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Significant budgetary restraints. A significant deficit in the public finances.  Does that all sound familiar?  It is a feature not only in the United Kingdom but also in the Republic of Ireland.  It is the context of Case C-154/18, Horgan and Keegan v Minister for Education and Skills, in which the Second Chamber of the ECJ gave Judgment on 14 February 2019, on a reference from the Irish Labour Court.

Mr Horgan and Ms Keegan are school teachers.  They work in an Irish State primary school. They are supported by the Teachers’ Union, INTO.In order to meet the need to achieve a medium-term structural reduction in the cost of the public service, the Irish Government, as part of its 2011 Budget, adopted salary arrangements by which newly recruited public servants, including teachers in national schools, such as Mr Horgan and Ms Kegan, are recruited on lower pay than teachers already employed before a specified date, irrespective of age.

Does that nonetheless constitute indirect age discrimination? No, say the ECJ, notwithstanding that teachers recruited since that date are generally younger than teachers already employed at that date.  “The date of recruitment is at first sight a neutral criterion from the age perspective.”

Two justifications were put forward, with neither of which did the Court engage.  First, the need for Ireland to respond to an economic crisis. Second, the obligation to a collective agreement prohibiting reduction in the remuneration of public servants recruited before 2011.

The ECJ rather concentrated on whether there could be discrimination at all. It observed that the difference in salary treatment results from the date of recruitment of the respective groups of teachers. When a person was recruited was the only relevant criterion. That applied regardless of age at the time of recruitment.

The ECJ concluded as follows:-

“… that criterion, which renders the application of the new rules dependant exclusively on the date of recruitment as an objective and neutral factor, is manifestly unconnected to any taking into account of the age of the persons recruited …

… the new remuneration conditions introduced by Ireland are not based on a criterion which is inextricably or indirectly linked to the age of the teachers, so that it cannot be considered that the new rules establish a difference of treatment on grounds of age …

… the answer … is that Article 2(2)(b) of Directive 2000/78 must be interpreted to the effect that a measure such as that at issue in the main proceedings which, as of a specific date, provides for the application on the recruitment of new teachers of a salary scale and classification on that scale which are less advantageous than that applied, under the rules previous to that measure, to teachers recruited before that date does not constitute indirect discrimination on the grounds of age within the meaning of that provision.”

There is some support for this approach in earlier authority cited by the Court: Cases C-443/07, Centeno Mediavilla , and C-132/11, Tyrolean Airways.  Where there is no causation there can be no discrimination, and sufficient justification is not required.  For there to be unlawful age discrimination the differential treatment must be attributable to age. That no doubt holds good as regards direct discrimination.

This route to the outcome does however seem somewhat surprising in an indirect discrimination case, such as the present.  It is surely precisely when a neutral criterion has a disparate impact that there may, subject to justification, be discrimination that is indirect.  Otherwise, it may effectively be said that, when there is no direct discrimination, indirect discrimination is ruled out.

As the INTO President has said as regards the cuts imposed on new entrants:-

 “To impose a salary cut on these entrants means in reality that younger teachers were paid less at start of career than older teachers had been, a disadvantage which persists across the career resulting in a substantial differential in career earnings.”

If this can be justified, so be it. But that is the real issue. The claim ought not to have been blocked at the gateway.

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The High Court yesterday handed down judgment in R (An Academy) v Medway Council and Secretary of State for Education. This was a comparatively rare judicial review challenge in the area of special educational needs; many such disputes are dealt with in the specialist tribunal.

A school had been named by the council in the Education and Health Care Plan of a child who had previously had a plan in Greenwich which made extensive provision to meet his needs (in section F of the Plan). The school challenged the Plan as unlawful, significantly because the council had, upon transfer, eviscerated section F to the extent that it appeared that the school was suitable for the child (which the school did not accept).

The Court accepted that the Council had acted irrationally in eviscerating the Plan, and that it had failed to comply with its consultation obligations to the school. The upshot was that the Plan was quashed and the Greenwich plan reinstated with the full suite of special educational provision in section F.

The Secretary of State participated as an Interested Party in the case to make submissions on the correct interpretation of the Children and Families Act 2014, in particular as it relates to the right of children and young persons with special educational needs to access mainstream education. The Court accepted the Secretary of State’s analysis of the way the legislation works: see especially paragraphs [93]-[96].

The case accordingly provides important general guidance on the interpretation of the law.

Aileen McColgan represented the School and Tom Cross the Secretary of State for Education.

You can read the judgment here.

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Jonathan Moffett QC and Michael Lee are currently representing Surrey County Council before the Divisional Court in its defence of a challenge to its Special Educational Needs budget. The case concerns the extent of local authorities’ obligations to consult and impact assess budget decisions of this type. The case, which is due to conclude today, has been reported by the BBC, the Guardian, and the Independent.

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