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Contract Law May Deal with Challenge

Irish Times, July 22, 2010

A TEACHER who is challenging a school’s attempt to re-suspend him pending an inquiry into sex abuse allegations is entitled to have the matter dealt with as a contract of employment case, the High Court ruled yesterday.

Last year, Patrick McGlinchey (57) succeeded in having a 12-year suspension from his job quashed as part of a settlement of High Court proceedings. Under that settlement, the special-needs school where he worked was to hold a new independent inquiry into the suspension. Mr McGlinchey, who is married with children and lives in Newport, Co Tipperary, was suspended in 1997 after allegations he abused a number of pupils in the school. He has been suspended on full pay since.

In 2002, he was acquitted of sex abuse charges against two male pupils after a 19-day trial by judge and jury at Dublin Circuit Criminal Court. Allegations were also made by other pupils. The settlement of his civil action over his suspension provided for the school to set up its own private inquiry into the suspension.

That inquiry opened last December, but Mr McGlinchey and his lawyers walked out on the second day after the adjudicator, appointed by the Bar Council, ruled as admissible evidence video recordings of several children making complaints of abuse.

Mr McGlinchey argued the video evidence was hearsay and he would not have an opportunity to question his accusers as the children were not available for cross-examination. He also complained one of the children giving evidence was a boy, Boy A, of whose allegations he had been acquitted in the criminal proceedings.

As a result of the walkout, the school re-suspended Mr McGlinchey, saying he had attempted to frustrate the inquiry.

He then brought High Court proceedings claiming the school breached last year’s settlement and that the adjudicator’s ruling in relation to the video evidence was unlawful. He also alleged breach of his contract arising from the re-suspension and refusal to let him go back to work. The school denied his claims and contended he failed to co-operate under last year’s High Court settlement.

Yesterday, Ms Justice Mary Laffoy ruled the consequences of Mr McGlinchey’s withdrawal from the inquiry must be determined under the law of contract. A finding cannot be made he had acted prematurely in withdrawing from the inquiry, she said.

She ruled the adjudicator was correct in admitting the video evidence from the other children but was incorrect to allow evidence relating to Boy A as Mr McGlinchey had been acquitted in relation to his allegations. She also found, even if Mr McGlinchey’s withdrawal from the inquiry was justified, it would not give rise to what was regarded under common law as a frustration of a contract.