EQUAL STATUS ACTS 2000-2015
Decision DEC-S2017-010
PARTIES
Mr A.
v
A Secondary School (represented by Mason, Hayes and Curran, Solicitors)
File Reference: et-152925-es-15
Date of Issue: 1st March 2017
Keywords: gender – marital status – mootness – frivolous and vexatious – victimisation – no prima faciecase.
1. Claim
1.1. The case concerns a claim by Mr A, that respondent secondary school discriminated against him on the grounds of gender and civil status contrary to Section 3(2)(a) and (c) of the Equal Status Acts 2000 to 2011, in terms of failure to provide him with an opportunity to sign his daughter’s enrolment form for the school and victimising him by notifying his estranged wife of the within complaint.
1.2. The complainant referred a complaint under the Equal Status Acts 2000 to 2011 to the Director of the Equality Tribunal on 27 January 2015. A submission was received from the complainant on 9 November 2015. A submission was received from the respondent on 20 January 2016. On 3 January 2017, in accordance with her powers under S. 25 of the Acts, the Director General of the Workplace Relations Commission delegated the case to me, Stephen Bonnlander, an Equality Officer/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part III of the Acts. On this date my investigation commenced. As required by Section 25(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 22 February 2017.
2. Summary of the Complainant’s Written Submission
2.1. Mr A. is a non-custodial parent and separated from his wife, who has custody of their children. He submits that the secondary school who is the respondent in the within case did not send on to him the enrolment form for his daughter, which had previously been signed by his wife and his daughter. He submits that the school refused this on data protection grounds, as he resides at a different address. He further states that he received correspondence from the school which said that the information could be made available on foot of a court order, pursuant to the Guardianship of Infants Act, 1964.
2.2. He claims that this was an act of discrimination, since a parent who was not separated or divorced would not be in such a position. He further claims that the fact that the school accepted his daughter as a pupil was an act of discrimination since he was not in a position to consent to it.
2.3. He further takes issue with the recommendation issued by the school’s board of management, on foot of a complaint made by him, to address his complaint by making a separate form available to parents and guardians regarding the school’s Code of Behaviour, which he says discriminates against him because it seeks to undermine the authority of both parents to act jointly.
2.4. The complainant also complains of victimisation because his wife and daughter had been informed of his complaint against the school. He bases this complaint on the decision DEC-S2014-018, A Father v. A School. There, the Equality Officer held that a similar step taken by the Principal of the respondent school “served no useful purpose other than to cause friction between the parents and to portray the complainant in a negative way” and that together with other events that transpired between the parties, meant that the complainant had established a prima facie case of victimisation.
2.5. The complainant also appended the findings of the investigation team to his submission and it is worth noting that the investigation team found that neither his estranged wife, nor his daughter, wished the complainant to have access to the enrolment form and had written to the school on this point.
3. Summary of the Respondent’s Written Submission
3.1. The respondent denies that it discriminated against the complainant as alleged or at all. It points out that the complainant has made several similar complaint to the Equality Tribunal already, involving primary schools which his children attended, and all unsuccessful. These were DEC-S2009-040 and DEC-S2012-003, which the respondent appended to its submission. In both cases, the complainant’s argument, which is virtually identical to the within case, failed comprehensively. In particular, both Equality Officers pointed out that separated or divorced parents are treated different to cohabiting and/or married parents precisely because of their situation, and that for schools to do so is not discriminatory.
3.2. In particular, the respondent cites from DEC-S2012-003, where the Equality Officer held that
The complainant submitted that he believed that he had been discriminated against when his daughter's enrolment form had been accepted without his details on it. He claimed indirect discrimination claiming that such a form would not have been accepted without the mother's signature. He provided no evidence to support such a claim and while I accept that the school would not have accepted an enrolment form without the details of at least one legal guardian, I cannot accept mere assertion about the gender or civil status of the parent required to sign a form. Furthermore, I note that the complainant claimed that this acceptance could have resulted in less favourable treatment because had there been an emergency the respondent would not have known how to contact him. Having examined the facts of this incident I note that the complainant admitted that he had received a blank enrolment form from the respondent but that he had not filled it in as he believed that he ought to fill in the same form as his spouse (after she had filled in her details). He maintained that the respondent ought to have forwarded his wife's completed form for him to fill in and that this practice of having two separate forms is discriminatory. The complainant submitted that the reason for this rationale was that a married/non-separated couple would have filled in their forms jointly. I accept that married/non-separated couples would fill in such forms jointly and while the complainant favours such an approach the facts of this case support an inference that his wife does not.
3.3. The respondent states that the within complaint is essentially a reprise of the discrimination claim from which DEC-S2012-003 resulted. The respondent further notes that the complainant never appealed that decision, although it characterises him in its submission as “an experienced litigator”.
3.4. The complainant then made a request for his daughter’s enrolment form under the Data Protection Acts, and it was forwarded to him with all data no pertaining to himself redacted. A copy of this form was appended to the respondent’s submission. The respondent confirms that neither the complainant’s daughter nor her mother as her other legal guardian, wished for the complainant to have sight of the original enrolment form and had notified the respondent accordingly. Subsequently, the respondent sent the complainant a blank enrolment form and a copy of the school’s admission policy and code of behaviour, thereby creating the same situation as referred to in DEC-S2012-003 quoted above.
3.5. The complainant then utilised the school’s complaint procedure against the principal of the respondent school. At stage two of the complaints procedure, a solution was arrived at between the parties whereby the complainant was allowed to sign the original enrolment form, with the details pertaining to his former wife temporarily covered. Nevertheless, the complainant then escalated his complaint to stage three of the respondent’s complaints procedure but subsequently failed to attend the meeting.
3.6. It is the respondent’s contention that the complainant has failed to establish a prima facie case of discrimination and that the complaint should be dismissed as frivolous and vexatious since it raises the same issues as DEC-S2012-003.
4. Conclusions of the Equality Officer
Complaint frivolous and vexatious?
4.1. With regard to the respondent’s application that I dismiss the within complaint as frivolous and vexatious, I wrote to the respondent, with copy to the complainant, on 15 February 2017 and indicated that if the respondent could prove that the complaint had been resolved with reference to the respondent’s complaint procedure as described in paragraph 3.5 above, I would be willing to consider such a dismissal on the ground that the complaint had become moot. I enclosed an unpublished dismissal pursuant made by me pursuant to S. 22 of the Equal Status Acts 2000-2011, in a similar situation, with the letters to both parties for their information.
4.2. In his oral evidence at the hearing of the complaint, the complainant repeated a point he raised in the case to which DEC-S2012-003 refers, that married, non-separated parents would have filled in the enrolment form jointly. Given that the complainant failed twice before with complaints like this, albeit against primary schools, he would likely have failed again in this complaint, even though due to the difference in respondents, the matter is not in a strictly technical sense res judicata. I made it clear to the parties at the hearing that I viewed my colleagues’ carefully reasoned decisions in the complainant’s earlier complaints as strongly persuasive in this matter.
4.3. These considerations matter insofar as otherwise the complainant might argue that discriminatory conduct had arisen which would merit an investigation, even though he was accommodated in his request in the course of the invoking the school’s internal complaints procedure. An analogy might be a valid complaint from a person with a disability who is entitled to reasonable accommodation under the Acts, who despite eventually receiving same might still complain about the period of time during which no such accommodation was forthcoming from a particular respondent. This would clearly still be unlawful conduct meriting an investigation and decision.
4.4. As things stand, I am satisfied from the enrolment form which the respondent produced at the hearing, and which clearly bears the complainant’s signature in addition to those of his wife and daughter, that he was facilitated by the respondent in a complaint which is identical to no less than two previous unsuccessful complaints to the Equality Tribunal against other schools and which therefore would have had no chance of success had I proceeded to investigate the matter. In other words, despite the fact that the complainant was accommodated by the respondent in application of their own complaints procedure, I am not satisfied that prior to that, unlawful conduct within the meaning of the Equal Status Acts has indeed taken place. Accordingly, I am satisfied that the complaint about the signing of the enrolment form is moot.
4.5. Hardiman J, in the case of Goold v. Collins and ors [IESC 38 (12 July 2004)], undertook an extensive review of the doctrine of mootness, both in Ireland and in other jurisdictions. The net point of Hardiman J’s deliberations was that a case is moot when it does not feature a current dispute between the parties, and a judicial decision on any outstanding issues would have no impact on them. From all of the foregoing, I am satisfied that such is the case here. The complaint is therefore, in my opinion, frivolous and vexatious within the meaning of S. 22 of the Equal Status Acts.
4.6. “Frivolous and vexatious” are legal terms of art whose meaning in law differs from their use in everyday parlance. In particular, they do not imply that any complainant who has brought a complaint which is subsequently found to be frivolous and vexatious is in any way a frivolous or vexatious person. Rather, a complaint is said to be frivolous when any decision made by a Court or Tribunal cannot change, or improve upon as it may be, the outcome which already exists for the parties. It may simultaneously be rated as vexatious when respondent is put to the inconvenience and expense to defend such an action regardless of its lack of possible success.
4.7. The meaning and scope of the words ‘frivolous and vexatious’ were succinctly articulated by a decision of the Supreme Court by Barron J in Farley v Ireland & Ors [(1997) IESC 60, at page 1521] in which he stated:
‘So far as the legality of the matter is concerned frivolous and vexatious are legal terms, they are not pejorative in any sense or possibly in the sense that Mr. Farley may think they are. It is merely a question of saying that so far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case. Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed and the law calls that vexatious.’‘
4.8. In Fayv Tegral Pipes Limited & Ors [[2005] 2 IR 261], the Supreme Court reiterated the principles already well established. McCracken J delivered the Court’s judgement stressing that the ‘real purpose’ of the courts’ inherent jurisdiction to dismiss frivolous or vexatious claims was firstly to ensure that the courts would be used only for the resolution of genuine disputes and not for ‘lost causes’ and, secondly, that parties would not be required to defend proceedings which could not succeed.
4.9. From the above examples, I am satisfied that the meaning of “frivolous” pursuant to S. 22 of the Acts also encompasses moot complaints that come before the Commission, and in particular, that the complainant’s complaint about the signing of the enrolment form is frivolous and vexatious for all the reasons set out above. I am therefore dismissing it pursuant to the provisions of S. 22 of the Equal Status Acts 2000-2015.
4.10. During the hearing of the complaint, the complainant also raised the issue that he had not been informed, until stage two of the respondent’s complaints procedure that his estranged wife and his daughter had objected by letter to the school to him being copied with the girl’s enrolment form. The question as to why the complainant should be entitled to know about the correspondence of third parties with each other, and the fundamental questions of privacy which this proposition engages are beyond the jurisdiction of the Commission. When I asked the complainant how this was discriminatory, the complainant replied that the school did not have his address to notify him as guardian of his child if necessary. However, the principal of the respondent school said in response to a direct question from myself that following the complainant’s communications with the school, which happened only a few weeks after enrolment, his data were added to the school’s database. Accordingly, this oversight was also cured, and before the within complaint was even lodged with the Commission. I therefore consider it moot and likewise dismiss it as frivolous and vexatious pursuant to S. 22 of the Acts.
4.11. The main issue remaining for decision in this case is whether the complainant was victimised, as he alleges, when the principal of the respondent school, as he alleges, informed his estranged wife and his daughter of the within complaint.
4.12. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 38A of the Acts. It requires the complainant to establish, in the first instance, facts upon which she 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.
4.13. In terms of his potential victimisation by the respondent on foot of his complaint, I note that the complainant was unable to prove in any satisfactory manner, or indeed at all, that the principal of the respondent school did share the fact that the within complaint under the Equal Status Acts had been lodged with the complainant’s estranged wife. The principal herself denied having done this. The complainant produced a letter to himself from his wife’s solicitor in which general reference is made to her awareness that the complainant had been “in contact with the School to complain about various matters”. There is no reference, however passing or oblique, to an equality complaint in the letter. In the circumstances, I find that the complainant has not established a prima facie case of victimisation and that this part of his complaint must fail.
5. Decision
5.1. This decision is issued by me following the establishment of the Workplace Relations Commission 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.
5.2. Based on all of the foregoing, I dismiss as frivolous and vexatious pursuant to S. 22 of the Acts, the complainant’s complaints that he was not allowed to sign his daughter’s school enrolment form and that the school did not have his contact details, and I find, pursuant to Section 25(4) of the Equal Status Acts, that the complainant’s complaint of victimisation fails due to lack of evidence.
______________________
Stephen Bonnlander
Equality Officer/AdjudicationOfficer
1 March 2017