DEC-S2017-036

EQUAL STATUS ACTS

DECISION NO. DEC-S2017- 036   PARTIES

A Complainant -v-

Board of Management of A Primary School (Represented by Lauren Tennyson B.L Instructed by Hugh J. Campbell & Co. Solicitors)

File reference: et-155074-es-15          

Date of issue: 10 October 2017 

1. Background to the Claim

1.1 The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2011 on the 9 April, 2015.  On the 6 December 2016, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 the Director General delegated the case to me, Valerie Murtagh, an Equality Officer/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 25 April, 2017.  Final documentation was received in July 2017.

1.2  This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 84(3) of the Workplace Relations Act, 2015.

2. Dispute

2.1 The complainant submits that he was discriminated against on the gender and civil status grounds and subjected to victimisation in relation to the provision of a service by the respondent. The complainant alleges that the respondent discriminated against him in terms of Section 3 of the Equal Status Acts and contrary to Section 5 of that Act.

3. Summary of the Complainant's Case

3.1 The complainant is a separated father of two children. His complaint relates to his daughter S who was a former pupil at the respondent school. The complainant is alleging that he was discriminated against on grounds of his gender and civil status by the respondent school.  He states that he took an earlier complaint to the Equality Tribunal and was successful and states that as a result of same he was subjected to victimisation by the respondent. The complainant submits that on 4 June 2014, the Principal contacted him by telephone and threatened to lodge a complaint about him to the Gardaí and to social workers. The complainant states that he contacted the Garda station later that evening and given the abrasive tone of the Garda who answered, he concluded that the Principal had indeed called to complain about him. The complainant states that on 7 June 2014, he received a Protection Order issued against him by Athlone District Court and a summons for a Safety Order hearing. The complainant states that on 21 July 2014, Athlone District Court discharged the Protection Order and refused the mother’s application for a Safety Order. On 6 August 2014, the complainant submits that he was informed by Roscommon Child Protection department that a complaint was lodged against him by a third party.

3.2 The complainant states that he met with the Principal and the Liaison Officer on 23 October 2014 in the hope of finding a resolution to the ongoing confrontation. The complainant submits that at the meeting, the Principal indicated her indignation at his complaint to the Equality Tribunal and she stated that she never before faced such an experience in her 38 years of teaching. The complainant states that the Principal acknowledged that she had complained about him to the Gardaí and to Child Protection Services. The complainant states that he raised the issue of a sports event on 16 October 2014 where he travelled from Dublin but his child did not attend the said sports event. The complainant states that he was informed by the class teacher that his child had brought a note claiming a leg injury but the complainant states that when he saw his child later that afternoon as she was leaving school, she was fine. The complainant submits that this is the second instance of child emotional abuse depriving his child of school events that she may attend.  During the meeting, the complainant states that the Principal requested him to wait outside so that she could speak to her solicitor. The complainant states that when the meeting reconvened, on entering the room, a big muscular man was in the office and introduced himself as Garda P. The Principal advised that Garda P was going to sit in on the discussions; she indicated that he was a part-time music teacher in the school. The complainant claims he found this treatment very intimidatory and an attempt at bullying and harassing him.  The complainant states that he requested Garda P to leave the meeting as he had already taken legal proceedings against the local Garda Station.  The complainant states that the Principal then requested to adjourn the meeting as she wished to speak to her solicitor.  The complainant states that the Principal is aware that he waits outside the school every now and then to see his child and that it appears that his child is also deprived of the traffic duties because he may attend the school. 

3.3 The complainant submits that on 8 November 2014, he received a letter from the chairperson of the school seeking documentation in respect of access and custody arrangements. In this regard, the complainant alleges that he has been subjected to victimisation by the respondent on the basis of his earlier successful claim to the Equality Tribunal. The complainant submits that this is a clear violation of his rights and is discriminatory on grounds of his gender and civil status.

4. Summary of the Respondent's Case.

4.1 The respondent states that the complainant attended a meeting in the school on 23 October 2014 which was arranged at the complainant’s request. This meeting was also attended by Ms. F, the Home School Teacher. The respondent denies that there was any “ongoing confrontation” with the complainant. The respondent refutes the allegation that the Principal indicated her indignation at the complainant’s claims to the Equality Tribunal. The respondent states that the Principal informed the complainant that he was bringing up matters that had previously been resolved in mediation.  The respondent submits that the complainant stated at the meeting that the primary purpose of the visit was to see his daughter. The respondent completely denies that the Principal contacted him by telephone on 4 June 2014 and “threatened to lodge a complaint” about him to Gardaí and Social Workers. However, it is accepted by the respondent that a call was made to inform the complainant that the Principal had made a referral to a social worker as is her statutory obligation and in exercise of her duty of care. The respondent states that the Principal also contacted the child’s mother to also notify her that she had made a referral to a Social Worker.

4.2 The respondent states that on 4 June 2014, following commencement of school on that morning, the Principal met the child and her mother outside the school, both in an upset and distraught manner. The respondent states that both the child and her mother were crying and clearly very distressed and upset. When the Principal made enquiries, she was informed by the child’s mother that when walking her daughter to school, the complainant had jumped out of an alleyway at the side, taking both of them by surprise and that he had a dog with him, who was barking furiously, frightening them and caused them a great deal of upset. The respondent states that the Principal brought both mother and daughter to her office in an effort to calm them down. The Principal stated that eventually the child went to class but her mother refused to leave and was afraid that the complainant was still waiting outside. The respondent submits that on the basis of the mother refusing to leave the school for fear of meeting the complainant, the Principal telephoned the Gardaí who in turn advised the Principal that the mother should contact them directly. The Principal gave that information to the mother and she eventually left the school premises.  The respondent states that the Principal then sought the advice of a Social Worker, who informed her that she had a statutory obligation and duty of care to report this incident to TUSLA, the Child and Family Agency. The respondent states that the Principal completed the standard report form and notified both the complainant and the child’s mother that she had made this referral.  The respondent submits that the Principal did not make a complaint to the Gardaí about the complainant.  The respondent submits that it has no knowledge of any applications to the District Court made by the mother of the child and that the respondent school is not a party to any such Court proceedings.

4.3 The respondent states that in relation to the sports event on 16 October 2014, the complainant was informed of this event in the usual way, as with other school events.  The respondent states that Ms. F (Home School Teacher) spoke with the complainant on 16 October 2014. The position was that the complainant’s child attended at school on the date in question with a note from her mother saying that she had a sore leg and she was to be excused from the sports event. The complainant’s child and one other pupil who had such a similar note stayed behind under the supervision of a teacher in the school.  The respondent states that the school did not prevent the complainant’s child from attending this school event.

4.4 With reference to the meeting on 23 October 2014 where the Principal requested another teacher to attend as an independent witness; the respondent submits that Garda P attends at the school one day per week to teach music to 5th and 6th class and to teach the school orchestra. Garda P is a member of the Garda band and resides in Athlone. The respondent states that Garda P was the only person available at the time and the Principal asked him if he would sit in as an independent observer at the meeting with the complainant as she felt threatened and intimidated by the complainant. The respondent submits that at the commencement of the meeting, Garda P introduced himself as a Garda and the complainant stated he would not attend the meeting with a Garda present and left the meeting. The respondent submits that at that point, the Principal felt that she required legal advice in relation to the matter but her solicitor was unavailable and the meeting was adjourned.

4.5 The respondent submits that the school owes a duty of care to all of its pupils during school time and on school premises. It states that issues of access and custody are matters that concern the school when it impacts upon the child as a pupil during school hours and on the school premises. The respondent submits that the school was informed by the child’s mother that the complainant has no access to the child. In relation to access and custody arrangements; solicitors on behalf of the child’s mother stated that access to the complainant was suspended and an Order was made refusing the complainant access to his daughter. The school was not furnished with copies of these Orders as those proceedings were subject to the in camera rule. The respondent wrote to the mother’s solicitor requesting that the Court procedures be re-entered before the Court seeking permission of the Court to release to the school copies of any Court Orders which is relevant to parental access and contact with the child and which would impact upon the child whilst in the care and control of the school during school hours and on school premises. The respondent reiterates that it has a duty of care to the child for as long as the child is in the care of the school and while attending school events. The respondent submits that the school has requested similar information and clarification from other parents in similar circumstances.  In conclusion, the respondent refutes the allegation that it discriminated against the complainant or subjected him to harassment or victimisation and submits that it had a duty of care to the child in question.

5. Conclusions of the Equality Officer

5.1 The matter referred for investigation is whether or not the complainant was discriminated against pursuant to Section 3(1)(a) and 3(2)(a)(b) of the Equal Status Act and in terms of Section 5 (1) of that Act.  In reaching my decision, I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.   

5.2 Section 5.—(1) provides: " A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public".

Section 7 provides 7.—(1) In this section ‘‘educational establishment’’ means a preschool service within the meaning of Part VII of the Child Care Act, 1991, a primary or post-primary school, an institution providing adult, continuing or further education, or a university or any other third-level or higher-level institution, whether or not supported by public funds.

(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.

(3) An educational establishment does not discriminate under subsection (2) by reason only that—

Section 2 defines a service as follows:  

‘‘service’’ means a service or facility of any nature which is available to the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes —

(a) access to and the use of any place,

(b) facilities for —

(i) banking, insurance, grants, loans, credit or financing,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,”

5.3 The school is a provider of education to the complainant’s daughter and also has to have interactions with the parents of the pupils attending the school as regards their children’s education, attendance, academic achievements, participation in the school etc.  The list set out in Section 2 under the definition of “service” is not an exhaustive list.  I am satisfied that these interactions with parents are part of the education process and amounts to a service under the Act as defined above.  I am also satisfied that the service is available to a section of the public i.e. to the parents of pupils in the school. I find, having regard to section 5 above, that the complainant was seeking a service from the respondent and his complaint of discriminatory treatment comes within the scope of the Act.

5.4 I have to consider whether the complainant has established discriminatory treatment on the gender and civil status grounds.

Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:

“On any of the grounds specified...).... A person is treated less favourably than another person is, has been or would be treated.  Section 3(2)(g) provides that: 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 civil status (the ‘civil status ground’’),

5.5 A person making an allegation of discrimination under the Equal Status Acts must first establish a prima facie case of discriminatory treatment.  Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.  The complainant submits that he was discriminated against on the gender and civil status grounds and harassed and victimised by (i) his child being deprived of school events where the complainant may attend (ii) the request by the respondent regarding access and custody arrangements (iii) alleged complaints by the Principal to Gardaí and social workers and (iv) requesting a Garda to be present at a meeting with school authorities relating to his child.

5.6 Having taken the testimony at the hearing, I find that this was a difficult and sensitive situation for all parties concerned. I am of the view that the respondent was in a difficult and delicate situation trying to balance the needs of the pupil together with dealing with the fractious relationship of her parents.  With regard to the school sports event, the school authorities received a note from the child’s mother stating she had a leg injury, Ms. F gave testimony in this regard at the hearing and I accept that the complainant’s child and another pupil had a similar note and therefore both these children could not attend the sports event in question. In the circumstances, I find that the complainant has not established a prima facie case of discrimination in relation to this matter.

5.7 Given the events that transpired on 4 June 2014 as detailed above, I am satisfied that the Principal had no other option but to contact the local Garda station where the mother was refusing to leave the school and having sought appropriate advice, the Principal made the decision to complete a referral form to Child and Family Services given what transpired on the day in question.  While the complainant has alleged that the Principal made a complaint to Gardaí about him, it would appear from the records that no complaint was lodged under the Pulse system in this regard. In relation to the issue of  the respondent requesting information regarding custody and access arrangements; I am satisfied that the school was in a difficult position in this regard as the mother of the child stated that the complainant had no access and custody to the child and the school was trying to find out exactly what arrangements were in place in the circumstances.  Having taken testimony from various witnesses at hearing, I accept the bona fides of the school authorities and I am satisfied that they were acting in the best interests of the child in question and their primary concern was that of the welfare of the child.  I do feel that it was inappropriate to have Garda P attend as an independent witness even though I note that he was the only teacher available at the material time. However, I am aware that at the outset of the meeting he introduced himself and mentioned he was a Garda although he said he was there present as an independent observer but I note that as soon as the complainant objected, Garda P left the meeting immediately.  I accept based on the testimony of the Principal that she did feel intimidated and threatened by the complainant and as a result requested an independent person to be present at the meeting. In the circumstances, I do not accept the complainant’s contention that this was an act of harassment or victimisation for having taken an earlier complaint under the equal status legislation. Having adduced all the evidence in the instant case, I find that the complainant has not demonstrated a nexus in relation to his treatment and his gender and civil status and therefore I find that he has not established a prima facie case of discrimination on gender or civil status grounds in this matter and his case fails.  

6. Decision

6.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision.

6.2 For all of the foregoing reasons, I find that the complainant has not stablished discriminatory treatment on the gender or civil status grounds contrary to the Equal Status Acts. I also find that the complainant was not subjected to harassment or victimisation by the respondent.

__________________

Valerie Murtagh

Adjudication Officer

10 October 2017