Equality Tribunal
Equal Status Acts 2000 - 2011
PARTIES
A Father on behalf of his Son
-v-
A second level school
FILE NO: ES/2011/0079
Date of issue: 26 June, 2015
Headnotes: Access to education – Indirect discrimination – race ground - Equal status Acts, s.3 and s.7
1. Dispute
1.1 This dispute involves a claim by a father on behalf of his son, (“the Complainant”) that he was discriminated against by the Board of Management of a second level school (“the Respondent”), on grounds of race, contrary to section 3(2) (h) of the Equal Status Acts, 2000-2011 when it failed to offer him a place as a First Year pupil to the school for the Academic Year commencing September, 2011. The Admissions policy applied relates to the date of application of the child and a catchment area regime. The Complainant submits that this admissions policy, combined with poor information to prospective applicants, discriminated against him on grounds of race by putting non-Irish nationals like himself at a particular disadvantage compared to Irish nationals. Claims of discrimination on the religion and age grounds were withdrawn. A claim by the Respondent that the complaint was out of time was also withdrawn
2. Background
2.1 The father referred a complaint on behalf of his son under the Equal Status Acts, 2000-2011 to the Equality Tribunal on 6 May 2011. The Complainant was born on 2 April 1999 in England and is a British subject. In 2002, he and his family moved to Ireland. In 2003 the Complainant was enrolled in a Primary School in Co. Dublin. This school catered for boys in Junior Infants, Senior Infants and first class only. In September 2006 the Complainant was enrolled in a Church of Ireland National School in the catchment of the Respondent second level school when the family moved into the area. The Complainant’s father states that he was assured by the National School that it was a feeder school for the Respondent school. When he found out from other parents in November 2007 that he needed to apply directly to the Respondent School he did so immediately seeking a place starting in September 2011. He was told he was on a waiting list. He claims that he was not given a copy of the school’s admissions policy. Nor was the admissions policy on the school’s website at the time. In June 2009, when his son’s school friends received offers of places in the Respondent School and his son didn’t, he sought a meeting with the Principal in June and July 2009 which was not granted. Eventually he was informed in March 2010 that his son would not be admitted.
2.2 The Admissions policy of the respondent was drawn up in May 2007. It did not provide for a designated feeder school. The relevant sections of the Admissions Policy are as follows.
Children of members of staff and children of Protestant clergy within the catchment area receive special priority if a place is available. Thereafter, priority is given to the first 60 applications for Protestant pupils from the catchment area. (Due to the large demand for places in the school the Board of Management prioritises applications from members of the established Protestant denominations). Certificates of registry of Baptism (or, in exceptional cases, a letter from a Minister of religion stating that the child is a regular member of a Protestant congregation) and Birth Certificates should accompany applications. When all places are filled in any one year, applications are put on a waiting list.
When all priority applications have been catered for, other applications are considered, space and resources permitting. Second priority is given to Protestant pupils from outside the catchment area. Third priority is given to members of Protestant House Churches. Fourth priority is given to non-Protestant applications with sibling connections to the school. Fifth priority is given to “mixed marriage” applications where one of the partners is Protestant. Thereafter, all other applications shall be considered on a first-come, first-served basis.
The Board of Management will only entertain applications when there are places available in any given year. Currently the school can cater for a maximum of two forms of 30 pupils in any given year. The policy as implemented operates on a first come, first served basis without a start date.
2.3 Written submissions were received from both parties. The hearing of the case was postponed several times at the request of the Complainant’s father. As required by Section 25(1) and as part of my investigation, I proceeded to a hearing on the 25 May 2015. I received further particulars from the Respondent on 29 May 2015 and the Complainant’s father commented on these on 3 June 2015.
3. Summary of complainant’s case
3.1 The complainant moved into the catchment area in September 2006 when he was seven years old. Although his parents were not told so at the time, he was already too late to secure a place in the secondary school, since the 60 places available for the year September 2011 had already been offered by March 2004 and the last successful child on the waiting list applied in September 2005. In other words an application would need to have been made in respect of a Protestant child living in the catchment before the child was 5 years old to be guaranteed a place in the school for entry year 2011. The last successful child off the waiting list could not have been more than 6 years old when his or her name was put down. This policy of first-come first-served when combined with the catchment policy put the complainant at a particular disadvantage in that it made it impossible for him to apply with an equal chance of success with his comparators, the Irish children in his national school. The Complainant argues that the admissions policy was intrinsically liable to put non-Irish nationals such as him at a particular disadvantage and thus indirectly discriminated against him on the ground of race. The complainant was not informed properly of the admissions policy at the time and this disadvantaged him also compared to local pupils who would have had greater knowledge. Moreover, if the fact that the school was already full had been known to his parents, they would not have moved into the catchment area. The admissions policy of the school is not only contrary to the Equal Status Act, it is also contrary to the EU rights of freedom of movement of workers in acting as a barrier to his parents’ mobility.
Article 12 of Regulation No. 1612/68 on freedom of movement of workers within the EU provides:
“The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State's general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory. Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions.”
The case-law of the CJEU provides, in the context of freedom of movement, for the prohibition of both direct and indirect discrimination. In the O’Flynn case, considering another provision of Regulation 1612/68, the CJEU found that:
“Unless objectively justified and proportionate to the aim pursued, a provision of national law, even if applicable irrespective of nationality, must be regarded as indirectly discriminatory, and hence not complying with the equality of treatment prescribed by Article 7(2), if it is simply intrinsically liable to affect migrant workers more than national workers and if there is a consequent risk that it will place the former at a particular disadvantage.”
4. Summary of Respondent’s case
4.1 The respondent is a co-educational, post-primary school established in 1987 under the patronage of the Church of Ireland to serve the Protestant community of a large catchment area. The school is generally very significantly oversubscribed. There are typically 60 places in first year and usually over 300 applicants. As a result it was necessary to apply criteria which are set out in the Admissions policy adopted in 2007, and summarised at para. 2.2 above.
205 applications were received for 60 places for entry to first year in September 2011. They were placed in the relevant categories in the following order of priority:
Priority | Category | Number |
1 | Protestant, inside catchment area | 111 |
2 | Protestant, outside catchment area | 8 |
3 | House church/reformed/inside catchment area | 1 |
4 | Catholic/other inside catchment area | 85 |
|
| 205 |
The 111 applications in category 1 were placed in order by date of application. The first 60 of the 111 applicants in category 1 were offered places immediately upon application. The remaining 51 applicants in category 1 were placed on a waiting list as they applied and informed of this, followed by those in categories 2, 3 and 4, also in order of their date of application.
The complainant was initially perceived as a Catholic and placed in category 4. He was subsequently re-classified as Protestant and, after a section 29 appeal, placed on the category 1waiting list from the time his application was made. The result of this is that the complainant was placed no. 37 on the category 1 waiting list, but only the first 23 on the category 1 waiting list, ordered by date of application, were successful. The last successful applicant had applied in September 2005.
4.2 The respondent argues that the reason the Complainant was unsuccessful was not because he was not Irish but that he did not make his application in time. In this regard he was treated no differently than an Irish national who lived in Ireland but outside the catchment area at the relevant time and moved into the catchment area at a later point in time. The complainant moved to Ireland in 2002. This places him in an equivalent position to any Irish national who moves from one part of Ireland into the catchment area at a point in time when all available places in the school are filled.
4.3 The School recognises that, as a matter of reality, the operation of any “closing date for applications” be it a formal one or a de facto one such as a “first come first served” system will necessarily disadvantage those persons who did not contemplate that they would be living in the catchment area at the time of the relevant closing date. They argue that this logic applies with equal force to (a) a non-Irish national living abroad, (b) an Irish national living abroad and (c) anyone, national or non-Irish national living somewhere in Ireland but outside the catchment area and not having envisaged moving into the catchment area at the time of the relevant closing date. In other words there is no question of non-Irish nationals being put at a particular disadvantage (when compared to Irish nationals) by the waiting list policy and hence there is no indirect discrimination under the Equal Status Acts.
4.4 The Respondent school dismiss the claim of breach of the right of free movement in that the admissions policy admits the children of foreign workers under the same conditions as Irish nationals which is what the EU regulations require.
5. Conclusions of the Equality Officer
5.1 The issues for decision by me now are, whether or not the respondent discriminated against the complainant on grounds of race in terms of sections 3(1) and 3(2) (h), of the Equal Status Acts, 2000 to 2011 and contrary to section 7(2) of the Equal Status Acts, 2000 to 2011 in relation to their failure to offer him a school place for the academic year commencing September 2011 and whether the policy of ranking applications in accordance with their date of application is indirectly discriminatory on grounds of race towards non-Irish nationals. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
5.2 Race Ground
Section 3(2) (h) of the Acts defines the discriminatory ground of race as follows – “as between any two persons ….. that they are of different race, colour, nationality or ethnic or national origins…”. It is submitted that the complainant in the present case is of British nationality.
6. Indirect Discrimination
6.1 Indirect discrimination is defined in section 3 (1) (c) of the Acts as:-
"where an apparently neutral provision puts a person referred to in any paragraph of section 3(2) [i.e. covered by one of the discriminatory grounds] at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary".
6.2 The complainant claims that placing applicants on a list in accordance with the date of their applications indirectly discriminates against him on grounds of race. The race ground covers those of a different race, colour, nationality or ethnic or national origins… It is for the complainant to prove, on the balance of probabilities, that this criterion puts the complainant as a British national at a particular disadvantage. If he succeeds in this, the burden of proof shifts to the respondent to prove that the criterion is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary.
6.3 Under section 3 (3A) of the Acts, the complainant can use statistical data as an evidential tool to prove a particular disadvantage and so shift the burden of proof. It is possible to establish a case where statistics are inadequate or non-existent, if the complainant can prove that a provision is intrinsically liable to affect his group [in this case non-Irish national children] more than Irish children and there is a consequent risk that it will place him at a particular disadvantage. It is not necessary in this respect to find that the provision in question does in practice affect a substantially higher proportion of non-Irish children. It is sufficient that it is liable to have such an effect. According to Clarke J. in Stokes v. Clonmel High School and anor[1]:
“I do not doubt that some level of difficulty might well have arisen for the production of accurate figures as a result of the problem which counsel identified. That does not, however, mean that an attempt could not have been made. It is clear that the onus of establishing particular disadvantage rests on the person claiming indirect discrimination. (Emphasis added). The Director is, of course, entitled to seek such information as might be considered relevant and necessary to a proper determination of the question. Any difficulties in compiling relevant information would need to be properly taken into account, and would need to be assessed by the Director in order to determine whether the onus of proof had been met. Like considerations would clearly apply in the case of an appeal to the Circuit Court. There is no requirement that any figures relied on are unimpeachable. Any analysis is open to difficulty in compiling figures. The fact that the figures may not be perfect does not prevent either the Director or a Circuit Judge on appeal from nonetheless being satisfied that the onus of proof has been met. However, that does not mean that there can be any diminution in the obligation to ask the right question. The fact that the information available to allow that question to be answered may not be perfect is another matter altogether. The information may, in some cases, be so imperfect that the onus of proof may not be met. However, the information may, in the judgment of either the Director or a Circuit Judge, be sufficient to allow an appropriate conclusion to be reached despite its imperfections. Subject to a test of irrationality on O'Keeffe principles, those are matters for the fact finder, be it the Director or the Circuit Judge. However, whether the correct question was asked in the correct way is a matter of law capable of being reviewed on appeal to either the High Court or to this Court. The fact that the information, which might have been produced had the correct question been asked, could have fallen short of complete, for reasons such as those advanced by counsel, would, of course, have been a matter which the decision maker could have to have taken into account in assessing whether the onus of proof had been met. But it is not a reason for not asking the right question in the first place.”.
6.4 Once the complainant has proved that the criterion puts a non-Irish child at a particular disadvantage, it is for the respondent to prove that the criterion is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary. The respondent must prove each element of the defence [objective justification, legitimate aim, appropriateness and necessity]. To permit a criterion which puts a group at a particular disadvantage to be maintained is derogation from the principle of equal treatment.
6.5 According to settled case-law, in determining the scope of any derogation from an individual right such as that of equal treatment, due regard must be had to the principle of proportionality, which requires that derogations must remain within the limits of what is appropriate and necessary in order to achieve the aim in view and that the principle of equal treatment be reconciled as far as possible with the requirements of the aim thus pursued.
6.6 The school operates a four tier system for allocating places. It is clear that the focus is on category 1 because no child in the other categories was successful and the Complainant was in category 1. Category 1 children are Protestant children living within the catchment area.
6.7 Category 1 applications are ranked in accordance with their application date. Thus all applicants irrespective of their race, colour, nationality or ethnic or national origins are required to submit an application form and their application is then ranked in accordance with the date on which their application is received. Thus in order to gain an early application date all applications should be submitted as early as possible and in this case at least 6 years in advance in order to gain a place on the list. This policy is applied to all applicants equally and irrespective of their national or ethnic origins.
6.8 The complainant is submitting that it is the way in which the Respondent ranks applications according to the date of applications received which places him as a non-Irish national child at a disadvantage over children of Irish origins. This is because those who move into the catchment late, such as he, are at a particular disadvantage compared with the indigenous children of the catchment. Such a policy is intrinsically liable to disadvantage the children of immigrants such as him who are more likely to be non-Irish than the indigenous.
6.9 The Complainant did not adduce any statistical evidence in support of his assertion. It assists the complainant’s case if such statistical evidence is available. It is not necessarily fatal that it is not. However, it is clear from the judgment in the Stokes case that the onus of establishing particular disadvantage rests on the Complainant who must adduce evidence more than mere assertion. In my view the Respondent has raised sufficient doubt that the “first come first served” policy creates a particular disadvantage for non-Irish children compared to Irish children moving into the catchment. I am therefore unwilling, in the absence of hard evidence on the demographics of the catchment and movements into it in the relevant time period, to assume that non-Irish children are put at a particular disadvantage. I am not satisfied therefore that the complainant has demonstrated that he was disadvantaged by an apparently neutral provision on account of his non-Irish nationality. Therefore, the complainant has not established prima facie evidence of discriminatory treatment in relation to the admissions policy applied in respect of applicants who fall into Category 1. Thus I am satisfied, from the totality of the evidence adduced, that the complainant has not established a prima facie case of indirect discrimination on the ground of race.
6.10 As regards the claim of breach of EU law on freedom of movement, the Equality Tribunal is not authorised to consider claims of breach of the relevant EU regulations.
7. Decision.
7.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision.
7.2 I find that the complainant has not proved that the priority given to applicants based on date of application puts non-Irish children at a particular disadvantage compared with Irish born children. Accordingly, I find that the complainant was not indirectly discriminated against on the race ground pursuant to sections 3(1) and 3(2) (h) of the Equal Status Acts
____________________
Niall McCutcheon
Director
26 June, 2015
Footnotes
[1] [2015] IESC 13 at para. 10.10