Equal Status Acts 2000 - 2008
Equality Officer Decision
DEC-S2010-049
A Separated Father
(represented by Dermot Lavery & Co, Solicitors)
V
A Community School
(represented by Mason Hayes Curran, Solicitors)
Date of Issue 5 November 2010
Key words
Equal Status Acts 2000 - 2007 - Direct discrimination, section 3(1)(a) - Gender, Marital Status and Family Status grounds, sections 3(2)(a), 3(2)(b) and 3(2)(c) - Supply of goods and services, section 5(1) - Provision of information and documentation to a separated father
1 Delegation under the Equal Status Acts, 2000 - 2007
This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts 2000 - 2007. On 17 October 2008, in accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Acts, the Director delegated the complaint to myself, Brian O'Byrne, 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 - 2007, on which date my investigation commenced. As required by section 25(1) and as part of my investigation, I proceeded to Hearing on the 16 March 2010 with correspondence ending on 31 August 2010.
2 Dispute
This dispute concerns a complaint by Mr. M that he was discriminated against on the gender, marital status and family status grounds by the Community School in not being provided with information and documentation he had sought with regard to his children's' progress in school.
3 Complainant's Evidence
3.1 The complainant married in 1989 and the couple had 4 children. He and his wife separated in 2005 and secured a legal divorce in 2009. At the time of their initial separation, the couple came to an amicable arrangement with regard to their children who remained with their mother. The complainant said that he saw his children regularly and the arrangement worked well. The 2009 divorce settlement gave the couple joint guardianship of the children.
While they were married, the complainant worked a lot in the North and was often away during the week. When the children started attending school in the 1990s, they were enrolled in his wife's national school, 8 miles from their home. As there was no direct public transport to the school, this caused some problems with absenteeism on occasions when his wife was unable to transport them to school in the morning. He said that his wife dealt directly with the school on these matters and that she did not keep him updated as to the seriousness of the absenteeism. Despite this absenteeism, the complainant said that he felt that the children were doing well in Primary School.
When the two older children finished Primary School they were enrolled in the Community School which was near their home. It was around this time that the marital problems developed and the complainant left home.
3.2 After they separated, he said that he began to suspect that all four children were not doing well at school and arranged a meeting with the Primary School to discuss his children's' welfare and learning. At that meeting he was made aware of the serious absenteeism problem with his two younger children which prompted him to seek an urgent meeting with the Principal of the Community School in relation to his older children's attendance.
The complainant said that he knew the Principal, Mr C, from his own days as a student at the school and agreed that they had got on well back then. At their meeting in November 2005 he told Mr C of his marital position and expressed his concerns over his children's attendance and performance. He said that Mr. C agreed to provide him with copies of his children's school reports and attendance records for the past three school years.
When the attendance records and school reports had not been received by late January 2006, he made several calls to the school seeking a further meeting with Mr C and his daughter's Year Head as he was becoming very concerned about his children's upcoming Mock Exams. When no meeting date was offered he wrote to the school formally requesting a meeting on 10 February 2006.
3.3 Around that time he also contacted the National Education Welfare Board about his concerns over his children's continuing absenteeism as he was aware that schools were obliged under the Welfare Act 2000 to submit regular reports of absenteeism to the NEWB. He was told by the NEWB that they had no reports from either school about poor attendance by his children.
He was eventually invited to a meeting on 22 March 2006 where he met the Principal Mr. C, his daughter's Year Head Ms A and Mr R from the school's School Completion Program (SCP). At the meeting, he reiterated his concerns over his children's absenteeism and academic under-achievements. The response he got from the Year Head was that "there was no problem" in relation to his daughter's absenteeism. He said that he felt at the time that these comments were deliberately misleading and he said that his suspicions were confirmed when he got the Year Head's school report a week later which included her own personal comment about his daughter which said that "She must make an effort to attend school every day".
When he mentioned at that meeting that he had been in touch with the NEWB, Mr R asked him specifically who had he been dealing with in the NEWB which made him slightly suspicious of Mr R's intentions. In a later FOI request to the NEWB, the complainant was supplied with his daughter's NEWB case records indicating that the required absenteeism records for his daughter were actually communicated to the NEWB by the School's SCP on 22 March 2006, the date of his meeting with school officials. He does not believe that this was a coincidence but that it was prompted by his reference to the NEWB at the meeting and Mr R's question as to who he had been dealing with.
3.4 The meeting ended with him being promised that copies of the records sought would be sent to him. When they did not arrive, the complainant made a number of written enquiries and phone enquiries to the people he had met on 22 March 2006 seeking his children's absenteeism records which he had been promised at the meeting. He eventually received the 2005/2006 records on 22 July 2006 showing that his daughter had 38 absences during the school year while his son had 14. The complainant was then informed that the previous years records were not available as the office member who had access to these records was currently on summer holidays.
Around this time, the complainant said that he also learned that the school had visited his wife on a number of occasions in the early months of 2006 in relation to his children's absenteeism. However, no attempt had been made to contact him or to alert him at the meeting on 22 March to the problems that had arisen in relation to attendance, despite Mr. C having agreed to this the previous November. He claims that this was yet another example of the discrimination he suffered.
3.5 In September 2006, the complainant learned that Mr C had retired and that a new Principal, Ms J had taken over. On 5 September 2006, he wrote to the new Principal outlining his position and enclosing copies of previous correspondence between himself and the school and asking for the outstanding absenteeism records. In response, he received a letter from Ms J asking him to "furnish evidence i.e. a Solicitor's letter that you have access to your son and daughter's records". When Mr M complained and reminded Ms J that Mr C had previously agreed to provide this information, the request for a solicitors letter was dropped. The complainant believes that this was yet another attempt by the school to discriminate against him on account of his marital status.
In October 2006, he met with Ms J and Mr R to discuss the outstanding attendance records and the fact that counselling had been arranged for his daughter without his knowledge.
3.6 When he still had not received the attendance records by January 2007, he asked his solicitors to formally request them. The records were supplied to him within a fortnight of the solicitor's letter, fourteen months after the complainant originally sought them himself.
In February 2007, as he had still not been supplied with copies of all his children's recent school reports, he decided to lodge an equality complaint against them and submitted the Equal Status Acts notification form to the school. In a subsequent phone conversation with Ms J, she told him that the school reports had been posted to him the previous month and that she could not explain why they had not been received. She also informed him that the attendance records he had received "were all accurate".
4 Respondent's Evidence
4.1 Mr. C said that he had become School Principal in 2001 and had met the complainant's wife once or twice after that. He only learned of the couple's separation from the complainant in November 2005.
He said that the school has a number of children with separated parents and the school always met its legal obligations with regard to such situations. Once informed by a parent, the school has a protocol in place to correspond with both parents with regard to their child's progress.
Mr C said that it was not unusual to ask couples for evidence of their separation but that he could only recall one such case in recent years. Where separate addresses are made known to the school, both parents are notified of parent/teacher meetings.
Mr C said that he recalled meeting Mr M in November 2005 and discussing his children's progress. He recalls agreeing to supply him with details of his children's absenteeism but accepts that he overlooked to do so immediately. He now regrets that he did not give the request more priority at the time. He said that he could not recall whether he made a note on the children's files as to their parents separation or Mr M's new address but believes that he would probably have told staff. He said that this could be explored after the Hearing
4.2 Mr. C recalls meeting Mr M again at a meeting in March 2006 attended by Mr R and Ms A. He says that he recalls the discussion focused on absenteeism and accepts that the seriousness of the problem may not have been fully explained to Mr. M at the meeting. He does not, however, recall Ms A saying that "there was no problem" with the daughter's absenteeism.
4.3 Mr. R said that he was the Head of the school's School Completion Programme (SCP). He first became aware of the M's children's absenteeism in 2005 but said that the situation only became chronic in early 2006 resulting in an average of 2 calls a week being made to Mrs M between February and June 2006, as well as visits from members of the SCP to deal with the absenteeism. It was only in March 2006 that the school considered the absenteeism serious enough to merit a report to the NEWB.
Mr R said that he recalls the meeting on 22 March 2006 dealing with the children's non-attendance and recalls Mr M seeking attendance records from previous years. Mr R said that he had no recollection of contacting the NEWB on 22 March 2006 regarding the daughter's absenteeism.
4.4 Ms J said that she had replaced Mr C in August 2006. She had previously worked in a different school and had to familiarise herself on all aspects of the Community School before she took up her appointment officially on 1 September 2006.
She said that she recalls Mr C mentioning the complainant to her in one of their briefing sessions in August 2006 and telling her that the family had separated.
She said that the daughter's name had first been recorded on references to the NEWB in April 2006.
With regard to the meeting on 22 March 2006, Ms J said that she had spoken to Ms A on the morning of the Hearing and Ms A had assured her that she would not have said that there was "no problem" with the daughter's attendance when she knew a problem existed.
4.5 Ms J said that she recalls getting Mr M's letter of 5 September 2006, indicating that he had already got some attendance records and asking for the outstanding absenteeism records. She recalls discussing the letter with Mr R who confirmed that it had been agreed at the 22 March meeting that the records were to be released. She said, however, that she was unsure as to how to deal with this request at the time as, from her discussions with Mr C and other staff around that time, she had got the impression that a "situation of conflict / situation of dispute" existed with Mr M. When questioned at the Hearing as to how exactly she got that impression she replied that she could not recall where she had got it but said that Mr R had mentioned to her that there was a "custody issue".
Ms J said that, while she regarded Mr M's request as "legitimate", she decided to seek advice on how to proceed. Although she is not entirely sure who she got it from (she thinks it may have been from her teachers' union) the advice was that she should seek legal evidence that he was entitled to access to his children's records. This letter issued on 8 September 2006 and was done so, she says, in good faith.
5 Conclusions of the Equality Officer
5.1 At the Hearing on 16 March 2010 and in subsequent submissions, the respondents made legal arguments on the following issues and I propose to deal with them at the outset of my conclusions:
1. The original complaint should be deemed inadmissible as it was "out of time"
2. The original complaint should be deemed inadmissible as the Community School do not provide a "service" as defined by the Equal Status Acts
3. The School Completion Programme is a separate entity to the Community School and should not be joined into the proceedings
5.2 Admissibility of Complaint - Time limits
In their submission, the respondents claim that the complaint in this case was "out of time" in that it was submitted to the Tribunal on 16 March 2007, which was more than six months after the last date of alleged discrimination. In support of their case, the respondents claim that, in evidence at the Hearing, the complainant indicated that the last incident of discrimination against him was the letter dated 8 September 2006 from Ms J.
In this regard, I have reviewed the complainant's original complaint form and the notification he sent to the respondents on 16 February 2007. On both these forms I note that the complainant clearly identifies 7 February 2007 as the most recent date on which he suffered discrimination, as on that date he was still awaiting copies of his children's pre-2005 school attendance records and that was the date he again wrote and emailed Ms J. asking for copies of same. In addition the ES3 form dated 13 March 2007 specifically states "they have discriminated (continuously) against me on grounds of gender, my marital status & family status for the past 13 months.
On examination of the evidence provided, I am satisfied that the complainant has identified a series of incidents of possible discrimination over the period 28 November 2005 to 7 February 2007 and that all of these fall for consideration as part of my deliberations. Accordingly, I must reject the respondent's claim that the complaint is "out of time".
5.3 The Service Issue
In claiming that the Community School does not provide a "service" to the complainant, the respondents argue that the school is not a "provider of a service" as defined in section 4(6)(b) of the Equal Status Acts and that it is not responsible for providing a service in respect of which section 5(1) applies. The respondents submit that that Section 7 of the Equal Status Act is the only provision within the Acts which governs discrimination in the education sphere.
In considering whether an educational establishment has additional obligations on it as a "service provider" as defined by the Equal Status Acts, over and above those contained in Section 7, I have taken cognizance of the decisions in the cases of Mr. Patrick Kelly V University of Dublin, (Trinity College) (DEC-S2004-163) and Mrs. Cr (on behalf of her daughter Miss. Cr) v The Minister for Education & Science Decision (DEC-S2009-051), where it was found that both the College's role and the Department's role in the provision of education in Ireland fell into the category of a "provider of a service" as defined under the Equal Status Acts.
In my opinion, the case before me is similar to those above in so far as the Community School also provides an educational "service" to the general public. Accordingly, I find that the Community School is a service provider and does provide a service which is covered by Section 5(1) of the Equal Status Acts.
In considering whether the service provided by the respondents extends to the parents of students, the question that arises is whether the Education or Equal Status Acts deliberately intended for educational establishments to be exempted from scrutiny in relation to their dealings with students' parents. In this regard I have noted the extract below from Section 9 of the Education Act 1998 which sets out the following as one of the many functions that a Board of Management is obliged to fulfill:
(g) ensure that parents of a student, or in the case of a student who has reached the age of 18 years, the student, have access in the prescribed manner to records kept by that school relating to the progress of that student in his or her education
Based on the above, I am satisfied that access to a student's records is a "service" that the Community School is required to provide to parents within the meaning of both the Education and the Equal Status Acts.
The respondents have also argued that the Tribunal's definition of "service" is too wide-ranging and is not consistent with the definition of a "service" contemplated by Council Directive 2004/113/EC which the respondents claim clearly contemplate only those activities which include an economic element.
In considering this argument, I note that the Equal Status Act predated the Council Directive by four years. In that time the Tribunal's broad definition of "service" has contributed enormously to the promotion of equality and the prohibition of discrimination in Irish society, which was the original primary purpose of the Equal Status Act 2000. To dilute the Tribunal's definition of "service" at this point and exclude such services as education would, in my opinion, be a retrograde step and completely contrary to the intention of the legislature that enacted the legislation.
I also consider that such a step would be contrary to the intention of the EU legislature who introduced Council Directive 2004/113/EC as a means of further strengthening equality legislation across Member States rather than diluting the impact of laws already in existence. As instruments of social legislation, it is my opinion that both the Equal Status Acts and the Council Directive must be interpreted in a purposive manner and I cannot accept that it was ever the intention of the Oireachtas, in transposing the Directive, to limit the scope of the Equal Status Acts.
5.4 The School Completion Programme
In setting out his case, the complainant claimed that the lack of contact with him by the school in relation to his children's absences constituted discrimination against him. He argued that the respondents only contacted and visited his wife in their attempts to address the problem of his children's non-attendance at school while no attempt was made to contact him or to alert him to the problems that had arisen.
In this regard, the respondents argue that this element of the complaint is inadmissible as the visits in question were carried out by the school's School Completion Programme (SCP) rather than by the Community School itself. The respondents maintain that they are not liable for the acts of the SCP who report to the Department of Education, that the SCP is not an agent for the respondent and that the SCP does not act under the respondent's control or guidance. In their defence, the respondents refer to the case of Lynch v Palgrave Murphy Ltd [1964] L.R. 150 where the respondents were found not to be vicariously liable for injuries caused by a forklift operator who had been hired from another company.
As the SCP was not named as a co-respondent, they claim that complaints made in relation to dealings with the complainant's wife and visits to her house cannot be considered by the Equality Officer as the Community School was not vicariously liable for the actions of the SCP.
In this regard, I note that this argument was only first raised at the Hearing on 16 March 2010. The argument was not raised in the respondent's earlier submission of 23 February 2009. Indeed, in that earlier submission the respondents seem to accept that the Community School and the SCP were the one entity and were working together as indicated by the following extract from their submission:
"It is specifically denied that the Respondent School failed to follow up on K's school attendance and failed to adhere to the provisions of the Welfare Act 2000. On the contrary, the Respondent submits it has been extremely pro-active in dealing with issues of absenteeism in that they have a school completion programme which is actively in place within the school, have four members of staff who have liaised with the applicant's daughter K on many occasions in respect of difficulties she experienced (namely Mr R ....."
In further considering whether Mr. R's role in proceedings should be dismissed because of his affiliation with the School Completion Programme rather than the Community School itself, I note that Mr. R played a prominent role at the meeting that Mr. M requested with representatives of the Community School in March 2006.
I also note that Mr. R closely liaised with Ms J in her dealings with Mr. M when she took up office in September 2006. Evidence of this can be found in a letter to Mr. M dated 5 October 2006 relating to his daughter's absences. The letter is jointly signed by Mr. R and Ms J on headed paper bearing the address ***** School Completion Programme, ***** Community School, *****, Co *****. The obvious conclusion to be drawn from this letter by any reasonable person would be that the SCP was an integral part of the Community School itself.
On the basis of the above, it seems clear to me that the actions of the Community School and the SCP were inextricably linked when it came to dealing with the M family and that the bodies acted "in unison" in dealing with the issues involved. Accordingly, I cannot accept the argument that the actions of the staff of the SCP are exempted from scrutiny in this investigation.
6 Burden of Proof
6.1 In cases such as this, the burden of proof lies with the complainant who must first establish that a prima facie case of discrimination exists. 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 the case before me, the complainant maintains that he was discriminated against by the Community School in not being provided with the information and cooperation that he as a parent should have been provided with by his children's school. Mr. M claims that he was treated less favourably than other parents on the grounds of gender, marital status and family status.
6.2 In considering whether the complainant was discriminated against on the gender ground, I note that the school has stated that it is normal practice to deal directly with the parent or parents with whom the children are residing. In this instance Mr. M has stated that he gave his permission for the children to continue living with his wife. Accordingly, on the balance of probabilities, I am prepared to accept that the school would have dealt directly with the complainant if he had been the parent with whom the children were residing and accordingly I do not find that the respondents discriminated against the complainant on the gender ground.
In considering whether the complainant was discriminated against on the family status ground, I note that the Equal Status Act defines the family status ground as follows "that one has family status and the other does not or that one has a different family status from the other". Although he may have been living apart from his children, I consider that the complainant, as joint guardian of his children, had the same family status as all other parents of children attending the Community School in that they all had responsibility as a parent in relation to a person who had not attained the age of 18 years. Accordingly, I do not consider that the complainant suffered discrimination on the family status ground.
6.3 In considering whether the complainant suffered discrimination on the marital status ground, I am persuaded by the following points in particular:
- At their meeting in November 2005, the complainant states that Mr. C agreed to forward to him his children's' school attendance records and that he gave him his new address for this purpose. Mr. C accepted at the Hearing that he had agreed to forward the children's current year records but said that he could not recall specifically whether he was given the new address. If he had received the address he said that he would have updated the family file himself or asked a staff member to do so.
- Mr. M was not, however, provided with the records promised in November 2005 and, subsequent to the Hearing, the respondents confirmed that the family file had not been updated in 2005 with Mr. M's new address. If Mr. C had genuinely intended to supply the records sought but was prevented from doing so because he did not have the new address, the opportunity was there in January to establish this information when Mr. M phoned or alternatively to note it from Mr. M's letter of 10 February 2006 to Mr. C. However, no records were forwarded to Mr. M around that time, nor was he given any explanation for the non-production of the records concerned. This fact was acknowledged by Mr. C himself at the Hearing when he expressed regret for not "giving more priority to Mr. M's request". As a result of Mr. C's lack of engagement with the complainant around this time, Mr. M felt compelled to move to the next stage and seek a formal meeting with the School representatives.
- At the meeting on 22 March 2006, Mr. M claims that the school representatives were evasive and misleading with the information they provided to him with regard to his children's progress and attendance. He says that when he sought to establish details of his children's attendance, Ms A reported that there was "no problem" in relation to his daughter and absenteeism. However, a week later Ms A herself wrote on his daughter's report "She must make an effort to attend school every day".
- Around that same time Mr. M also received a copy of his daughter's Mock Results which contained the following comment from her Maths teacher "Absent too often, needs to concentrate". In addition, absenteeism records submitted subsequently show that the daughter had missed 12 days in school in the two months immediately prior to the 22 March meeting but this information was not conveyed to the complainant at the meeting.
- The allegation that the complainant was misled would also appear to be supported by Mr. C's own evidence at the Hearing that he regarded the daughter's absences as a "serious problem" but that it was "not explained to Mr. M" on 22 March 2006.
- On this point, I note that the respondents admitted at the Hearing that there was a problem over the daughter's attendance in March 2006. However, the evidence before me indicates that this problem was not disclosed or discussed openly with Mr. M on 22 March 2006. The respondent's reluctance to disclose the seriousness of the problem to the complainant is supported, in my view, by the fact that the respondents delayed a further 3 months before supplying Mr. M with the current years attendance records (and only on foot of a threat of legal action) yet were able to supply the figures to NEWB on 22 March 2006.
- Mr. M also stated that, at the meeting, he made reference to the fact that the NEWB had told him that no official referral regarding his daughter's attendance had ever been made to the NEWB by the Community School. On disclosing this information, he said that Mr. R immediately sought details from him as to who he had communicated with in the NEWB. A year later, under an FOI request, Mr. M received confirmation from the NEWB that a referral had been received from the school relating to his daughter's absenteeism on 22 March 2006, the date of his meeting with the school representatives. While the school state that the date was coincidental, on the balance of probabilities I find it very difficult to accept that this was in fact the case.
- In evidence, Mr. C stated that, once informed by a parent about a couple's separation, the school has a protocol in place to correspond with both parents with regard to their child's progress. However, this did not happen in this case as, despite the fact that the school would have had Mr. M's new address from his letter of 10 February 2006, the school continued to deal directly with Mrs. M, unknownst to the complainant, between February and June 2006 in connection with the children's absenteeism.
- In considering Ms J's involvement with Mr. M, I note that she has admitted that, before she had met the complainant, she had been led to believe that a "situation of conflict / situation of dispute" existed with Mr. M and that the school regarded the situation with Mr M as difficult. This admission in itself supports the view that a pre-formed negative opinion of the complainant was conveyed to Ms J on her arrival and that this opinion originated from the school representatives who had been dealing with Mr. M prior to the new Principal's arrival.
- It would also appear that the negative perception of Mr. M acquired by Ms J was an influencing factor in her decision to ask for legal confirmation from him that he was entitled to access to his children's records. The fact that such a letter issued to him is a clear indication that he was being treated differently to other parents of children in the school with a different marital status.
6.4 Having considered the totality of the evidence before me and, in particular, the points highlighted above, I find that there is sufficient evidence to indicate that the complainant was less favourably treated by the representatives of the Community School and the SCP because of his status as a separated father. Accordingly I find that the complainant was discriminated against on the marital status ground contrary to the provisions of the Equal Status Acts. With regard to the gender and family status grounds, I find that there is insufficient evidence to support an allegation of discrimination on these two grounds.
7 Decision
7.1 I find that a prima facie case has been established on the marital status ground in terms of sections 3(1) and 3(2)(b) of the Equal Status Acts 2000 - 2008 and that the respondents have failed to rebut the allegation of discrimination.
Accordingly, I find in favour of the complainant in the matter and order that the respondents pay him the sum of €5000 for the hurt and upset caused. I also order that the school revise its existing guidelines for parents to include a commitment that the school will communicate and correspond with all parents in a fair and equitable manner with regard to their children's progress at school, irrespective of their marital status.
Brian O'Byrne
Equality Officer
5 November 2010