DEC-E2015-121

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2015-121

PARTIES

Bernadette Marron

(Represented by McGovern Walsh & Co. Solicitors)

-v-

Board of Management of St Paul’s National School

(Represented by Mason Hayes & Curran)

File reference: EE/2014/145

Date of issue: November 2015

1. Dispute:

1.1 This dispute concerns a claim by complainant that she was discriminated against by her employer, a national school, on the grounds of religion contrary to section 6 of the Employment Equality Acts in relation to the terms and conditions of her employment as a teacher and that she was harassed and victimised in the workplace.

1.2 The complainant referred a claim to the Director of the Equality Tribunal on the 11th March 2014 under the Employment Equality Acts. On the 22nd October 2015, in accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Kevin Baneham, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on the 29th October 2015. The complainant was represented by a solicitor and was accompanied by her spouse and a friend. The respondent national school was represented by a solicitor and the Chair of the Board of Management, the school principal and a teacher attended as witnesses. They were accompanied by the spouse of the principal and an intern attached to the law firm.

1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.

2. Summary of the complainant’s case:

2.1 The complainant says that she was discriminated against because she was not a practicing Church of Ireland teacher and because her son is gay. The respondent is a Church of Ireland national school under the patronage of the Bishop of Tuam. The complainant commenced employment at the respondent national school on the 1st November 2006. She became entitled to a contract of indefinite duration after four years’ service. She worked for 22.6 hours per week. The complainant said that there had been an ongoing issue with comments made by the principal relating to religion. These comments included referring to the negative effect on a local secondary school (where the principal’s daughter attended) of Catholics joining the school. The complainant stated that the principal also criticised the behaviour of Catholics in church. The complainant said that the principal would refer to “our children” when, the complainant inferred, the principal was referring to children of Church of Ireland faith. She said that the principal had also referred to members of the Church of Ireland as being the “right people”. On another occasion, the principal described two families as having no breeding and the complainant attributed this statement as referring to their being Catholic. The complainant said that the principal also made comments regarding sexual orientation, in particular directed at the complainant’s son, who is gay. They included a reference to the complainant’s son spending an afternoon shopping for clothes and that a “normal boy” would not do this.

2.2 The complainant outlined that she had been working in both learning support and resource teaching roles in the school. She said that she had worked for some time in schools in London and returned to Ireland. She had an adaptation period within which she was required to acquire an Irish language qualification. She had not obtained this and her entitlement to work in a national school was then restricted to resource teaching roles. The complainant outlined that she had consulted with the Department about her position and had also liaised with the school. She had been very upset to receive a telephone call in early May 2013 from the principal where she was accused of not having done her probation, of getting the school into trouble and that the complainant should never have been employed at the school. On the 20th May 2013, the complainant said that she had returned from an absence of two weeks and was in a classroom with three infants when the principal entered the room. The principal ushered the infants out of the room and accused the complainant of tricking her way to a contract of indefinite duration and that she wanted a person of the Church of Ireland faith in the role. The complainant said that she believed that the principal had expected her to leave once the adaption period came to an end.

2.3 In respect of the valedictory service held in the local secondary school, the complainant said that her son and a named fellow student delivered a speech that projected where all their class would be in 20 years. It was intended to be humourous and the complainant’s son made reference to him being gay. He was also wearing a pink blazer. The complainant said that the principal had raised her son’s speech and attire when they were in the national school on the Monday after the service. The complainant said that the principal had said that the speech and her son’s attire were not appropriate; she also questioned what kind of mother the complainant was to have a son like that. The complainant said that the principal was critical of her son saying he was gay in a church setting. The complainant said that she spoke with a colleague who told her of other similar comments made by the principal regarding her son. The complainant then contacted her union representative and described that she was on tenterhooks from then on. She described the school as having a cold atmosphere where she was repeatedly undermined by the principal when she would say that complainant had not completed her probation. She said that she had not been required to do probation in Ireland as she was probated in the UK. In responding to the respondent’s written submissions, the complainant said her son had attended a university admission interview in December 2012, and not January 2013 as stated, and that she had not accompanied him. She had not asked the school not to record this or any other absence on the Department’s online claim system.

2.4 The complainant outlined that as she could no longer teach as a learning support teacher, she was required to make up her hours by providing resource teaching hours in a cluster of schools. She said that towards the end of the 2012-13 school year, she wrote to 25 schools and also met with them. She obtained hours in four schools and sought to devise a timetable to meet all their needs. She had to accommodate travel times between the schools, differing break times and the fact that younger children finished their school day earlier. The draft timetable she prepared did not allow for lunch breaks and meant that she travelled for an hour per week on her own time. It provided that she worked from 9.20am to 3pm each day. The complainant said that she had rostered a nine-day fortnight to allow her spend every second Friday caring for her 90-year old father. On the 16th September 2013, the complainant said that a named colleague told her that the principal had made negative comments about the timetable. The principal had complained about the school’s children losing out because of travel time built into the timetable. The principal subsequently told her that she was required to work until 2.30pm each day, meaning that she would have to work every day of the week and could not attend to caring responsibilities every second Friday. The complainant contrasted the response of the principal to a more flexible response given to a named colleague, who was of the Church of Ireland faith. The complainant said that the principal was seeking to prevent her from caring for her father. At a meeting on the 20th September 2013, the complainant said that the principal gave her a piece of paper with the time allocated for the pupils of the respondent school. The principal has said that they could not be taken out of assembly each morning. She also questioned the travel time earmarked by the complainant to one school, saying that the complainant should drive faster.

2.5 The complainant outlined that she wrote to the Chair of the Board of Management on the 17th September 2013. The letter is headed “proposed resource timetable 2013/14” and she raises how the principal has interacted with her about the timetable and the flexibility given to a named colleague. She raises the issue of religious discrimination in the school as well as comments made by the principal regarding her son’s sexual orientation. She requests that the Chair facilitate mediation between her and the principal. The complainant said that she subsequently received a reply, dated the 30th September 2013, from the Bishop, the school patron, that proposed four actions for the Board to carry out. She contacted the trade union who wrote to the Board on the 10th October 2013, suggesting that the school avail of the grievance procedure provided in “Working Together”, a national framework of procedures agreed by the union and school management at a national level. The complainant said that she and her spouse met the Chair and her spouse to discuss this issue. She felt that the Chair gave her a sympathetic ear and that she had said “I believe you” when she raised the negative comments made by the principal relating to religion. When discussing her son’s speech at the valedictory service, the complainant said that this was not the first time the principal had made comments that upset her. The complainant said that she then received the letter from the Chair of the 20th October 2013, which enclosed the letter of the principal of the 16th October 2013. She said that the principal’s letter did not deal with any of the specific issues she had raised and that she was still waiting for the meeting of the Board of Management referred to in the letter of the patron. The complainant said that she underwent surgery and submitted medical certificates while she was out of work for health reasons. She acknowledged the flowers and gifts sent by the respondent school. She also said that she had written to the school to pass on positive comments she had received in conversations about the school.

2.6 In respect of her resignation from the respondent school, the complainant said that the grievances she had raised were never dealt with by the school. Through conversations she had had with parents while on sick leave, she believed that her position was being undermined and that confidential information about her was being spread among the school community. The complainant outlined that she had been certified as being unfit for work because of anxiety caused by the workplace, even after she had recovered from surgery. In August 2014, she was deemed for fit for work as she was no longer prone to this anxiety. The complainant outlined that she was victimised for making the complaint contained in the letter of the 17th September 2013. She said that she was subjected to additional, impossible demands and the principal would bang the table when speaking to her. It was then that the principal told the complainant to drive faster between schools and and that she could not use assembly time to teach a child. The complainant said that she then wanted her complaint to be dealt with by external mediation.

2.7 Under cross-examination, the complainant said that she only became aware of the grievance procedure provided in the “Working Together” document when it was circulated by the union. She was never informed of a change in direction away from the plan of action contained in the letter from the patron. She had expected correspondence from the Board of Management to confirm any change in process. She said that she had consulted with the union on one occasion following the union’s letter of the 10th October 2013 and they agreed that the complainant would acknowledge the school’s letter. It was put to the complainant that she had sent the school positive messages; the complainant said that her counsellor had suggested that she engage positively with the school. It was put to the complainant that she was aware of the need to find a cluster in June 2013; she replied that she had written to, and met with schools, and that it was difficult to arrange a cluster for the next school year during the end of the previous school year.

2.8 The spouse of the complainant outlined that he had attended the meeting with the Chair of the Board of Management. He outlined that while the Chair listened to what the complainant had to say, she did not offer solutions. He said that he believed that the Chair had said that she believed the complainant when they discussed the allegations of harassment made about the principal.

2.9 In closing comments, it was submitted that the complainant was not given flexibility in managing her time for Fridays and that her successor was allowed a half-day on Fridays. The complainant was subject to discrimination in not being given flexibility, in not being given keys to the school and because of the remarks made by the principal relating to religion and sexual orientation. The principal had not responded to the allegations of discrimination and was overly focused on the timetable issue. The school had not been clear in how the complaint was to be dealt with, causing it not to be fully addressed. In submissions, the complainant said that she was looking for an apology and not looking for any compensation.

3. Summary of the respondent’s case:

3.1 The Chair of the Board of Management outlined that she and the Board were not aware of the issues encountered by the complainant and once they became aware of them, they reacted as best they could. She said that she had served on a previous Board of the same school as a parent representative and had been asked to take over as Chair when the Chair stood down. She took on the role of Chair in November 2012 and will leave the role in November 2015, with the expiry of the term of the Board.

3.2 The Chair outlined that she first became aware of this matter on receipt of the complainant’s letter of the 17th September 2013. She said that she did not know what to do when faced with the issues contained in the letter. She sought advice from the patron, who wrote to the complainant on the 30th September 2013. She thought it wise that when she met the complainant, they would both be accompanied by their spouses. They discussed the issues raised in the letter, specifically the timetable and she tried to show compassion to the complainant. She produced her notes of this meeting as well as of her meeting with the principal, which she prepared shortly after their end. In respect of the principal, the Chair said that she was aware that the principal had been very upset at the contents of the speech made by the complainant’s son at the valedictory service; her upset related to comments made about the principal’s daughter, a fellow student, who was mocked for being the daughter of a farmer. The Chair said that she did not feel that the speech had been appropriate, in particular the comments made about fellow students. There had been complaints from parents. She showed the complainant’s letter to the principal, who was upset by its contents and denied the allegations made therein. The principal agreed to respond to the issues raised in the letter and also raised her concerns regarding the complainant’s timetable. The Chair said that it was her understanding that the matter would proceed under the “Working Together” grievance procedure circulated by the union. Once she had received the principal’s letter, she sent this to the complainant and to the union. She said that she did not escalate the matter to the full Board. As the complainant was then on sick leave, the Chair said that it was not appropriate for her to speak with her about this matter; she did send flowers to wish her well. When she received a solicitor’s letter sent on behalf of the complainant in February 2014, she obtained legal advice and wrote back to the complainant. She briefed the Board at its meetings in April and June 2014 and sent further letters to the complainant in May and June 2014, seeking to prevent the complainant from leaving the school. The Chair said that she had not spoken with the teacher about whom the complainant said had also suffered harassment associated with religion. She said that she was also surprised by the allegations made of harassment in the school.

3.3 In cross-examination, the Chair commented that the speech given at the valedictory service was inappropriate but this was not a matter directly related to the national school. She agreed that the grievance procedure contained in the “Working Together” document became centre stage once it was brought to her attention. Asked why she did not pursue the complaint of discrimination, the Chair said that the letter from the complainant dealt mainly with the timetable issue (and was titled as such) and she presumed the other issues would be addressed at stage 3 of the grievance procedure. Asked to comment on the adequacy of the letter written by the principal, the Chair said that it was not adequate regarding the allegations made against the principal, but believed that these issues would be dealt with. The Chair said that she was not aware of complaints from other staff in the school. She outlined that she recalled speaking about the timetable, the speech at the valedictory service and the school bus issue at the meeting she held with the complainant. The Chair outlined that she had been guided by the “Working Together” document and that she wished for the complaint to be resolved amicably and that she had sought to do a good job. She outlined that under stage 4 of the policy, the complaint could have been referred to external mediation. The Chair gave an outline of the six modules of training members of the Board of Management had received for their roles.

3.4 The principal outlined that she commenced working in the school in 1983 and that she had been acting principal between 2009 and 2012, when she was appointed as principal. The school is a three-teacher school with one resource teacher and a part-time learning support teacher. Responding to the allegations made by the complainant, the principal said that she denied them absolutely and was shocked that they had been made. She referred to the large volume of positive communication she had exchanged with the complainant, including her text messages. Addressing the issues of the buses, she outlined that the school bus service was only available to those children who had to travel by bus to the nearest school under a particular religious patron. The Board had asked that the school remain open until 3pm to facilitate those children, as had previously been the case. The principal outlined that she had been flexible with the complainant and said that the complainant could not be compared to the fully qualified teacher who subbed in other schools. The principal denied making any comments regarding breeding. She said that she had enquired with the complainant about whether she had obtained the Irish language qualification, but was not given a clear answer. She had had to contact the Department directly to obtain clarification. In relation to the keys, the principal said that they were generally only supplied to the three teachers, but would have been supplied to the complainant, had she asked for a set. In respect of the timetable, the principal said that she was aware that it was difficult to put together a timetable across a cluster of schools. She said that it was only three weeks and one day into the new term that she found out what the complainant’s timetable was. She was not happy with it as on some Fridays, the resource hours were too long for the pupils while the other Fridays, there was no resource teaching at all. She said that everyone had to put the interests of the children first. Commenting on the speech at the valedictory service, the principal said that she had been upset by the comments made by the complainant’s son about his classmates, which included her daughter. His comments and the fact that they were made in a church were inappropriate. The principal denied making any statement about the complainant’s son shopping for clothes. She said that she had telephoned him to congratulate him on his excellent Leaving Certificate results.

3.5 The principal said that she was shocked to receive the letter from the complainant of the 17th September 2013. She had never discriminated against the complainant and had sought to include her at all events involving the school. She thought that the timetable issue would be resolved between her, the Chair and the complainant. There had been no complaint from any other member of staff and the person who took the complainant’s role was not a member of the Church of Ireland. She outlined that the new Board would receive 15 hours of training, to be provided by the Church of Ireland management body. The principal said that she had treated the complainant very favourably, for example she was not required to do her Croke Park hours and she was able to meet parents during school hours. In cross-examination, the principal said that she had given the complainant the resource hours allocation for the respondent school and the complainant had not asked for a half-day on Friday. She outlined that she would have preferred if the complainant had obtained the Irish language qualification and been able to work exclusively in the respondent school. She did not treat the complainant differently and described clustering, in general terms, as a disaster. She said that she did not follow-up on the discrimination complaint as it was not true. In her discussion with the Chair, she said that she focused in on the timetable as this was the issue she needed to resolve. In respect of the speech at the valedictory service, the principal said that it had not been appropriate for the complainant’s son to describe himself as “a genius and gay” in a speech delivered in the church. In respect of complaints from other teachers, the principal confirmed that there had been mediation with another teacher regarding her taking the teacher representative role on the Board and that a previous principal had taken legal proceedings against the Board.

3.6 The teacher said that she had worked in the school for 4.5 years and that the school was an inclusive place where everyone could be involved. In respect of the timetable, she said that the SENO allocation for 2013-14 was already known by the time of the August planning day, which the complainant did not attend. She had heard the principal ask the complainant for her timetable and during this time, the complainant had taken one child out of her class for resource teaching. In respect of the speech, she was aware through the local community of complaints regarding the speech at the valedictory service and had witnessed the principal’s disappointment of its contents. In cross-examination, the teacher said that she had been handed keys when she started to work in the school and that keys were not given out according to length of service in the school.

3.7 In closing comments, it was submitted that the school had addressed as best it could the issues raised by the complainant. The heading of the letter of the 17th September 2013 related to the timetable issue and this was the primary issue discussed by the parties. The origin of this complaint is the change required by having to cluster resource hours. The complainant had only worked the cluster timetable for three weeks before going on sick leave. It was practice to give keys only to full time teachers, but the complainant would have been given keys, had she asked for them. The comparator suggested by the complainant was not appropriate as she was a full-time qualified teacher. It had been the union who suggested using the grievance procedure and the respondent school had sought to progress this matter by this.

4. Findings and reasoning:

4.1 The complainant outlines that the principal made a series of derogatory remarks relating to religion and sexual orientation. These allegations are denied by the principal. This aspect of the claim is the most difficult to adjudicate upon as it is, inevitably, difficult to find corroborative evidence supportive of one side or the other. The complainant outlines that she was subjected to discriminatory treatment in relation to the keys, assembly time and how much flexibility she was afforded in devising a timetable to share her time with other schools. This is denied by the respondent national school. The complainant says that the manner in which her complaint was dealt with by the respondent national school meant that it was never resolved and she could not resume employment at the school. The respondent national school says that it proposed to progress the complaint by way of the “Working Together” grievance procedure.

4.2 Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)...” Section 6(2)(e) of the Acts defines the discriminatory ground of religion as follows – “as between any 2 persons ... that one has a different religious belief from the other, or that one has a religious belief and the other has not”. Section 6(2)(d) of the Acts defines the discriminatory ground of sexual orientation as follows: “as between any 2 persons ... that they are of a different sexual orientation.” Section 14A(7) of the Act defines harassment as “any form of unwanted conduct related to any of the discriminatory grounds and being conduct which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.” Section 6(1)(b) provides for discrimination by association whereby “a person who is associated with another person is treated, by virtue of the association, less favourably than a person who is not so associated, is, has been or would be treated in a comparable situation.”

4.3 Having considered the oral and written evidence of the parties, I find as fact that the principal made the derogatory comments attributed to her by the complainant. I do so, having assessed the witnesses giving evidence and also taking account of what the respondent did on receiving the initial complaint. I am struck by the precision of complainant’s evidence. I am also struck by the paralysis brought about to the school’s governance structure by the complaint of the 17th September 2013. It is the case that the letter primarily arises the timetable issue, but it is striking that the reference to the derogatory comments is made in passing and almost taken as read. The letter specifically raises the issue of discrimination on grounds of religion and derogatory comments made on this ground and the ground of sexual orientation. It was submitted that this allegation was a complete shock for the respondent, but what is absent is any concerted investigation or action on the part of the respondent that one would expect in the event of a serious allegation that comes, as suggested, as a bolt from the blue. The principal responds to them with a general statement about respecting people regardless of their creed, colour, culture or status. While the Chair of the Board was undoubtedly well-intentioned, she did not directly address the allegations but instead dealt with the school management issues, such as the timetable. In her note, the Chair states that the Board would be informed of the allegations and that she could facilitate a mediation between the parties. Neither course of action was taken, and was not done so until after the solicitor’s letter in 2014. This also follows the undertakings given in the letter from the patron of the 30th September 2013, which refers to the allegations being referred to the Board. I appreciate that the Chair found herself in an extremely difficult position. She was one year in the role of Chair, having taken over from the previous incumbent, who had resigned. The school is a small school and has a well-established principal. It may have seemed an insurmountable task to tackle this issue head-on, in particular as it relates to the behaviour of a senior member of staff. I also note that at this time the complainant went on sick leave for some time. While there was a great deal of reference to the “Working Together” grievance procedure, no attention was paid to the harassment procedure included in that document. Given the seriousness of the allegations and their apparent novelty, it is notable that the respondent was not proactive in investigating the conflicts in evidence between the complainant and the principal, or advancing a procedure to specifically address this issue. This could have occurred in the absence of the complainant, then on sick leave, and was surely necessary to clear the principal of these serious allegations. I attribute this lack of action to there being a well-established pattern of behaviour in the school that the Chair did not feel in a position to address. I infer that this to be the reason why the matter was not referred to the Board, something that could have occurred even though the complainant was on sick leave. For the sake of clarity, I make findings that harassment within the definition of Employment Equality Acts took place in the comments made by the principal regarding the use of the words “us” and “our” and the differentiation between children and adults of different religions. I also find that the comments referring to the sexual orientation of the complainant’s son amounts to discrimination by association. Those comments relate to his clothes, his choice of leisure activities on a Saturday afternoon and comments made by the principal regarding the son acknowledging his sexual orientation at the valedictory service. The comment made by the principal regarding the upbringing of the complainant’s son undermined her dignity at work. Given that they related to him saying he was gay, it falls within the rubric of discrimination by association. The comment was made at an event associated with another school and raised by the principal during the course of her employment as principal of the respondent national school.

4.4 In relation to the other allegations of discrimination, I accept the explanation provided regarding the keys: the policy was only to give keys to full-time teachers. I also accept that there was no discrimination regarding assembly time. In respect of the timetable issue, this was, in effect, a difference between the parties over whether the complainant could take every second Friday to exercise a caring role and work longer on other days or whether she had to work in the school every day of the week. The obvious solution was a half-day on Fridays, a solution agreed with the complainant’s successor. If it were not for the well-established pattern of behaviour referred to above, this issue would have been resolved without incident. Given the well-established pattern of behaviour on the part of the principal as well as the more recent incident of the valedictory speech, the level of interaction engendered by the timetable escalated the breakdown of the relationship between the complainant and the principal.

4.5 In respect of redress, the complainant made submissions that she was looking for an acknowledgement that what had happened to her was wrong and sought no financial compensation. In the ordinary course of events, this case would attract a significant award of damages. The complainant gave evidence that these events led her to being unable to work because of anxiety. I also note the longstanding nature of the behaviour and the seniority of the person concerned. I note that the complainant resigned from her employment at the respondent school. Taking these circumstances together, I find that an award of €3,000 is merited. In common with national schools across the country, the term of the current Board of Management expires on the 30th November 2015. A new Board will be in place by the 1st December 2015. Under current guidelines, training will be provided to Board members in certain aspects of the role. This does not include matters relating to equality, discrimination and harassment. For this reason, the decision provides that all staff and members of the Board of Management of the respondent school shall participate in equality training to cover the areas of equality, discrimination and harassment. Such training is available from the Irish Human Rights and Equality Commission and other bodies.

5. Decision:

5.1 I have investigated the above complainant and make the following decision in accordance with section 79 of the Employment Equality Acts and section 41(5) (a) (iii) of the Workplace Relations Act 2015 that the complainant has established that she was subjected to discriminatory treatment and harassment on the grounds of religion and, by association, sexual orientation.

5.2 In accordance with Section 82 of the Act, I order the respondent:

(a) pay the complainant €3,000 in compensation for breaches of the Employment Equality Acts. The award is redress for the infringement of Ms Marron’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).

(b) I further order, pursuant to Section 82(1)(e) of the Acts, that the respondent arrange for training for members of the Board of Management and all staff in relation to its employment policies, in particular to equality, discrimination and harassment.

______________

Kevin Baneham

Adjudication Officer / Equality Officer

November 2015