ADJ-00000272

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000272

Complaints for Resolution:

Date of Adjudication Hearing: 01/06/2016

Venue: Davitt House, Adelaide Road, Dublin 2

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

The aforesaid complaints under Section 25 of the Equal Status Acts (hereinafter also referred to as ‘the Acts’) were received by the Workplace Relations Commission (hereinafter ‘WRC’) on 21^st October 2015, a Section 21 Notification having been sent to the Respondent on 4^th July 2015 and responded to on 13^th July 2015. They were referred to me by the Director General for adjudication. The parents of the Complainant (a minor) submitted these complaints on his behalf, alleging discrimination on the ground of race whilst he was a student with the Respondent (A Private School), and resulting in him being forced to leave, contrary to Sections 3(1), 3(2)(h) and 7 of the Acts. This matter had to be adjourned on a number of occasions before I heard it in full on 1^st June 2016 and gave the Parties an opportunity to be heard and to present any relevant evidence. Both Parties were legally represented, the Complainant by Mr Gabriel Reynolds BL, instructed by Cyril & Company Solicitors, and the Respondent by Ms M.P. Guinness BL, instructed by O'Mara Geraghty McCourt Solicitors. The Parties went through their submissions and evidence was taken in relation to any factual matters in issue. All oral and documentary evidence presented before and during the hearing has been taken into consideration along with relevant statutory provisions and case law.

Complainant’s Submission and Presentation:

The following background to these complaints was outlined. He is a schoolboy of African ethnicity who resided in Ireland with his parents at the material time and is their eldest child. It was submitted on his behalf that he had always been a bright and happy child who applied himself well to his schoolwork, loved sport and had plenty of friends. Upon completing national school and following very careful research and consideration, his parents opted to send him to the Respondent School (hereinafter also referred to as the ‘School’), a private secondary school, as best meeting his academic, sporting and social needs. As it specifically catered for non-Irish nationals, they felt that it would be welcoming of children from diverse backgrounds. Accordingly, they secured a place for him through the enrolment process and paid the requisite fees for the 2014-2015 school-year.

Excerpts taken from reports from the Complainant’s last two national schools were cited to demonstrate that prior to attending the Respondent School he had excelled academically, and had also got on very well with his peers and teachers. However, shortly after starting with the Respondent School, it is alleged that the Complainant suffered a litany of instances of racial discrimination, which persisted throughout the school year of 2014-2015, despite his parents’ continued efforts to get the School to address same as evidenced in numerous verbal and written complaints. For the sake of convenience, these are summarised in numerical order as follows:

(1) Ongoing and unaddressed racial abuse and bullying by another student

On several occasions during a school day in September 2014, another student in the class said to the Complainant: “You’re a nigger.”, “I hate you, you are a black monkey.” and “You are a piece of sh*t.” He was shocked as he had never previously experienced such overt racism. Reference was made to a detailed note from the Class Teacher as to her handling of the incident, noting that the Complainant’s classmate had admitted to calling him a “nigger”, that she had spoken to the boys in question, that the Complainant’s classmate had a learning difficulty and possibly did not understand the gravity of what he was saying, and when he refused to apologise, she apologised sincerely to the Complainant in his presence. Further to reporting the matter to the Year Head and boy’s mother, she undertook a lesson on this aspect of bullying. It was contended that this was inadequate as no reference was made to the School’s Anti-Bullying Policy or Code of Conduct in terms of addressing the issue, despite recognising that racial insults/abuse had occurred on the premises.

It was further alleged that in October, November and December 2014, the same boy had continued to subject the Complainant to similar racial insults. As a result, the Complainant felt intimidated, degraded and ridiculed, and his Class Teacher did nothing to address the issue. In January 2015, the Complainant went directly to his Year Head complaining about the ongoing name-calling and insults, hoping that steps would be taken to put a stop to this racial abuse. She had said that the boy in question had a learning difficulty and might not understand how serious his actions were but indicated that she would do something about it. When the racial abuse and bullying at the hands of the same boy persisted, he gave a detailed account of the matter to a third teacher following an incident when the same boy hurled the Complainant’s book across the room. Again no action was taken under the Anti-Bullying Policy or otherwise and the abuse was allowed to continue. It appeared that this boy’s behaviour was being condoned and tolerated owing to his learning difficulty, the level of which was questioned considering his academic and social abilities. An email dated 4^th February 2015 from the Deputy Head to the Complainant’s parents following a meeting on 30^th January 2015 regarding incidents between the two boys stated: “We spoke to the concerned teachers and are satisfied that the incidences were treated as routine classroom management issues and were satisfactorily dealt with by the teachers involved. You are referred to our “Anti-bullying Policy” Sec 2 “Isolated or once off incidents of negative intentional behaviour… do not fall within the definition of bullying and should be dealt with in accordance with the school’s Code of Behaviour.” It was contended that treating these matters as isolated incidents was a deliberate attempt to deny and minimise the real bullying happening on an ongoing basis and to avoid addressing same.  

In an email exchange with the School Principal on 5^th February 2015, the Complainant’s father stated: “This is to inform you that (the Complainant) is so emotionally and psychologically affected by racist bullying to the extent that his health is seriously affected and has told us that he doesn’t want to come to your school again due to racist bullying discussed with (his Year Head and Deputy Principal) when we came to have a meeting with them on Friday 30^th January which they were both privy to before the meeting.” The Principal responded confirming that the Complainant had reported a comment made by “the same special needs student” and it had emerged from the School’s investigations and from speaking to the boy in question that he felt threatened by the Complainant. It was contended that this was evidence of ongoing racial abuse and bullying against the Complainant which had been reported and acknowledged by his teachers without any action being taken. The Complainant’s parents had a further meeting with his teachers on 9^th February 2015 about this issue, following which the Deputy Principal wrote to them outlining a proposed course of action, referred to as a “continual process” so they were clearly not considered as once-off incidents. This entailed discussing the matter with the boy’s parents and sending a note to all the teachers concerned asking them to continually monitor interaction between the two boys. However, this did not address the issues and owing to the School’s failure to deal with them under the Anti-Bullying Policy, the Complainant had no option but to block out or tolerate the ongoing racial insults and abuse which continued wholly unchecked until the end of the school year.

(2) Issues with German Teacher including being asked to move in class and hat incident

The Complainant took particular issue with his German Teacher’s treatment of him whilst in her class, contending that she would single him out for unfair treatment for no apparent reason. Although other classmates were moved on occasion for being noisy, giddy or unruly, she would always ask the Complainant to move to another seat often at the back of the class. He felt humiliated and upset as referred to in an email from his father to the Principal dated 5^th February 2015: “There was an issue with the German teacher towards end of last year which was amicably resolved after we had a meeting with her but the way things are now we don’t know when stop would be put to this bullying.” The Principal replied on the same date stating: “I am somewhat unsure as to the import of the references to the… German teacher. Correcting a pupil for disrupting the teaching and learning process… does not constitute bullying by teachers.” It was contended that moving the Complainant at the beginning of every class did not amount to correcting him.

By email dated 3^rd March 2015, the Complainant’s father had reason again to write to the Year Head about an incident on 27^th February 2015 asking the Complainant to remove a hat when he was not wearing any hat much to the amusement of his classmates. It was also alleged that she had called him into her office for messing in another class when there had been no report of such messing, and had further called him a liar in relation to matters reported against her to the Principal.

At a meeting with the Principal, it was agreed that the Complainant would be permanently allocated a seat at the back of the class. It was hoped that this would prevent the German teacher moving him around but she continued to move him around as evidenced by handwritten notes. Correspondence was furnished confirming that the Complainant’s and consequently his parents’ relationship with her had deteriorated during the school year. It is the Complainant’s position that the aforesaid conduct amounted to less favourable and discriminatory treatment owing to his race.

(3) Supplementary School Report

A Christmas report had been provided to the Complainant’s parents before Christmas, the grading and comments showing that they were very happy with his progress. However, a supplementary report which was very critical of the Complainant was provided in February 2015 after his parents had made numerous complaints about the racial name-calling and bullying by the teachers. In particular, it indicated the Complainant’s disruptive behaviour in class, poor concentration and lack of effort in relation to his school work, and referred to an incident when he had made animal noises in class. It was contended that this report was particularly surprising given that the comments had not previously been recorded in his journal or otherwise communicated to his parents.

(4) Accusation of tampering with another student’s locker and having his locker moved

From February to April 2015, the Complainant was accused of tampering with other students’ possessions in their lockers and in particular, of hiding a girl’s belongings. He was asked to move his belongings to another locker at the end of the building. Again he felt that he was being singled out and humiliated for something which he had not done. He was told that he must confess because his actions had been recorded on CCTV but refused to accept them. When he informed his parents, they demanded to see the CCTV but were never provided with it. The allegations were mysteriously dropped and he was asked to move his belongings back to his former locker. The Complainant is not aware of any other students being accused of tampering with the locker property of another student and being required to move their locker away from their peer group to another part of the School, and it is contended that this action was another example of deliberate racial discrimination.

(5) Asking the students to write notes about the issues they were having with him

From the contents of the disclosure provided the Complainant’s representatives, it was noted that the school had asked fellow students, who were mainly girls, to write reports on the Complainant in relation to text messages he had allegedly sent to them but which are uncorroborated and unsubstantiated. It was contended that this was another bid to bring his reputation into disrepute.

(6) The School Sports Day

The Complainant was not allowed to participate in the School Sports Day which he had been preparing for all year as he was taken off for a meeting with the Principal in the middle of the event.

(7) Call to the Complainant’s former National School Principal

It was clear from a note disclosed that under the pretext of seeking his last report, the Deputy Principal had called the Complainant’s former National School Principal on 14^th April 2015 to find out information which could be used to refute the Complainant’s complaints. The note taken was negative in content and the entire conversation is an egregious breach of Data Protection legislation.

(8) Meetings with Parents

The Complainant’s parents met with the School on 15^th January, 30^th January and 9^th February 2015, by which time it had already become clear that any further meetings would be a futile exercise. The School declined a request for mediation to resolve the issues amicably. Further correspondence from the Principal confirmed that all matters raised had been addressed and that the School was happy to meet again to further allay concerns if necessary, and in a letter dated 20^th March 2015 referred to the need for the Complainant and his father to get over their lack of perspective. The School had adopted a position in relation to resolving these issues which his parents were being forced to accept, when clearly they were not satisfied with the outcomes of their meetings and communications. As a consequence of a terrible year at the School, the Complainant had suffered an extreme crisis of confidence and identity leading to him becoming extremely anxious and cautious about all social interaction. His mother confirmed that the he left the School at the end of the school year and they had since moved to the UK where he is now doing well in another school.

The Complainant’s mother gave evidence confirming the contents of his complaints and submission. She denied that he had experienced similar difficulties in previous schools. She said that the School did nothing to address their complaints of ongoing racist bullying against the Complainant as outlined above. She referred to an incident where he was alleged to have made animal noises in class. She submitted that other people of a different colour would have been treated differently in the same circumstances. She refuted the School’s account in relation to her refusal to attend the meetings arranged and contended that they had refused mediation. All she wanted was to stop the humiliation, contending that the Complainant had gone from being a happy boy to bedwetting. She also referred to the use of the word ‘coloured’ as being used in a derogatory sense by one of the teachers against her son but then proceeded to use the term herself in its normal sense.

When questioned by Counsel for the Respondent, she was unable to point out any specific overt examples of racist references (other than the incident of September 2014) or specifics of the generalised allegations of racism made against the teachers in all her correspondence. The Respondent’s rebuttal of the allegations and her failures to engage with the School were also put.

The Complainant’s father gave brief evidence reiterating his position that the School had not taken his complaints of racist bullying seriously and had told him that his son would “just have to cope with it”. His main concern was the adverse content of the Supplementary School Report on his record. When questioned, he was unable to identify specific instances of racism in his emails to the School.

The Complainant’s mother was anxious that the Complainant give his own evidence but he appeared reluctant and fearful of facing his former teachers. As a minor, I did not consider it appropriate that he would be pressurised to give evidence in the circumstances. Additionally, as the detail of the complaints against the Respondent School were fully documented in the parents’ complaints and I have taken this along with the evidence presented on his behalf at its height, I do not consider that his case has been undermined in any way by the absence of any direct evidence he may have given.

Overall, it was submitted on behalf of the Complainant that arising from the aforesaid treatment by the Respondent School, a prima facie case of discrimination on the ground of race had been shown.

Respondent’s Submission and Presentation:

The Principal and Deputy Principal of the Respondent School gave evidence confirming its position as set out in submissions. They confirmed that the complaints made by the Complainant herein are strongly refuted and that it properly dealt with the isolated incidents between the Complainant and his classmate, that there is no evidence of discriminatory treatment against him on the ground of race and that the other matters complained of arose in relation to managing his conduct. It is a multi-cultural School with students across multiple races, religions and cultures, including children of a similar race to the Complainant, and all students were respected and treated the same regardless.

At the outset, Counsel sought to correct what were contended to be factual inaccuracies and incorrect presumptions in the presentation of the Complainant’s case. In particular, it was clarified that he had in fact moved national schools during his final year (6^th class) and as he was still attending the former at the time of application for enrolment with the Respondent, the school referred to in his enrolment along with the supporting reports furnished were from his former and not his latter national school. The contention that the Respondent had improperly obtained information from the Complainant’s latter national school in April 2015 in a bid to defend these complaints and bring his reputation into disrepute was refuted as being wholly misconceived. Such information had in fact been sought in the absence of a report from that school and in accordance with Department Regulations which did not require parental consent. The information had been sought to ascertain whether there had been any supports in place for the Complainant in the context of difficulties he was experiencing including absences, and to assist in putting supports in place to enhance his educational progress. It is also commonplace for schools to exchange information on students’ conduct and it could not have been known in advance what information would be disclosed which notably included a similar allegation of racism against the latter school.

Contrary to that contended, issues with the Complainant’s behaviour and academic ability were apparent from his former and latter national school reports, which were selectively relied upon in the Complainant’s submission. Examples cited indicated that he did not always accept when he is wrong, he had difficulty paying attention in classes and there was scope for academic improvement. Additionally, records of behavioural problems arising before the Respondent School contacted the latter school were cited to demonstrate that his conduct was clearly an issue before any such contact had been made. When the Complainant had been corrected by his teachers in relation to instances of misbehaviour as recorded in his homework journal, his father had referred to this as “bullying and unnecessary harassments” in his email complaint of 5^th February 2015 to the School. He had also scribbled over the teachers’ notes in the journal. It was contended that he had a difficulty accepting instructions and correction and relayed this to his parents as racial discrimination. In turn his views were influenced by his parents’ views. His parents instructed him not to cooperate with School procedures i.e. meeting teachers and sitting where he was told. They also obstructed his access to the Guidance Counsellor, being the one person who could have helped him achieve perspective. Overall, it was contended that the Complainant and his parents lacked perspective interpreting teacher intervention as racial discrimination, bullying and harassment.

The Respondent School strenuously refuted the assertion that the Complainant had suffered a litany of instances of the most serious racial discrimination. Following the Complainant owning up to an incident in the locker area in January 2015, his parents had sought a meeting with the School without any indication that they wished to discuss issues of discrimination. His teachers assumed that it was to discuss his behaviour in the locker area and it was arranged on this understanding and a ‘Supplementary Behavioural Report’ as per School practice was prepared. It was contended that the Complainant’s parents had conducted themselves in an outrageous manner at that meeting of 30^th January 2015, adopting an aggressive demeanour and making scurrilous accusations of racism against the teachers involved. A letter of 4^th February 2015 from the School to the parents summarised what was discussed at the meeting along with actions going forward and also objected to such conduct. Over time, the Complainant and his parents became increasingly fixated on the idea that he was being singled out including an incident when he missed canteen duty and challenged the Principal over repeating his slot. He claimed that he was the only one being asked to do so despite the boy working with him also doing extra duty for missing a slot. He told his parents that he had missed his slot as he been at a football match, and in turn, his parents alleged this was a complete injustice on the part of the School. It subsequently materialised that there had been no match that day and this was an untruth. The Complainant’s parents made numerous generalised complaints of racist bullying and harassment against five of his teachers in total. They arose from his teachers correcting his behaviour and display an utter failure to understand their obligation to manage their classrooms so as to optimise teaching and learning, and are wholly incredible.

The Complainant’s parents subsequently refused seven invitations to meet with the Principal to discuss their specific concerns and in particular to address their allegations against his German Teacher. They consistently generalised their complaints as racist bullying and harassment without providing specifics. They refused to engage in the Respondent School’s Complaints Procedures and actively sought to pervert the course of due process by initially submitting a two-page complaint to the Principal dated 20^th April 2015, and then bypassing her by submitting a five-page complaint to the Board of Management dated 27^th April 2015. The Respondent School also wholly refuted the alleged impact of the matters complained of on the Complainant as not being evident from his interactions with the School and hence incredible. The School had referred the Complainant to its Guidance Counsellor, but after the first meeting both he and his parents had been obstructive and refused further support despite stating that he was “emotionally and psychologically affected”.

(1) Ongoing and unaddressed racial abuse and bullying by another student

The Respondent School contends that the only occasion when the Complainant complained of being subjected to an overt racial term was in relation to the September 2014 incident as outlined above. His former Class Teacher had dealt with the matter appropriately and proactively. The other boy had used the word “nigger” once on that occasion and it was categorically denied that he had reported other incidents of this word being used. The only other complaint of the boy in question making a comment to the Complainant arose in January 2015. On investigation by the School, it became clear that this was not a racist comment but a statement from the boy that he did not like the way the Complainant was speaking to the girls and he felt threatened by him. It was clear to the School that both boys needed support and that is how it had sought to proceed.

To the best of the School’s knowledge no further incidents of exchanges between the two boys were reported. The reference to “black monkey” was made for the first time in the Complainant’s claim form subsequent to leaving the School. Nowhere in the voluminous correspondence and documentation pertaining to the numerous interactions and meetings with his parents did they ever make any references to these ongoing racist comments and nor did the Complainant report them to any member of staff. At the meeting of 30^th January 2015, the only reference to racist bullying was the hostile and verbal allegations they levelled at his teachers for sanctioning his behaviour by temporarily moving his locker to another area. They called this ‘segregation’ and accused them of racism because they had imposed a standard sanction imposed on others for similar misbehaviour. The Respondent cannot deal with allegations that have never been brought to its attention. Therefore, the contention that the Complainant was subjected to ongoing ‘overt abuse’ simply does not stand up to scrutiny. It was further submitted that the Class Teacher’s response to the one single incident in September 2014 including contacting the boy’s mother, referral to the Year Head and direction to all the teachers to monitor the two boys concerned, was wholly consistent with its policies (Code of Behaviour, Anti-Bullying & Student Support) and there was no requirement for explicit mention of same. It was also pointed out that the two isolated incidents did not constitute bullying within the meaning of the Code. The incidents in question also have to be viewed in context. The boy’s lack of understanding of the social unacceptability of the term used in relation to the first incident and fear of having his personal space violated was consistent with his diagnosed special needs category, and the School was correct in not pursuing a punitive course with him which was apparently what the Complainant’s parents wanted. The Respondent School took issue with the suggestion that the boy in question did not have the level of special needs ascribed to him given its own assessment and view and lack of the Complainant’s qualifications to make such an assessment. Whilst the other boy concerned took up counselling offered, the Complainant did not take up same.

(2) Issues with German Teacher including being asked to move in class and hat incident

It was the School’s position that the Complainant did not like his former German Teacher, and consequently found their daily interactions difficult. He was offered Guidance Counselling to assist him in dealing with this situation. The Complainant’s former German Teacher gave evidence wholly refuting the allegations that she singled him out for less favourable treatment owing to his race, and confirming the contents of the Respondent’s submissions. This was the first time that a complaint had been levelled against her during her teaching career and she was appalled and saddened by the accusations. The Complainant’s class comprised of 24 students from 14 different cultural and ethnic backgrounds, many of whom were coloured. She had met his parents for the first time in November 2014 when he had received a card for inappropriate behaviour. They had taken his side claiming that she had something against their son when she told them that all she did was to establish order in the classroom in accordance with School policy. His father reiterated: “Accept him like a brother, accept him like a son.” She reassured him that every single child was respected and accepted and they parted apparently appeased. However, the Complainant’s and consequently his parents’ relationship with her deteriorated thereafter. She felt increasingly threatened by his father’s aggressive accusations expressing her fears in a statement to the Principal. At that stage, the Complainant had run out of the classroom and told the Principal that she had “the evil eye” and she received a threatening registered letter of 29^th April 2015 from his father “against her person”. Fearing for her safety and that of her students, she refused to teach the class without another teacher present and she eventually left the School as a consequence of this ongoing situation.

The former German Teacher refuted the allegation that she had routinely removed the Complainant from the other students to another seat often at the back of the class owing to his colour. Students were only ever moved to control behaviour and she cited the example of M, a Russian boy, who was also moved for that reason. She said that the Complainant often appeared tired owing to his four-hour daily commute to/from the School on public transport and this may have contributed to his disruptive behaviour. On at least three occasions, when she sought to correct and/or move him, he challenged her in a tactic devised by his parents, by storming out of her class including an instance when she had moved him on their instructions received in an email dated 6^th March 2015. It was pointed out that the Complainant had contradicted his own contention that he was singled out as the only student moved in class in reports he had written dated 15^th, 18^th & 19^th May 2015 complaining about his German Teacher moving other students around and as furnished at the hearing. Following a formal complaint by his parents directed at her in a registered letter dated 29^th April 2015, she sought a meeting with them which was arranged for 5^th May 2015, but they did not turn up. They subsequently refused to meet with the Principal on seven further occasions to discuss these issues and were also unwilling to address the situation through the Complaints Procedure.

The German Teacher also refuted the allegation that on 27^th February 2015, she had asked the Complainant to remove a hat whilst he was not wearing any hat. She confirmed that in her classroom, students are not permitted to wear hats but she had made an exception for him when he had asked if he could keep his hat on to cover up a very bad haircut, and it was the fact that he had been permitted to wear his hat whilst his classmates were not that had provoked the hilarity.

The Complainant’s parents also refused to meet and discuss his academic results with her which was a cause of concern, instead accusing her of picking on their son without giving any specifics.

Counsel for the Complainant questioned the German Teacher in relation to her treatment of him and handling of his complaints, and also put it to her that she did not leave owing to this situation.

(3) Supplementary School Report

Supplementary school reports are common monitoring and feedback tools frequently prepared in anticipation of meetings with a student’s parents where problematic behaviour or performance has arisen. During the school year in question, seven such reports were prepared across the School. Half Yearly Reports are also prepared in January which do not reflect behavioural or social development issues. The Reports in respect of the Complainant contain many comments referring to his lack of focus in class including not participating fully, greater effort needed, not bringing required materials to class, needing to focus and to settle down to work, all reflecting on his behaviour in the classroom. The second Report sheds more light on some of the comments and specifically focuses on behaviour. This material was prepared for discussion with the Complainant’s parents at the meeting of 30^th January 2015 which they had requested following his unacceptable behaviour in the locker area and the issue of a sanction for same. Unfortunately owing to their aggressive demeanour, meaningful discussion at the meeting was not possible. The Report was subsequently furnished along with a written summary of what had occurred at the meeting. A number of operational reasons were given as to why matters of serious concern were not all recorded in the Complainant’s homework journal including the fact that he had lost it at one stage.

(4) Accusation of tampering with another student’s locker and having his locker moved

In January 2015, the Complainant was approached by the Year Head on foot of reports about his behaviour in the locker area. He admitted to moving the property belonging to one of the girls. His parents did not seek CCTV footage of this incident at the time. The reference to CCTV footage refers to the later exchange of text messages between the Complainant and girls in his class giving rise to their complaints of name-calling. The Respondent also disputed the time period in respect of which he was required to move his locker, being five days as opposed to several months as alleged. Other students had also been asked to move their lockers for similar behaviour in the locker area.

(5) Asking the students to write notes about the issues they were having with him

In relation to the notes of complaint written by some of the girls regarding text messages sent by the Complainant as furnished via disclosure, it was explained that obtaining such notes from students making a complaint of misbehaviour is common practice and consistent with the Code of Behaviour. Likewise, the Complainant’s Class Teacher had requested the Complainant to provide a written report when he complained about the second incident involving the boy with special needs in his class. The Complainant had never denied sending the text messages complained of to the girls in question, and nor had he or his parents sought to correct the record until the submissions herein.

(6) The School Sports Day

The Respondent refuted the allegation that the Complainant was not allowed to participate in the School Sports Day and contended that he had in fact taken part and won a medal. He missed one race as a result of his behaviour and the reported meeting with the Principal did not take place.

(7) Call to the Complainant’s former National School Principal

The Respondent wholly refuted the alleged motive and assertion of unlawfulness in relation to the Principal’s call to the Complainant’s latter national school. The Principal contended that she had been lawfully seeking information in the absence of a report and in accordance with Section 20(3) of the Education Welfare Act and not in breach of the Data Protection Act as already outlined above.

(8) Meetings with Parents

The Respondent refutes the allegation made on behalf of the Complainant that following a number of meetings, it became clear that any further meetings would be a futile exercise and further that the School declined a request for mediation to resolve the issues amicably. Further to meetings on 15^th & 30^th January 2015, and notwithstanding repeated written requests to arrange an appointment to discuss the Complainant’s absence, his parents turned up unannounced on 9^th February 2015 and the teachers concerned hastily rearranged their schedules to meet them. Thereafter, seven subsequent invitations to meet with the School were declined and instead they sought to conduct a dialogue through email and registered letters. A final meeting on 14^th May 2015 between the parents and the School did little to resolve matters. It was further denied that the Respondent had made up its mind and contended that it had sought to reason, explain, educate and move towards an agreeable solution as evidenced by the ongoing requests for a meeting up until the end of April. Their failure to adhere to the agreed Complaints Procedure and their refusal to allow people the right of response deliberately obstructed the process and made mediation impossible.

Counsel for the Respondent submitted that the Complainant’s complaints were wholly based upon speculation citing Arturs Valpeters -v- Melbury Developments Ltd EDA0917 [2010] 21 E.L.R. Whilst examining operation of the probative burden of proof, the Labour Court stated: "Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.” The Complainant has therefore not established a prima facie case of discrimination against the Respondent and has failed to show that the alleged treatment was discriminatory and less favourable than that which was or would be afforded to another student not covered by the relevant discriminatory ground in similar circumstances.

Counsel for the Complainant’s Questioning of the Respondent’s Evidence

Much of the Respondent’s rebuttal of the various complaints outlined above went unchallenged. However, Counsel for the Complainant questioned the various witnesses’ handling of the School’s dealings with his parents and procedures, and queried their knowledge of the Equal Status Acts.

Findings and Conclusions:

The facts adduced must be assessed in relation to the relevant legal provisions. I must determine whether the Complainant was subjected to discrimination on the ground of race whilst a student with the Respondent School on the basis of his race, and as a consequence of such treatment was forced to leave, contrary to Sections 3(1), 3(2)(h) and 7 of the Acts. Section 3(1) of the Equal Status 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 3(2)(h) defines the discriminatory ground of race as arising in circumstances when as between any two persons “that they are of different race, colour, nationality or ethnic or national origins.” As these complaints are brought by the Complainant in his own right alleging discriminatory treatment as a student of an educational establishment, they properly fall under Section 7 as opposed to Section 5 of the Acts. Section 7(1) defines an educational establishment for the purposes of the Acts which includes post-primary schools and Section 7(2) defines discriminatory treatment of a student in relation to education as follows: “(2) An educational establishment shall not discriminate in relation to- (a) the admission or the terms or conditions of admission of a person as a student to the establishment, (b) the access of a student to any course, facility or benefit provided by the establishment, (c) any other term or condition of participation in the establishment by a student, or (d) the expulsion of a student from the establishment or any other sanction against the student.” Section 38A of the Acts sets out the burden of proof which applies to all claims of discrimination under the Equal Status Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut that inference. There is no issue that the Respondent’s School is an educational establishment within the meaning of Section 7(1) of the Acts and the less favourable treatment alleged falls within that Section. I must therefore firstly assess the evidence proffered on behalf of the Complainant to determine whether he has made out a prima facie case of discrimination before considering whether the Respondent has rebutted same. In this respect, I have set out the positions of both Parties in considerable detail and on the balance of probabilities, make the following findings of fact:

(1) Firstly, I am satisfied that there was only one instance of the use of a racist comment, namely “nigger” against the Complainant, being the incident in September 2014 involving the student with special needs. Given the level of detail contained in correspondence from the Complainant’s parents to the Respondent School, I find highly unlikely that they would not have referred to any further instances of overt racial comments if they had been made as alleged. In direct evidence and under questioning, the Complainant’s mother was unable to give any other specific details of the use of overt racial commentary against the Complainant or point to same in the correspondence. I am also influenced by the detailed recording systems retained by the School including the requirement for students making complaints to write a report. Given the level of detail pertaining to the September 2014 incident, I find it highly unlikely that any further incidents would not have been similarly recorded. I therefore prefer the Respondent’s evidence in this respect. Furthermore, I agree that this incident has to be viewed in context where the other boy had special needs and may not have understood what he was saying. I accept the School’s professional assessment in this respect. I am satisfied that the School addressed this incident appropriately and proactively as outlined and could not have reasonably done any more to deal with this incident. Unfortunately, it appears that over time, the Complainant’s parents’ recollection of the issues between the boys became magnified resulting in unsustainable allegations of multiple instances of overt racial abuse.

(2) Whilst no allegations of overt racism have been levelled against the Complainant’s teachers, numerous examples of the Complainant being singled out for less favourable treatment are cited, the inference being that this could only have been on the ground of race. Cognisant that discrimination is not always overt or explicit and is more commonly subtle and subconscious, the applicable test is usefully summarised by the Labour Court in Citibank -v- Ntoko (2004) 15 ELR 116. Essentially when determining whether the Complainant has made out his case on the balance of probabilities, I have to consider what inferences are proper, just and equitable to draw from the primary facts. This includes considering whether the explanations provided by the Respondent for the less favourable treatment complained of are “adequate and satisfactory”. Applying this test to the factual matrix presented, I am satisfied that in respect of each and every example of alleged racial discrimination, that the Respondent School has provided an adequate and satisfactory explanation for its handling of same as outlined above and which went essentially unchallenged. 

In particular, I am satisfied that that the Complainant was not the only boy moved within the German class as evidenced by his own notes of complaint, and furthermore accept that this was used to maintain order in the class and did not specifically target or single out the Complainant. Even accepting the account given on his behalf, I am not satisfied that there was any racial element to the ‘hat incident’. It is clear from the evidence that the Complainant particularly clashed with his German Teacher giving rise to the difficulties outlined above and unfortunately leading to her leaving the School. I also accept the Respondent School’s explanations for obtaining the Supplementary Report and information from the Complainant’s latter national school, in the absence of a report and in the context of his difficulties, as being adequate and satisfactory. I am further satisfied that the Complainant was asked to move his locker as a consequence of his conduct in the locker area and similar sanction would have applied to any student in the same circumstances. I also accept the Respondent’s explanation for the notes recording complaints by other students against the Complainant as being a practice which had been equally offered to the Complainant. I prefer the School’s version of events in relation to what materialised at the School Sports Day noting the Complainant’s own written account that he had partaken and won a medal. It appears that he may have missed one event as a consequence of having to be corrected for recent misbehaviour. In relation to the complaints relating to meetings with the School and the allegation that they had become a futile exercise, I had the opportunity of observing the Complainant’s parents’ demeanour at the hearing and found that it was less than conducive to resolving the issues between the Parties.

(3) Overall, I got the impression that the Complainant’s education was extremely important to his parents and they have strived to obtain the best possible education for him. Consequently, they seem to find it difficult to accept any shortcomings in his academic performance and conduct including the reports generated by the Respondent’s School. Although the Complainant is undoubtedly a very bright and able boy as evidenced in his previous Reports, he also had issues with focusing in class before he attended at the Respondent School, not an unusual trait in a boy of his age. These reports were selectively cited in submissions also reflecting his parents’ rather blinkered views of the Complainant’s performance. There were also other factors at play in relation to the difficulties experienced by the Complainant in the Respondent School which seemed to be an escalation of pre-existing issues. Most significantly, he had a four-hour daily commute on public transport to get to and from the Respondent School and unsurprisingly appeared tired to his teachers. In my view, this coupled with his age and the transition from national to secondary school provide more than sufficient explanation for the difficulties he was experiencing at the School. It is also unfortunate that the Complainant did not avail of the counselling offered by the School.

(4) It appears that unfortunately, the Complainant’s parents’ views of the Respondent’s dealings with them and their son may have been clouded by past negative experiences pertaining to their race and ethnicity. As a consequence, they lacked a sense of perspective which was imparted to their son, so that any action taken by the School to correct the Complainant in line with School policy was misconstrued as racial discrimination without considering any alternative explanation.

(5) I am also satisfied that the Complainant’s parents did not engage appropriately with the Respondent School in relation to having their concerns addressed, which would have included following the Complaints Procedures and allowing the teachers concerned the right of reply.

Therefore, and based upon the aforesaid findings, I cannot conclude on the balance of probabilities that any of the less favourable treatment complained of against the Respondent had any racial motive whatsoever, either overtly or covertly, consciously or subconsciously, directly or indirectly.

Finally, it is noted that whilst references to victimisation were made in the Section 21 Notification, these were pursued as acts of ‘racist bullying’ in the claim form and hearing, and some examples of the racial discrimination cited in the Notification were not pursued further. Whilst references to racial harassment were also made, this was not pursued as a separate claim for harassment.

Decision:

Section 25 of the Equal Status Act 2000 requires that I make a decision in relation to these complaints in accordance with the relevant redress provisions under Section 27 of that Act. I have concluded my investigation and based on the aforementioned, find pursuant to Section 25(4) of the Acts, that the Complainant has not established a prima facie case of discrimination by the Respondent School on the ground of race requiring rebuttal and accordingly dismiss same.

Aideen Collard, Adjudication Officer

Dated:   14^th March 2017