Equal Status Acts 2000 to 2008
EQUALITY OFFICER'S DECISION
NO: DEC-S2009-074
A Complainant
(Complaint taken by complainant's father and next friend)
v.
A Secondary School
(Represented by Mason Hayes and Curran Solicitors)
File No. ES/2007/0091
Date of Issue: 6 November 2009
Keywords:
Equal Status Acts 2000 to 2004 - Discrimination, section 3(1)(a) - gender ground, section 3(2)(a) - harassment, section 11(1) - victimisation ground, section 3(2)(j) - Educational institution, section 7(1)
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. A complainant's next friend referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 21 August 2007. In accordance with her powers under section 75 of the Employment Equality Act, 1998 and section 25 of the Equal Status Acts, the Director then delegated the case to me, Tara Coogan, 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. An investigation, in accordance with section 25(1) of the Acts, commenced on 12 December 2008. An oral hearing, as part of the investigation was scheduled for 15 July 2009. Correspondence concerning the complainant's right to remain anonymous - he did not attend the hearing- was received on 18 July 2009.
2. Dispute
2.1. The dispute concerns a complaint of unlawful discrimination and harassment on the gender ground. This complaint was taken by the complainant's next friend who maintains that a secondary school's uniform requirement that prohibit boys from wearing an earring was discriminatory and, as a result, the secondary school ("the respondent") treated the complainant less favourably contrary to sections 3(1), 7(1) and 11(1) on 26 February 2007 and thereafter. It was further submitted that the respondent victimised the complainant contrary to section 3(2)(j) The respondent was notified on 24 April 2007.
3. Case for the complainant
3.1. It was submitted that the complainant was placed in a named secondary school in order for him to be schooled in his own community. The complainant's next friend - a father who appeared before this Tribunal on behalf of his son who at the time of the alleged incident was a minor - submitted that in doing so, he had expected the school to act "in loco parentis, treating him [the complainant] as a reasonable parent would be expected to do, that he would be treated as favourably as any other student in the school, and in accordance with the law of the land". It was submitted that this complaint revolves around an initial act of discrimination which was followed by subsequent incidents of harassment and victimisation.
3.2. The complainant's next friend submitted 10 incidents to support his claim of gender discrimination contrary to section 3(1), harassment on the gender ground contrary to section 11(1) and victimisation contrary to section 3(2)(j). In brief, these incidents consist of the following:
1. The initial alleged act of discrimination on 26 February 2007. It was submitted that the complainant was asked to remove an earring in accordance with the then school rules. The complainant was told he would be suspended or he would have to sit in the corridor as he would not be allowed back into class until he removed his earring. The complainant's next friend submitted that his wife - when contacted by a named vice principal - had explicitly protested about this sanction and had only consented under protest to allow the complainant home. Contemporaneous notes taken by the complainant's mother were submitted to the investigation and she gave direct evidence on the matter.
2. The following day, it was submitted, the complainant was asked if he was wearing his earrings. He was, and was told that unless he removed it he would be suspended. It was submitted that this constitutes this is harassment and/or victimisation contrary to the Equal Status Acts.
3. The complainant's next friend submitted that another incident took place on 16 February 2007 but that he only became aware of it on 13 March 2007 when the complainant was told that he would be suspended because of an incident that had taken place 4 weeks previously. The complainant's next friend submitted that this time delay was unacceptable and linked to the earring issue. It was submitted that discipline must be current and not randomly linked to other issues. It was submitted that this action was unprofessional and used as a vehicle to obtain revenge against the complainant against the school rule reversal which had occurred a day before (12 March 2007). It was submitted that since the complainant's 'principled' stance on the schools alleged discriminatory and illegal rules there has been an escalation of disciplinary action against the complainant and that this has not been coincidental. The complainant's next friend submitted that he put the educational institution on notice about the manner in which the complainant was illegally suspended and that he would view any subsequent incident within this context. It was submitted that this constitutes harassment and/or victimisation contrary to the Equal Status Acts.
4. It was submitted that the complainant was asked to remove his earring on 11 September 2007 by a named teacher. The complainant refused and was escorted to see a named vice-principal. It was submitted that the complainant refused to speak with the vice principal because he had been instructed by his next friend that should any incident occur, a teacher should contact the next friend and not talk to the complainant. It was submitted that the vice principal did not contact the next friend. It was submitted that at the very same time other pupils were in transgression of other school rules but that no action was allegedly taken against them. It was submitted that this constitutes harassment and/or victimisation contrary to the Equal Status Acts.
5. It was submitted that on 17 September 2007 a named teacher shouted at the complainant and told him to remove his earring. It was submitted that the complainant was not wearing his earring and told her so. It was submitted that the teacher had said that it looked like he was. It was submitted that this constitutes harassment and/or victimisation contrary to the Equal Status Acts.
6. It was submitted that the complainant was harassed and/or victimised on 19 February 2008 by a named teacher. It was submitted that at the time of the outburst the complainant was feeling unwell and was taking medication. It was submitted that the complainant had maturely approached the teacher and offered an apology. It was submitted that the teacher had refused the apology and insisted that the complainant apologise to the whole class. This, it was submitted, the complainant refused to do as he viewed this request as an attempt to humiliate him. The complainant was given detention. It was submitted that this constitutes harassment and/or victimisation contrary to the Equal Status Acts.
7. It was submitted that the complainant was again asked to remove his earring on 1 April 2008 by the named teacher and an entry was made in the complainant's journal. It was submitted that the complainant made a note of other classmates with inappropriate makeup, body piercings, etc who were not taken to task by the teacher. It was submitted that this was evidence of the fact that the teacher was not treating all pupils the same. Only the complainant was singled out. It was submitted that the school management refused to meet the complainant's parents. It was submitted that this constitutes harassment and/or victimisation contrary to the Equal Status Acts.
8. It was submitted that the named teacher forced the complainant to remain in class on 29 September 2008 against his will despite informing the named teacher that he wanted to retrieve his property from the PE hall and because he was unwell. It was submitted that this constitutes harassment and/or victimisation contrary to the Equal Status Acts.
9. It was submitted that the named teacher refused to meet with the complainant's mother on 13 November 2008 to discuss the complainant's progress at a teacher/parent meeting. It was submitted that this constitutes harassment and/or victimisation contrary to the Equal Status Acts.
10. The next friend submitted that the final act of victimisation took place when the complainant received his disability Central Application Office form that he had requested the respondent to fill in on his behalf. It was submitted that the respondent had downplayed the complainant's health issues' impact on the complainant's education. It was submitted that the named person directed the form incorrectly to the Central Application Office when it should have been sent to the complainant. It was submitted that this is victimisation arising from the complainant's principled stance to protect his right to equal treatment. It was submitted that this constitutes harassment and/or victimisation contrary to the Equal Status Acts.
3.3. The complainant's next friend submitted that the respondent allowed female students to wear earrings while prohibiting them from male students. It was submitted that this was the case until the school management changed the school rules on 12 March 2007. The complainant's next friend submitted that this rule change was directly because the next friend had lodged a complaint with the Equality Tribunal. It was submitted that this new rule concerning earrings allows male students to wear similar earrings as the females but that males are also expected to wear two earrings. The complainant's next friend submitted that this was unfair as it is customary for boys/men to wear only one earring.
4. Case for the respondent
4.1. The respondent is an educational establishment within the meaning of section 7(1). It caters for over 1000 pupils.
4.2. The respondent denies all allegations made by the complainant's next friend. It was submitted that, notwithstanding the subsequent change of school rules which allowed boys to wear earrings the same way as girls, it is contended that the respondent is and was fully entitled to request the complainant to remove the earring in accordance with the school rules. It was submitted that the rules concerning the appearance and dress code of pupils, through applied differently for boys and for girls, does not constitute less favourable treatment of boys viewed in the context of the generality of the rules on dress and appearance.
4.3. It was submitted that there was no discrimination as alleged on the gender ground and the request to remove the single earring did not constitute discrimination within the meaning of the Equal Status Acts. It was submitted that there is no basis for a claim of victimisation.
4.4. The respondent accepts that the complainant was suspended in March 2007. It was submitted that this was because the complainant had used unacceptable language to a teacher. Correspondence between the school and the complainant's next friend was submitted as evidence concerning this incident. It was submitted that this was a standalone incident of bad behaviour on part of the complainant which was dealt with appropriately by the school's Board of Management in compliance with its Code of Behaviour. The reason for the delay in dealing with the incident, it was submitted, was because the principal was out of the country with a number of students. The matter was dealt with shortly after his return.
4.5. In relation to the incident of 11 September 2007, the respondent submitted a student incident report in which the named teacher stated that she had asked the complainant to remove his earring and the complainant had refused. It was accepted that a teacher had mistaken a mark on the complainant's ear as an earring and had asked him to remove it. This, it was submitted, was standard practice and any student who appeared to violate the school rules would have been treated in a similar manner.
4.6. The principal submitted that as soon as the earring issue was brought to his attention - he submitted that the issue had never occurred to him until then - he brought the issue to the attention of the Board of Managers after extensive consultation with students, parents and teachers. The rule forbidding boys to wear earrings was changed in March 2007.
4.7. It was submitted that there is a clear and compelling rationale for the school's rules concerning dress and appearance in the overall context of the school's management. It was submitted that any of the incidents of submitted on behalf of the complainant are completely unconnected to the complainant's claim of discrimination on the gender ground.
4.8. The respondent's representative submitted Schmidt v Austick's Bookshops [1977] and An Application by the Governors of Ballyclare High School [2008] as precedent cases supporting an educational establishment's right not to make identical dress code provisions for males and females.
5. Conclusion of the Equality Officer
5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. 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.
5.2. First, I wish to address the issue of whether having different rules for boys/men and girls/women in relation to uniform requirements constitutes less favourable treatment in law. It is a common misconception that equality is about everyone being the same and therefore, that equality law is about ensuing that all persons receive same treatment. While literal interpretation can result in the aim of the legislation being understood as such, the case law on equality in courts and this Tribunal has tended to recognise and value the differences that arise from human characteristics, inter alia, race, gender, age, family status, etc. Equality legislation is about ensuring that no group protected by it experiences less favourable treatment because of their social status. This, in certain circumstances , means that equality law must recognise that same treatment can result in inequality. Therefore, in certain circumstances, different treatment is required to ensure that a person is not treated less favourably because of their social status. In such cases, such different treatment cannot be construed as discriminatory in law.
5.3. I note that the respondent referred to the UK case Schmidt v. Austick's Bookshops as an authority on the issue of uniform requirements in employment for different sexes. The rule arising from this decision is that uniforms in the workplace need not be identical for both sexes. This is because a rule requiring same treatment could lead to an unworkable situation if men and women were required to wear the exact same uniforms. What is considered conventional and appropriate dress for women may not be so for male colleagues and vice versa. The Schmidt recognised the right of employers to impose different uniform requirements for men and women provided that there were restrictions concerning clothing imposed on both genders. This position has been upheld by the UK's Employment Appeals Tribunal in Burrett v West Birmingham Health Authority [1994], Paul Fuller v Mastercare Services [2001], Department of Work and Pensions v Thomas [2003]. I note that the Court of Appeal has also favoured the approach taken in Schmidt, for example, Smith v. Safeway [1995].
5.4. The current case law therefore indicates that what constitutes 'different treatment' and 'less favourable treatment' in uniform questions is an issue of justification. This justification can only be made when a dress code is read as a whole (rather than a restricted interpretation of each gender's specific dress requirements) and its purpose is shown to seek a conventional appearance among employees. While I note that the Schmidt case is about uniform requirements in an employment setting I find that the rules applied can follow in educational settings as set out in the judicial review proceedings in the High Court of Justice in Northern Ireland in the Ballyclare High School [2008] case where Weatherup J states: "there is a parallel on this issue in the employment sphere where employers require workers to comply with dress and appearance codes at work" .
5.5. I wish to distinguish this case from Tribunal decisions ES-S2009-008 and ES-S2009-010 which address the issue of hair length for boys and girls in the educational setting and the more permanent impact of such requirements. I do not find that the facts of this case are similar. The claim before me concerns a single earring that can be easily removed by the complainant and replaced when outside the school setting. I am satisfied that the earring rule has no impact on the manner in which the complainant chooses to dress outside the school unlike rules concerning hair length. I am also satisfied that the respondent school's uniform requirements impose limitations and restrictions on both sexes. Furthermore, it is important to note, in accordance with Ballyclare High School [2008], that such an approach is not a fixed one. A school must have in place procedures that allow for change for such a dress code in line with changing patterns and lifestyles that influence the very same code. I am satisfied that such procedures are at place in this case. This is supported by the manner in which the dress code was altered in March 2007.
5.6. Having considered the precedent cases from the UK and the facts of this particular case, I am satisfied that under the Equal Status Acts it is not discriminatory - in the circumstances outlined above - to have different rules for women and men in relation to the wearing of earrings as part of an overall dress code requirement in the educational setting.
5.7. I note that the complainant's next friend suggested that the new rule - allowing same treatment for boys and girls - was discriminatory as it does not take into consideration the fact that boys tend to wear only one earring. Here the complainant's next friend is making an argument for the very same recognition of convention that the complainant was opposing in the first instance. I am satisfied that an educational institution has a right to determine its own uniform codes. Students and their guardians are naturally aware of these rules and there is a legitimate expectation that these rules are to be obeyed.
5.8. It was submitted that the removal of the complainant from the classroom was contrary to the National Educational Welfare Board's regulations. The complainant's next friend referred to guidelines issued by the same body and gave the Tribunal his interpretation of whether the respondent's policies were in line with those of the National Educational Welfare Board. Such an issue is not a matter for this Tribunal to determine. Nor is it for this Tribunal to assess school rules or policies in isolation from specific incidents where a comparator can be presented. It is clear that if a school has explicit rules concerning discipline and parents and pupils are aware of these rules, the school has a legitimate expectation that pupils and their parents adhere to them. While the complainant's next friend believed that the treatment his son received was unlawful, it is clear that the next friend had more legitimate means at his disposal to support his son's 'spirited stance'.
5.9. It is important to note that this Tribunal cannot condone parents who wilfully encourage their children to flaunt school rules and to ignore instructions given by their teachers. This is not an approach supported by the Acts. It is clear that school rules are in place to enable education institutions operate safely, effectively and to create a sense of order. It could be argued that these rules also help to prepare young people for the workplace. If a parent or student wishes to address school rules and/or policies, they have legitimate means of addressing such issues. It should also be clear that the only body who has the jurisdiction to determine whether a practice, policy or rule constitutes unlawful discrimination under these Acts is the Equality Tribunal.
5.10. It is important to point out from the onset that the complainant himself elected not to come to the hearing. Therefore, his next friend was able to provide a hearsay account of situations where he nor his wife were not present. The same situation applied to the school where written records were submitted to support some of the arguments. I note that the complainant argued that there was a discrepancy in relation to one written record - it was suggested that dates had been altered - but I find nothing there to support harassment within the meaning of the acts or victimisation.
5.11. I have been presented with no evidence to support an argument of harassment within the meaning of the Acts on the gender ground. As the complainant himself failed to give evidence on the matter, it is not clear how requests to remove his earring or the school's expectation that he comply with school rules and disciplinary proceedings can be construed as creating an intimidating, hostile or degrading environment on the gender ground. I note that a girl wearing a single earring or, for example, large earrings would have been treated in the same manner. I accept the evidence of a named vice-principal who stated that she regularly has young women remove their make-up in her office. I note that the next friend argued that his son regularly observed others who violated school rules and got away with it. His wife also stated that she has regularly observed girls with heavily applied make up entering the school yard. I accept that this is the case. I find that in an educational establishment of this size - with an ambition to educate rather than to discipline - some students will rebelliously try to undermine these rules and some violations of the dress code will go unnoticed. I am not satisfied that such an omission can be construed as harassment on the gender ground. I have not been presented with any evidence to suggest that only female students attending the respondent school are able to undermine the dress code.
5.12. In relation to victimisation. I am satisfied that the complainant is covered under the victimisation ground in that he had, through his next friend, initiated proceedings in this Tribunal. Having heard the case in its entirety, I find that I have not been presented with any evidence to indicate that the complainant was subjected to any less favourable treatment than any other student would have been in similar circumstances regardless of gender or because the complainant had taken a complaint under these Acts. I have not been presented with any evidence that would support any contention that the complainant was the only person in the school who had to comply with the school disciplinary codes nor have I been presented with any evidence to support an argument that other students would not have been held accountable when discipline was broken.
5.13. I do not accept that the next friend's interpretation of the Central Application Office form is correct. I do not accept that by describing the complainant's disability as having a very minimal impact the named teacher was undermining the complainant. While I note that the complainant has - due to his health - missed up to 70% of his final school year, it is clear that despite of this absenteeism, the complainant was successful in completing his school year and his examinations. This, in my opinion, indicates that despite the extensive absenteeism the complainant is very capable of academic learning without any special treatment. The Central Application Office form is simply enquiring about the need for special treatment or facility an applicant would require in order for the applicant to be able to participate in academic learning. I have no jurisdiction to investigate this issue from a disability ground perspective as the complaint was brought forward on the gender ground only. I am satisfied that the form is not evidence of a prima facie case of victimisation.
5.14. I am satisfied that the issue concerning a named teacher, where it was discovered that the teacher refused to meet with the complainant's parents, is an independent issue not associated with this complaint. The complainant's next friend himself testified that a dispute had taken place between him and this teacher a number of years previously. I note that the complainant's next friend submitted that the delay in moving the complainant to another class (a period of some 3 three months, including Christmas) constituted less favourable treatment. I have not been shown any evidence to support an argument that another student would have been moved immediately based on the say-so of a parent. I accept that an educational establishment of this size must investigate any complainants made by parents to justify the movement of pupils between classes and to ensure the effective running of the educational establishment. I am satisfied that as soon as the respondent became aware of the fact that a teacher was refusing to interact with the complainant's parents, action was taken.
5.15. I note that the complainant's next friend was unable to show evidence to explain how the named teachers would have been aware of the next friend's intention to seek redress under the Acts. I note that the complainant's next friend had instructed the complainant to carry a note with a reference to a pending investigation in this Tribunal and instructing teachers to contact him directly as to prevent any further issues occurring concerning victimisation. It is clear that such conduct is entirely inappropriate and I will not accept such anticipatory behaviour as admissible evidence to support the establishment of a prima facie case of victimisation. Having heard the evidence from the respondent it is clear that the school provided the complainant and his next friend with more favourable treatment in that the principal took over the role of a liaison person between the complainant and his parents. I am satisfied that the incidents complained of where independent incidents arising from the respondent's disciplinary code.
6. Decision
6.1. In accordance with section 25(4) I have concluded my investigation and issue the following decision:
6.2. The complainant's next friend has failed to establish a prima facie case of less favourable treatment contrary to sections 3(1) and 7(1) on the ground of gender. The complainant's next friend has failed to establish a prima facie case of harassment on the gender ground. The complainant's next friend has failed to establish a prima facie case of victimisation. Therefore, this complaint fails.
_________________
Tara Coogan
Equality Officer
6 November 2009