This case is an embarrassment for DCU. But I was particularly taken by the following:

He [Mr Justice Geoghegan] said he was not entering into discussion of the other two grounds, as this would have required analysis of section 25(6) of the Universities Act 1997, dealing with the dismissal of employees by universities.

Given the unusual circumstances of this case, it was not advisable that the court should give a precise meaning to that subsection, Mr Justice Geoghegan said.

“Furthermore, any such analysis would lead to a judgment as to the meaning of the word ‘tenure’,” he added. “I am satisfied that the word ‘tenure’ has different meanings and connotations partly depending on its context and partly depending on the particular understanding as usually given to it within the country in which it is used.”

He added that it did not necessarily have the same meaning in this jurisdiction as it did in the US, where it meant permanency in a university post.

If this is not what tenure means in Ireland, then perhaps someone might want to inform the academics?

38 replies on “Tenure”

It is standard practice for judges to seek to avoid making binding pronouncements on areas of law where they don’t have to. If a case can be disposed of on a simpler preceding point which negates the need to address a more thorny, nuanced or complicated point then that will be done.

Some reasons might be
– that the nuanced point has not been threshed out fully in legal argument if it is not at the nub of the case, or
– that the facts of the case do not provide a good example upon which to debate the point, or
– that to make pronouncements on areas of the law which do not affect the outcome of the case can be considered obiter dicta and so are merely persuasive rather than binding.

To my mind, Judges all too often take the easy way out and take more account of the law in the abstract than the people’s need for clear laws and certainty. That a High Court Judge would refuse to clarify the meaning of a statutory term and would prefer to sew doubt is unfair on the people who are supposed to be governed by, and to rely on, that law.

Judges predeliction for avoiding such pronouncements is in large part caused by our common law system which is based around precedent judgments (“stare decisis”). I think it is arguable that the continental system of codified laws with judges not being bound by precedent judgments has merit.

It would be interesting if there were a study on the economics of our current system, i.e.,
– how much certainty people feel there is,
– how many cases go ahead because of uncertainty,
– how many cases are settled by people who should not have to settle because of uncertainty,
– how much legal costs are incurred because of uncertainty,
– how commercial deals are structured to take account of uncertainty,
– what administrative burden this imposes.

These are of course all very difficult things to measure but are real all the same.

@zhou: I guess you can defend such an Occam’s Razor approach on the basis that it speeds up decisions and cuts costs? (?)

There is a large (and to my mind unconvincing) empirical literature seeking to find correlations between legal systems and economic performance. Common law countries tend to come out well, although there are obviously huge problems regarding correlation between the variable of interest (legal systems) and other variables which might influence performance.

Your uncertainty argument is interesting and one that I haven’t seen mentioned in the context of that debate (but perhaps I haven’t been looking very hard, if so I am sure a colleague will enlighten me).

The judge’s comments don’t surprised me for the following reason: I was once in a meeting with a retired very senior judge, then doing a bit of a nixer for the university. From the conversation, it became clear that he hadn’t the remotest clue about universities.

“From the conversation, it became clear that he hadn’t the remotest clue about universities.”

It was ever thus.

“Who, or what, are these beetles?”
“A popular beat combo, m’lud”

Still, I suppose in this case, the learned judge might be excused for failing to pronounce definitively on the guaranteed enjoyment of an unassailable, non-tradable property right.

I’m not as sanguine as Kevin D. that the judge’s comments can be attributed to ignorance about universities.

We shouldn’t assume that just because words like ‘tenure’ are used both in Ireland and the U.S.A. that they mean the same thing in both contexts. Compare ‘academic freedom.’ I worry that the construction put on academic freedom in the Universities Act (Section 14) wouldn’t – if it came to court in Ireland – amount to the same ‘academic freedom’ enjoyed in the U.S.

Well Jane I am no lawyer but…my impression was that they were basically the same in practice, a job for life unless you do something unspeakable. I vaguely recall my terms of work require me to “teach, research and carry out such duties as…” So I suppose that’s open to interpretation.
If someone refused to teach, my guess is that most universities would see this as grounds for action. They don’t seem to feel the same about research.

Another example of Judges shying away from their responsibility us when they tell people to go away and settle difficult cases. A salient example of this was Pat Kenny’s case over the rocky outcrop. Some Judges seem to think that justice should be subsidiary to negotiation. There is a famous article caused “Against Settlement” by Owen M. Fiss on this point.

I think this was a reasonable decision.

The judge could throw out the dismissal without having to define “tenure”, so he decided not to set a precedent and made it very clear that he did not set a precedent.

So, Kevin, you should do something unspeakable and then we’ll learn more about the meaning of “tenure”.

In terms of certainty, we benefit alot from having a legal system that can essentially borrow English decisions, and to a lesser extent, decisions from Australia, New Zealand and Canada.

Between them , they generate alot of decisions, (in our language!), and typically give a good indication of how an Irish Court will approach a given factual situation. We can free ride on their effort and expertise.

This is also true with respect to legislation.

All in all it must add up to a tidy saving.


I cant see how moving to a codified system, that doesnt incorporate precedent, would improve certainty.

Surely, a principle benefit of precedent is that it provides certainity!

But how clear is it that “legal certainty” leads to savings? I suppose it would mean that those who have the law against them will have to argue the facts instead. But there’s no reason to suppose they would fight any less hard, or that resolving the dispute will ultimately be any cheaper. Personally I think the Supreme Court shouldn’t be so ready to leave points open – especially where, as here, the point has been argued out before them and so the money has already gone, so to speak – but I’m not so sure you can support this on cost saving grounds.

How about a discussion of whether tenure is actually beneficial to the University system from standpoints of innovation, productivity and cost, and whether the tenure system should allow a professor to tell his chief that he and his team will up sticks to Galway barring a better offer?

As a DCU alumnus (but not a lawyer), I am disappointed that the University did not handle this in a manner the courts would endorse, but can see how it was not an easy situation to manage.

@Mark: people get outside offers all the time, and universities have to decide whether to match these offers all the time.

I guess this could be avoided by only hiring people sufficiently mediocre that no-one else would conceivably want to hire them.

@ Zhou
Sometimes the justice delivered is Solomons justice and may not be to the liking of both parties. I thought that particular call was spot on.
Saying that a cage fight could have been interesting….

@ Kevin Denny
So… youve tried it then…?


It is interesting that the remedy has not been decided upon. Presumably it will be damages rather than re-instatement. Generally in cases under the unfair dismissals acts the degree to which the employee contributed towards their dismissal is factored into the award.

I don’t think this applies in cases fought on the basis of contract law rather than on the basis of unfair dismissals legislation. As this is a court case it is most likely a contractual case.

However, in any assessment of damages, one would have thought that the issue of whether tenure was protected, and not just whether the dismissal was unlawful, would have to be factored in. The method of calculation and award of damages will be interesting.

Another reason why it’s a shame the case went on the single point is indeed that it might affect damages – it’s not really been established that Cahill’s right to tenure was infringed, only that he was entitled to more consultation – if DCU say (as they plausibly can) “whatever C would have said on consultation, it would have made no difference to our decision to dismiss” then damages could be mimimal. Whereas if his right to tenure within the Universities Act had been established, he must have a bigger entitlement.

@Steve, zhou: is it the case that if he doesn’t get large damages, then implicitly they are agreeing that there is no right to tenure? Or does that not logically follow?

As a taxpayer, can I also say how irritating it is when overpaid university beurocrats fight silly cases in court and lose, costing us lots of money that would be better spent otherwise?

@Kevin, Steve
I also am annoyed by the waste of money on an apparently unwinnable case. “Paul Sreenan SC and Tom Mallon BL, instructed by Arthur Cox, for the appellant; Gerard Hogan SC and Peter Ward SC, instructed by Sheridan Quinn, for the respondent.” – These guys don’t come cheap.

The appellant (DCU) lost on three grounds in the High Court. It is hard to see how they thought they could win. Perhaps the reason they went to Court was because they were worried that the High Court’s judgment on tenure could prejudice them across the board.


I am not sure. From reading the Judgment it appears the Judge accepted that those with tenure could be dismissed if proper procedures were followed.

Generally in contract cases the rule is that damages are calculated on the basis that they should put the successful plaintiff in the position he would have been in had the contract been performed subject to the proviso that the plaintiff is obliged to do his best to mitigate his losses.

If Mr. Cahill has mitigated his losses by getting an equally well paid job elsewhere then the damages will be limited to the difference and we will may never know what would have happened if he had been unable to gain other employment.


I think the Irish Times article was very misleading. As far as I am aware, the Professor remains in Office since 2006 when an interlocutory injunction was secured that duly prevented the purported ‘dismissal’. This was upheld by the High Court and Supreme Court. Thus, there is no question of re-instatement as to the form of the final order as Prof Cahill remained in office throughout the litigation. The claim by the IT that he ‘was’ an officer of the university is at best damaging to his reputation.

Any claim for damages will no doubt cover the damage to his academic credentials and reputation following over three years of litigation rather than any compensation for loss of his position. If this is not the outcome, I would not be surprised if the failure of the Supreme Court to adjudicate either way on tenure and the DCU statute will require further judicial review up to and including the Eurpopean Courts if the Clarke J judgement on these grounds is not upheld.

The further claim by the IT that a ‘year’ had transpired from the date of the purported dismissal to the High Court hearing is also misleading at best as is self evident from the procedural background enshrined within the High Court judgement or further from a quick perusal of the Supreme Court decision.

“From reading the Judgment it appears the Judge accepted that those with tenure could be dismissed if proper procedures were followed.”
Indeed, it is appears to me that his judgeness has equated ‘tenure’ with ‘in permanent employment’ and contradistincted it with ‘contract’. So ‘tenure’ enjoys more rights and is not subject to arbitrary termination, but that is it.

I wonder who else in the land might be considered ‘tenured’? Perhaps that explains the importance of earnestly specifying that it is not a precedent and that he is speaking infallibly on that…


The best approach to an appellate decision is the original judgment and Frank Clarke is always worth a read.

While the Supreme Court has the luxury of ignoring issues which are not necessary for their decisions, Frank Clarke had to look over his shoulder in the event of an appeal:

“Lest I be wrong in that conclusion, it is also necessary for me to address the question of the meaning of the word “tenure” as used in s. 25(6)”

He gives a very interesting analysis of “tenure” and concludes that it means something different in America. He tries to divine its meaning from legislation but I think the key point is that Europe has far stronger protection against unfair dismissal so that “tenure” does not have the same purpose here.

Frank Clark limits himself to saying:
“It seems to me, therefore, that the Oireachtas must have used the term ‘tenure’ to mean something more than simply delineating terms and conditions as to the length of employment.”

… something more than “simply delineating terms and conditions”, but something less than irremovability – Clarke J. was also clear that universities had an obligation to make their books balance, and that (for him) precluded jobs for life regardless of the university’s financial position. However, at least for universities that don’t have explicit provision for redundancy (which I think includes TCD, UCD, and UCC, and maybe more …?), it would be very hard to introduce the required college statutes. But not absolutely impossible.

On http://academictenure.blogspot.com/ we’ve been discussing this for some time, on occasion with the mighty FvP himself.

First of all, to clear up the most basic misunderstanding; in the US, tenured professors CAN be dismissed for misconduct. Tenure is protection against involuntary redundancy, and censorship, nothing else. Moreover, tenure is very hard to get in the US. The smart thing for FvP to do would have been to use the opportunity offered by the 1997 act (which requires a definition of “tenure” in the mandatory new disciplinary procedures) to introduce the US style with its much higher bar. In Ireland, one typically does a year probation.

Instead, he tried to use the new disciplinary procedures to introduce summary dismissal, a move flagged by Paul Gogarty in the Dail in 2002-2003 (before he changed sides). We took FvP to the labour court in 2002 and he decided to ignore the ruling that changes had to be made to the new disciplinary procedures. My own case has rather famously stayed in the industrial relations context from 2002 to now. In 2007, FvP asserted in court for the first time that he reserved the right of summary dismissal.

The truth is that FvP had a trick up his sleeve; a definition of “tenure” which resticted it to the requirement for 3 months’ notice. (This appears on the web version, not the hard copy of the new disciplinary procedures, a fact that caused Clarke’s antennae to quiver as the transcripts attest. )The problem from Paul’s point of view is that there is no paragraph speccing tenure beyond this in his contract, or any DCU contracts issued post 1995. Those of us pre-1995 explicitly have “tenure” defined as a job till 65. The post-1995 contracts were never agreed with SITU and probably are illegal; the new disciplinary procedures are illegal.

I also attended the supreme court hearing; Denham argued that summary dismissal would be “the end of academic freedom”. Moreover, after the very expensive Sreenan asked for guidance on tenure, she refused, arguing that would be legislating. So we ended up with this confusing notion from the judgement that it may not be like the US and from Clarke that whatever it is or is not, the new disciplinary procedures do not define it

This is an almighty mess, and I propose solutions on my blog. Comments welcome

Best wishes


I think Kevin Denny is correct to be concerned.

A retired judge who has never considered or had dealings with a Uni will have no idea about (them). But a judge who has had the benefit of the puisne judge’s written and considered judgement, (especially that of Frank Clarke who is well regarded) even if only pointing out that “tenure” is undefined in the code of the statute and in lacking precedents in Ireland, will have some familiarity with the topic. He appears to be issuing a warning. Obiter for sure, but he specifically covers his no doubt ample and well fed, by saying he is not deciding the case on that ground. In other words, there was evident impropriety in procedure at least, to justify reinstatement or rehearing. I am not following this case.

There may be no great protection in Ireland for tenure as a concept of greater significance than in ordinary employment contracts. It awaits full judicial consideration. Which may not be good news for administrators!

Zhou is no lawyer. “Tenure” is eventually defined in fact and recognized in law as a result of “common custom” in as trade or locality, using trade widely. The English judges, hanging their way around recently conquered lands, as they do, were eventually to recognize the woth of these local laws of conduct between parties and to incorporate them, if they were not contrary to other public policy, in dealings in other trades and localities. Actual; practice means something and will be resognized by courts with a common law tradition, ie one that needs to accomodate the natives while getting the most value out of them.

Thus in America tenure means ‘X’, whatever that may be. In Ireland, it has evidently not been judicially considered, yet. There should be English or Scottish precedent, but possibly based on their local statutes. The best cases would involve the older Royal charter universities or just possibly other charters, where matters setting up the universioty were usually confined to one albeit large, page. A charter, indeed.

There may be a new case involving the same parties in due course……. maybe it will consider the matter. Hahahahahahargh! Sphincter tightening!

Just remember the golden rule: who has the gold makes the rules. Expect the Oireachtas to be open to all sorts of blackmail and bribery to correct this dreadful lacuna that threatens the very foundations of all civilized society …… Maybe the academics should ask for a banking licence? In case there is a need for a second career?

@Kevin Denny

The theory goes that a Judge does not need to be familiar with every area of law as it is up to Counsel for the parties to lay all the relevant law and facts before the Court. Generally, Judges will spend time going beyond what Counsel bring to their attention although they can if they wish. That is why I suggested that Judges may avoid giving judgment on a particular issue if they feel Counsels submissions have been incomplete or particularly focussed so as to leave them without all the relevant facts. The law of unintended consequences weighs heavy in their considerations in such circumstances.

It is notable that legal texts will sometimes mention where an important case may not have been brought to a Judge’s attention before the Judge made a seemingly contradictory decision.

@Pat Donnelly

Are you a lawyer yourself?

From the outside, DCU is coming out of this looking ridiculous

First the attempt to fire was out of order. Firing a permanent employee is difficult even if the employee deserves it. And I don’t know if the guy deserved to go… But if an employee approached the boss of a private company and said they had a better offer at a competitors and unless they got a pay rise they would bring their team with them… they would be either paid off or ran out of the office. If for no other reason than fired for stupidity if the idiot wasn’t prepared to carry out the threat …

Second, that blog on tenure makes the staff look like a bunch of timeserving jobsworths stuck in a militant 70’s timewarp… Very few people get to do what they love to do for a living. Even fewer get to earn a comfortable salary doing so. Even fewer get funded to do world class research.

Sad to say it but as a graduate of the place, if that is the culture of the organization; the people there need to seriously cop themselves on. The behaviour seems more appropriate to a bus drivers union than to people doing world class research.

Im sure or I hope there are a majority of hard working staff in DCU who are appalled at the behaviour on both sides. Right now, DCU doesnt look like the kind of place we should be investing in with the aim of jumpstarting the knowledge economy.

Fair play to the judge for getting rid of the case as quickly and as cheaply as possible. Make them both pay their own costs.

I too am a DCU graduate and am equally appalled at the behaviour of the university in this instance. The fact that the president is an employment law expert begs the question why he did not personally intervene to circumvent the litigation in this case or was he under orders from others within the university to hound this individual all the way to the supreme court.

Poaching of academics is not an unusual practice outside of Ireland. However, when it did come to these shores in 2005/2006, it caused a lot of controversy at the time (http://www.independent.ie/national-news/watchdog-has-eye-on-ucd-poach-row-85301.html).

It would appear to me that this is another case in point.

That is a very good comment from Ger;

“The fact that the president is an employment law expert begs the question why he did not personally intervene to circumvent the litigation in this case or was he under orders from others within the university to hound this individual all the way to the supreme court. “

Indeed; and let us not forget that Paul could have ended up getting stuck with both sides’ costs, since Ireland is acting contra the ECHR ruling on this (Morris and Steele vs UK, 2005). The sooner Ireland starts conforming with the ECHR, the sooner such behaviour will end. Finally, there are those of us who think that FvP was brought in solely to bring in summary dismissal, given his very odd actions here.

Clearing up a few matters…the people stuck in a 1970’s timewarp are DCU management (who, by the way, are almost hilariously unqualified for their positions, starting with FvP himself, who has never worked at a first-rate university). The 1970’s was the period before social partnership where, not untypically, buses, post, trains telecomms , and the ESB would all be simultaneously on strike (eg 1979). As it happens, Paul c is possibly the best academic at DCU and the taxpayer has lost a fortune, even aprt from the legal costs, by having him diverted in this way.

What we are trying to do is regularize our contracts and conform with the 1997 act. No more. However, should the state decide to withdraw from its commitments, it should tell us, so that we will know to lawyer up. Instead, we have given DCU management a decade to do the right thing.

As someone who was equally puzzled about the way UCC fought the Fanning litigation (another monumental waste of money) I wouldn’t think we could begin to understand why the action was fought the way it was until we understand the insurance position – if DCU’s litigation risk was being carried by an insurer, then DCU wouldn’t have been calling the shots. Does anyone on the list actually know (1) to what extent DCU’s liability here was covered by insurance and (2) what the excess is?

Steve, a chara

As I understand it, you’re English

Welcome to Ireland. Some people here love a fight, good or bad, even if engaged in unfairly by one of the 1950s/60s German immigrants Sean O Faolain so excoriated, and with massive subsidy from the taxpayer against one of their own.

The EAT carnival resumes tomorrow

Best wishes


Corrections & Clarifications

Fri, Jan 29, 2010

A report on a legal judgment in the edition of January 18th last, concerning an appeal to the Supreme Court, had a headline ‘Professor’s dismissal from DCU did not observe fair procedures’ which should have said ‘purported dismissal’. The report stated that a year had elapsed between the purported termination (of Prof Paul Cahill) and the High Court hearing. While the judgment is not precise on the matter, the gap was less than a year and could have been two months.

Where errors occur, it is the policy of The Irish Times to correct or clarify as soon as practicable.

© 2010 The Irish Times

Finally, it was in fact Thomas Kinsella, not o’Faolain, who wrote about those 1950/60s German immigrants, in the register of a venal civil seravt……

“Our labour pool
the tax concessions to foreign capital
how to get a nice estate through German…

I cannot take my eyes from their pallor
A red glare plays on their faces
livid with splashes of blazing fat. the oven door closes’

apologies for the mistake – Sean

Comments are closed.