Mrs. A on behalf of her son B
-v-
A Primary School
Headnotes
Equal Status Act, 2000 - Direct discrimination, Section 3(1)(a) - Educational Establishments, Section 7 - Victimisation, Section 3(2)(j) - Disability ground, Section 3(2)(g) - Traveller ground, Section 3(2)(i) - Reasonable Accommodation, Section 4 - Refusal to enrol in primary school.
1. Dispute
1.1 This dispute concerns a claim by Mrs. A, on behalf of her son, B, that her son was discriminated against and victimised by the respondent, contrary to the Equal Status Act, 2000, on the grounds of disability and membership of the Traveller community when the respondent refused to enrol her son in the school and notified Mrs. A of this (by letter dated 28 February, 2002) in March 2002 (i.e date letter received by Mrs. A).
The complainant referred a claim to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director then delegated the case to me, Dolores Kavanagh, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act. The final Hearing of this complaint took place on Monday, 11 December 2006 in the Equality Tribunal.
2 Complainant's Case.
2.1 The complainant states that her son, Brien, who is a member of the Traveller community and suffers from A Disability, had previously been in attendance at another (named) school. As a consequence of matters arising there Mrs. A had lodged a complaint under the Equal Status Act against the school in question and in December 2001 had informed the Principal of that school that her son would not be returning to the school.
2.2 The Visiting Teacher for the area had subsequently set about making enquiries at the respondent school about the enrolment of B. Initially she received a favourable response from the Principal to her enquiries and arranged for Mrs A and B to meet with the Principal to further discuss the enrolment.
2.3 The Principal of the respondent school had informed the Visiting Teacher that he would have to get the approval of the Board of Management for the enrolment as issues relating to resources and class numbers arose.
2.4 Subsequent to the Board meeting at which the enrolment was to be discussed the Visiting Teacher contacted the Principal and was informed that the Board had decided to refuse the enrolment application of B. The Principal stated that the Chairman of the Board had indicated that B was still enrolled at the previous school and that there was a "gentlemen's agreement" that schools would not enrol students who were enrolled elsewhere.
2.5 The complainant states that the refusal to enrol B was based on B's membership of the Traveller community and his disability. The complainant further states that the refusal of the Board of Management to enrol B was victimisation under the Equal Status Act 2000 as the Chairman of the Board of Management was also Chairman of the Board of Management of the school which B had previously attended and against which a formal complaint under the Equal Status Act 2000 had been lodged by Mrs. A.
3. Respondent's Case
3.1 The respondent accepts that the Visiting Teacher's recollection of events in this matter is accurate but denies that discrimination and victimisation occurred in relation to the enrolment application for B.
3.2 The respondent states that the enrolment application was turned down because the Visiting Teacher had not submitted certain reports regarding the resources which would be required by B and because class numbers were at capacity and additional resources would not be available to meet B needs.
4 Conclusions of the Equality Officer.
4.1 It is accepted by both parties to this complaint that a formal complaint under the Equal Status Act 2000 had been lodged by Mrs. A in relation to matters arising at the school previously attended by her son.
4.2 It is also accepted by both parties that the initial contacts between Mrs. A and the Principal of the respondent school were very positive, to the extent that the Visiting Teacher was satisfied that the enrolment of B in the school would proceed. It is also clear from evidence provided that the Principal had clearly indicated to the Visiting Teacher at their initial meeting that the final decision in relation to B enrolment would have to be made by the Board of Management.
4.3 It is clear from all of the evidence provided that the decision to refuse B's enrolment application was made by the Board of Management of the respondent school. It is accepted by the respondent that the Chairman of the Board of the respondent school at the time was also Chairman of the Board of the previous school attended by B against which a complaint under the Equal Status Act 2000 had been lodged by Mrs. A.
4.4 The Principal of the respondent school and the Visiting Teacher stated in evidence that the Chairman of the Board had made certain comments relating to B's continuing enrolment at the previous school. While the comments in question are open to interpretation, are not derogatory in nature and do not refer to B's Traveller status or disability, they do refer to matters arising at the previous school.
4.5 The Chairman of the Board actively participated in the decision process leading to the refusal of B's enrolment application. I am satisfied that the Chairman of the Board would have been influential in arriving at that decision. I am further satisfied that the Chairman was open to being, and was, influenced, whether consciously or otherwise, by events arising in the previous school.
4.6 The Principal of the respondent school stated in evidence that, following initial contacts with the complainant, he had, as was customary, contacted the Principal of the previous school to discuss the enrolment of B, but he was unclear as to the nature of discussions about B and does not recall whether the complaint against the other school was discussed. The Principal also stated that he had had some discussions with the Chairman of the Board of Management about the proposed enrolment.
4.7 While both parties gave evidence to the effect that B's Traveller status and disability were referred to in the course of ongoing discussions about his proposed enrolment in the respondent school there is insufficient evidence to indicate that the references by staff of the respondent school were not made in relation to the genuine and objective requirements of B with regard to each, particularly as B's Traveller status and disability were specifically raised by the Visiting Teacher on a number of occasions.
4.8 I am satisfied, having carefully considered all of the evidence provided in this matter, that the Chairman of the Board of Management of the respondent school based his decision to refuse the enrolment of B on matters arising and ongoing at that time in the school at which B had previously attended.
In the circumstances I am satisfied that the enrolment decision making process in relation to B was flawed and was not in accordance with fair procedures or natural justice in that the decision to refuse B's enrolment was not clearly and transparently arrived at based on objective criteria which were unconnected with B's complaint against the previous school.
I am also satisfied, based on the feedback provided to the complainant and the Visiting Teacher by the Principal and the Chairman of the Board of Management of the respondent school that resources and class numbers were not material to the decision to refuse the enrolment application and that resources in the school, combined with those available to the Visiting Teacher from the Department of Education, would have been sufficient to meet the needs of B.
I am satisfied that the Principal was acting in the course of his duties at all times and that the ultimate decision to refuse B's enrolment was made by the Board of Management. Thus I am satisfied that the Board of Management is the correct respondent in this matter.
5 Decision
5.1 Discrimination - Traveller Ground
I am satisfied, having carefully considered all of the evidence in this case, that the complainant has failed to establish a prima facie case of direct discrimination on the Traveller ground.
5.2 Discrimination - Disability Ground
I am satisfied, having carefully considered all of the evidence in this case, that the complainant has failed to establish a prima facie case of direct discrimination on the disability ground.
5.3 Reasonable Accommodation
I am satisfied, having carefully considered all of the evidence in this case, that the complainant has failed to establish that the respondent failed to provide reasonable accommodation in relation to the complainant's disability.
5.4 Victimisation
I am satisfied, having carefully considered all of the evidence in this case, that the complainant has established a prima facie case of victimisation which the respondent has failed to rebut.
6 Redress
6.1 In accordance with Section 27 (1) of the Equal Status Act I hereby order that the respondent, the Board of Management of Scoil Lios Teilic, pay to the complainant, Mrs. A, who is acting on behalf of her son B, the sum of €6,350 for the effects of the victimisation, which include the irreversible loss to B of the opportunity to avail of a primary education in a school of his/his mother's choosing, and the consequent distress caused to B.
__________________________
Dolores Kavanagh
Equality Officer
19 January, 2007