ASTI fears allayed as clarification on costs clears up indemnity issue

NOT for the first time, the Association of Secondary Teachers’ Ireland (ASTI) has found itself at the centre of a controversy. After months of turmoil for Leaving Cert students, this week was to see the beginning of the end of the uncertainty for the class of 2020, with guidance for teachers and schools to allow them to get going on the estimated marking process that is replacing the traditional summer exams.

The guidance came on Thursday with a necessary legal indemnity for teachers, schools and boards of management that would ensure they would not have to bear the costs of a legal challenge from a student or parent, once they had acted in good faith and there was no gross negligence.

The State promised to pick up “any reasonable legal expenses necessarily incurred by them and for any damages or costs awarded against them”.

It is the typical wording for such an indemnity and good enough to be acceptable to judges who might have occasion to need it.

The indemnity was worked through with the various education stakeholders, such as unions, principals and school managers, and, although some parties were awaiting various clarifications, by Thursday afternoon it appeared to have all-round approval.

The Cabinet signed off, the guidelines were published and indemnity confirmed.

Later, and to much surprise, the ASTI issued a statement announcing that the indemnity “falls short” of what was required.

ASTI general secretary Kieran Christie said there were concerns that teachers might be liable for up to one-third of costs, and cited stenographers and expert witnesses as the sort of expenses that they would need to be sure would be covered.

To-ing and fro-ing continued late Thursday night and yesterday, with a clarification emerging mid-afternoon providing that the “legal expenses” which are referred to in the indemnity includes all reasonable costs arising from the defence of civil proceedings, including reasonable expert witness costs and stenographer costs as advised by the Attorney General.

The clarification also provided an assurance that where the indemnity applies, the Chief State Solicitor’s Office (CSSO) will be instructed to act on behalf of the teacher, school, or board of management, which the ASTI regarded as crucial.

It seems the union had concerns that there were circumstances in which teachers may have to defend a case themselves and then seek reimbursement.

This is where the issue arose over a potential shortfall in repayment of all costs incurred.

But that cannot happen where a teacher or school has acted in good faith because, if they have, the indemnity automatically applies and the CSSO takes the case.

The only circumstances in which a teacher could end up defending a case themselves is where bad faith and/or gross negligence played a role.

Then, the indemnity does not apply – and rightly so.