of a school

and the Minister with regard to certain aspects of the employer/employee relationship – the management taking responsibility for the

day-to-day running of the school and control of teachers in the discharge of their duties, and the Minister being responsible for the

payment of salaries and the making of rules in that regard. Hogan J. noted that this division is not inconsistent with the conclusions of

the majority of the Supreme Court in O’Keeffe v. Hickey.

8.11 Hogan J. went on to consider the somewhat unusual position of Ms. Boyle:-

“It is true, of course, that the position of Ms. Boyle was slightly further removed from the Minister than that of the

ordinary primary teacher. For most of the period of her employment, 98% of her salary was paid by the Minister to the

school’s management committee rather than to her directly. But even then this was just a method of payment which was

in the course of being phased out by the Minister and was, over time, to be replaced by a system of direct payments by

the Minister to the teachers concerned.”

8.12 Furthermore, Hogan J. noted that Hillside Park was not a recognised national school, but went on to state:-

“Ms. Boyle’s appointment and employment for over twenty years was nonetheless contingent on the approval and consent

of the Minister and she was paid at a rate determined by the Minister in the manner envisaged by s 24(2) of the 1998 Act

(as amended). Furthermore, in accordance with rules promulgated from time to time by the Minister, she was paid

qualification allowances by the Minister with provision for sick leave and maternity leave and was placed on an

incremental scale.”

8.13 Hogan J. further noted in this regard that it was a decision of the Minister to withdraw funding for segregated traveller pre-

schools which ultimately led to the closure of Hillside, and which in turn brought about the termination of Ms. Boyle’s employment.

Furthermore, the Minister paid Ms. Boyle’s redundancy.

8.14 Hogan J. went on to record his approval of O’Malley J.’s comments in the context of the practical operation of the 2001 Act and

the protections it affords employees. In particular, Hogan J. referred to the comments in the High Court judgment, which are quoted

earlier, concerning the impracticality of making individual members of boards of management legally responsible for teachers’ payment

issues and the fact that, were the Minister’s position to be accepted and were the Minister to set without justification rates of pay

which are less favourable to part-time employees, the only redress available to such employees would be as against the school.

Hogan J. concluded in this regard:-

“Viewed from these perspectives, it seems idle to deny that as a matter of reality the Minister was in substance the

employer of Ms. Boyle, at least so far as matters relating to remuneration and employment legislation designed for the

benefit of part-time employees such as the 2001 Act is concerned. It is true that there was no actual express contract of

employment between the parties, but I find myself coerced to conclude in these circumstances that there must have

been an implied contract of employment between the Minister and Ms. Boyle in relation to pay-related matters within the

meaning of the definitions of ‘contract of employment’ and ‘employee’ contained in s. 3(1) of the 2001 Act.

It follows in turn that in view of that statutory definition that there must have been an implied contract of service

between Ms. Boyle and the Minister in relation to pay-related matters. But this should not in itself be a surprising

conclusion. If, for example, Ms. Boyle had not performed her teaching duties, could she have expected that the Minister

would have been under a continuing obligation to pay her? Or, to take the example given by O’Malley J., if pay-rates had

been introduced for part-time teachers which could not be objectively justified in comparison with the pay paid to full-

time teachers, is to be said that the part-time teacher’s only remedy was against the school? The very fact that the

answers to these questions are so obviously in the negative illustrates in its own way why it would be unrealistic to

conclude that there was anything other than an implied contract of service between these the Minister and the teacher,

at least for pay-related matters in the context of the 2001 Act.”

8.15 Finally, Hogan J. compared the definitions of “employers” in the 1991 Act and the 2001 Act and in particular the lack of a

deeming provision in the latter instance, as referred to earlier in this judgment. Hogan J. set out several reasons which he considered

explain the difference between these two statutory definitions. First, he noted that the 1991 Act is a “particular, special” act, which

is not necessarily to be construed in common with the 2001 Act. Hogan J. considered this view to be supported by the fact that the

2001 Act makes provision for the collective construction of several pieces of employment legislation, but does not refer to the 1991

Act. Secondly, Hogan J. stated:-

“It is clear that the deeming technique employed in the 1991 Act is not expressed to be general and all encompassing. It

is rather more specific in its purpose and range: it is a deeming provision used for the purposes of the 1991 Act and for

that purpose only. The fact that this artificial deeming technique was not replicated in the 2001 Act does not lead to the

inexorable conclusion that there was no such implied contract of service between the Minister and the teacher for the

purposes of the 2001 Act if the legal realities of the relationship between the parties in truth suggest otherwise.”

8.16 Finally, it is noted that the purpose of the 2001 Act, as set out in its long title, is to transpose a variety of EU directives. As

such, the use of an artificial deeming technique in the earlier, purely national, piece of legislation should not be held to mean the 2001

Act, which was drafted in the context of the transposition of EU law, should be interpreted in light of the 1991 Act.

8.17 Ultimately, Hogan J. concluded:-

“It is also true that all of this leads to the rather unsatisfactory conclusion – at least viewed from the perspective of

orthodox principles of contract law - that Ms. Boyle had two employers and, furthermore, that whereas she had an

express contract with the school, her contract with the Minister was merely implied. Nor is it satisfactory that Ms. Boyle

must be regarded to be an employee of the Minister only for some purposes (such as, for example, availing of employment

protections in matters relating to pay and remuneration contained in the 1991 Act and 2001 Act respectively) and not for

others (such as vicarious liability as per O’Keeffe). Yet any other conclusion seems at variance with the underlying

realities and would represent the triumph of contractual formalism over the substance of employment rights. In the

context of the employment rights conferred by the 2001 Act - which in turn sought to transpose an EU Directive designed

to protect a group of vulnerable employees in relation, inter alios, to pay related matters - it is surely the substance of

that employment relationship which should count.”

8.18 It should be noted that both the High Court and the Court of Appeal concluded that the Labour Court was not empowered to

order that the Minister admit Ms. Boyle to the superannuation scheme. However, as this point was not pursued by Ms. Boyle on

appeal to this Court, the reasoning of the lower courts in this regard is not relevant for present purposes.

8.19 In the light of those decisions the issue for this Court really comes down to a question of whether the reasoning which led both

the High Court and the Court of Appeal to conclude, in substance, that there was a contract for service between the Minister and

Ms. Boyle was correct. I turn to that question.

9. Discussion

9.1 It is important to recall, as noted earlier, that, in order for the decision of the Labour Court to be correct in law, it is necessary

that both Ms. Boyle and the comparator teacher be regarded as employees of the Minister for the purposes of the 2001 Act. There

are, of course, additional factors which arise in the case of Ms. Boyle which do not apply in the case of many teachers. So far as

most teachers are concerned, the payment of their salary, as well as the fixing of its terms and conditions, is always actually done by

the Minister. In the case of Ms. Boyle there was, at least when she was first employed and for a significant period, an added layer of

distance. It is true that the grant paid by the Minister to Hillside Park covered almost all of Ms. Boyle’s salary (98%) and that the

grant in question went up and down by reference to the salary which someone in the position of Ms. Boyle might have been paid had

she been a teacher paid in the ordinary way by the Minister (at least as the arrangements between the parties ultimately developed).

Certainly, as a matter of form there is, therefore, a significant difference between her case and that of any teacher whose salary was

at all times paid directly by the Minister, although, as has been noted above, this system of payment to the school as opposed to the

teacher was phased out gradually over several years.

9.2 It is also important to note that, while the particular arrangements which applied in Ms. Boyle’s case were somewhat unusual, the

issues which arise in this case have the potential to affect a much wider category of employment arrangement. There are a wide

range of situations where, to a greater or lesser extent, a third party may be said to provide the funding for a contract of

employment. Obviously the direct payment by the Minister of many teachers involves a particularly striking example. However, many

employees in the health sector are, in effect, funded by Government with a greater or lesser degree of State control over terms and

conditions. Likewise, charities or NGOs may provide funding which, in substance, allows for the payment of staff providing services

which are considered to be of benefit to the aims of the organisation concerned. Again, the degree of control over financial terms and

conditions may vary from case to case. Most third parties (including the State in this context) which provide funding are likely to at

least impose some relatively detailed conditions as to the financial terms on which employees whose contracts may be funded out of

a financial provision made are to be employed. Such funders are unlikely to give a blank cheque to the organisations which they

support. There are likely, therefore, to be many cases where there is at least an indirect funding in substance of a contract of

employment and a material measure of control by the funder over the financial terms and conditions of the contract of employment.

9.3 Be that as it may, it is necessary also to analyse the particular features of the arrangements which applied in this case and which

are relied on to support the suggestion that the practical reality of the situation was such that Ms. Boyle could be regarded as having

had a contract of service with the Minister. It is true, as just noted, that as a matter of practical reality Ms. Boyle’s salary was fixed

by the Minister. However, that being said it is worth recording that there was evidence that other teachers involved in traveller pre-

school education, who were employed in schools run by Barnardos, were admitted to the general Barnardos pension scheme.

Therefore, at the level of principle, the fact that Hillside Park did not provide for a pension for its sole teacher, Ms. Boyle, was

dependent not on any rule or practice emanating from the Minister but rather on the fact that it would seem that Hillside Park did not

have access to the same level of resources as were available to Barnardos. The lack of a pension scheme for Ms. Boyle was,

therefore, more a matter of the resources available to Hillside Park rather than any issue connected with the Minister.

9.4 As I understand the evidence, the resources made available by the Minister to Barnardos in respect of any individual teacher in a

pre-school traveller context were the same as those available to Hillside Park. The difference stemmed from the fact that Barnardos

had access to additional resources. It is possible, therefore, in my view, to exaggerate the extent to which all of the terms and

conditions on the financial side which were applicable to Ms. Boyle can be said to have been definitively determined by the Minister.

They were at least in material part influenced by the financial resources available to Hillside Park (or more accurately the lack of

them) when compared to other similar employers.

9.5 It also seems to me to be necessary to pay particular regard to what this Court decided in O’Keeffe v. Hickey. It is true that the

specific legal issue which was under consideration in that case involved the question of whether the Minister or the State could be

said to be vicariously liable for the wrongful acts of someone working in a school. But the reasoning of this Court in that case was

clear. It was accepted that the contract of the wrongdoer in question was with the management of the relevant school rather than

with the Minister. While that finding was a means towards the end of determining whether vicarious liability arose, it was nonetheless

an essential part of the reasoning of the Court. I do not see any reason to depart from the rationale of O’Keeffe v. Hickey. Other

questions might arise as to whether there might be any other basis, rather than through the route of a contract of employment,

whereby wrongdoing on the part of a teacher might be visited on the State. Those issues do not arise in the circumstances of this

case. Furthermore, as already noted, the wording of any particular statute may have the potential to impose a liability on persons

who may not, strictly speaking, be an employer in the ordinary sense in which that term is used. However, O’Keeffe v. Hickey is clear

and recent authority for the proposition that, in the ordinary way, it is the school management rather than the Minister who is taken

to be the other party to a teacher’s contract of employment.

9.6 The question of other statutory regimes leads me next to consider the argument based on the fact that the Minister appears to

have accepted rulings of other decision makers or courts which placed liability on the Minister in the context of the other statutory

employment regimes to which reference has been made. However, in that context I am satisfied that there are, as counsel for the

Minister pointed out, material differences in the wording of the relevant legislation which fixed the Minister with liability under that

other legislation but which is different to the language used in the 2001 Act.

9.7 As counsel noted, the 1998 Act in its definition of “respondent” includes a wide range of potential parties, including a person “who

is responsible for providing the remuneration” or a person who is “alleged to be responsible for the victimisation”. Thus, under the

1998 Act, a person may be a respondent even if not an employer as such.

9.8 Likewise, the definition of “contract of employment” for the purposes of the 1991 Act clearly includes any person “who is liable to

pay the wages” of the relevant person.

9.9 There are no similar provisions in the 2001 Act, and it does not seem to me that the ultimate conclusions which were reached

under other legislation, differently worded, are of any particular weight in construing the definition of a contract of service for the

purposes of this legislation. Indeed, the very fact that the Legislator, in the 2001 Act, went so far as to provide one deeming

provision (being that in respect of agency workers) is an indication that it was not intended that other categories of persons beyond

those who can, as a matter of contract law properly construed, be regarded as an employer involved in a contract of service with a

claimant, should come within the scope of the Act.

9.10 On that basis I am satisfied that there is no inconsistency between the position which the Minister has adopted in respect of

this legislation compared with the position which the Minister appears to accept applies under the other legislation in the employment

field to which reference has been made. However, I would go further. Even if there were some inconsistency there must be significant

limitations on the extent to which any such difference of approach on the part of a Minister could impact on the proper construction

of a statute. Certainly, as a matter of statutory construction, the fact that an officer of the State has taken a different approach to

the interpretation and application of two different statutes which are worded in the same fashion could not, of itself, require the

Court to take that fact into account in coming to a view as to what the legislation means.

9.11 While it is not necessary to consider the point in this case because, for the reasons already identified, I am not satisfied that

there is any inconsistency of approach, there might be questions as to whether a legitimate expectation might arise in some

circumstances of that type although, here again, a party might run into difficulties such as those encountered in Wiley v. Revenue

Commissioners [1989] I.R. 350 where this Court held that there could be no legitimate expectation to the effect that a previous error

would be repeated.

9.12 A contract of service is a term which has formed part of the law of contract for a very considerable period of time. It ordinarily

refers to an employer as the person who can direct the way in which an individual providing services is to do their job. Its most

important function, as a formal legal term, is to distinguish such arrangements from a so-called “contract for services” where an

independent contractor agrees to provide services but not with the degree of control over the way in which they are to work which

applies in the case of a contract of service.

9.13 The ordinary meaning of the term “contract of service” implies an arrangement whereby one party agrees to work for the other

and, subject to the terms of the contract, under the control of that person as to how they carry out their work. In its ordinary and

natural meaning, and applying that definition to the facts of this case, it seems to me that Hillside Park was the other party to the

contract for service with Ms. Boyle. It might theoretically be possible that a person might work under a contract for service where

there were two parties on the other side as it were, although the absence of any examples is telling. Certainly the axiom that a man

cannot serve two masters reflects much of the law as well as common sense. As with any contract, a contract for service ultimately

depends on its terms both for its construction and for how it should properly be characterised. The real question is as to whether it is

possible to say that the tripartite or triangular arrangement which applied in this case can properly, as a matter of law, be construed

as involving the Minister as at least an employer of Ms. Boyle, for there is no basis on which it could be said that Hillside Park was not

itself an employer. It should also be emphasised that any contract of service involves a reciprocal arrangement between employer and

employee whereby the employee agrees to do work under the legitimate direction of the employer. It is accepted that, in the

circumstances of this case, the Minister had no entitlement to direct the type of work which Ms. Boyle was to do.

9.14 The Court of Appeal placed significant reliance on the fact that Hillside Park had no control over the financial terms and

conditions applicable to Ms. Boyle’s contract. For the reasons already analysed, I am not sure that that is quite as fully the case as

the Court of Appeal appeared to consider. If, for example, to take the hypothetical case mentioned by Hogan J., the Minister sought

to impose terms of employment concerning pay and financial conditions which were unlawful, then Hillside Park would not, in my view,

have been obliged to impose those terms on Ms. Boyle. Rather it could have made clear to the Department that it was not willing so

to do and that it would provide Ms. Boyle with lawful terms and conditions. If, in such a scenario, the Minister was not prepared to

provide funding to permit Hillside Park to make whatever payments would have been required to comply with law then, of course, it

might have been necessary for Hillside Park to bring Ms. Boyle’s contract to an end. But in truth such a situation is no different than

applies in the case of any grant aided employment as, indeed, demonstrated by what actually happened in this case. As soon as

grant aid provided under the former policy of segregated pre-school traveller education was withdrawn, the school closed and Ms.

Boyle was made redundant.

9.15 All in all, I have come to the view that it is not possible to characterise the relationship between the Minister and Ms. Boyle in all

the circumstances of this case as involving a contract of service to which the Minister was a party. To do so would involve an

extension of the law of contract beyond any known boundaries. I accept that for various legal purposes, including statutory regimes,

there may well be circumstances where a Minister may incur a liability in respect of persons whom a Minister chooses to pay directly

or where the Minister is the effective paymaster even though the payment may be made by an intermediary. But each such case

must be considered in the light of established legal principles applicable to the area in question. It is for that reason that the result

may differ depending on the precise legal or statutory scheme under consideration.

9.16 But in the context of this legislation and its reliance on the term “contract of service” (with only one, non-applicable, exception

being in relation to agency workers), I think it would be stretching things much too far to suggest that there is a contract of service

involving the Minister.

9.17 I should finally touch on the issues of European law mentioned by the Court of Appeal. It is, of course, the case that this

legislation is designed to transpose mandatory measures of European law into Irish law. However, there is no suggestion that this is a

case where European law would mandate that Ms. Boyle would be entitled to succeed in these proceedings and that the only problem

standing in her way is because of the wording of an Irish transposing measure. On the contrary, it is clear that Ms. Boyle would not

be entitled to succeed in a case where Irish legislation exactly replicated EU law in this area. She could only succeed, if at all,

because of what might be said to be a quirk in the Irish legislation. In that context I do not see that there is an EU dimension to this

case at all.

10. Conclusions

10.1 While there can be no doubt that the unusual tripartite or triangular relationship which exists between the Minister, a board or

committee of management and a teacher in much of the Irish educational context gives rise to difficult questions concerning the

proper interpretation or characterisation of that relationship for various legal purposes, I am, however, satisfied that this case comes

down to one of deciding whether it can be said that the Minister is involved in a contract of service with Ms. Boyle.

10.2 For the reasons analysed in this judgment I am not satisfied that the relationship between the parties can be so characterised.

There are significant differences between the 2001 Act and other legislative regimes in which the Minister has been held to have been

responsible in an employment context. Even on the facts of this case Ms. Boyle is somewhat more remote from the Minister than

many teachers for she was not, at the time of her initial employment and for the vast majority of her time at the school, paid directly

by the Minister but rather by Hillside Park out of a grant provided by the Minister. Other employees of a different employer supported

by the same grant scheme provided their employees with improved terms and conditions in the form of access to a pension scheme.

To make that point is not to criticise Hillside Park for they just did not have the resources to provide enhanced terms. However, that

possibility emphasises the fact that, even at the financial level, Ms. Boyle’s terms and conditions were not, at the level of principle,

wholly governed by the Minister.

10.3 It being the case that the finding of the Labour Court was based, as it had to be, on a decision that Ms. Boyle was employed by

the Minister, I can only conclude that the finding of the Labour Court was wrong in law and must be quashed.

10.4 I would, therefore, allow the appeal and would hear counsel further on the precise order which should be made.