‘Baby, You’re the Boss at Home’: Giving Employees the Right to Work from Home - Part II

Niamh Egleston and Alan Eustace, Trinity College Dublin

 

Introduction

In a previous post, we considered various models for fulfilling the government’s recent promise to grant all employees the ‘legal right to work from home’. We concluded that the best way to ‘work it out’ would be to draw from a combination of the new protections for parents of young children contained in EU Directive 2019/1158 and existing annual leave provisions.

 

This post will elaborate on the valid reasons for refusing an employee’s request to work remotely, and a proposed enforcement mechanism. A third and final instalment will draw attention to three lingering concerns with the proposed right: the risks posed to worker solidarity, and to the rights of women and disabled people in the workplace.

 

Reasons for refusal

Obviously, not all jobs can be done effectively, or indeed at all, off-site. Certain customer-facing jobs in retail, hospitality and many other services, manual construction and manufacturing jobs, most healthcare and education provision, etc cannot be done remotely. This was already clear from the designation of certain jobs as ‘essential’ or ‘front-line’ during the pandemic lockdowns, where certain workers were permitted to continue to work on-site. Others were simply unable to work when physical workplaces closed, and instead received wage subsidies or the Pandemic Unemployment Payment. Thus any legal regime will therefore have to account for the nature of certain work, and the eventuality that a right to work from home cannot be extended to ‘all’ workers, notwithstanding Minister Varadkar’s initial comments.

 

There are two parallel but distinct concerns at play here. Some work physically cannot be done remotely - like manual construction work. Other work can be done from home, but only at significant cost in quality of delivery to the customer or service user. The prime example here is teaching: the initial pandemic lockdown and the current university experience show that teaching can be done remotely, but most stakeholders would agree that it is a fundamentally different, and lesser, experience for students. Our proposal would distinguish these two factors, for the sake of clarity.

 

Another distinction should be drawn between the nature of the work and the nature of the business. Certainly, customer-facing retail workers cannot work remotely; but that does not mean that the administrative, support and managerial staff in the same business need to be on-site too. It may well be easier for employers to issue blanket refusals to requests to work from home based on the nature of their business as ‘customer-facing’. But the law should be designed so as to accommodate as many workers as possible, and oblige employers to be more discerning in refusing requests. 

 

There will be other legitimate reasons for refusing a request to work remotely, like cost and security. Below is an list of what we suggest as valid reasons for refusing a work from home request, but we welcome further suggestions. A notable absence is any sort of ‘general’ or ‘catch-all’ provision. This was a deliberate omission. The model we envisage is one in which, like for unfair dismissal, the employer must point to one from a specified list of reasons for dismissing the employee, thus ensuring the burden is placed firmly with the employer. We believe that a ‘general’ clause is inherently open to interpretation favourable to employers, who generally have more power than employees in workplace negotiations/disputes in the first place. It could also disincentivise workers from challenging refusals, if they are unclear what counts as a valid reason in advance. Additionally, a general clause would undermine the point of having a specific list in the first place: if an employer can point to ‘any other reason’, then why not just have one general clause and dispense with the rest?

 

Valid Reasons for Refusal 

Recall that our model states that: an employee may request to work from home on any given day; no employee shall be subject to penalisation for making such a request; and where an employer refuses to grant the request to work from home in respect of any given day, the employer shall provide the employee with reasons for the refusal. Valid Reasons are limited to:

·      The request was submitted with less than 48 hours’ notice;

·      The employee has already worked remotely on 150 days or more in the previous 12 months;

·      Remote working would impose an unreasonable cost burden on the employer;

·      Remote working would impose an unfair burden on other employees working on-site;

·      The nature of the work is such that it cannot be done remotely;

·      Remote working would result in a significant diminution in quality of service for customers or service users;

·      Workplace health and safety requires employees be present on-site;

·      Data protection and security requires employees be present on-site;

·      Compliance with any other statutory requirements requires employees be present on-site.

 

So, we envisage that in the first place, an employee would notify their employer at least 48 hours in advance of their intention to work from home on a given day. Of course, this might work out more flexibly in practice (for example, they might wake up in the morning to find their child is sick, so must stay at home. If the employer is amenable, then there is no need to take sick, annual, or force majeure leave - just work from home). The point is that an employer is entitled to refuse a request purely on the grounds that they had less than 48 hrs’ notice. Similarly, if the employer wishes to allow an employee work from home notwithstanding the fact that they have exhausted their allotted stock of days, it is within the employer’s discretion to allow requests above and beyond the base entitlement. This is consistent with the status quo, in which many employers have their own internal policy on flexible working arrangements. The right acts as a floor, not a ceiling.

 

Enforcement

If an employer refuses a request to work from home they must offer reasons from the list set out above. For the right to mean anything in practice, the worker must be entitled to challenge the reasons offered. However, it seems to us that it would be unduly cumbersome for a worker to have to take a dispute to the Workplace Relations Commission for adjudication every time a request is refused, or to ‘tack on’ a number of refusals to some later claim like unfair dismissal. This is particularly so because refusals are likely to be one-off events within what is otherwise an ongoing employment relationship (although if an employee is dismissed for making a request, this could well be challenged as penalisation, as a dispute for adjudication by the WRC).

 

Instead, we propose this matter fall under the inspection regime within the WRC. Upon receipt of a complaint from an employee about a refusal to allow working from home, inspectors from the WRC would make contact with the employer, notify them of the complaint and request evidence to support the reasons offered for refusal. Although not an inter partes case between the employee and employer, the WRC may also request additional information from the employee. If the employer cannot justify its decision to the satisfaction of the inspector, the WRC may levy a fine or issue an order to the employer to adjust its remote-working policy. Thus the procedure is more like when a worker reports a breach of health and safety obligations. If there are repeated or widespread unlawful refusals within a particular workplace, the WRC may invite the parties to take part in its mediation or conciliation processes. This, we think, strikes the optimal balance between the practical realities of remote working requests, and the need for enforcement of the new rights. 

 

Conclusion

In summary, this post has clarified the circumstances in which an employer should be legally allowed to refuse a remote working request, and set out the practicalities of how a legal right to work from home might be enforced. We do not envisage it being actionable by means of inter partes litigation through the WRC adjudication process - an inspection model, with meaningful sanctions on employers found in violation of the law, would be much more practical in light of the frequency of remote working requests, occurring within an ongoing working relationship. Where a worker feels aggrieved by having their request declined, their employer should be obliged to justify the decision according to a specified set of reasons, to the satisfaction of the WRC inspectorate.

 

Niamh Egleston is a Research Assistant at the School of Law, Trinity College Dublin and recently completed an LLM at the London School of Economics. 

Alan Eustace is a PhD candidate at the School of Law, Trinity College Dublin, and a member of the Covid-19 Law and Human Rights Observatory.

 

Suggested citation: Niamh Egleston and Alan Eustace, ‘“Baby, You’re the Boss at Home”: Giving Employees the Right to Work from Home - Part II’ (18 December 2020) https://tcdlaw.blogspot.com/2020/12/baby-youre-boss-at-home-giving_15.html

'Baby, You’re the Boss at Home’: Giving Employees the Right to Work from Home - Part I

Niamh Egleston and Alan Eustace, Trinity College Dublin

 

Introduction

Before the Covid-19 pandemic, it was not widely appreciated how remote working could be a human rights issue, nor how popular it would become - a valiant promotional campaign from Fifth Harmony notwithstanding. Previous posts on this blog have highlighted the dangers remote working poses for the rights to safe working conditions and to adequate leisure time, but it is not all doom and gloom: there is a strong case to be made that a right to work from home (at the choice of workers) protects the rights to work and to safe working conditions (Article 23 UDHR), for those who would be excluded from the workforce by medical conditions or family circumstances that make them particularly vulnerable to Covid-19. It may also promote equality for people with disabilities, and probably for women: there is some (albeit mixed) evidence that the ability to work from home better facilitates women with greater caring  responsibilities, and encourages men to take on more of the childcare burden. 

 

Minister for Business, Enterprise and Innovation Leo Varadkar recently announced the government’s intention to create a legal right to work from home. He touted the results of his department’s consultation to the effect that most workers and employers want ‘blended working’ – ie to work from home some of the time. Ireland is not the only jurisdiction considering a legal right to work from home: Germany (€) is currently preparing legislation with much the same goals as Minister Varadkar indicated, with similar developments planned in Spain and Greece. Australia’s Fair Work Act 2009 already extends a ‘right to request flexible working arrangements’, including work from home, to certain employees. 

 

This post assesses how a right to work from could be given legal form, taking into account that workers do not want to be obliged to work from home all the time. We consider a number of models of employment regulation, ultimately settling on a proposal that combines regulatory modes for returning from parental leave, and annual leave. Part II, to follow, will examine some particularities of the proposal in more detail.

 

Modes of regulation

 

The first option open to the government is to base the right to work from home on non-penalisation – ie, that workers cannot be subject to retaliatory disadvantage for asking to work remotely. Various employment law statutes already provide for non-penalisation (for example, section 27 of the Safety, Health and Welfare at Work Act 2005), so the WRC and courts (and, we hope, employers) are familiar with the issues involved. On its own, however, a non-penalisation model would not accomplish very much. Employers might not penalise an employee for asking to work remotely, but may simply refuse the request. Evidence (€) suggests that in particular, female employees are more likely than their male counterparts to have requests in workplace negotiations refused. A non-penalisation clause may not be enough to capture the ‘soft penalisation’ of negative attitudes towards assertive women, nor fear of such backlash. A non-penalisation clause will be vital to whatever legislation is produced, but there must be more.  

 

Another option is to make facilitating remote working a matter of workplace health and safety (as pointed out above, remote working does help protect workers’ health during the pandemic, provided employers provide appropriate equipment etc to ensure the home environment is suitable for working). However, this approach would not fulfil the government’s commitment to an individual right to work from home, exercisable at the employee’s choice. A duty-based approach risks suggesting to employers they make working from home mandatory – or that by offering remote working they could avoid other responsibilities to make the physical workplace safer.

 

An individual right could be based on an extension of the current provisions for reasonable accommodation under the Employment Equality Acts. These require that an ‘employer shall take appropriate measures … to enable a person who has a disability … to participate or advance in employment … unless the measures would impose a disproportionate burden on the employer.’ In principle, this includes allowing remote working. At the most minimal, the proposed legislation could simply broaden what counts as a disability for the purposes of reasonable accommodation to all medical conditions that make people more susceptible to Covid-19 (which would include workers whose family members are susceptible, due to the prohibition on discrimination by association under section 6). However, this seems to unnecessarily medicalise the issue, without living up to the government’s stated aim of allowing all workers to work from home. Further, a general extension of the entitlement to reasonable accommodation to all workers would introduce significant uncertainty into relatively settled employment equality law. ‘Stretching’ the statutory terms of ‘appropriate measures’ and ‘undue burden’ in this way may have unforeseen consequences for protections of persons with disabilities, which might undermine the benefits to them of normalising remote working. There is also a danger that employers would seek to rely on remote working to discharge their obligations to provide reasonable accommodation in a way that could exclude people with disabilities from the physical workplace.

 

Our proposal

 

As far as we can see, the most viable model would be based on an extension of flexible working arrangements for parents. The timing is very convenient, in light of Ireland’s obligations under EU law: Directive 2019/1158, which must be implemented by August 2022, significantly extends the rights of workers returning from parental leave protected by Directive 2010/18. The relevant sections of the new Directive require:

 

Member States shall take the necessary measures to ensure that workers with children up to a specified age, which shall be at least eight years, and carers, have the right to request flexible working arrangements for caring purposes … Employers shall consider and respond to requests for flexible working arrangements [and] shall provide reasons for any refusal of such a request or for any postponement of such arrangements.

… [T]he worker shall have the right to return to the original working pattern at the end of the agreed period. The worker shall also have the right to request to return to the original working pattern before the end of the agreed period where justified on the basis of a change of circumstances. The employer shall consider and respond to a request for an early return to the original working pattern, taking into account the needs of both the employer and the worker.

 

Directive 2019/1158 defines ‘flexible working arrangements’ to include ‘remote working arrangements’. The Directive also includes protections against penalisation and discrimination for requesting flexible working arrangements. 

 

The Commission has devoted significant attention to promoting ‘work-life balance’ across the Union. Given that Ireland is effectively obliged to implement a right to work from home for parents of young children by 2022 anyway, it seems like an obvious opportunity to extend those protections to all workers. There is no issue here from an EU law perspective. The Directive sets a floor of rights: so long as parents of children up to age 8 have the right to work from home, Member States are free to give that right to as many other workers as they like.

 

What is missing from the Directive is a specific standard for the reasons offered by the employer for refusing the request. It seems compatible with the Directive for Ireland to adopt legislation requiring employers to accept such requests absent specific reasons, like unreasonable financial burden on the employer, or the nature of the work involved. In such circumstances, it seems sensible to give workers a means to challenge the veracity of those reasons before an independent body, and place the burden of establishing those reasons on the employer. This will be discussed further in Part II.

 

The Directive refers to the need to allow workers to return from their flexible working arrangements earlier than the period for which those arrangements were agreed with the employer. This provision seems to have been designed with the position of new parents in mind - eg that parents of young children would request three months of remote working during the school holidays, and then return to the office in September. However, this does not really suit the preferences of the workforce, shaped as they have been by the experience of remote working during the pandemic. Given the desire for remote working some days a week, with a mixture of remote and on-site working on a week-to-week basis, additional flexibility could be offered by drawing on the existing provision for annual leave.

 

Employees in Ireland and across Europe have the right to a minimum of 4 weeks paid annual leave. In Ireland, these take the form of a ‘stock’ of days that employees can (by and large) take at any time, provided they give their employer sufficient notice. We suggest giving employees a stock of at least 150 days of working from home per annum, which can be taken at the employee’s discretion, subject to giving their employer 48 hours’ notice. In practice, this means an office worker could notify her employer on a Friday afternoon what days she intends to work from home the following week, which on average would be 3 days out of 5. Unlike annual leave, however, we do not see any need for workers to receive the equivalent of ‘holiday pay’ where they do not take advantage of their full quota of remote working days. Although at first glance it seems desirable to allow workers to ‘sell’ their remote working days back to an employer who really wants them on-site, it is hard to reconcile this with giving employers the right to refuse WFH requests on the basis that it would put an unreasonable financial burden on the business.

In summary, then, we propose a ‘right to work from home’ that consists of the following:

• Employees may request flexible working arrangements of any kind without penalisation nor discrimination
• In particular, employees are entitled to take up to 150 days working from home per annum, provided they give at least 48 hours’ notice
• Employers may refuse to allow an employee to work from home on any given day, provided they give the employee specified reasons for this refusal (discussed further in Part II)
• Employees are entitled to challenge the refusal to an independent statutory agency, in which circumstances the burden on justifying the refusal lies on the employer (discussed further in Part II)

 

Niamh Egleston is a Research Assistant at the School of Law, Trinity College Dublin and recently completed an LLM at the London School of Economics. 

Alan Eustace is a PhD candidate at the School of Law, Trinity College Dublin, and a member of the Covid-19 Law and Human Rights Observatory.

Suggested citation: Niamh Egleston and Alan Eustace, ‘“Baby, You’re the Boss at Home”: Giving Employees the Right to Work from Home - Part I’ (11 December 2020) available at https://tcdlaw.blogspot.com/2020/12/baby-youre-boss-at-home-giving.html

 

COVID-19: Public Policy Report on Supporting Individuals, Communities, Businesses, and the Economy

Dr Deirdre Ahern and Dr Suryapratim Roy

 

The COVID-19 Legal Observatory has published its report on ‘Law and Policy Responses to COVID-19 in Ireland: Supporting Individuals, Communities, Businesses, and the Economy ( ‘Response Report’). The Response Report draws on the expertise of several contributors at the School of Law and School of Social Work and Social Policy at Trinity College Dublin to provide a comprehensive analysis of the primary regulations and rights with respect to socio-economic issues arising in the wake of COVID-19. This is the first public policy report of the Observatory and it documents the regulatory position as of 15 October 2020.. The aim of the Observatory’s policy report series is to contribute actively to public debate and to shape public policy and law reform through analysing and evaluating Ireland’s response to COVID-19. Other policy work of the Observatory is focused on data protection issues relating to the pandemic, and the public health response to the pandemic. The Observatory is also completing a report on behalf of the Irish Human Rights and Equality Commission that analyses how Ireland has deployed emergency powers in response to the pandemic. 

What is the Response Report About? 

Ireland, like most of the world, has responded to the COVID-19 pandemic with an unprecedented series of restrictions on everyday life, designed to stem the spread of the virus in the interests of the common good. These restrictions have, in turn, imposed significant costs on individuals, families, and businesses. To respond to such restrictions, there have been specific State measures taken on social welfare, housing, business protection, disability and employment. These measures are in the way specific policies to deal with socio-economic concerns, some as amendments to existing laws that may confer statutory rights. Where there are no specific measures in place, it is important to be mindful of rights under existing legislation and common law rights. Where specific and existing policies and rights are not in play, there is reliance on voluntary activities in the private sector and self-regulation to address such concerns. Ireland is affected by the EU response as well – the EU’s Recovery Plan, and notably the Generation EU fund does provide hope to Member States. 

The Response Report seeks to identify policies, statutory changes, existing laws and rights, and the role of private action with respect to the following areas: 

·      Rental Housing

·      Banks and Mortgages 

·      Workforce and Employment 

·      Social Protection 

·      Business Interruption and Insurance 

·      Corporate Governance 

·      EU Recovery Package 

The Report then discusses the potential role of human and constitutional rights in addressing socio-economic concerns arising from COVID-19, concentrating on the (i) Justiciability of socio-economic concerns, (ii) Rights-discourse in shaping executive and legislative choices, and (iii) Horizontal application of rights to private relationships.

After identifying policies and challenges with respect to the issues above, the Response Report provides recommendations for policy makers and private parties. 

What are the Recommendations of the Response Report? 

The recommendations of the Response Report are summarised in the Executive Summary found in the report. We provide some of the key findings below: 

·      There have been policies on expanding protections to tenants with respect to rent increases and evictions. These need to be publicised, especially for recipients of the Pandemic Unemployment Payment. It is recommended the government reviews the current statutory regime around holiday lettings, and consider limiting no-fault evictions to landlords with no more than three residential properties.

 

·    In contrast with regulatory interventions in the rental market, mitigation of COVID-19 hardship in the mortgages’ context has relied primarily on a voluntary approach on payment breaks. Clarity is needed on how hardship may be considered by judges in repossession proceedings arising due to arrears accrued prior to the crisis, and repossession proceedings involving COVID-19 related arrears. Further, there is inconsistency in the treatment of arrears for residential and commercial properties. A code of conduct for mortgage arrears accruing in respect of commercial premises and in respect of non-primary principal residences should be introduced in the short term to assist in arrears management during and after the COVID-19 crisis.

 

·      Given redundancy appears to be inevitable, employers need to bear in mind criteria in selecting workers who would be made redundant. Equality legislation require employers to ensure there is no discrimination on grounds of gender, civil status, family status, sexual orientation, religion, age, disability, race, and membership of the Traveller community. With respect to the treatment of workers at the workplace, employers should take due care to protect employees and members of their households from being exposed to COVID-19 and appropriately consider dimensions of their wellbeing in the workplace including when working from home. The horizontal application of the European Convention on Human Rights to private relationships requires employers to avoid damage to an employee’s health, personal and family relationships. Occupational stress is sought to be reduced the operation of working time legislation that ensures a proper work-life balance, and a ‘right to disconnect’ recognised in other jurisdictions that mitigates against an ‘always-on’ culture. To alleviate stress due to working from home, taxation measures could be available to workers and employers to fund purchase of appropriate equipment. 

 

·      There has been a robust and prompt social protection response in the form of a Pandemic Unemployment Payment, and an Illness Benefit for COVID-19 related absences. It is important to observe the rule of law, data privacy and transparency principles in the provision of social services. 

 

·     There is considerable potential for business interruption insurance to tide over COVID-19. However, as there is ambiguity in the terms of insurance policies on their application to the crisis, it is recommended that insurance providers resolve this in favour of the insured party being covered. To prevent uncertainty, legal interpretation of issues in individual cases should be applied across the sector to avoid the need for costly and time-consuming duplicate litigation. Further, a State-backed insurance fund would reduce uncertainty of disputes in cover and provide the economic support that businesses need. 

 

·   It is heartening to find many companies taking responsibility beyond their own immediate financial successes and cater to interests of different stakeholders in their corporate strategies. To provide investors with enough information to guide investment choices, and guide decision-making promoting stakeholder values among employees and management, listed companies and public companies could publish purpose statements. In order to ensure shareholder democracy, hybrid remote meetings should be encouraged and facilitated using technological tools to allow shareholders the opportunity to attend and ask questions. In order to promote liquidity and long-term value, it might be an option to encourage share buy-backs in the short-term. 

 

·    COVID-19 has plunged the Eurozone into a severe recession. The European Central Bank launched a Pandemic Emergency Purchase Programme requiring Member States to raise capital to finance the pandemic, in addition to a series of measures that seek to stabilise the banking sector and support its lending activities to firms and in particular small and medium-sized enterprises. State aid rules impose constraints on Member States to put in place national stimulus packages, which creates an uneven playing field. The EU Recovery Plan including the Next Generation EU Fund was agreed on after intense negotiations, and is a welcome development. It remains to be seen the extent to which Ireland will avail of the recovery package and credit lines offered by the EU. Having said that, there are concerns on the small size, exceptional nature and limited duration of the Next Generation EU Fund. A transformational recovery of the EU economy and achievement of green and digitalisation agendas would require a more sizeable and long-term investment programme.

 

·      There is potential for requiring the State to meet its positive obligations to secure socio-economic rights, the proportionality principle should be employed as a tool in shaping policy decisions, and indirect horizontal application of rights to private parties may speak to concerns raised in different contributions to this Report. 

 

·      The analysis provided in the Response Report does not indicate significant concerns around discrimination in Ireland’s public policy treatment of COVID-19. Having said that, there is scope for an analysis of structural inequality concerns in vulnerability towards catching the disease, accessing treatment, and the impacts of COVID-19.

Elijah Burke v The Minister for Education: The intersection of home-schooling, Covid19 and children’s rights

 Seamus Byrne, University of Liverpool 

 

Introduction

On the 19^th August 2020, the Irish High Court in the case of Elijah Burke v The Minister for Education, per Mr. Justice Meenan, delivered an important ruling in the context of the rights of home-schooled children in Ireland. This case arose out of the arrangements which the Department of Education had put in place to accommodate the calculation of Leaving Certificate points following the unprecedented cancellation of the Irish Leaving Certificate, described as a first in “the history of the State”, as a result of the spread of Covid19. In this case, the High Court held that the exclusion of the applicant from the consideration of estimated percentage marks on the basis that his teacher who home-schooled him possessed a conflict of interest (who in this instance was his mother), was unlawful, irrational and therefore unconstitutional. By shining a spotlight on the treatment of home-schooled children as part of the governmental response to Covid19, the Burke case possesses broader constitutional and children’s rights significance for it reasserts the right to education for all children, the importance of procedural fairness and to a lesser extent the right to equality. 

This blog post will firstly set out the legal framework governing home-schooling in Ireland and then proceed to examine the Burke judgment. Following this, its broader constitutional and children’s rights significance will be examined. Ultimately it is argued that although the express language of children’s rights was absent from the judgement, it’s influence potentially extends far beyond the relief sought (and obtained) by the applicant and lays the foundations for more children’s rights-based litigation in the future.

 

Home-Schooling in Ireland

The law relating to home-schooling in Ireland finds expression both constitutionally and legislatively. From a constitutional perspective, and in recognising the family as “the primary and natural educator of the child”, Article 42 (2) states that:

 

Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.

From a legislative standpoint, the principle provision regarding home-schooling is contained within section 14 of the Education (Welfare) Act, 2000. Designed to ensure the maintenance of a register of children who receive their education other than in a recognised school, including those who are home-schooled, section 14(2) states that:

“where a parent chooses to educate, or have educated, his or her child in a place other than a recognised school he or she shall, in accordance with this section, apply to the Board to have the child concerned registered in the register.”

 

However, admission on to the register is subject to a well-crafted legislative process. Parents must firstly apply to have their child registered under section 14(3) of the Act, and following this, are subject to an assessment by the Education Welfare Services of the Child and Family Agency (TUSLA) to ensure that the child will receive a “certain minimum education”. This requirement assuages the constitutional tensions inherent in Article 42 which, on the one hand enshrines the right to home education, but on the other recognises the non-absolute nature of this right by mandating the State “as guardian of the common good”, to ensure that children receive a certain minimum education. With no legislative or constitutional definition of what comprises a “certain minimum education”, it has fallen to the courts to flesh out its requirements. As far back as 1943, Chief Justice Sullivan stated that it comprised “a minimum standard of elementary education of general application”, while in DPP v Best, the Supreme Court, per Denham J., stated that not only must the constitution be read as “a living instrument” to be construed of its time, but that the phrase ‘certain minimum education’ amounted to “a minimum education, moral, intellectual and social which must be considered in light of factors … such as the time the issue is determined, -- the family, the parents, their means, the child, the geographical situation, the actual circumstances and the common good”. By imposing neither an overly high threshold which could potentially nullify the right of parents to home-school their children, nor an overly low standard which could potentially abrogate the child’s right to education itself, the courts have adopted a distinctly contextual approach to the requirements arising under “certain minimum education”. 

 

The Burke Judgement: Facts and Outcomes 

The cancellation of the 2020 Leaving Certificate and the measures which were introduced by the Department of Education to compute student grades was the backdrop against which the Burke case emerged. The applicant in this case, Elijah Burke, the youngest of ten children was home schooled by his mother, like all his siblings. She had a background in education and had worked for the State Examinations Commission since 2016. In his affidavit before the court, the applicant confirmed that he had studied diligently and consistently for his leaving certificate, while his mother confirmed that in relation to her son’s home education, she “followed the mainstream traditional approach and used textbooks, revision books, past exam papers, video and other online resources”.

 

In establishing an alternative grading system for the Leaving Certificate, the Department issued two guidance documents, one for students attending schools (“Guide for Schools on Providing Estimated Percentage Marks and Class Rank Orderings” (21 May 2020)) and another for students who were educated out-of-school, including those who were home-schooled (“A Guide to Calculated Grades for Out-of-School Learners” (June, 2020)). These documents were designed to ensure on objective, fair, transparent, and impartial approach to the computation of student grades. Central to the guidance was the departmental desire to avoid conflicts of interest regarding the way those grades were arrived at, including situations where family members were involved in a student’s education. In situations where a family member was involved in a pupil’s education within a conventional school setting which would result in them being involved in the estimation of their grades, the May 2020 Guidance stated that:

 

The teacher may still need to assist in the process, by handing over data or factual information, but should not be involved in any judgment process that relates to that student as an individual. There will be additional oversight by the principal/deputy

 

For those educated out-of-school including those who were home-schooled, the June 2020 Guidance recognised four scenarios relevant to such learners. These included students who were engaged with a centre of learning not recognised by the Sate Examinations Commission (SEC), students who were engaged with a centre of learning which was recognised by the SEC, students who were receiving tuition by a registered teacher outside of any centre of learning and students who were repeating their Leaving Certificate, having previously sat their examinations in 2018 or 2019. To be eligible for consideration for an estimated grade in a particular subject, students were to have “engaged in tuition regularly over a sustained period … in order that there is an appropriate source from which to receive the estimate”. In this case, the applicant fell within the third category of scenarios recognised by the Department, namely those educated by a registered teacher outside of any centre of learning as he was educated at home by his mother. It further followed that she would be able to draw on that tuition as the source for providing the estimated marks. Moreover, in keeping with Departmental desires to ensure an objective and transparent estimation process, the June 2020 Guidance further set out relevant guidance to avoid conflicts of interest arising out of the estimation process. It stated:

 

To uphold the integrity of the process, it will not be possible, under any circumstances, to accept an estimated mark from a teacher or tutor who is closely related to you (including a brother, sister, parent, spouse etc.). This would be a direct conflict of interest and accepting estimated marks from a family member would undermine the credibility of the process. A Conflict of Interest declaration must be completed by all those submitting an estimated percentage mark. (June 2020 Guidance, p 4)

 

In this case, the applicant was refused to be considered by the respondent for the award of such estimated grades. Given that his mother provided his tuition, the conflict of interest clause within the June 2020 Guidance could not be overcome. This was further compounded by the fact that in applying for his estimated grades, the applicant mother’s was unable to provide the required written confirmation that “there is no conflict of interest in my engagement with this process for this student”. As such, the applicant was shut out from receiving estimated grades, and thus the opportunity to proceed to third level education. In holding that the refusal to consider the applicant for estimated grades was “arbitrary, unfair, unreasonable and contrary to law”, on the basis that his mother was his teacher, the court made an order of certiorari quashing the decision of the respondent. In reaching his conclusions, Meenan J., noted the contrasting departmental guidance which was issued to both in-school and out-of-school learners. In relation to the former cohort of students, their guidance contained a mechanism to overcome actual or potential conflicts of interest whereby the conflicted teacher could hand over the information and data to another non-conflicted teacher, while the guidance relating to the latter cohort of students did not. No procedural backstop was provided. This, he noted was “very striking” and generated a situation whereby students who were faced with similar problems did not have the benefit of a similar solution. Meenan J., stated:

 

I do not believe that a non-conflicted teacher in giving an estimated percentage mark to an “out-of-school learner”, such as the applicant, is required to do anything or take any step that would be materially different from that done by a non-conflicted teacher in a school setting taking the place of a conflicted teacher.

 

Therefore, in noting the unfairness this generated, the Court quashed the decision of the Respondent on the grounds listed above.  However, on deeper analysis, the Burke decision raises broader constitutional, procedural and children’s rights issues which warrant closer inspection. 

 

The Broader Constitutional and Children’s Rights Significance of Burke

The Right to Education

At its core, the Burke case represents an important judgment for upholding the right to education for home-schooled children in Ireland. It further resolved a curious legal paradox that would otherwise persist if children taught by their parents were not considered for estimated grades. The practical consequence of this would be that home-schooled children would remain ineligible for consideration for such grades by the Department, despite the constitutional and legislative permissibility of home-schooling in the first instance. In highlighting this incongruity, and the fact that such an automatic exclusion did not apply for students with comparable conflicts of interests in an ordinary school setting, the Court in many respects exposed the differential departmental treatment accorded to out of school learners, including home-schooled children. The effect of this, if left unremedied, would not only impact the enjoyment of their right to education but arguably reduce the right itself to an illusory status. 

 

Moreover, the context against which the Department’s arrangements were introduced is an important consideration. Resolutely anchored within the social and psychological psyche of the Irish state, the Leaving Certificate has been described by Banks and Smyth “as a very high-stakes exam”. It’s outcome not only shapes the future educational and professional choices which students make, but is one where students devote considerable time and effort in preparing for it. In terms of those preparations and the choices and aspirations which attach to them, home-schooled children are no different. Moreover, the respondent’s suggestion that home-schooled students could still chose to sit the Leaving Certificate which they “hoped will take place in November, 2020”, not only lacked clarity or certainty, but no epidemiological evidence was presented to the court which suggested that such a sitting could occur on that date. In any event, such an option does not account for, nor justify, the differential procedural treatment which in-school and out-of-school children received by the Department.

 

In finding the arrangements introduced by the Department unreasonable and arbitrary in their effect on home-schooled children, the Burke judgment should not be viewed as a judicial affirmation of the practice of home-schooling itself. Rather, it upholds the necessity to ensure that the right to education for all children and young people is equally enjoyed. In this regard, the judgment is a powerful reminder that administrative ease or departmental short-sightedness, is neither an acceptable nor justifiable basis upon which to cast aside, or substantially diminish, the right to education for home-schooled children, few though they may be. 

 

The Right to Equality

Relatedly, the Burke case raised further issues regarding the constitutional right to equality under Article 40.1 of the Constitution. This states that:

All citizens shall, as human persons, be held equal before the law. 

This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.

 

Widely interpreted as amounting to a right to equal treatment, the constitutional provision on equality was clearly engaged within the Burke case. It its assessment of the provision, the Supreme Court has previously stated that:

 

The central principle of the Article rests, firstly, on the common humanity which we all share and, secondly, on the general understanding that for the State to pass a law which treats people, who are objectively in the same situation vis-a-vis the law, unequally, is an affront to fundamental ideas of justice and even to rationality

 

Although only referred to within the judgment in the context of counsel’s submissions that the applicant’s right to home education should be construed in light of his Article 40.1 rights, the judgment itself speaks more widely to the right of equal treatment for home-schooled children. Specifically, the enactment of departmental guidance designed to give practical effect to the right to education for all children and young people, but which in practice disproportionally, if not exclusively, impacted a certain cohort of those children in the enjoyment of that right, cannot be said to be tantamount to the equal treatment clause within Article 40.1. Indeed, in underlining the differential treatment which in-school and out-of-school children were subject to as a result of the divergent guidance, Meenan J., stated  that it would: “at the very least, mean that the applicant would be delayed by one year in commencing his third level course of choice, should he be so admitted to it. This would clearly be detrimental to the applicant.” Thus, in recognising the practical impact which the Department’s guidance would have on the applicant, the Court was acutely aware of the long-term negative effects which would arise. And although the judgment did not expressly engage with the applicant’s right to equal treatment, it arguably affirmed it indirectly.

 

Children’s Rights Significance 

While the applicant in the Burke case was an adult and was thus able to initiate his own legal proceedings, not all young people who sit the Leaving Certificate will have attained majority status. Indeed, shortly after the judgment, a similar case was brought by a young person under 18 years of age on similar grounds. In N.P. (A Minor) & anor -v- The Minister for Education and Skills, Meenan J., again quashed the decision by the Respondent in failing to consider the applicant for estimated grades on the basis that her tutor in this instance was not a registered teacher.

 

Given that both cases engage the rights of home-schooled students which will invariably include children, it is notable that the express language of children’s rights was absent from the judgments. No reference was made to either the child’s best interests principle or their right to non-discrimination, despite their significance within children’s rights law generally and within the factual and legal contexts of both cases specifically. While these principles may arguably be under-invoked within domestic constitutional litigation, they do however possess much capacity moving forward to add persuasive jurisprudential force to future legal issues concerning children and their rights. In retrospect, one could posit what the judgments would look like if such principles had been argued before the Court and how these arguments would have persuasively influenced or guided the court. While the outcomes would arguably have remained the same, the legal and lexical make-up of the judgments would have contained an arguably rich and influential jurisprudential source from which to further advance children’s rights within domestic litigation on matters affecting children. The fact that these cases had to come before the Court in the first instance highlights the need for more robust engagement with children’s rights principles. Indeed, if left unchecked, the effect of the Department’s guidance could have arguably consigned home-schooled children to an educational hinterland. 

 

Additionally, permeating both cases was the disjunctive procedural processes which where enacted by the Department and which disproportionality impacted home-schooled children. And while the incongruity of such procedures was highlighted by the Court, they do underscore the need to ensure children’s rights are firmly rooted within future departmental decisions, across all government areas. In view of the evolutive nature of Covid19 and the likelihood of future decisions which will undoubtedly impact children, it is imperative more than ever, that the celebrated constitutional visibility of children’s rights underpins all governmental decisions which affect children and young people moving forward. 

 

Seamus Byrne is a lecturer in law at the University of Liverpool.

 

Suggested citation: Seamus Byrne, ‘Elijah Burke v The Minister for Education: The intersection of home-schooling, Covid19 and children’s rights’ COVID-19 Law and Human Rights Observatory (6 November 2020) https://tcdlaw.blogspot.com/2020/11/elijah-burke-v-minister-for-education.html