Spring Issue 2013 Also in this issue

Spring Issue 2013

Also in this issue

• Recent Equality Tribunal cases brought by students

• Irish students and judicial review

• IUA Draft Policy Paper on Research Integrity

Controlling complaints

Welcome

Spring 2013

Welcome to our Spring Issue of Education Update, a publication discussing legal issues relevant to further and higher education providers. With third level institutions being brought within the remit of the Ombudsman from the second quarter of this year, universities and institutes of technology will be carefully considering the impact for their institution and identifying weaknesses in their internal complaints system. We see the greatest potential for complaint to be in the area of non-CAO admissions processes. In our first article, we set out the Ombudsman’s procedures for conducting investigations and making findings and reports and make various suggestions on what institutions can do to prepare in a manner that should limit the number of investigations and adverse findings. Continuing the theme of complaints by students against third level institutions, we have analysed all cases brought in the Equality Tribunal in 2011 and 2012. There are some surprising results. We have made a suggestion for potential reform of the Equal Status Act which is to provide a pre-investigation or examination stage (not dissimilar to that of the Ombudsman) to allow the director of the Equality Tribunal to dismiss cases which are unlikely to succeed. The final forum of redress for Irish students is judicial review, but the law is far from settled as to whether a decision of a third level institution can be challenged. With the long running case of Patrick Kelly v University College Dublin now consigned to history as a result of a High Court ‘Wunder order’, in our third article we examine relevant judgements from the High Court. Finally, we explain the consultation document recently issued by a working group of the Irish Universities Association on ‘Research Integrity’ which sets out some well-needed standards for scientists and scholars in the area of research misconduct. I hope you enjoy this edition and I look forward to speaking with you soon. Regards

Abigail St. John Kennedy

Head of Education Direct: +353 1 6644385 AbigailKennedy@eversheds.ie

Under the remit of the Ombudsman

Legal issues for institutions

“We see the greatest number of complaints could

come from students who do not have a form of

discrimination as a basis for their complaint and

traditionally would not have been able to bring

complaint to the Equality Tribunal. We think that

appeals against non-admission to courses will be

the most common.”

The Ombudsman (Amendment) Act 2012, was enacted on 31 October 2012 and provides that all public bodies, except those specifically listed in Schedule 2 of the new Act, will come under the Ombudsman’s remit. These bodies will come under the Ombudsman’s oversight with effect from the date of a Ministerial Order, which must be no later than 30 April 2013 (six months following the enactment date). The Ombudsman will be empowered from that date to examine complaints in relation to the administrative actions of those institutions which occur on or after the date on which they come under her remit. This will have a number of implications for educational institutions.

Who can be reviewed?

Specifically a ‘reviewable agency’ will include “an entity

established by or under any enactment, statutory instrument or charter (other than the Companies Acts) or any scheme administered by a Minister” and will therefore include all publicly funded third level education institutions, including the universities and institutes of technology, the VECs (shortly to be renamed Education and Training Boards), the Central Applications Office, the State Examinations Commission, the Student Grant Appeals Board, and a range of other public bodies.

What can be reviewed?

Section 4(2) of the Ombudsman Act 1980 (as amended) provides that the Ombudsman may investigate any action taken by or on behalf of a reviewable agency in the performance of administrative functions where

“the action has or may have adversely affected an eligible person and that the action was or may have been, (i) taken without proper authority, (ii) taken on irrelevant grounds, (iii) the result of negligence or carelessness, (iv) based on erroneous or incomplete information, (v) improperly discriminatory, (vi) based on an undesirable administrative practice, (vii) a failure to comply with section 4A [complaint related to rights, benefits and privileges] or (viii) is otherwise contrary to fair or sound administration”.

The effect for institutions is that students who have previously been limited to seeking redress through the courts on the basis of judicial review or breach of contract, will have an additional avenue for complaint. For example, a student could complain against a failure to enrol the student in a programme of study or research (on grounds other than equality); his or her suspension or expulsion plagiarism; cheating on an exam; non-attendance at lectures or other misconduct; withholding of degrees or other awards, or grading issues. Section 5 of the Act contains exclusions and provides that the Ombudsman will not be able to examine or investigate cases: • where the matter is before the Courts • where the aggrieved person has a statutory right of reference, review or appeal to the courts • where there is a right of reference, review or appeal to an independent body • relating to recruitment or terms or conditions of employment or a contract for services.

Accordingly, employment cases cannot be brought to the Ombudsman by staff members. Also, if the matter concerns discrimination, because students and staff have a right of reference to the Equality Tribunal, such cases can not be brought before the Ombudsman.

Preliminary examination and investigation

The process begins with a preliminary examination under section 7 of the Act, the purpose of which is to establish in a quick and informal way whether a formal investigation is warranted, and to enable complaints to be resolved with the minimum of formality, particularly in the case of more straightforward complaints. Having carried out a preliminary examination of the matter (which requires an examination of whether one or more of the eight grounds of complaint exists in the case), the Ombudsman may decide to proceed to an investigation, or not to carry out an investigation or (if an investigation has started) discontinue an investigation. A decision to not proceed or discontinue may be taken if the Ombudsman is of the opinion that: • the complaint is trivial or vexatious • the person making the complaint has an insufficient interest in the matter • the person making the complaint has not taken reasonable steps to seek redress in respect of the subject matter of the complaint or, if he has, he has not been refused redress.

Conduct of Investigations

Investigations must be conducted in private. The procedure for conducting an investigation is a matter for the Ombudsman herself to decide. However the Ombudsman: • must inform the complainant of the result of the investigation. She must also indicate how the body complained against has responded to any recommendation she may have made • may determine that a person is entitled to be represented, by counsel, solicitor or otherwise, in an investigation • shall not make a finding or criticism adverse to a person without having afforded to the person an opportunity to consider the finding or criticism and to make representations. When conducting an investigation or a preliminary examination, the Ombudsman may require any person with information relevant to the case to furnish that information or attend before her. The Ombudsman can apply to the Circuit Court for an order compelling the production of information, or an attendance, which if granted will have legal effect. An institution would be entitled to assert all immunities and privileges available as if it and its officers were witnesses in High Court proceedings. For example, in response to an information request, or before the Circuit Court, the institution could asset that legal professional privilege applied to some documents. Any evidence gathered by the Office of the Ombudsman in the course of an examination or investigation can not be compelled by a party to be produced by the Ombudsman in any subsequent proceedings.

Findings and reports

The Ombudsman is empowered to make recommendations only and they are not binding. However, the Ombudsman’s findings and recommendations are made public. The Ombudsman could recommend to an institution that the matter be considered further, that general or specified measures be taken to remedy, mitigate or alter the effect of the action, or that the reasons for the action be given to the Ombudsman. If the issue at hand was considered by the Ombudsman to have broad impact, the Ombudsman could deliver a recommendation to all institutions she deems appropriate. The Ombudsman can request (but not enforce) the relevant institution’s response to the recommendation within a specific timeframe. Where it appears to the Ombudsman that the response to a recommendation which she has made is not satisfactory, she may make a special report on the matter to the Oireachtas. The institution could of course be named in the Oireachtas and further legislative or administrative responses could result.

The complainant is informed by the Ombudsman of the finding, recommendation and any response from the institution. It would appear that in general both institution and complainant are notified of the finding and recommendation at the same time.

What can institutions do to prepare?

Review potential areas of complaint. These are most likely to

consist of:

Review the internal complaints system. The Ombudsman

has power to examine a complaint only where the complainant has taken reasonable steps to seek redress, and has failed to obtain it. The internal complaints system should be transparent to students and prospective students, and should be provided with the resources, both material and human, to enable it to achieve results. Management must ensure that accommodation, equipment and finances are appropriate and that highly motivated staff are involved who have specialised training in complaint handling techniques.

Independent internal review. One feature of the complaints

handling system is that it should enable the complainant, if he or she disagrees with the decision, to appeal to the organisation. The Ombudsman will often require a complainant to ask the public body in question to review the original decision. Good complaint systems enable a particular decision to be reviewed by a person other than the original decision maker and provide a readily available and easily accessible means whereby disputes, misunderstandings and mistakes can be resolved. Ideally, the system would let the complainant know that if the original decision is upheld, the complainant can refer the matter to the Office of the Ombudsman.

Reasons for the decision. In most cases the complaints

system should ensure a detailed explanation of the basis for the action or decision may be needed. In other cases a change in procedures which could benefit other students generally may be appropriate. Appropriate remedies. The complaints system should make clear that if the complaint is upheld, the institution is empowered to provide the appropriate redress which may include restoring the complainant to his or her previous position, issuing a letter of apology or, in rare cases, granting financial compensation where specific financial losses have been incurred. If there has been a delay in the receipt of a payment, the payment of interest may arise. Compensation for exceptional worry, distress or inconvenience caused to the complainant could be recognised. It may be important to take legal advice on the issue of compensation in or that a good balance is struck which can resolve the dispute permanently and confidentially and does not set an unrealistic expectation in pending cases. These aspects of the system should be clearly documented, in order that, if a complaint is made to the Ombudsman, the relevant evidence of the fair and proper treatment of the complaint can be produced.

Summary

It will be important for institutions to plan for and cost the impact of being brought within the remit of the Ombudsman, and be realistic about the potential number of complaints that could be brought before the Ombudsman. We see the greatest number of complaints could come from students who do not have a form of discrimination as a basis for their complaint and traditionally would not have been able to bring complaint to the Equality Tribunal. We think that appeals against non-admission to courses will be the most common. With that in mind, institutions need to consider their supplementary admission and academic disciplinary procedures, whether those procedures are based on principles of natural justice and whether appropriate redress is being provided.

Recent Equality Tribunal

cases brought by students

“The high number of failed cases by students might

indicate that greater stringency could be applied by

the Authority in examining cases which are fit for

further investigation or mediation.”

The Equal Status Acts 2000 to 2011 outlaw nine grounds of discrimination including disability, and race, colour, nationality, ethnic or national origins. An analysis of cases brought by students against third level institutions over the last two years indicate that these two grounds are by far the most prevalent sources of complaint to the Equality Tribunal. The majority of those cases have failed. Of the 11 complaints brought within that period, 10 have been lost by the complainant. Of those 10 complaints, five have related to race issues, four to disability issues and one to both race and disability, as well as age. Those cases were: • Dr X v A University (S2001 – 005) (alleged direct discrimination on grounds of disability, no prima facie case established).

• Ms Laura-Ann Payne v City of Dublin VEC

(incorporating Pearse College) and Trinity College Dublin (S2011 – 038) (allegation of direct

discrimination on age, race and disability, no prima facie case of discrimination established).

• Joseph Ryan v Dublin Institute of Technology (S2001 – 057) (allegation of direct discrimination on grounds of disability, no prima facie case of discrimination established).

• A Student v Dublin City University (S2001 – 067) (direct discrimination on grounds of disability, no prima facie case of discrimination established).

• Edward Okobi v University College Dublin (S2012 – 024) (direct discrimination on grounds of race, no prima facie case of discrimination established).

• A Student v a Third Level Institution (S2012 – 030) (direct discrimination on grounds of disability, no prima facie case of discrimination established).

• Ihor Davydchak v Central Applications Office (S2012 – 027) (direct discrimination on grounds of race, no prima facie case of discrimination established). • Ihor Davydchak v University of Limerick (S2012 – 031)

(direct discrimination on grounds of race, no prima facie case of discrimination established).

• A Complainant v A Respondent (an agent of the Student Union) (S2012 – 040) (direct discrimination on grounds of race, lost on grounds of being misconceived under section 22).

• Awojuola v Dublin Institute of Technology (E2012 – 174) (alleged direct discrimination on grounds of race, lost on jurisdiction issue).

The sole case where the complainant succeeded concerned a student who alleged direct discrimination on the grounds of disability against a third level college:

A Student v A Third Level College (S – 2012-046).

The student suffered from dyslexia and had severe difficulties with reading and spelling. Shortly before his final degree exams he received an e-mail from Disability Support Services to say that it was the policy of the college to provide Notepad on the laptops used by students in examinations. This was a change in policy from previous examinations when an MS Word processing package with a spelling and grammar checking functionality was provided. Despite his complaint, the student had to do his examinations with the Notepad package and believed this impacted his final examination grade and resulted in his failure to be accepted into a Masters Degree. The respondent college denied discrimination and stated that the student had previously been given a spelling and grammar waiver, had been offered training on Notepad and explained that the use of a laptop was only given to students who had difficulty with handwriting and was not an accommodation for a student with spelling and grammar difficulties. The institution explained that given the waiver, the examiners would only mark the student on the content of the answer and that, by allowing the complainant to continue to use MS Word for his examinations, he would obtain a double advantage. In that case, the Equality Officer considered the meaning of section 4(1) of the Equal Status Act, which provides that “for the purpose of this Act, discrimination includes a

refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service”.

The Equality Officer discussed the judgement of Justice de Valera in Cahill v The Minister for Education and Science [2010] IEHC 227 which was an appeal case under the Equal Status Acts, whereby the appellant sought to prevent the annotation of her Leaving Certificate to note that she had been given a special accommodation. In that case, de Valera had asserted that “nowhere in the case law

is there any suggestion to the effect that the equality rights must be absolutely guaranteed without limitation in the name of reasonableness even in cases where the requirements of reason and common sense require the taking of some action which may not be to the complete satisfaction of the person asserting them”.

However, the Equality Officer distinguished Cahill from the present case. The student concerned had submitted that it was unreasonable to withdraw a reasonable accommodation facility already granted to him. The Officer found that it was an implied term of the written agreement signed by both parties that MS Word would be available to student for his final examinations, given the fact that he was supplied with MS Word for his examinations for the first two years. The Equality Officer also quoted Judge Hunt in a Circuit Court Appeal from the Equality Tribunal in the case of Deans v Dublin City

Council in reaching her decision, saying that reasonable accommodation had to be considered in the context of the individual case and that by withdrawing the facility in this specific context, the respondent failed to consider the complainant’s individual needs as a person with severe dyslexia.

Legislative reform?

Apart from this successful case, the high number of failed cases by students might indicate that greater stringency could be applied by the Authority in examining cases which are fit for further investigation or mediation. But, in this regard, the Directors powers are somewhat limited by the Acts. Section 22 of the Equal Status Act 2000 only allows the Director to dismiss a claim if he or she is of the opinion that the claim has been made in bad faith, frivolous or vexatious or relates to a trivial matter. This is a high standard which mandates that almost all cases, even those where the complainant is unlikely to establish a prima facie case of discrimination, to proceed to investigation.

Tribunal examination stage?

It is submitted that it would not undermine equality rights nor be inconsistent with EU Directives to impose an examination stage prior to investigation before the Tribunal. To impose an examination stage, it is submitted, would be consistent with the principles set out in Council Directive 2002/73/EC amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions which states at art 6.1 that “Member

States shall ensure that judicial and/or administrative procedures, including where they deem it appropriate conciliation procedures, for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended”.

Different Member States have chosen to implement this requirement differently. For example, the UK provides a judicial solution to allegations under its Equality Act 2010. Apart from claims in relation to disability which are heard by Tribunals, equality cases within education are settled by the County Courts.

Interlocutory application to strike out

In the UK County Courts it is possible for a judge using Civil Procedure Rule 3.4(2) to strike out a statement of a case if it appears that the statement discloses no reasonable grounds for bringing the claim or that it is in an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings. Practice Direction 3A on CPR 3.4 states that cases may fall within this ground if it contains a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant. It is also open to the respondent (that is the educational institution) to make an application showing without trial that the student’s case has no real prospect of success on the facts or that it is bound to fail because of a point of law.

Summary

The recent high number of failed cases by students before the Tribunal divert valuable resources from important cases and could lead to concern that the Director of the Equality Tribunal lacks power to dismiss cases that are unlikely to succeed. As Ireland has opted for an administrative solution to determining all equality cases, one alternative would be an amendment to Equality Acts to give the Equality Tribunal power to dismiss a claim in similar circumstances to a judge of the UK County Courts. Such a procedural change could assist in cost-effectively and efficiently dispensing of cases where on the basis of an established point of law, they can not or are unlikely to succeed. It is submitted that such an amendment is consistent with the EU Equality Directives and could significantly reduce the number of cases before the Equality Tribunal, currently averaging 20 per month.

Irish students and judicial review

The last resort?

“The relationship between the student and the

institution is one also of contract law where in some

cases institutions have successfully characterised the

dispute as of a private nature, and have resisted the

availability of judicial review proceedings under the

Rules of the Superior Courts.”

The question as to whether the decisions of universities and other third level institutions are subject to judicial review is settled law. On many occasions the institution has exercised power which emanates from the State by legislation such as the Universities Act 1997 and other legislation and therefore has been held to account on whether that decision was properly made on administrative law principles. In such circumstances the institution’s decision can be reviewed for an error of fact or law, unfairness, bias, disproportionality, unreasonableness and abuse of power. In practice, and in the context of students, this means that on academic issues (such as exam performance, course attendance and plagiarism) at a hearing before a panel at the institution, the student has the right to be treated fairly, must receive the allegation against him in advance, have the opportunity to test any evidence relied on by the university and must have an adequate opportunity to defend himself. However, the relationship between the student and the institution is one also of contract law where in some cases institutions have successfully characterised the dispute as of a private nature, and have resisted the availability of judicial review proceedings under the Rules of the Superior Courts. The leading Irish authority on whether a decision, of an institution is subject to judicial review is Eogan v University College Dublin [1996] IR 390 where Shanley J determined that the following were among matters which might be taken into account in considering whether the decision was subject to judicial review: • Whether the decision was made pursuant to a statute. • Where the decision affected a contract of employment, whether that employment had any statutory protection as to afford the employee ‘public rights’ upon which he might rely. • Whether the decision was being made by a decision maker whose powers, though not directly based on statute, depended on approval by the legislature or the Government for their continued exercise. Therefore, the High Court has quashed the decision of a university committee of discipline in sending an applicant down, for failure to afford a student fair procedures and legal representation (Flanagan v University College Dublin [1989] ILRM 469) and has granted a declaration that a student was entitled to a university place where she believed she had secured a deferral of her course after paying a deposit (Kenny v Kelly, Registrar of University

College Dublin [1988] IR 457).

Later cases have, however, more closely scrutinised the contractual relationship between student and institution. In Rajah v Royal College of Surgeons [1994] IR 384, the college, while denying any breach of fair procedures, submitted that, since the relationship between the parties was contractual and there was no public law issue, the college was not amenable to judicial review. The student applicant before the High Court had failed an examination at the first sitting and at the repeat sitting. The regulations of the college (which was established by Royal Charter in 1784) provided that students who failed an examination had no automatic right to repeat but provided a procedure whereby the Student Progress Committee would consider the student’s academic record and any mitigating factors. Any decision of the Committee could be appealed to a further committee appointed by the Academic Board. Any recommendation by the second Committee that a student be refused re-admission to the course had to be ratified by the Academic Board and the Council of the College. The student sought to quash a decision not to re-admit her to the course on grounds that there were alleged

Keane J held that the fact the college derived its existence from a Royal Charter was not a sufficient ground for bringing matters relating to the conduct and academic standing of its students within the ambit of judicial review. Therefore the same would apply in the case of an educational institution established by an Act of Parliament. Keane J found that the jurisdiction of the Student Progress Committee and the Appeals Committee did not derive from public law but from the contract which came into being when the student became enrolled at the college. The jurisdiction derived solely from her agreement, express or implied to be bound by the regulations of the college, including the procedures under consideration in the case. It is difficult to reconcile Rajah with Flanagan, other than to say that one judge may have been more reluctant to investigate decisions calling for academic judgement. Fortunately for institutions, it was Keane J’s line that was taken by Smyth J in Quinn v The Honourable Society of Kings

Inns [2004] IEHC 220 in assessing that the applicant was

not entitled to a writ of certiorari against the Inns’ decision to refuse her entrance on the basis of failed examination. Smyth decided that the fact that the Inns’ powers may initially derive from a Charter was “removed and indirect to

the consideration of the instant case” as it was “necessary to consider the nature of the power” (which was procedural

rather than disciplinary) “rather than its source”. Smyth J found that the Inns’ examination board was not exercising a disciplinary function and therefore the applicant was not entitled to invoke a public law remedy for a private right.

Summary

A superior decision on the question as to whether a student has a right of judicial review against a decision of an institution on a disciplinary matter, would be most welcome. The only time the Supreme Court has considered this matter in the context of an educational institution was in Geoghegan v The Institute of Chartered

Accountants in Ireland [1995] 3 IR 86 which concerned a

Fellow of the Institute accused of professional misconduct. The Supreme Court was divided 2:2 on the issue of whether the relationship between the Fellow and the Institute was based on contract, rather than an Act of the Oireactas, and so whether the Institution, in applying disciplinary procedures, was administering justice and would be subject to judicial review. Unfortunately, Hamilton CJ preferred to reserve his decision on the point until the issue of law arose in a case necessary for the determination of the claim. The divide between public and private law will surely be tested again in the context of the relationship between institutions and students. With institutions coming within the remit of the Ombusman, it is expected that her office will be a more popular venue for such complaints, given the lower cost for the student and earlier determination of the complaint.

IUA Draft Policy Paper

Research Integrity

In January, a working group comprising members from the Irish Universities Association, Health Research Board, Science Foundation Ireland, Royal Irish Academy, Enterprise Ireland, Higher Education Authority, the Irish Research Council, and Quality and Qualifications Ireland, published a Draft Policy Statement on ensuring Research Integrity in Ireland. The policy is framed as a set of commitments which adopters of the policy will agree to uphold. The consultation period for the Draft Policy Statement ended in March and it is hoped that a Final Policy Statement on Research Integrity in Ireland will shortly be published and become a ‘best practice’ standard which Irish universities and other research performing organisations could consider adopting. The Draft Policy Statement includes a number of important recommendations. In the area of maintaining a national research environment based on good research practices the Working Group recommended that: • research integrity should be addressed through formal courses, in both undergraduate and graduate modules for students and as part of supervision training for academic staff • there should also be education through mentorship from senior investigators in the context of PhD and postdoctoral research programmes • staff education should be facilitated as an integral component of continuous professional development • the primary responsibility for delivering education and training programmes to their research staff must sit with the individual research performing organisations • the funding agencies also have a key role in this regard as they can embed research integrity requirements in their funding schemes (eg as already done by the Health Research Board). In the area of working together to reinforce and safeguard the integrity of the Irish research system, the Working Group recommended that universities: • monitor international developments in the sphere of research integrity, and communicate important developments to Irish institutional stakeholders • share knowledge and understanding of good practice based on experience in Ireland and internationally • develop ‘good practice guidelines’ appropriate and specific to Ireland as envisaged in the European Code of Conduct for Research Integrity • receive from each research performing organisation that is a signatory to this policy statement an annual report on the number and type of instances of research misconduct that have been dealt with through formal mechanisms within the institution • develop standards in educational programmes to ensure research integrity in Ireland. Finally, in the area of using transparent, robust and fair processes to deal with allegations of research misconduct the Working Group suggested that universities provide: • good definitions of research misconduct • an appropriate process of investigation and determination of the offence • appeals processes, sanctions and external reporting guidelines. There are two particularly helpful Appendices in this section which could form a basis for drafting a disciplinary policy and/or training materials. The IUA and the Working Group should be commended for their work in this area which is a valuable and comprehensive document for ensuring consistency and alignment with agreed international norms and best practice in managing research integrity.

One Earlsfort Centre Earlsfort Terrace Dublin 2 Ireland T +353 1 6644 200 F +353 1 6644 300 E info@eversheds.ie www.eversheds.ie

Disclaimer

This information is for guidance purposes only. It does not constitute legal or professional advice. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. No liability is accepted by Eversheds for any action taken in reliance on the information contained herein. Any and all information is subject to change. Eversheds is an Irish partnership and a member firm of the Eversheds International network of firms affiliated with Eversheds International Limited, an English company limited by guarantee. Member firms of Eversheds International are independent firms and members of Eversheds International Limited, but have no authority to obligate or bind Eversheds International Limited or one another vis-à-vis third parties. Neither Eversheds International Limited nor any of its member firms have any liability for each other’s acts or omissions.

Abigail St. John Kennedy

Partner – Head of Education Direct: +353 1 6644385 AbigailKennedy@eversheds.ie Barbara O’Neill Senior Associate – Research and Funding Direct: +353 1 6644 242 barbaraoneill@eversheds.ie

Contact

The Education and Training Boards Bill 2012 has now passed through the first and second stages of Dáil Eireann and the select sub-committee on Education and Skills in January of this year. Among the approved amendments were a new section to allow for the suspension and removal of the Chief Executive of an Education and Training Board by the Minister for Education, for stated misbehaviour or “where

it appears necessary…for the effective performance by the Board of its functions”. This power is in addition to

the power of the Education and Training Board itself to suspend the Chief Executive. It was proposed and approved that the Minister of Education be given power, in a new section 51, to give a direction to an Education and Training Board to acquire, hold or dispose of land or an interest in land where he or she considers it necessary with regard to the public interest of the local community and for ensuring value for money. The monies received on the sale or disposal may be recovered by the Minister or applied towards purposes directed by him or her. Finally, provision was made for pensionable public servant whom is appointed as a new member of staff and who is not a member of the Single Public Service Pension Scheme to become a member of either the Vocational Teachers’ Superannuation Schemes or, if another member of staff, the Education Section Superannuation Schemes. For clarity, a new amendment confirms that members of the Vocational Teachers’ Superannuation Schemes or the Education Section Superannuation Schemes who transfer to a board will remain a member of such scheme. The Bill will now proceed to the second stage in Seanad Eireann for debate.