Teacher should not have been put on less advantageous pension, court rules

A post-primary school teacher should not have been put into a less advantageous pension scheme that was introduced by the Department of Education eight years ago under financial emergency measures, the High Court has ruled.

Enda O’Rourke has worked since 2007 as a technical subjects teacher in the fee-paying Wesley College in Ballinteer, Dublin.

He was paid directly by the college between 2007 and 2016 and was employed as a substitute teacher, providing special needs education, teaching supervision, general supervision and performing substitution duties.

In 2016, he was designated a part-time teacher - an incremental post of one year’s duration.

When teachers’ pay was reduced under the 2013 Financial Measures in the Public Interest Act, industrial unrest followed and led to the Haddington Road agreement.

Unless teachers were eligible to opt out, of the deal, they had to participate and Mr O’Rouke was not eligible. He continued to provide supervision/substitution for 57 weeks between October 2013 and November 2014.

He was already enrolled in the 2009 Secondary, Community and Comprehensive School Teachers Pension Scheme. However, a law was passed in 2012 — the Public Service Pensions (Single Scheme and Other Provisions) Act 2012 — which closed that pension scheme.

All new entrants were put into what was called the “Single Pension Scheme” which was less advantageous than the 2009 scheme. After he was officially designated a regular part-time teacher in 2016, his payslip had him on the 2012 pension scheme.

Employment break

Mr O’Rourke protested and was told that because he had a break in his employment for more than 26 weeks, he had to be entered, as part of the legislation, into the new 2012 single pensions scheme on his return to employment.

The break referred to was a period of 57 weeks in 2013/14 when he continued to provide supervision/substitution but for which he was not paid.

He brought judicial review proceedings arguing he never resigned, retired or ceased to serve as a teacher in Wesley College. He maintained he was wrongfully removed from the old pension scheme.

The department argued, among other things, that the 57 week period of not being paid amounted to “ceasing to serve in a public body”.

In his judgment, Mr Justice Charles Meenan said Wesley College qualified as a public body as it was “wholly or partly funded” by the State.

Mr O’Rourke’s property rights are protected by the Constitution. The judge said the Supreme Court has found where there are implications in legislation for those rights, they must be expressed with reasonable clarity.

To accept the department’s argument that Mr O’Rouke ceased “to serve” meant offending that principle by saying he had ceased to serve as a pensionable public servant. The court was being asked to read words into the 2012 single pension scheme legislation “which were not there”.

In the judge’s view this was not permissible as the court would “in effect be rewriting” part of the legislation. He found Mr O’Rouke did not cease to serve in a public body, there was no break in his service and he was wrongfully removed from the more advantageous 2009 scheme.