THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 - 2008
Decision DEC-S2010-055
PARTIES
Mrs. Z (and on behalf of her three children)
(represented by a Travellers Advocacy
Group)
and
A National School
(represented by Mr. Thomas J. O'Halloran Solicitor)
File Reference: ES/2008/202
Date of Issue: 30th December, 2010
Keywords
Equal Status Acts, 2000-2008 - Direct discrimination, Section 3(1)(a) - Gender Ground, Section 3(2)(a) - Race Ground, Section 3(2)(h) - Traveller community Ground, Section 3(2)(i) - Harassment, Section 11 - Disposal of Goods and Services, Section 5(1) - Access to Education, Section 7(2) - failure to establish a prima facie case of discriminatory treatment
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 31st October, 2008 under the Equal Status Acts, 2000 to 2004. On 12th March, 2010, in accordance with her powers under Section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, 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, 2000-2004 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 10th December, 2010.
1. Dispute
1.1 The complainant, Mrs. Z, claims that both she and her three children were discriminated against by the respondent on the grounds of their race and membership of the Traveller community in terms of sections 3(1), 3(2)(h) and 3(2)(i) in relation to their treatment by the respondent when she sought to have them re-enrolled at the respondent's school in June, 2008. Mrs. Z also claims that she was discriminated against by the respondent on the grounds of her gender in terms of sections 3(2)(a) in relation to this issue. Mrs. Z also claims that she was subjected to harassment by the respondent within the meaning of section 11 of the Equal Status Acts.
2. Summary of the Complainants' Case
2.1 The complainant's three sons had been attending the respondent's primary school until the end of May, 2008 when the family moved to a different town and they were enrolled in another primary school. The complainant's personal circumstances subsequently changed and she decided to return to live in the town where she had previously resided. The complainant stated that her three sons had been absent from school for about 2/3 weeks at that juncture so she decided to have them re-enrolled at the respondent's primary school. The complainant stated that she spoke to Ms. A, the Visiting Teacher for Travellers (VTT), regarding this issue on 5th June, 2008 and it was agreed that the VTT would contact the school to inform it that her three sons would be returning to the school on Monday, 9th June, 2008. The VTT contacted the school by telephone on 6th June, 2008 and left a message for the School Principal on an answering machine to say that the complainant's three sons would be returning to the school on Monday, 9th June, 2008.
2.2 The complainant stated that she dropped her three sons to the school on Monday, 9th June, 2008 in the belief that the VTT had informed the school that they would be returning on this date. The complainant stated that her husband received a telephone call later that morning requesting her to make contact with the school. The complainant immediately contacted the school by telephone and she spoke to the School Principal, Mr. B, who was very irate with her because she had not informed him that her three sons would be returning to the school. The complainant stated that she explained to Mr. B that the VTT had undertaken to notify the school that her three sons would be returning on this date. The complainant stated that Mr. B spoke to her "as if she was a dog and not a human being" and she claims that she was extremely shaken by the tone he had taken during the course of the telephone call. The complainant claims that the only reason why Mr. B spoke to her in such a manner was because she was a Traveller and she submitted that he would not have spoken to a non-Traveller in such a manner. The complainant also submitted that Mr. B would not have spoken to a male parent in such a manner and she claims that this treatment amounted to discrimination on the grounds of her gender.
2.3 The complainant stated that she subsequently contacted the VTT and explained what had happened with the School Principal, Mr. B and she informed the VTT that she was taking her children out of the school because of the manner in which he had spoken to her. The complainant stated that the VTT accepted responsibility for the confusion regarding the return of her children to the school and the VTT indicated that she had spoken to Mr. B that morning in order to explain the situation. The VTT informed the complainant that she had arranged a meeting with Mr. B for the following morning i.e. Tuesday, 10th June, 2008 in order to discuss the matter further.
2.4 The complainant stated that she went to the school at approx. 2 p.m. on 9th June, 2008 to collect her children and whilst there she asked the School Secretary if she could speak to Mr. B; however, she was informed that he had gone home for his lunch at that juncture. The complainant informed the School Secretary that she was taking her sons out of the school because of the manner in which she had been treated by Mr. B. The complainant stated that when she got home her eldest son was very upset as a result of what had happened and he informed her that his teacher had said to him "look at you the cheek of you" during the course of class on 9th June, 2008. The complainant stated that this teacher had called the School Principal, Mr. B, to the classroom and that he had taken her eldest son and put him sitting on a chair outside the Principal's office. The complainant also claims that another teacher left one of her other children sitting on the tiled area of the classroom where the children eat their lunch with no work during the school day on 9th June, 2008. The complainant claims that her children were subjected to this treatment by the respondent because of their Traveller identity.
2.5 The complainant stated that she was admitted to hospital on 10th June, 2008 for emergency surgery and she did not allow her children to return to the respondent's school because of the manner in which she had been treated the previous day. The complainant stated that she contacted the VTT after she had been discharged from hospital and they were successful in finding a different school for her children where they commenced in September, 2008.
Bullying claim
2.6 The complainant stated that her eldest son had informed the VTT during the meeting on 5th June, 2008 that he had been subjected to bullying whilst previously attending the respondent's school. The complainant stated that the VTT agreed to discuss this matter with his teacher on her behalf. The VTT stated that she mentioned this issue to the respondent during the course of her meeting with teachers and the School Principal on 10th June, 2008. The complainant accepted that the issue of bullying had not been previously reported or brought to the attention of the school prior to 10th June, 2008.
3. Summary of the Respondent's Case
3.1 The respondent denies that it discriminated against or subjected the complainants to harassment on any of the grounds claimed. The respondent stated that it operates an inclusive policy accepting children from all cultures, creeds and nationalities and it submitted that there were 21 Traveller children enrolled at the school during the school year 2007/08. The respondent stated that the complainant, Mrs. Z, had three children attending its school during the school year 2007/08 i.e. a son in first class and a set of twin boys in the senior infants class. The School Principal, Mr. B, stated that he had always had a cordial relationship with Mrs. Z and that he had facilitated her in every way with regard to her children's education at the school. The respondent stated that Mrs. Z informed the School Secretary in May, 2008 that she was leaving the locality to live in a different town and that her children would be attending another school in the new town. The respondent stated that the children were removed from the school roll at that juncture and that it made arrangements to have all of the necessary documentation regarding her children forwarded to the new school upon their departure.
3.2 The School Principal, Mr. B, stated that on Monday, 9th June, 2008 it came to his attention during the course of the morning that the complainant's children were back in the classroom. Mr. B stated that he was very surprised with this since no contact had been made with either himself or the school in relation to the children coming back to the school. Mr. B stated that he was very upset to think that anybody would drop children, who were not enrolled, into classrooms without making contact with the Principal. Mr. B also stated that it put him in a situation whereby it was difficult for him to convince teachers that such a thing could possibly happen without his knowledge. Mr. B stated that he subsequently spoke to the VTT on the telephone later that morning and conveyed his dissatisfaction with the manner in which the complainant's children had been returned to the school without his knowledge. Mr. B stated that the VTT accepted responsibility for the confusion that had arisen and indicated that she had attempted to contact the school the previous Friday (i.e. 6th June, 2008) and that she had left a message on the answering machine regarding this matter. Mr. B stated that he asked the VTT to call to the school the following day (i.e. Tuesday, 10th June, 2008) to explain to the complainant's sons' teachers that she was taking responsibility for the fact that the children were returned to the school without informing anybody. Mr. B stated that the VTT agreed to do this and he told her that even if she had informed him that the children would be returning that as a matter of courtesy the parent should also have called to speak to him and explain the situation.
3.3 Mr. B stated that he then telephoned the complainant on her mobile telephone and left a message with the male who answered for her to contact him. Mr. B stated that the complainant telephoned him a short time later and during this conversation he informed her of his dissatisfaction regarding the manner in which the children had been returned to the school without informing him. Mr. B stated that the complainant indicated that she thought the VTT had informed him about this matter and she expressed her dissatisfaction and anger that the VTT had not informed him prior to her children's return to the school. Mr. B stated that he spoke to the complainant in a normal tone of voice during the course of this conversation and he denies the allegation that he spoke to her "as if she was a dog and not a human being". Mr. B stated that the complainant did not express any anger with him during this conversation and neither did she make any reference or complaint regarding the manner in which he had spoken to her.
3.4 Mr. B stated that the VTT called to his office on Tuesday, 10th June, 2008 and they had a long conversation about the events of the previous day and the confusion that had arisen in relation to the return of the complainant's children to the school. Mr. B stated that the VTT also made reference to the complainant being upset with the manner in which he had spoken to her the previous day. He stated that he was totally taken aback by this allegation and he indicated that the complainant had not mentioned that she had a difficulty in this regard during their conversation the previous day. Mr. B claimed that he found it quite bizarre that the complainant's attitude had changed in such a short period of time from being annoyed with the VTT during their telephone conversation the previous day to being annoyed with him within a few hours. Mr. B stated that the VTT made reference to the complainant's eldest son being bullied in the school and not wanting to return to the school; however, he claims that this was the first occasion that this issue had been mentioned and had there been an issue in this regard the matter should have been raised in conjunction with the school's anti-bullying policy.
3.5 The respondent also denied that the complainant's children had been singled out for inappropriate treatment or punished in any way (as alleged by the complainant in para. 2.4 above) during the course of their attendance at the school on 9th June, 2008. Mr. B emphatically denied the allegation that he had called the complainant's son to his office or that he had put him sitting on a chair outside of his office. Mr. B stated that the accusation or insinuation he would treat a child adversely because of an issue that had arisen with a parent caused him great concern and upset.
3.6 The respondent stated that it had absolutely no difficulty or objection to the complainant's sons being re-enrolled at the school on 9th June, 2008 and it submitted that they had, in fact, been re-enrolled by default by virtue of their attendance on this date. The respondent stated that the issue which caused it difficulty was the manner in which the children were returned to the school, in that children who were not enrolled at that juncture, had been returned to the classroom without reference to either the School Principal or management. The respondent stated that the complainant had always had a very good relationship with the School Principal, Mr. B, and that it should have been possible for her to call into his office that morning when dropping her children to school to inform him of the situation. The respondent stated that it was very surprised that the complainant took the decision not to allow her children to return to the school after 9th June, 2008. The respondent stated that the complainant's children would have been facilitated if she had decided to allow them return to the school.
4. Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A 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 can rely in asserting that prohibited conduct has occurred in relation to him. 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.
4.2 The respondent is an educational institution which, inter alia, provides post-primary education to students and, as such, it is an educational institution within the meaning of Section 7(1) of the Acts and is therefore subject to Section 7(2) of the Equal Status Acts, 2000 to 2008 which states that:
"7.- (2) An educational establishment shall not discriminate in relation to -
(a) the admission or the terms or conditions of admission of a person as a student to the establishment
(b) the access of a student to any course, facility or benefit provided by the establishment.
(c) any other term or condition of participation in the establishment by a student
(d) the expulsion of a student from the establishment or any other sanction against the student"
I will now proceed to examine the complaint on each of the grounds claimed i.e. the gender, race and Traveller community grounds.
Traveller community ground
4.3 It was not in dispute between the parties that the complainants are members of the Traveller community. I have identified the following key questions which must be addressed in considering whether a prima facie case of discrimination has been established by the complainants on this ground in the present case:
1. Did the respondent subject Mrs. Z to discrimination on the grounds of her membership of the Traveller community in terms of the manner in which she was treated when she sought to have her three sons re-enrolled at the school on Monday, 9th June, 2008?
2. Did the respondent subject Mrs. Z's three sons to discrimination on the grounds of their membership of the Traveller community in terms of the manner in which they were treated when they returned to the school on Monday, 9th June, 2008?
4.4 In considering the first question identified above, I note that a number of the key facts in this case are not in dispute between the parties such as:
- Mrs. Z's three sons had attended the respondent's school prior to the date upon which they sought re-enrolment i.e. 9th June, 2008.
- there had been a good relationship between Mrs. Z and the School Principal, Mr. B, during the course of her sons' period of attendance at the school up to May, 2008.
- the VTT, Ms. A, had undertaken to notify the respondent that Mrs. Z's three sons would be returning to the school on 9th June, 2008. It was accepted that she had left a message on the school telephone answering machine on Friday, 6th June, 2008; however, the School Principal, Mr. B, did not get this message before the complainant's three sons had returned to the school on this date.
Having regard to the evidence adduced, I am satisfied that the first indication the School Principal, Mr. B, had that Mrs. Z's three sons would be returning to the school was on the morning of Monday, 9th June, 2008 after a teacher had brought it to his attention that one of her sons was in attendance in the classroom. It is clear from the evidence that Mr. B was totally surprised to find that Mrs. Z's sons had returned to the school and he was also dissatisfied that he had not been consulted or informed of this issue prior to this date. It was accepted that there was a telephone conversation between Mrs. Z and Mr. B on the morning of 9th June, 2008 regarding this issue. Mrs. Z has claimed that Mr. B spoke to her in a derogatory manner during the course of this telephone conversation and it was as a result of this treatment that she decided to withdraw her sons from the school and seek a placement elsewhere.
4.5 The complainant claims that the reason why Mr. B spoke to her in such a manner was because of her Traveller identity and she submitted that he would not have spoken to a member of the settled community in such a manner. The School Principal, Mr. B, accepted that he was dissatisfied at not being informed that Mrs. Z's sons were returning to the school and it was not disputed that he communicated this dissatisfaction to her during the telephone conversation; however, Mr. B denied that he spoke to her in the manner alleged or that the reason he made the call was in any way influenced by her Traveller identity. Having regard to the evidence adduced, I have found the evidence of Mr. B to be more compelling regarding the nature and tone of the discussions that took place during the course of his telephone conversation with Mrs Z on 9th June, 2008. I do not accept that the reason he made this telephone call or that the manner in which he spoke to Mrs. Z was in any way connected to her Traveller identity. I am satisfied that Mr. B would also have sought to speak to the parent of a non-Traveller in similar circumstances and that he would have expressed his dissatisfaction at the events which had unfolded.
4.6 I also accept the respondent's evidence that it did not have any difficulty with Mrs. Z's children being re-enrolled at the school but rather it was the manner in which the re-enrolment had been conducted and more specifically, the fact that Mr. B did not have any prior knowledge of the situation, which caused a difficulty for the respondent. I am of the view that it was not unreasonable, in the circumstances of the present case, that Mr. B would have expected Mrs. Z to consult him directly about the return of her sons to the school prior to the 9th June, 2008, especially in light of the good relationship which they had enjoyed in the past. In this regard, I note that Mrs. Z accepted that she had spoken directly to Mr. B regarding her sons' education on numerous occasions in the past. It is clear from the evidence that Mrs. Z took the decision to withdraw her children from the school following the events that occurred on 9th June, 2008. However, I accept the respondent's evidence that it would have continued to facilitate the complainant's sons at the school after this date if Mrs. Z had not decided to withdraw them from the school at that juncture. In the circumstances, I find that Mrs. Z has failed to establish a prima facie case of discrimination on the Traveller community ground in relation to this aspect of her complaint.
4.7 I will next address the second question which I have identified above, namely the claim that Mrs. Z's sons were subjected to discrimination on the grounds of their Traveller identity in terms of the manner in which they were treated when they returned to the school on Monday, 9th June, 2008. Mrs. Z claimed that a teacher had remarked to her eldest son "look at you the cheek of you" during the course of class on 9th June, 2008 and that the School Principal, Mr. B, had put him sitting on a chair outside of his office. The complainant also claims that another teacher left one of her other children sitting on the tiled area of the classroom where the children eat their lunch with no work during the school day on 9th June, 2008. The respondent denies these allegations and Mr. B stated that he would never have treated a pupil adversely as a result of an incident that had occurred with a parent. Having regard to the evidence adduced, I have found Mr. B to be a credible witness and I accept his evidence that the complainant's children were not subjected to any adverse or inappropriate treatment on the grounds of their Traveller identity when they attended the school on 9th June, 2008. Accordingly, I find that the complainants have failed to establish a prima facie case of discrimination on the Traveller community ground in relation to this aspect of their complaint.
Gender ground
4.8 Mrs. Z has also claimed that she was subjected to discrimination on the grounds of her gender in terms of the manner in which Mr. B spoke to her during the course of their telephone conversation on Monday, 9th June, 2008. She claims that Mr. B would not have spoken to a male parent in such a manner in similar circumstances. Having regard to the evidence adduced, I have found the evidence of Mr. B to be more compelling regarding this issue and I do not accept that he spoke to Mrs. Z in the manner alleged during the course of this telephone call. Neither do I accept Mrs. Z's contention that Mr. B would have spoken to a male parent in a different manner in similar circumstances. I am satisfied that Mr. B would also have sought to speak to the parent of any child, regardless of gender, who had sought re-enrolment at the school in circumstances similar to those that pertained in the present case. Accordingly, I find that the Mrs. Z has failed to establish a prima facie case of discrimination on the gender ground in relation to this element of her complaint.
Race Ground
4.9 The complainants have also claimed that they were subjected to discrimination on the grounds of their race in terms of the manner in which the application for re-enrolment was dealt with by the respondent. It was submitted that the complainants, as members of the Traveller community, are members of an ethnic minority which resides within the State and accordingly, they are covered by the definition of race within the Equal Status Acts. Having considered this aspect of the complaint, I find that members of the Traveller community are specifically protected as a separate discriminatory ground under the Equal Status Acts. In the context of the present case there is no protection against discrimination on the ground of race which is not available on the Traveller community ground under the Acts.
Harassment
4.10 Mrs. Z has also claimed that she was subjected to harassment by the respondent contrary to section 11 of the Equal Status Acts in terms of the manner in which the School Principal, Mr. B, spoke to her during the course of their telephone conversation on 9th June, 2008. As I have already stated above, I have found Mr. B's account of this telephone conversation to be more compelling and I do not accept that the manner in which he spoke to Mrs. Z on this occasion could be construed as harassment on the grounds of her Traveller identity contrary to section 11 of the Equal Status Acts.
4.11 Mrs. Z has also claimed that her eldest son was subjected to bullying whilst attending the respondent's school prior to when he had been withdrawn from the school in May, 2008. She accepted that this matter had not been brought to the attention of the respondent prior to the meeting between the VTT and the School Principal on 10th June, 2008. The respondent denies that it was aware that Mrs. Z's son had been subjected to bullying and it stated that no such complaint had ever been brought to its attention during the course of his attendance at the school. Having regard to the evidence adduced, I am satisfied that the alleged bullying of the complainant's son had not been brought to the attention of the respondent during the course of his attendance at the school up to the point when he departed in May, 2008. Furthermore, I am satisfied that the complainant has not adduced any evidence to suggest that such bullying, even if I were to accept that it had occurred, was in any way attributable to his Traveller identity.
4.12 Accordingly, I find that the complainants have failed to establish a prima facie case of harassment on the Traveller community ground contrary to the Equal Status Acts.
5. Decision
5.1 In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision.
(i) I find that the complainants have failed to establish a prima facie case of discrimination on race and Traveller community grounds in terms of sections 3(1), 3(2)(h), 3(2)(i) and 7(2) of the Equal Status Acts.
(ii) I find that the complainant, Mrs. Z, has failed to establish a prima facie case of discrimination on the gender ground in terms of sections 3(1), 3(2)(a) and 7(2) of the Equal Status Acts.
(iii) I find that the complainants have failed to establish a prima facie case of harassment contrary to section 11 of the Equal Status Acts.
Accordingly, I find in favour of the respondent in relation to this case.
Enda Murphy
Equality Officer
30th December, 2010