In light of the recent industrial action by nurses, the question arises as to whether a person whose health has suffered as a result of the action, might be in a position to take successful constitutional action against one or more of the unions involved. The right to bodily integrity is one of the unenumerated rights in the Irish Constitution.
The right not to have one’s health unreasonably placed in jeopardy would fall within this category of rights. The existence of a constitutional right in one person implies a duty in others to respect that right.
In the case of Educational Company of Ireland v Fitzpatrick, Mr Justice Budd said: “Obedience to the law is required of every citizen, and it follows that if one citizen has a right under the constitution there exists a correlative duty on the part of other citizens to respect that right and not to interfere with it.” Crowley v Ireland is a case that dealt with the issue of interference by a trade union with the constitutional rights of others.
In the 1970s, a dispute between the Irish National Teachers Organisation (INTO) and the management of a number of primary schools in West Cork, ended up in court. The dispute related to the appointment of a principal teacher at Drimoleague Primary School. When a withdrawal of services by teachers in the schools at the centre of the dispute failed to resolve the issue, the INTO directed all teachers in the schools adjacent to Drimoleague Parish not to enrol pupils from the Drimoleague schools.
The directive had a serious adverse effect on the education of the children concerned. A number of children from the schools sued the INTO and members of its central executive committee, claiming damages for interference with their constitutional right to free primary education.
When the case came before the High Court in July 1978, the court was told that the children’s claim against the union was for damages alleged to have been suffered by them by reason of a conspiracy on the part of the INTO to deprive them of their constitutional rights.
Counsel on behalf of the plaintiffs made it clear that the children were not challenging the right of members of the INTO to withdraw their labour from the Drimoleague schools, and that they limited their claim to a contention that the directive issued by the union was an unlawful interference with the constitutional rights of the children to free primary education.
The court was told that the directive prevented children being taken into any other school. It was submitted that the means adopted by the INTO were unlawful, although the predominant purpose of protecting the rights of INTO members in dispute with local school management was not unlawful.
Counsel referred to the Supreme Court decision of Meskell v CIE in which Mr Justice Walsh stated: “to infringe on others’ constitutional rights or to coerce them into abandoning them or waiving them (insofar as that may be possible) is unlawful as constituting a violation of the fundamental law of the State; insofar as such conduct constitutes the means towards an end which is not in itself unlawful, the means are unlawful, and an agreement to employ such means constitutes a conspiracy. If damage results, it is an actionable conspiracy.”
INTO counsel said there was no evidence that the union intended to injure the children, and that the directive was a step taken lawfully to protect the material interests of teachers.
He said the teachers had a constitutional right to withdraw their services, and that their compliance with the circular was merely a withdrawal of their services to that end. Counsel contended that any injury to the children’s constitutional rights, was merely incidental to the exercise by INTO members of their constitutional rights.
h4. Constitutional right
Giving the judgment of the High Court, Mr Justice McMahon doubted whether the INTO members were exercising a constitutional right in refusing to enrol the children from Drimoleague schools.
The judge said that even assuming that the members were exercising a constitutional right, it did not follow that the interference with the constitutional rights of the children was not actionable. He said that the character of an act depends on the circumstances in which it is done, and the exercise of a constitutional right for the purpose of infringing the constitutional rights of others is an abuse of that right which can be restrained by the courts.
The teachers who refused to enrol the Drimoleague school children in adjoining schools did not act primarily for the purpose of exercising a right to work or not to work, or to choose the conditions under which they would work. Their purpose was to deprive the children of primary education in order to exert pressure on the local school management.
He concluded that the INTO and members of its executive committee had engaged in a conspiracy against the children for the period in which the directive was in operation. The court reserved the question of damages.
When the issue of damages was considered in later High Court and Supreme Court proceedings, the courts awarded exemplary damages to the children affected by the issue of the directive, to mark the courts’ disapproval of the actions of the INTO; this was in addition to ordinary compensatory damages. It is thought that the union paid in excess of £1 million in damages to the children involved, together with substantial costs associated with the protracted litigation.
h4. Differences in disputes
There are marked differences between the dispute at the Drimoleague schools in the late 1970s and the nurses’ industrial action. There is also the fact that the nurses during their action provide a certain level of emergency cover and that other health care professionals, continue to work.
However, it is difficult for unions to engage in industrial action of this nature for a prolonged period without placing the health of patients and other members of the public at risk. Indeed it is more likely than not that individual members of the public will have suffered adverse health effects.
While it is by no means certain, it is not beyond the bounds of possibility that a successful action could be mounted against one or both of the nursing unions by an individual. This might be the case, even in a situation where the industrial action by the nurses would, in other respects, enjoy constitutional protection.
h4. Injunctive relief
And what of the obligations of hospital management in a situation where they genuinely believe that aspects of the industrial action are placing the health of patients at serious risk, and where representations to the relevant union have failed to resolve matters? In that situation they may well feel obliged to seek injunctive relief in the courts restraining the action in question, in order to fulfil their duty of care to their patients.