DEC-S2009-017 - Full Case Report

THE EQUALITY TRIBUNAL

EQUAL STATUS ACTS 2000 - 2008

Decision DEC–S2009-017

PARTIES

Mr. X and Ms. Y

(on behalf of their daughter Z)

and

A Boys National School

File Reference: ES/2005/0032

Date of Issue: 13^th March, 2009

Equal Status Acts, 2000 to 2008

Equality Officer Decision DEC-S2009-017

Mr. X and Ms. Y

(on behalf of their daughter, Z)

-v-

A Boys National School

Keywords

Equal Status Acts, 2000-2008 - Section 3(1)(a) - Direct discrimination, Section 3(1)(a) - Gender  Ground, Section 3(2)(a) – Victimization Ground, Section 3(2)(j) - Access to Education, Section 7(2) – Single Gender Educational Establishments, Section 7(3)(a)

Delegation under the Equal Status Acts, 2000-2008

This complaint was referred to the Director of the Equality Tribunal on 2^nd December, 2005 under the Equal Status Acts, 2000 to 2004.  On 11^th April, 2008, in accordance with her powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 to 2008, the Director delegated the complaint to me, Enda Murphy, 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 Acts, 2000 to 2008.  The hearing of the case took place on 11^th February, 2009. 

1.            Dispute

1.1             This dispute concerns a complaint by the parents of a female student who claim that their daughter was discriminated against by the respondent, A Boys National School, on the Gender ground in terms of Sections 3(1)(a), 3(2)(a) and 3(2)(j) of the Equal Status Acts, 2000 to 2008 and contrary to Section 7(2) of the Equal Status Acts, 2000 to 2008 on the basis that she was refused admission as a student to the respondent’s school.   

2.            Summary of the Complainant’s Case

2.1             The complainant’s parents, Mr. X and Ms. Y, made an application to the respondent on 11 June, 2004 for the enrolment of their daughter, Z, at its Boys National School for the school year which was due to commence in September, 2004.  The complainant’s parents wished to have their daughter enrolled at this school as they were not satisfied with the standard of education she was receiving in her existing school and also due to the fact that her two brothers were already enrolled at this Boys National School.  The complainant’s parents received correspondence from the respondent on 15 June, 2004 in which it was confirmed that their daughter’s application for enrolment had been refused on the basis that the school was a single gender national school which catered for boys only.  The complainant stated that the respondent school had already admitted a female student at that time to the Special Autistic Unit which operated within the school and it was submitted that in doing so, the school had effectively surrendered its status as a single gender school (the complainant was seeking admission to the mainstream section of the school and not to the Special Autistic Unit).  The complainant submitted that as a consequence of this action the respondent was no longer entitled to rely upon the exemption that is provided for in Section 7(3)(a) of the Equal Status Acts in relation to single gender schools. 

2.2             The complainant’s parents stated that there was an ongoing campaign, in which they were involved, at the time of their daughter’s application for enrolment for the amalgamation of the Boys National School with the Girls National School which shared the same campus.  However, the complainant’s parents strenuously denied that the application to have their daughter enrolled in the Boys National School was being used as a means to further the campaign for amalgamation.  The complainant’s parents stated that if their daughter’s application for enrolment had been successful, they would have seriously considered sending her to the school irrespective of whether or not the two aforementioned schools were amalgamated.  The complainant’s parents also claimed that they have been subjected to victimisation by the respondent as a result of referring this complaint to the Tribunal and because of their involvement in the campaign to obtain an amalgamation of the two schools.     

2.3             An issue was also raised that the present complaint was not submitted within the six month time limit prescribed in Section 21(6) of the Equal Status Acts, and in response to this issue the complainant’s parents claimed that the effects of the respondent’s decision to refuse their daughter access to its school were ongoing and consequently it was submitted that the effects of the discrimination in this case were ongoing.  The complainant’s parents submitted that the complaint was not referred to the Tribunal until 17 February, 2005 as the issues surrounding the amalgamation of the schools were still ongoing up to this time.  It was further submitted that if the amalgamation had in fact taken place at that stage there would have been little point in referring the present complaint. 

3.            Summary of the Respondent’s Case

3.1             The respondent totally rejects the allegation that it discriminated against the complainant on the grounds of her gender.  The respondent’s school is a Roman Catholic National School catering for boys only from junior infants to sixth classes inclusive and it shares a campus with another national school which caters for girls only within the same range of classes.  The respondent submitted that its enrolment policy clearly outlines that it is a single gender school that caters for boys only.  The respondent’s enrolment policy also states that the school includes a Special Autistic Unit, which was established in 1998, catering for boys and girls with autism who are of primary school age.  This Unit is operated as a separate entity and can cater for a total of 12 students who are divided into two separate classes.  The respondent stated that it does not admit girls to its school unless the child satisfies the criteria for attending the Special Autistic Unit and to date there have only been two girls who have been enrolled in this special unit.  The respondent submitted that by admitting a girl with Autism to the Special Autistic Unit it is having due regard to her special educational needs as an autistic child and not to her gender. 

3.2             The respondent confirmed that it received an application from the complainant’s parents on 11 June, 2004 for the enrolment of their daughter in the mainstream section of the school for the school year which was due to commence in September, 2004.  Following consideration of this application, the school’s Board of Management wrote to the complainant’s parents on 15 June, 2004 and informed them that it was not in a position to accept this application on the basis that the admittance of a girl would be contrary to its enrolment policy unless the girl was making an application to attend the Special Autistic Unit.  The respondent stated that as the complainant in the present case was not seeking admission to the Special Autistic Unit it was therefore obliged to refuse the application.  The respondent submitted that it is an educational establishment within the meaning of Section 7(1) of the Equal Status Acts and it claims that in being an educational establishment (which is not a third level institution) and which admits students of one gender only, it cannot be held to have engaged in discriminatory conduct by refusing to admit as a student a person who is not of that gender.  The respondent totally refutes the complainant’s argument that it has surrendered its entitlement, either unwittingly or otherwise, to avail of the exemption provided for in Section 7(3) of the Acts as a result of its actions in admitting a girl to its Special Autistic Unit.  The respondent submitted that the present complaint must be viewed in the context of the campaign (in which the complainant’s parents were involved) for an amalgamation of its school with the Girls National School which shared the same campus.  The respondent also denies that it has subjected the complainant or her parents to victimisation as a result of their referral of this complaint to the Tribunal or because of their involvement in the campaign to amalgamate the respective schools.

3.3             The respondent also raised a jurisdictional issue that the present complaint was not submitted within the six month time limit prescribed in Section 21(6) of the Equal Status Acts.  The respondent claims that the decision to refuse the application for enrolment of the complainant was communicated to her parents in writing on 15 June, 2004 and it submitted that this was the only date upon which it can be claimed that discrimination occurred.  The respondent stated that the present complaint was not referred to the Tribunal until 17 February, 2005 which was outside of the six month time limit prescribed within the Acts.  The respondent disputes that the discrimination was ongoing and it therefore submitted that the complaint should be deemed inadmissible. 

4.            Conclusions of the Equality Officer regarding the issue of Time-Limits

4.1             The respondent has submitted that the present complaint was not submitted within the six month time limit as prescribed in Section 21(6) of the Equal Status Acts, 2000 to 2008, and it therefore submits that the complaint should be deemed inadmissible.  Section 21 of the Equal Status Acts makes provision for the time limits to which a complainant is obliged to adhere before a complaint can be deemed admissible, including time limits for the referral of complaints, namely:   

Section 21(6)- “6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence”.

This provision of the Acts clearly envisages a single act of discrimination or a chain of two or more similar acts of discrimination.  In the present case the complainant made an application to the respondent on 11 June, 2004 for enrolment at the school for the school year 2004/2005 (commencing in September, 2004).  I note that the decision to refuse the complainant’s application for enrolment was communicated by the respondent to the complainant’s parents on 15 June, 2004 and the present complaint was referred to the Tribunal on 17 February, 2005.  Therefore, the question that I must decide in order to determine the admissibility, or otherwise, of the complaint in the present case, is whether the respondent’s refusal to accept the complainant’s application for enrolment on 15 June, 2004, on the basis of its policy as a single gender school, constitutes a once-off or single act of discrimination or alternatively, whether or not the discrimination was ongoing as a result of the implementation of this policy.  

4.2             In considering this issue further, I have taken cognisance of Section 21(11) of the Equal Status Acts, 2000 to 2008 (which was inserted by the Equality Act, 2004) and which provides:

“For the purposes of this section prohibited conduct occurs –

(a)  if the act constituting it extends over a period, at the end of the period,

(b)  if it arises by virtue of a provision which operates over a period, throughout the period”

I am of the view that the inclusion of these provisions in the Equal Status Acts have provided for greater clarity regarding the manner in which the date of discrimination should be interpreted in the case of an act, contractual term, policy or provision which continued in force over a period of time (as is the situation in the present case).  Having regard to the provisions of Section 21(11)(b), I am satisfied that the respondent’s policy of admitting boys only to its school i.e. as a single gender school, constitutes a provision or policy which was in operation over a period of time and which had ongoing consequences or effects for the complainant in terms of her access to the school.  I am satisfied that the respondent’s policy was in operation at the time the present complaint was referred to the Tribunal i.e. 17 February, 2005 and that the effects of this policy were still ongoing for the complainant on this date (i.e. for the duration of the school year in which the complainant sought enrolment).  Accordingly, I find that the present complaint is admissible under Section 21(6) of the Equal Status Acts, 2000 to 2008.  I will now proceed to consider the substantive complaint that has been referred for decision in the present case.

5.  Conclusions of the Equality Officer regarding the substantive issue

5.1             The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant.  Section 38(A) of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination.  It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her.  It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.  In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case. 

5.2             In the present case, the complainant claims that she has been subjected to discrimination by the respondent on the basis of its refusal to accept her application for enrolment at the school.  The complainant claims that the respondent has surrendered its status as a single gender school on the basis that it has admitted a female student into the Special Autistic Unit which is operated within the school and therefore, cannot rely upon the exemption that is provided for in Section 7(3)(a) of the Equal Status Acts in relation to single gender schools.  The respondent rejects the allegation of discrimination and claims that the complainant’s application for enrolment was refused on the basis that the school is a single gender school and it submitted that the admittance of the complainant (as a female student) to the mainstream section of the school would have been contrary to its enrolment policy.  The respondent accepts that it has admitted two female students to the Special Autistic Unit that operates within the school, however, it totally refutes the complainant’s argument that it has surrendered its entitlement, either unwittingly or otherwise, to avail of the exemption provided for in Section 7(3) of the Acts as a result of its actions in admitting a girl to its Special Autistic Unit.

5.3             In considering this issue, I am satisfied that the respondent’s school i.e. being a primary school is an “educational establishment” within the meaning of Section 7(1) of the Equal Status Acts, 2000 to 2008.  It is clearly stated within the provisions of Section 7(2) of the Acts that an educational establishment shall not discriminate in relation to the admission or the terms or conditions of admission of a person as a student to the establishment.  The Acts also make provision for a number of exemptions to the foregoing requirements, in terms of the admission of a student to an educational establishment, including the exemption that is provided for in Section 7(3)(a) which states:

“(3) An educational establishment does not discriminate under subsection (2) by reason only   

        that - ”      

(a) where the establishment is not a third-level institution and admits students of one gender only, it refuses to admit as a student a person who is not of that gender”

Having regard to the provisions of Section 7(3)(a) of the Acts it is clear that a single gender school cannot be held to have engaged in discriminatory behaviour if it refuses to admit as a student a person who is not of that gender.  In the present case, I have taken cognisance of the respondent’s enrolment policy that was in place at the time of the complainant’s application for enrolment (in June, 2004) and I note it states that “X BNS is a Roman Catholic National School, catering for boys from Junior Infants to Sixth Classes (inclusive) …. ”.   I am therefore satisfied that the status of the respondent’s school as a single gender school catering for boys only is clearly and unambiguously contained within its enrolment policy.  The complainant’s parents, in support of their daughter’s case, have referred to the recent case in which the Department of Education upheld an appeal which was taken on behalf of a female student (under section 29 of the Education Act, 1998) who had been refused admission to a boys’ secondary school which operated under the control of the Cork Vocational Educational Committee.  In this case the Department’s Appeals Committee upheld the appeal on the grounds that the enrolment policy of the college did not explicitly state that the college was a boys’ only college.  I am satisfied that the complainant cannot rely upon the precedent established in the aforementioned case and that the facts in the respective cases can be clearly differentiated on the basis that the respondent’s enrolment policy in the present case explicitly and unambiguously stated that the school was a single gender school which catered for boys only. 

5.4             I also cannot accept the complainant’s argument that the respondent, by admitting a female student to the Special Autistic Unit, may have unwittingly or unintentionally changed the status of the school as a single gender school catering for boys only and as a consequence has surrendered its right to rely upon the exemption that is provided for in Section 7(3)(a) of the Equal Status Acts.  I note that the respondent’s enrolment policy also clearly states that “the school also includes a Special Autistic Unit catering for boys and girls”.  I am satisfied that it was clearly outlined within the terms of the respondent’s enrolment policy that the school would only admit a female student in circumstances where the student satisfies the entry requirements to its Special Autistic Unit. However, in the instant case, the complainant was seeking admission to the mainstream section of the school and not the Special Autistic Unit that operated within the school.  The Equal Status Acts also make provision for the taking of positive measures to cater for the needs of persons who may require special facilities and Section 14(1)(b)(ii) of the Acts provides “that nothing in this Act shall be construed as prohibiting the preferential treatment or the taking of positive measures which are bona fide intended to cater for the special needs of persons, or a category of persons, who, because of their circumstances, may require special facilities, arrangements, services or assistance not required by persons who do not have those special needs”.  I am satisfied that, in establishing a Special Autistic Unit within the school, there was a bona fide intention on the part of the respondent to cater for the special needs of children with autism and I find that such an action is not prohibited nor can it be construed as discrimination under the provisions of the Equal Status Acts. 

5.5             Having regard to the foregoing, I find that the respondent, being a single gender educational establishment within the meaning of the Equal Status Acts, is entitled to rely upon the exemption that is provided for in Section 7(3)(a) of the Acts and accordingly, I find that the respondent has not discriminated against the complainant on the grounds of her gender as a result of its decision to refuse her application for enrolment at the school.  In the circumstances, I find that the complainant has failed to establish a prima facie case of discrimination on the gender ground.

6.            Victimisation

6.1             The complainant’s parents have claimed that they were subjected to victimisation by the respondent as a result of their referral of the present complaint to the Tribunal and their involvement in the campaign for the amalgamation of the boys’ national school and the girls’ national school.  However, having regard to the evidence adduced, I find that I have not been presented with any evidence from which I conclude that either the complainant in the present case or her parents have been subjected to victimisation within the meaning of Section 3(2)(j) of the Equal Status Acts, 2000 to 2008.  Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the victimisation ground.

6.2             I also wish to note that it came to light during the course of written correspondence received from the parties and in the oral evidence presented at the hearing that there were ongoing issues between the parties in terms of the campaign, in which the complainant’s parents were involved, in order to amalgamate the boys and girls national schools.  I am satisfied that these issues are outside of the scope of the present complaint under the Equal Status Acts and accordingly, I do not have jurisdiction to investigate any such matters which do not fall within the remit of the Acts. 

7.            Decision

7.1             In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision.  I find that the complainant has failed to establish a prima facie case of discrimination on the gender and victimisation grounds in terms of Sections 3(1), 3(2)(a) and 3(2)(f) of the Equal Status Acts, 2000 to 2008.  Accordingly, I find in favour of the respondent in this case. 

Enda Murphy

Equality Officer

13^th March, 2009