DEC-S2016-031

EQUAL STATUS ACTS 2000-2008

DECISION NO. DEC-S2016-031

PARTIES

A Separated Father

v

Dublin and Dun Laoghaire Education and Training Board (DDLETB
(Represented by William Egan and Associates Solicitors)

File Reference: et 149606-es-14
Date of Issue: May 2016

Keywords: Equal Status Act 2000 - section 3 (1) direct discrimination - less favourable treatment, sections 3 (2) (a), (b), (c) gender, marital status, family status - by educational establishment - prima facie case.

1. Introduction

This complaint was referred to the Director of the Equality Tribunal on the 8th October 2014 under the Equal Status Acts, 2000-2008 (hereinafter "the Acts"). The Respondent was notified of this complaint on the 18th November, 2014.

On the 8 February 2016, in accordance with his powers under Section 75 of the Employment Equality Acts and under these Acts, the Director General of the Workplace Relations Commission (hereinafter the WRC) delegated the case to me, Michael McEntee, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part III of the Equal Status Acts. This is the date my investigation commenced. Submissions were received from both sides. As required by section 25(1) of the Acts and as part of my investigation, an oral hearing was held on the 24th February 2016. Both parties were in attendance.

This decision pursuant to Section 25(4) of the Acts is issued by me following the establishment of the WRC on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015.

2. Dispute

2:1 This dispute concerns a claim by the Complainant, a separated father (hereinafter "the Complainant") that he was discriminated against by the Board of Management of a Community College (hereinafter "the Respondent") on the grounds of gender, marital status and family status in terms of sections 3(2) (a), (b) and (c) of the Acts contrary to section 5 and/or section 7 of the Acts by

a) The enrollment of his daughter in the College without his express written consent.

b) The nomination of a third party as the child’s Emergency Contact person in a situation where the Complainant felt that he should have been the said Emergency Contact.

c) Six, in number, other lesser but linked incidents included in a supplemental submission dated the 19th January 2016.

3. Opening legal submissions by the Respondent and consideration of same.

3.1 Clarification of Name of Respondent

The correct name of the Respondent was clarified as the Dublin and Dun Laoghaire Education and Training Board (DDLETB) rather than the Chairman of the Board of Management of the College as stated in the Complainant’s claim. It was accepted in opening legal submissions that the naming of the Chairman of the Board of Management of the individual school was an understandable mistake by the Complainant - the Respondent’s legal team clearly demonstrated that the correct name of the Respondent was the Dublin and Dun Laoghaire Education and Training Board. The individual Community College did not have a separate legal identity but was part of the DDLETB. There was no suggestion of an actual change of Respondent just a clarification of the correct name.

At the Oral Hearing I decided that this clarification was acceptable and it was agreed to by the Complainant.

3:2 Additional Incidents post the original claim form.

In addition, the Respondent queried six additional incidents of complaint, submitted in January 2016, now also being included.

These incidents were not in the original claim but in a decision of the High Court in County Louth Vocational Educational Committee v The Equality Tribunal, (Unreported, High Court, 24th July 2009, McGovern J). Judge McGovern stated:
"6.2 I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same. What is in issue here is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time. But under the legislation it is clear that the complaints which are made within that expanded period are not time-barred. That is not to say that omplaints going back over a lengthy period would have to be considered as an issue of prejudice might arise. But this is something that would fall to be dealt with in the course of the hearing in any particular case.
6.3 Of course, it is necessary that insofar as the nature of the claim is expanded, the respondent in the claim must be given a reasonable opportunity to deal with these complaints and the procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice."

It is clear from this judgement that in advancing a claim under the Acts a Complainant is not limited solely to what is contained in the originating form. I do not consider that the new incidents go beyond "the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time". Also, I am happy that the respondent had been able to respond, both by way of written submission and in oral evidence at the hearing to the new incidents.

I therefore decided, applying the principles set out above, that the additional incidents could be included within the claim although not on the original claim form.

4: Summary Positon of the Complainant

4:1 The Complainant is the separated father of a girl (Ms.X) now a pupil at a Community College under the control of the DDLETB

On the 29th August 2013 the Community College accepted an Enrollment Form without his signature, contact details, his prior knowledge and his signature on the school’s Code of Behaviour.

As part of the Application Process a Third Party was named as the College’s Emergency Contact person in the event of the primary party, the Child’s mother , in this case, not being available.

The Complainant contended that both of these actions were discriminatory against Males in general, (Gender Ground), Fathers (Marital Status ground) and Separated Parents (Family Status ground).

4:2 The six additional incidents stated in January 2016 were

1) Taking of School photographs including his daughter without his permission

2) Her inclusion on School trips in May 2015 and during 2014 without his permission being sought

3) Extra-Curricular events that he was not notified of or notified late where parents could be involved such as a “Bag Pack” in November 2015

4) The manner in which the Principal of the Community College had obtained copies of Court Orders was discriminatory against the Complainant.

5) Lack of Adequate notice of Parent Teacher meetings was discriminatory towards him.

6) Lack of adequate and timely access to the College’s on line parent information portal was also discriminatory.

As stated above the Complaint felt that these six incidents were discriminatory against him.

4.3 In support of his contentions the Complainant referred to the College’s Mission Statement and its stated commitment to equality, transparency, inclusion and respect for diversity and equality as well as the successful implementation of all relevant Education Acts including The Education Act (1998) and the Education Welfare Act,2000.

4.4. Extensive reference was made to the Guardianship of Infants Act,1964, S.I. No 5/1998 Guardianship of Children (Statutory Declaration) Regulations, 1998 and the Irish Constitution.

In essence the Complainant was relying on these exhibits to underpin his argument that both parents were of equal status and deserving of equal treatment and involvement in the care of the child in question.

In addition, the Supreme Court case of BvB, Mr. Justice Walsh, (B.v. B. [1975] I.R. 54) in 1975 was referred to and quoted at length in support of the Complainant’s Arguments.

5 Summary of Respondent's case.

5.1 The Respondent dealt with the case initially under two headings

5:2:1 Enrollment of Ms. X as a pupil.

The Community College is entitled under Section 15 of the Education Act to draft appropriate enrollment policies for its School as the Board sees fit.

The policy does not provide for joint parental signatures. Such an obligation would in effect be unworkable for any educational establishment particularly in family situations such as this case.

The College completely acknowledges the legal situation of all the parties in this case and their respective equality in regard to a child’s welfare. However, it is not for a School to intervene in a situation where guardians may disagree. This is not within their remit. As made clear by the relevant legislation this is a matter for the Guardians to have addressed by if necessary the Courts. – ref Section 11 of the Guardianship of Infants Act, 1964.

It was at all times open to the Complainant to seek redress in this quarter if he felt the need to do so.

Accordingly, the College was confident that at all times in its enrollment procedures it was acting in keeping with relevant Educational regulations and the law of the land

A meeting took place in March 2014 between the Complainant and the College Principal where all issues were discussed. It was reasonable for the Principal to conclude from this meeting that the Complainant was happy to have his daughter enrolled at the College save for the issue of the emergency contact person.

5:2:2: Emergency Contact Person

The College was at all times acting in keeping with a Court Order of 9th October 2012. This restricted the Complainant’s access to the child.

The College was simply abiding by the requirements of this Court order and in no way could be found to be discriminatory in the matter of the Emergency Contact Person.

5:2:3 Six Other Incidents

The Respondent, at the oral hearing, advanced rebuttals to all of the six grounds.

· Permissions for the taking of Photographs was given by the Child’s mother as was permission for the School tours.

· The “Bag Pack” had been organized by the Parent’s Council and the College was not directly involved.

· The College Principal had contacted the child’s mother directly as a follow up on queries on the initial Enrollment form which had been signed by her. She was entitled under law to receive the full Order not a redacted copy as maintained by the Complainant.

· The notifications and delays in relation to Parent Teacher meetings and the School electronic portal was universal to all parents and could not in any way be deemed to be discriminatory.

5:3 In summary the Respondent maintained that no case for discrimination on the basis of gender, marital status or family status could be stated to exist.

Any different treatment of the Complainant was in keeping with a Court Order that the Respondent was bound by

6: Findings and Conclusions

6.1 I must consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred in relation to him. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised. In making my decision, I have taken into account all of the evidence, written and oral, made to me by the parties to the case.

In my considerations I was also guided by Decision No:DEC-S2013-003 issued by the then Director of the Equality Authority, Mr. Niall McCutcheon.

6.2 Section 3 of the Acts defines "discrimination" as occurring-
(a) 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) (in this Act referred to as the 'discriminatory grounds') which --

(i) exists,
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned.

6.3 Section 3 (2) defines the discriminatory grounds on which the Complainant has taken this case as follows:

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:
(a) that one is male and the other is female (the "gender ground"),
(b) that they are of different marital / civil status (the "marital or civil status ground"),
(c) that one has family status and the other does not or that one has a different
family status from the other (the "family status ground") ...

(j) that one --
(i) has in good faith applied for any determination or redress provided for in
Part II or III,
(ii) has attended as a witness before the Authority, the Director or a court
in connection with any inquiry or proceedings under this Act,
(iii) has given evidence in any criminal proceedings under this Act,
(iv) has opposed by lawful means an act which is unlawful under this Act, or
(v) has given notice of an intention to take any of the actions specified in
subparagraphs (i) to (iv),
and the other has not (the "victimisation ground").

6.4 Section 2 defines marital status as meaning being single, married, separated, divorced or widowed and defines "family status" as meaning being pregnant or having responsibility as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years.

6.5 The Complainant contended in effect that he was treated less favourably than (a) his former wife; (b) a hypothetical non-separated married parent; or (c) the person named by his wife as the child’s Emergency contact person.

6.6 No concrete evidence was produced to support the case that the Complainant was treated less favourably than a hypothetical non-separated married parent, or than the person named by his wife as the children's next of kin on the enrolment form for the college. The only evidence put forward was of comparative less favourable treatment which was in support of a claim that the Respondent treated the Complainant less favourably than they did his wife. Therefore, his wife is the only relevant comparator.

6.7 The Complainant and the Complainant's wife had at the relevant time the same marital status both separated and the same family status. Both were separated and both were parents. Therefore, the alleged difference in treatment cannot have been on the grounds that the Complainant was of different marital or family status from his wife.

6.8 What remains is
(i) the allegation that the Respondent treated the Complainant less favourably than they did his wife because he was a man and she was a woman, i.e. on the gender ground; and
(ii) the allegation that the Respondent treated the Complainant less favourably than they did his wife or a hypothetical non separated male comparator.

6.9 The alleged difference in treatment is that the Respondent denied to the Complainant his rights as guardian and custodian of his child and denied him or delayed inordinately in their provision of information about his child to which he, as the formerly married father of his child, was entitled. The alleged discrimination is that the Respondents did not deny these rights to his former wife.

6.10 Extensive reference was made by the parties to the landmark BvB case before Mr. Justice Walsh in 1975. The basic principles set out in this case may have been developed in subsequent judgments since 1975 but still remain the basic guidelines. If a child is born to parents who are married to each other, the child's biological parents are automatically deemed to be the guardians. This is in line with constitutional requirements, a husband and wife being jointly and equally entitled to make decisions on the child's behalf.

However, as Justice Walsh pointed out these issues can be limited or denied by Court order.

6.11 The Respondent was made aware on the enrollment form that the child had a father with naturally to be assumed guardianship rights. The College Principal took appropriate steps to clarify the legal and Court Order situation and acted in keeping with the Order in her actions in relation to the Emergency Contact person.

Accordingly, it was not the Respondent’s School Principal that denied the Complainant his right to be party to the decision to enroll the children in the College or the choice of the Emergency contact person.

6.12 An educational establishment discriminates on the gender ground where it treats one parent (e.g. the mother) more favourably than the other (e.g. the father) with regard to their child's education where both parents have equal rights of custody and access. Where however, the parents have separated, custodial and access arrangements as approved by a Court may determine the extent to which each parent has contact with the educational establishment. It is not gender discrimination for an educational establishment to favour one parent over the other in compliance with Court approved arrangements. In this case the Respondent complied with access arrangements in regard to the Emergency Contact person as approved by the Courts.

6.13 The Complainant claims that the Respondent discriminated against him by failing to supply him in a timely manner with the documentation /information/replies to queries he sought in the summer of 2014. The Respondent admits to some administrative delays but strongly denies that there was any discriminatory element involved. Likewise, among the six additional issues; the Parent Teacher meetings notification, the Bag Pack notice and the School electronic portal problem; this was common for all parents, regardless of marital or other status and no special discriminations applied to the Complainant.

6.14 As stated aboveSection 38A of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred in relation to him. It is only where such a prima facie case has been established that a claim can be sustained.

Having reviewed all the evidence presented, heard extensive oral evidence from the Complainant and the Respondent’s School Principal, which was subject to cross questioning by legal Representatives and the Complainant, I could not find the necessary prima facie grounds to sustain this claim.

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, 2000 to 2008, I conclude this investigation and issue the following decision.

7.2 I find that the Complainant was unable to establish a prima facie basis for the claim against the Respondent on the gender, marital status, family status grounds pursuant to section 5 and section 7 of the Acts.

The claim is accordingly dismissed.

_________________________

Michael McEntee

Adjudication Officer

May 2016