The Court of Appeal has upheld the validity of temporary injunctions obtained by Wilson’s Hospital School to restrain a former teacher, Mr Enoch Burke from attending the school premises. President Birmingham held that both the interim and interlocutory injunctions were properly granted by the trial judges.
Three judgments were delivered in this case by the three Court of Appeal judges. At the outset of President Birmingham’s judgment, and reiterated by Judge Edwards, the Court clarified that this case is “not fundamentally about transgender people, or issues of gender identity; nor is it fundamentally about the appellant’s constitutional rights to freedom of expression, freedom of conscience and the right to free profession and practice of his religion.”
Judge Edwards went on to explain that:
“What the appeal is about is whether injunctive relief, both interim and interlocutory, was properly granted by the High Court against the appellant to restrain his attendance at the school in circumstances where he had persisted in so attending notwithstanding having been placed on administrative leave in the light of certain alleged misconduct said to have been committed by him up to that point in the context of an ongoing dispute between him and the school as to a matter of policy, which misconduct the respondent alleges was unacceptable, disruptive and inimical to the orderly running of the school; and whether the High Court was also correct to refuse him certain relief that he was seeking.”
However, Judge Edwards did note that issues outside of those aforementioned are relevant to the “tapestry that forms the backcloth to the present proceedings” and in this regard, he provided a useful legal history of trans rights in Ireland in his judgment.
Background
By way of background to the case, Mr Burke, the appellant in this appeal was a German and History teacher at the Wilson’s Hospital School, having commenced employment in 2018. On 9 May 2022, the then principal emailed staff asking them to use the pronoun "they" when referring to a student who was transitioning their gender identity. Mr Burke took issue with the email and articulated his views both by email to the principal and at a staff meeting.
On 21 June 2022, a religious service was held at the school's chapel. In the course of that service, Mr Burke interrupted the service, stating that he would not accept what he referred to as "transgenderism". Mr Burke demanded that the principal withdraw her previously emailed instruction.
Mr Burke was subsequently suspended or placed on "administrative leave" and later dismissed. He continued to attend at the school during his suspension and after his dismissal. The school applied for and obtained a High Court injunction restraining him from attending the school. Mr Burke did not comply with the injunction and was subsequently imprisoned arising from his contempt of court. He failed in his own application to the High Court for an injunction restraining the school from suspending and dismissing him. He appealed the various High Court Orders to the Court of Appeal.
Following consideration of the issues at hand, the Court of Appeal dismissed Mr Burke's appeal. In doing so, the three judges each delivered judgment.
This article will look at the issue of suspension of an employee set out in the judgment of President Birmingham which is relevant to Irish employment law.
The Issue of Suspension of an Employee
The judgment of President Birmingham examined the issue of the suspension of an employee. It has been relatively common for some years that employers suspend employees (on full pay) pending internal investigations or disciplinary hearings. That practice was called into question in a High Court case in 2015 (Bank of Ireland v Reilly, [2015] IEHC 241). In that case, Mr. Justice Noonan stated that:
“The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future career....
Thus, even a holding suspension ought not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question.”
Since that decision in 2015, employers have generally been advised to apply caution before suspending an employee pending an investigation or disciplinary hearing. The Workplace Relations Commission (WRC) has relied on the Reilly case on a number of occasions in its decisions. Mr. Burke sought to rely on the Reilly case when challenging his suspension by the school. He argued that the Reilly case had "clearly established that extreme and exceptional circumstances are required to justify the suspension of an employee."
President Birmingham noted that:
"Suspensions fall into two broad categories. A suspension, with or without pay, can be imposed as a disciplinary sanction. In other cases, a suspension will be in the nature of a holding suspension, designed to allow an opportunity for disciplinary proceedings, or similar, to be brought to a conclusion. For my part, I would entirely accept that either form of suspension would impact significantly on the individual involved."
However, the Court found that:
"I do not believe that the decision in Reilly provides the degree of comfort to the appellant that he suggests. The case involved the dismissal as distinct from the suspension of a bank official, though it is the case that, prior to dismissal, there had been a period of suspension. It was in that context that Noonan J. made the remarks he did in relation to suspension. I note that the sentence in the judgment ... states “[i]t [suspension] will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct” (emphasis added). In Reilly, there was no question of repetition where the conduct in question involved circulating what might be described as inappropriate emails in breach of the bank’s email policy. Here, there was every reason to believe that the appellant was intent on conducting himself in the future as he had in the past."
The Court's consideration of the issue of suspending employees therefore provided points of note from an employment law perspective. Firstly, that any form of suspension may impact significantly on the suspended employee and that therefore suspension should not be imposed without careful prior consideration. Secondly, that suspension will "normally be justified" if it is seen as necessary to prevent a repetition of the conduct complained of.
Link to the Main Judgment of President Birmingham