The Equality Tribunal
Equal Status Acts 2000 to 2011
Decision Number
DEC-S2012-009
Parties
Lee Irwin suing through his next friend William Irwin
V
Duiske College
(Represented by Mr. Oliver Mahon BL on the instructions of James Harte and Sons Solicitors)
Case refs: ES/2010/0081
Issued: 5 March 2012
Keywords:
Equal Status Acts 2000 to 2008- Educational Establishments - Discrimination - Gender - Prima Facie case
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. Mr. Lee Irwin (hereafter "the complainant") referred a claim through his next friend and father Mr. William Irwin to the Director of the Equality Tribunal under the Equal Status Acts on 30 July 2010. The respondent was notified of this complaint in accordance with the Acts on 15 June 2010. The Director exercising his powers under the Acts 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 on 13 January 2012. An oral hearing, as part of the investigation was held in Dublin on 27 February 2012. The complainant attended the hearing and is now over 18 years of age.
2. Dispute
2.1. The dispute concerns a complaint of unlawful discrimination on the gender ground. The complainant submitted that Duiske Collge ("the respondent") discriminated against him by requesting that he remove patches of red hair dye from his hair in accordance with the respondent's code of conduct. The complainant maintained that he was suspended from school on foot of this discriminatory rule he submitted did not apply to female pupils. The incident occurred on 2 June 2010. The complainant could not return to the school to complete his leaving certificate as the discriminatory rule was still in place when he turned up to collect his books at the end of the summer.
3. Case for the complainant
3.1. The complainant was at the material time a secondary school pupil. He was about to complete his fifth year and had a couple of days of exams left before his summer holiday. The complainant's next friend received a phone call from the respondent at approximately 9.05 am on 2 June 2010 informing him that the complainant had red hair colour in his hair contrary to the code of conduct. Accordingly, the complainant could not be allowed in the classroom while he had this dye in his hair and the respondent was querying whether the next friend wanted the complainant to be sent home or whether the next friend would pick him up. The complainant's next friend replied that as it was 9.05am there was no time to have the hair coloured and that he was not prepared to shave his son's hair off. He asked whether the respondent really was going to stop the complainant from sitting his examinations with such a short time to go before his holidays. The respondent replied that the complainant had brought this matter on himself and that he was aware of the school rules. The next friend then stated that he would pick up his son and stated that he was upset to find the complainant standing outside the school.
3.2. The complainant - whose band was performing over the coming weekend - had secured a hair appointment and had decided to have his hair dyed for the occasion. As he had dyed his hair black for the previous two years he submitted that he did not think much of it. The complainant had been overheard by a teacher when discussing the hair appointment and had been advised not to go ahead with the appointment as he might not be allowed into the school if he had his hair dyed.
3.3. The complainant's next friend stated that while he was talking to the principal of the school, he noted a young man with a similar hair style as the complainant walking past the window. He queried whether that person would be sent home also and stated that the principal replied that the rules no longer applied to that person as he, a leaving cert student, had reached the end of his curriculum year. The complainant's next friend then queried why the rules only applied to boys and not girls. The principal replied that the rules had been in existence before he had started in his role and that the rules, as they were, had the full backing of the Board of Management. It was submitted that the vice principal gave feeble reasons why there was a difference relating to the treatment of boys and girls.
3.4. The complainant maintained that the provision prohibiting male pupil's from dying their hair is discriminatory contrary to the Acts. The complainant stated that he would have honoured the code of conduct if the rule had also applied to girls but as this was not the case and some girls were attending school with blue dye in their hair, the complainant found the rule unfair. It was submitted that the complainant was a young man who was merely expressing his personal taste and style by having his hair dyed. The complainant's next friend submitted that the respondent ought to have just allowed the complainant to sit his exams and ignore the disputed rule, particularly as it was unfair. The complainant did not dye his hair to defy the authority of the school. The complainant was a model student who is now the poster boy for everything wrong in the school. It was submitted that the enforcement of the rule was petty as the complainant had not done anything serious.
3.5. The complainant did not return to the school after the summer holiday. He claims that he was blanked by teachers during the holidays and as the rules had not changed there was no point in returning. As a result, the complainant has not completed his secondary education.
3.6. It was submitted that it was pointless engaging with the respondent who distorts and twists everything that has been said.
4. Case for the respondent
4.1. The respondent is recognised school within the meaning of the Education Welfare Act, 2000. It is governed by a Board of Management and lead by a Principal. It was submitted that the respondent has a legal obligation to have a code of conduct in place.
4.2. The respondent acknowledged that the code of conduct governing the school at the time of the incident was outdated and in contravention of the Equal Status Acts. It was submitted that it is a matter for the Board of Management to set the school's policies and the principal and vice principal along with the staff must implement such policies as they are.
4.3. The respondent expressed surprise that this matter had been taken this far. It was submitted that the respondent had assumed that the complainant would have modified his red hair and returned to the school the next day. The complainant missed his summer examinations as a result. It was categorically denied that the complainant was ever suspended.
4.4. The respondent refuted the complainant's claim that girls could do what they wanted in the respondent school. Every pupil in the school must abide by the code of conduct. It was also refuted that any demands to have the complainant shave his hair off were made by any member of staff. The complainant was merely asked to tone down the obvious red colouring in his hair. It was also disputed that the complainant is now the poster boy for everything that is wrong in the school. It was pointed out that it is the complainant's next friend who has approached to media, not the school.
4.5. It was submitted that the complainant's next friend was irate, intemperate and abusive when the respondent attempted to engage with him about the issue. His approach has been to confront and calculated not to resolve the issue. Instead, the complainant's next friend preferred to go to the media. It was submitted that there was no interest in attempting to solve this matter and that this refusal to engage with the respondent is the real reason why the complainant did not return to the school. The principal had written and phoned the complainant's next friend inviting the complainant back to school. All efforts to have the matter amicably solved and the complainant back to school have failed.
4.6. The respondent refuted the complainant's claim that the rule did not apply to all boys. Furthermore, it was submitted that the respondent has acted reasonably in all circumstances. The respondent submitted that the rule was changed as soon as possible. It was not possible to do so during the summer holidays but as soon the term began the matter was addressed at a Board of Management meeting (end of August 2010). A new code of conduct is now in place.
4.7. It was submitted that it is established law that parents who are aware of the contents of a code of conduct and have signed up to it must take the school as they find it. There were other options to solving this issue.
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. It is clear that the respondent is an educational establishment in accordance with section 7(1) of the Acts. It was accepted by the respondent that at the material time it had an outdated uniform policy in place. It had not been updated since the introduction of these Acts. I note having examined the school uniform aspect of the school's policy that it is clear that while the policy contained such unisex rules as: "Make-up is not allowed"; "no facial jewellery"; "shirts are to be tucked in", etc. specific rules, relating to boys only, stated that: "Boys' hair must be kept tidy and of its natural colour" and "no studs, earrings, neck chains or bracelets for boys". The only rule specific to girls stated: "skirts must be worn to the knee".
5.3. Section 7(2)(c) of these Acts states that an educational establishment shall not discriminate in any other term or condition of participation in the establishment by a student. It is clear that the code of conduct shall be interpreted as a condition of participation. Thus, it is clear that where an educational establishment chooses to impose a condition relating to pupil's appearance it must do so in a manner that restricts or unfetters all pupils in a similar manner (exemptions arising with disability and other specific circumstances may have to be considered on a case by case basis). It is clear that in recognised schools - within the meaning of the Education Welfare Act, 2000 such as the respondent school - the Board of Management has a legal obligation to prepare a code of conduct. Furthermore, the principal of the school has duty to ensure that the parents of a child, before registering with the school, are provided with a copy of said code and may, as a condition of so registering such child, require his or her parent to confirm in writing that the code of behaviour is acceptable to them and that the parents shall make reasonable efforts to ensure compliance with such code by the child. I am satisfied that the complainant's next friend was at all times aware of the code of conduct.
5.4. As stated above it is clear that the code of conduct at the time of enrolment contained conditions that affected boys only. It ought to be clear that schools are entitled to recognise difference that arises from gender, religion etc and thus all rules do not necessarily, in adherence with these Acts, have to treat all pupils the same. Nevertheless, I do accept that, in the circumstances of this case, having a regulation concerning male hair only constitutes less favourable treatment on the gender ground. Rules may recognise difference provided that by doing so the requirement does not discriminate. I find that the condition complained about was unfair because it does not in any way regulate female hair and thus I find that the rule constituted less favourable treatment contrary to these Acts. I also note that the new uniform code now states "Hair must be neat and tidy at all times".
5.5. It was submitted that but for the unfairness of the disputed condition the complainant would have adhered to the code of conduct and would have completed his examinations and continued with the respondent in order to complete his leaving certificate. It was thus argued that the impact of this unlawful condition was at the extreme end of discrimination. In considering this matter I have examined the conduct of both parties in dealing with the matter.
5.6. I note that it was acknowledged that the complainant did have a good record in his adherence to the respondent's code of conduct. It was suggested that because of this adherence the respondent ought to have ignored the breach of its code of conduct. It ought to be clear that the respondent cannot simply do so. I find that the respondent, in order to maintain decorum on its premises, must challenge any blatant breaches of its rules. Furthermore, it was pointed out by the respondent that the principal and vice principal cannot ignore a code of conduct that has been put in place by the Board of Management and pointed out that the complainant's next friend had not taken any steps to have the disputed rule altered. It is clear that the disputed rule was not a concern until the complainant's personal style contravened with it.
5.7. It is clear to me that the complainant was in breach of the respondent's code of conduct. As such I accept that the respondent would have viewed the complainant's conduct as a wilful act of defiance of said rules. I also find that the complainant and his next friend were on notice of the rule and that the complainant had been warned by a teacher the day before the incident not to dye his hair. I do not accept the complainant's argument that the teacher's comments were not sufficient to alert the complainant to the gravity of the situation and that the complainant ought to have been given a written warning. Nor do I accept that the respondent was petty in enforcing the rules. The complainant's actions were deliberate and the respondent had no choice but to enforce the rule. I find that the complainant had decided to have his hair dyed and, while the matter of hair dying could have waited a couple of days - it was done in anticipation of an upcoming band performance - the complainant considered the matter more important than adherence with a rule that he was very aware was in place.
5.8. I do accept that it is possible that the complainant who had been dying his hair black for the previous two years thought he would get away with his more radical look and that the respondent's enforcement of same was a little surprising. I do note that the respondent had removed other boys with dyed hair from the premises and that parents in those cases had supported the respondent in its need to maintain the existing code of conduct. I find that the complainant was aware of the potential consequences of his actions and ought to have appreciated that the respondent was not concerning itself with minor breaches of the rules. I accept that red patches in otherwise black hair are obvious.
5.9. It ought to be clear that this Tribunal cannot condone acts of such nature. While it is clear that the rule was unfair I do not find that it in any meaningful way oppressed a person's gender identity or made it impossible for a male person to participate in the educational establishment. It is clear that there were more appropriate means of challenging the unfairness of the rule. I do not accept that it was inescapable that the complainant missed his end of year exams and/or could not enrol to complete his leaving certificate.
5.10. While I note that the complainant's next friend viewed the act as mere demonstration of the complainant's personal taste, I do not accept that as a justification for the complainant's actions that were in direct breach of the respondent rules and objectively viewed appeared nothing but insolent. It is clear that the respondent has in place mechanisms that allow for pupils and their parents' to influence and/or propose changes to it's polices. The complainant had never formally complained about the policy or sought to have the matter addressed.
5.11. I do not accept, on the strength of evidence provided, that the respondent had applied the code of conduct in a random manner in relation to the complainant. I note that the rule has been enforced by parents and the respondent alike.
5.12. I find that it is regrettable that this matter has escalated to the degree it has. I note that the respondent has accepted that the rule was discriminatory and took steps to address the issue within a reasonable timeframe. Overall, I find the respondent's actions to have been reasonable in the circumstances and while I must award redress to the complainant for the impact of the discriminatory rule I do not condone the manner in which the complainant and his next friend have challenged the issue. It is a well established rule of law that when a parent consents to a code of conduct they are bound by it. In circumstances where there are statutory mechanisms, provided for by the Education Welfare Act, a person who wishes to challenge a rule or such code of conduct must, in the first instance, engage with such mechanisms. Such an approach would have not lead to the type of standoff that the complainant regrettably believes now exists between the parties. It ought to be clear that if a respondent refused or neglected to engage with such issue after they were on notice that a potential problem existed, the redress awarded may have been more significant.
6. Decision
In accordance with section 25(4) I conclude my investigation and issue the following decision:
6.2. I find that the complainant has established a prima facie case of discrimination on the gender ground. The respondent has not refuted this inference.
6.3. I award the complainant €150 euro for the effects of this discriminatory treatment arising from an outdated policy.
____________
Tara Coogan
Equality Officer
5 March 2012