DEC-S2017-030

EQUAL STATUS ACTS

DECISION NO. DEC-S2017- 030

PARTIES

A Complainant

-v-

Board of Management of

A Secondary School

(Represented by Mason, Hayes & Curran Solicitors)

File reference: et-153361-es-15

Date of issue: 22 September 2017

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 11 February, 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 24 January, 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 marital status (now civil status) grounds 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. The complainant submits that previously he had filed a complaint to the Equality Tribunal against the respondent school in relation to his child who was enrolled in June 2013 without his consent or knowledge. The complainant submits that the school replied to him by letter dated 17 December 2013 stating that there is no legal requirement for the school to obtain written consent from both parents for enrolment in the school. Following a meeting on 14 January 2014 with the Principal of the school and the Chairperson of the Board of Management, the complainant states that he did not proceed with the equality case. In that meeting, various issues were discussed regarding the complainant’s daughter’s progress in the school. The complainant states that the Principal indicated that the complainant’s child’s non-attendance records stood at 20% and that she would verify this issue and send him the details subsequently with other items he had requested. The complainant states that despite repeated calls by him requesting same, the Principal did not provide the information as promised, such as attendance records, test results etc.

3.2 The complainant submits that at the time of enrolment, the mother of his child was living in Athlone. He states from childhood his daughter was living in Dublin but that she was abducted and enrolled in a school in Athlone in 2011 without his knowledge and consent. The complainant states that as he feared, his child did not settle in Athlone and she was subsequently enrolled in a school in Roscommon which entailed a bus journey of 1-2 hours each day. The complainant states that he did not receive any notifications of parent-teacher meetings, school activities or academic performance records. The complainant submits that the Principal failed to respect his legal relationship with his child by not informing him in a timely manner of all key events. He submits that the Principal’s collusion with one guardian acting against another guardian was an act of discrimination against him on grounds of civil status and gender. The complainant states that he is entitled to any information the school has concerning his child. The complainant states that he as the parent and legal guardian of his daughter has the same right as the mother under international law and Irish law and that the school is obliged by law to treat the complainant in the same manner as the mother.

3.3 The complainant submits that the respondent sought disclosure of an access order which the complainant states was discrimination against him on grounds of civil status due to the fact that access refers to time a parent spends with their child and has no bearing on Guardianship. The complainant submits that regardless of access arrangements in place, he should have been consulted in all matters where the school was involved with his children. The complainant states that the respondent, in asking for an access and custody arrangement of him, discriminated against him on grounds of his civil status. The complainant maintains that there is a pattern by the respondent of discriminatory behaviour against him on grounds of his gender and his civil status as he is separated from the mother of the child.

4. Summary of the Respondent's Case.

4.1 The respondent states that the complainant is the father of a former pupil of its school. The respondent is the Board of Management of the school. The respondent submits that the complainant is separated from the mother of this former pupil. The respondent submits that in November 2013, the complainant sent an ES 1 notification to the school alleging discrimination on grounds of gender and civil status in relation to the enrolment of his daughter in the school. The respondent states that his daughter was not in fact enrolled in the school in June 2013 and the date of enrolment was 22 August 2013 after the school had received a student transfer form together with a recommendation from the Principal from her former school. The school responded to the complainant and invited him to attend a meeting in the school. This meeting took place on 14 January 2014 and was attended by the complainant, the Principal and the Chairperson of the Board of Management. The respondent states that at the meeting, it was explained to the complainant that there is no legal requirement for the school to obtain written consent from both guardians on enrolment. It was outlined that the school processes each application for enrolment on the basis of the information provided by the parent who makes contact with the school. The pupil’s mother had completed the school’s enrolment form and as the school had a vacancy available, a place was offered to her. The respondent states that at the meeting it was also explained to the complainant that the school had no role in arbitrating any differences between the complainant and his daughter’s mother. The respondent maintains that it was a very amicable and productive meeting and the complainant was very pleased to note the extra supports that had been put in place for his daughter including extra help in a number of subjects. The respondent states that it was agreed at that meeting that lines of communication would be kept open. The respondent states that following the meeting, the Principal had regular telephone conversations with the complainant in relation to his daughter and no further correspondence was received from the complainant in relation to this matter while his daughter was attending the school.

4.2 The respondent submits that the complainant’s daughter left the school in June 2014. On 19 August 2014, the complainant wrote to the respondent and requested a copy of his daughter’s attendance records, test records and Leaving Certificate results. The respondent states that as the complainant’s daughter was 18 years of age and the records personally related to her, the respondent sought her consent to the disclosure of those records to the complainant. The complainant’s daughter confirmed that she did not consent to those records being disclosed to him. The respondent wrote to the complainant on 1 September 2014 to inform him that under the provisions of the Data Protection Acts, the school was prohibited from releasing an individual’s personal data without their consent. The respondent submits that it had no option but to respect the complainant’s daughter’s wishes in this regard as any such disclosure would have been a breach of the provisions of the Data Protection Acts.

4.3 In summary, the respondent submits that the complainant has failed to establish a prima facie case of discrimination and on the facts of the instant case, there is no evidence of less favourable treatment of the complainant on either the gender or the civil status ground. The respondent submits that it was complying with its obligations under the provisions of the Data Protection Acts and the respondent’s civil status and gender have no relevance to the application of that legislation. In addition, the respondent contends that the complainant is out of time in bringing his claim under the provisions of the Equal Status Acts. The respondent submits that under the Acts, the complainant must send the notification within two months of the incident (or within two months of the last such incident, if there is more than one). The respondent contends that if the complainant does not do this in time, any complaint he/she makes afterwards may not be valid and if the complaint is not valid there is no jurisdiction to deal with the claim. The respondent submits that the complainant’s daughter left the school in June 2014 and the notification of the claim was not made until 11 February 2015. The respondent states that as a consequence, the complainant’s claim is out of time in the circumstances.

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. I note that the complainant served notification to the respondent regarding the complaint on 13 October 2014 and therefore I find that I have jurisdiction to hear the complaint.

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, in that, there was a legal requirement on the school to obtain written consent from both guardians on enrolment of his daughter. Having examined this issue, the position is that there is no such legal requirement in place and a school processes each application for enrolment on the basis of the information provided by the parent who makes contact with the school. The complainant has not demonstrated a prima facie case on grounds of gender or civil status in this regard. The complainant also maintains that he was discriminated against, in that, he was asked by the respondent to provide information regarding custody and access arrangements relating to his daughter.

5.6 Having taken the testimony at the hearing, I find that this was a difficult and sensitive situation and I am of the view that the respondent was also in a difficult and delicate situation trying to balance the needs of the pupil together with dealing with the fractious relationship of her parents. I note that the school put in place a lot of extra supports for the complainant’s daughter to assist her with her education and the complainant was informed of this at the meeting of 14 January 2014 together with various issues regarding attendance records, test results etc. Having taken the testimony of the Principal, I accept her bona vides in this regard and she spoke about the telephone conversations she had with the complainant on an ongoing basis regarding his daughter’s progress at the school and the extra resources being provided to assist her. The complainant alleges discrimination against him, in that, when he requested documentation including a copy of his daughter’s Leaving Certificate results, test records and attendance records; he was advised that the Principal that the school could not accede to his request. The Principal stated that she asked the complainant’s daughter if she could send the complainant on said documentation and his daughter had vehemently disagreed to same. I also note that the school stated that it would be in breach of the Data Protection legislation if it had done so as the complainant’s daughter was over 18 years of age. Having examined this matter, I can find no prima facie case of discrimination on gender or civil status grounds in this matter and I am of the view that the respondent was in a difficult position and was constrained and could not go against the wishes of the pupil at this juncture. Therefore, on balance, having carefully examined all of the evidence, I conclude that the complainant was not subjected to discrimination on grounds of gender or civil status in the instant case and the complainant’s 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.

__________________

Valerie Murtagh

Adjudication Officer

22 September 2017