Complainant

Respondent

Anonymised Parties

A Parent

Department of Education and Skills

Representatives

The Complainant attended in person and was not represented

Ms. Cathy Smith B.L. on the instructions of the Chief State Solicitor

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00012520-001

14/07/2017

This complaint concerns a claim by the Complainant that she was discriminated against by the Respondent on the grounds of her religion in terms of sections 3(1)(a) and 3(2)(e) of the Equal Status Acts, 2000 to 2015 and contrary to section 5(1) of those Acts in terms of access to the School Transport Scheme.

The Complainant resides in a provincial town and her daughter was due to commence secondary school in September, 2017. The Complainant is a practising Catholic and wanted her daughter to attend a Catholic school. The nearest secondary school (School A) to the Complainant’s residence is a multi-denominational vocational school, where religious education is taught, but it is not a Catholic ethos school. As a result, the Complainant decided that this school did not suit her daughter’s needs. The nearest Catholic ethos school (School B) to the Complainant’s residence is a distance of 13.1 km away, but there is no public transport available to the family to travel to this school.

The Complainant was aware that there was a school bus which left from her home town every morning to take children to a Church of Ireland ethos secondary school and a Gaelscoil in a town in a neighbouring County which is a distance of approx. 27 km from her home. The Complainant contacted Bus Eireann to enquire if this bus could also drop children to a Catholic ethos school (School C) in this town and was informed that it could. The Complainant and her daughter visited this school and were both happy to apply for enrolment, which they did, and her daughter was subsequently accepted. It was only after speaking to other parents from her home town whose children also attend this school that the Complainant became aware that she may have been misinformed about her daughter’s eligibility for the school bus.

The Complainant contacted Bus Eireann again to seek clarification about this issue and was informed that the previous information she had been provided was incorrect and that her daughter would not be eligible to travel on the school bus which travelled to the Catholic ethos school in the neighbouring County.

The Complainant was advised to contact the Respondent as it was the body which administered the School Transport Scheme. The Complainant was informed by the Respondent that to be eligible to avail of the School Transport Scheme a child must be more than 4.8 kilometres from and be attending their nearest education centre as determined by Bus Eireann, having regard to ethos and language. The Complainant was informed by the Respondent that “Bus Eireann have advised that this family resides 26.4 km from home to “School C” Post Primary Centre (being the Catholic ethos school in the neighbouring County) and reside 1.2 km from “School A” Vocational School, their nearest post primary centre. The family are not eligible for school transport as they are not attending their nearest education centre.”

The Complainant disputes the Respondent’s contention that School A, being an inter-denominational school, which currently serves to meet the religious instruction requirements of the Catholic Church, should be considered the nearest school for the purpose of access to the Scheme. The Complainant contends that this school, being an inter-denominational school, also provides education which includes religious instruction in the Church of Ireland faith. However, she contends that this school is not considered by the Respondent to be the nearest school for Church of Ireland families residing in her locality for the purpose of availing of the Scheme. The Complainant contends that pupils in her locality wishing to attend a Church of Ireland school can avail of the Scheme without restriction whereas parents wishing to send their children to Catholic ethos schools cannot.

The Complainant claims that the eligibility criteria for access to the School Transport Scheme are discriminatory against her family on the grounds of religion on the basis that children who wish to attend a Church of Ireland School are entitled to access the Scheme without restriction, having regard to their ethos, whereas children wishing to attend a Catholic school are not entitled to the same service.

The Complainant submits that while she agrees that children wishing to attend a Church of Ireland ethos school should be catered for as best as possible within rural areas, the same policy should be applied in relation to children wishing to attend a Catholic ethos school, or indeed any school suited to the child’s particular needs.

The Complainant submits that the Respondent’s eligibility criteria for access to the School Transport Scheme when referring to “ethos” does not specify or state that it relates to minority religions only. The Complainant contends that the reason for this, is quite simple, that if this was included it would amount to direct discrimination against other religions.

The Complainant has to travel approx. 10 km every morning to drop her daughter at the collection point for the bus that transports her to the Catholic ethos she is currently attending in the neighbouring County. The Complainant submits that this situation does not make any sense especially in light of the fact that a school bus which operates under the School Transport Scheme leaves from her home town to bring students to schools in the town where her school is situated.

The School Transport Scheme is an administrative non-statutory scheme which was established in 1968. It was created to facilitate equality of access to primary and post-primary education for children, who because of where they reside, might otherwise have difficulty in attending school regularly. Its purpose is to support the transport to and from school of children who reside remote from their nearest education centre.

The Scheme provides no absolute right to school transport and requires minimum numbers of eligible children residing in a district before the service can be established and retained. It is also constrained by having to be done within reasonable cost limits. It provides what is called a reasonable level of school transport in the context of the Scheme nationally.

The Scheme serves approx. 116,000 pupils and their families each school day, including some 16,000 children with special needs. It serves approx. 3,000 schools on some 6,000 school transport routes.

Two special provisions were included within the Scheme from the outset:

(a)    Education through the Irish language. Having regard to national policy on the Irish Language, Department Circular 2/67 stated that: “a pupil who wishes to obtain post-primary education through Irish in an “A” school (or Gael Colaiste) will be allowed free transport to the nearest centre in which there is an “A” school (Gael Colaiste) provided a satisfactory and economic service can be made available”. This approval was not guaranteed as it was subject to the condition that there was a minimum of 7 eligible children before a special service is initiated to any centre.

(b)    Provisions for Church of Ireland Children: In October 1969, following representations on behalf of the Church of Ireland community, the Minister for Education reviewed the operation of the post primary scheme as it affected pupils attending Church of Ireland secondary schools. He decided to allow Church of Ireland students the option of free transport to the nearest school under Church of Ireland management, even though they lived within 3 miles of a vocational school. In effect, for transport purposes, in these instances transport eligibility is not restricted by catchment boundaries and it may mean that a pupil is crossing catchment boundaries to attend the nearest school under Protestant management. The eligibility criteria applied is that it is the nearest such school and that the requisite distance of 4.8 km from home to school is met. The establishment/retention of a service was also subject to the minimum number requirement.

From the commencement of the 2012/13 school year, children were eligible for post-primary school transport where they resided not less than 4.8 km from and were attending their nearest education centre as determined by the Respondent/Bus Eireann, having regard to ethos and language. Under the Scheme the Respondent is not obliged to pay the cost of transporting a child to school of the parents’ choice, regardless of cost – all that it is obliged to do is offer the parents a choice in accordance with the said Scheme, which is the same for all pupils.

The Respondent submits that while Article 42.4 of the Constitution provides that the State shall provide for free primary education, there is, no absolute obligation on the State to provide for transport to a post primary school which is the choice of the child’s parents. Irrespective of cost or distance and no such obligation has ever been found to exist.

The Respondent relied upon the High Court judgements in the cases of O’Sheil -v- The Minister for Education and Science[1] and O’Carolan -v- Minister for Education and Science[2] in support of its position on this issue. The Respondent submits that while these judgements deal with the obligation on the State under the Constitution to provide for primary education, and are not specifically related to the provision of post-primary education or the availability of school transport for such post primary education, there are important elements of these authorities that ought to be applied to the facts of this case.

The Respondent submits that school transport is not an entitlement nor is it provided pursuant to an obligation on the part of the State. Its purpose is to support the transport to and from school of children who reside remote from their nearest education centre. It is for this reason that the eligibility requirements in the Scheme encompass the conditions that the applicant reside not less than 4.8 km from and are attending the nearest education centre as determined by the Respondent/Bus Eireann, having regard to ethos and language. In circumstances where the Complainant’s daughter is not attending her nearest education centre, which is located within 4.8 km from the Complainant’s home, her application was unsuccessful. Even having regard to ethos, which the Complainant has put at issue in this case, the school closest to the Complainant’s home, being a multi-denominational school, which provides education through ethos which included the Catholic ethos, is considered the nearest education centre for the purpose of the Complainant’s application.

While there is no obligation on the Complainant to attend this school, neither is there any obligation on the Respondent to provide school transport to the Complainant’s chosen school which is in excess of 20 km from her home.

The Respondent submits that, without prejudice to the foregoing, the Complainant has failed to make out a stateable case of discrimination on the grounds of religion. The essence of her complaint is that her daughter is not treated in the manner in which she wishes her to be treated i.e. she is not getting transport to her preferred school when in fact there is a multi-denominational school closer to her where religious education is provided through the Catholic faith.

The Complainant has not demonstrated that the treatment her daughter received amounted to less favourable treatment on the grounds of religious belief. The Complainant’s daughter was treated in the same way as other children are treated under the Scheme, which has been in place for a long time and provides a service within certain parameters to all children. Without the service the Scheme provides there would be widespread hardship and it cannot provide for preferred schools outside the remit of the Scheme.

Further and in the alternative the Respondent relies upon Section 14(b)(ii) of the Equal Status Act in circumstances where it takes positive measures in the application of the School Transport Scheme to support schools providing education through the ethos of minority religions in the State. The measures objected to by the Complainant are necessary to maintain adequate numbers of pupils in Church of Ireland school’s which would otherwise be at risk of becoming unviable, and thereby seeking education through a Church of Ireland ethos would be even more limited in accessing education through ethos. In those circumstances the measures which the Complainant takes issue with are not prohibited by the Equal Status Act pursuant to Section 14(1)(b)(i).

The issue for decision by me in this case is, whether or not, the Respondent discriminated against the complainant, on grounds of religion, in terms of Section 3 and, contrary to Section 5 of the Equal Status Act, 2000-2015 in relation to access to the School Transport Scheme.

Section 2 of the Equal Status Acts provides the following definition of “service”:

“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,

(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and (d) a professional or trade service, but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies."

Section 3(1) of the Equal Status Acts provides that discrimination occurs “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)(e) defines discrimination on the grounds of religion as arising between any two persons“that one has a different religious belief from the other, or that one has a religious belief and the other has not."

Section 5(1) prohibits discrimination in the provision of services available to the public: “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 38A (1) provides that the burden of proof is: " Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary." It requires the Complainant to establish, in the first instance, facts upon which he/she can rely in asserting that the prohibited conduct has occurred. Therefore, the Complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the Respondent to rebut the presumption of discrimination. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.    

The present complaint of discrimination has been grounded on the religion ground. It was not in dispute that the Complainant is a practising Catholic and I am therefore satisfied that she is covered by the religion ground.

The Complainant claims that the eligibility criteria for access to the School Transport Scheme are discriminatory against her family on the grounds of religion on the basis that children who wish to attend a Church of Ireland or minority religion ethos school are entitled to access the Scheme without restriction, having regard to their ethos, whereas children wishing to attend a Catholic school are not entitled to the same service.

The School Transport Scheme is a non-statutory scheme, established in 1968, the purpose of which is, having regard to available resources, to support the transport to and from school of children who reside remote i.e. 4.8 km or more from their nearest education centre. Children are eligible for transport where they reside not less than 4.8 km from and are attending their nearest education centre as determined by the Department of Education & Skills/Bus Eireann, having regard to ethos and language. In relation to school transport provision, ethos relates to religious ethos and is in the context of provision for minority religions.

There are two specific exemptions to the eligibility criteria which requires children to reside not less than 4.8 km from and attend their nearest education centre. These exemptions apply in the case of (1) pupils wishing to attend a minority religion ethos school (including Church of Ireland ethos schools) and (2) pupils wishing to attend a Gaelscoil. The central tenet of the Complainant’s claim of discriminatory treatment is that by virtue of the exemption detailed at point 1) above, her family cannot avail of the School Transport Scheme to travel to a Catholic ethos school which is not less than 4.8 km from her residence whereas the same restriction does not apply in a comparable situation to a family of the Church of Ireland religion who wishes to avail of the Scheme to travel to a Church of Ireland ethos school.

In considering this issue, I note that it was not in dispute that the Complainant’s application for access to the School Transport Scheme, on behalf of her daughter, was refused by the Respondent on the basis that she resides less than 4.8 km from her nearest school. Distance eligibility is determined by Bus Eireann, who advised the Respondent that the Complainant’s family resides 26.4 km from home to School C (being the Catholic ethos school she attends) and resides 1.2 km from School A (the Vocational school in her locality) which was deemed to be her nearest education centre.

In accordance with the eligibility criteria for access to the Scheme, it is clear that a family of the Church of Ireland religion, who are in a comparable situation to the Complainant in terms of where they reside, would, by virtue of the exemption provided for under the Scheme, be able to avail of the Scheme for the purpose of travel to a Church of Ireland ethos school located not less than 4.8 km from home despite the fact that School A is also that family’s nearest education centre.

I find that these facts are sufficient to raise an inference that the Complainant has been subjected to less favourable treatment on the grounds of her religion (i.e. as a Catholic) than a family of the Church of Ireland or other minority religion would be treated in a comparable situation in terms of accessing the School Transport Scheme. In the circumstances, I find that the Complainant has succeeded in discharging initial burden of proof and accordingly, the onus shifts to the Respondent to rebut the inference of discrimination raised.  

The Respondent has relied upon the provisions of Section 14(1)(b)(i) of the Equal Status Acts as a defence to the alleged discriminatory treatment claim by the Complainant in the circumstances of the present case. I will next consider whether Section 14(1)(b)(i) exempts from the prohibitions in the Act any discrimination that may arise from the different treatment on the religion ground of which the complainant complains.

Section 14(1)(b)(i) of the Acts provide that:

“14.-(1) Nothing in this Act shall be construed as prohibiting –

(b) preferential treatment or the taking of positive measures which are bona fide intended to –

(i) promote equality of opportunity for persons who are, in relation to other persons, disadvantaged or who have been or are likely to be unable to avail themselves as the same opportunities as those other persons.”

Section 14(1)(b)(i) provides that nothing in the Act shall be construed as prohibiting preferential treatment or the taking of positive measures which are bona fide intended to promote equality of opportunity for persons who are, in relation to other persons, disadvantaged or who have been or are likely to be unable to avail themselves as the same opportunities as those other persons. It covers treatment which is bona fide intended for a particular purpose and, once it is so intended, it is not for the adjudication officer to assess whether or not the treatment is reasonable.

The test contained in Section 14, paragraph (1)(b)(i), requires that there be a bona fide intention to promote equality of opportunity for a particular category of persons who are, in relation to other persons not in this category, disadvantaged or who have been or are unlikely to be unable to avail themselves of the same opportunities as those other persons.

In the context of the present case, this test does not require me to decide whether the specific exemption provided for in the application of the School Transport Scheme for persons who wish to attend post-primary schools providing education through the ethos of minority religions were reasonable or appropriate or excessively favourable as compared with the treatment of persons outside that category. It merely requires it to be established that those persons were disadvantaged or less likely to be able to avail of the opportunity to attend education through the ethos of minority religion compared to persons not in that category and that by implementing the positive measures (i.e. the exemption based on religious ethos) there was a bona fide intention to promote equality of opportunity for those persons.

The Respondent provided compelling evidence regarding the reasons why the exemption to the eligibility criteria which requires children to reside not less than 4.8 km from and attend their nearest education centre was introduced in the case of pupils wishing to attend a minority religion ethos school (including Church of Ireland ethos schools). In this regard, I note the Respondent’s evidence that there are currently only 23 schools in the State providing post primary education through the Church of Ireland ethos and by comparison there are 343 post primary schools providing education through the Catholic ethos. The Respondent’s position is that the exemption, which it contends amounts to a positive measure within the meaning of Section 14(1)(b)(i), is necessary to maintain adequate numbers of pupils in Church of Ireland schools, which schools, would otherwise be at risk of becoming unviable, and thereby persons seeking a choice of education through a Church of Ireland or other minority religion ethos would be even more limited in accessing education through this ethos.

Having regard to the totality of the evidence adduced, I am satisfied that the Respondent has established that persons wishing to attend a post primary school providing education through the ethos of a minority religion are likely to be unable to avail of the same opportunities compared to persons wishing to attend a Catholic ethos school. Furthermore, I am satisfied that, in making provision for the exemption in the School Transport Scheme based on religious ethos, there was a bona fide intention to take positive measures within the meaning of Section 14(1)(b)(ii) of the Act, to promote equality of opportunity for persons wishing to attend post-primary schools providing education through the ethos of minority religions and that this is not prohibited by the Equal Status Act.

In the circumstances, I find that the Respondent is entitled to rely upon the exemption provided for in Section 14(1)(b)(i) of the Act as a defence in relation to the alleged discrimination in the context of the present case. Accordingly, I find in favour of the Respondent in relation to this complaint.

I find that the Respondent is entitled to rely upon the exemption provided for in Section 14(1)(b)(i) of the Equal Status Acts as a defence in relation to the alleged discrimination in the context of the present case. Accordingly, I find in favour of the Respondent in relation to this complaint.

Equal Status Act 2000 to 2015 –– Section 3(1)(a) - Less favourable treatment - Section 3(2)(e) – Religion Ground - School Transport Scheme – Prima facie case of discrimination - Section 14(1)(b)(i) – Positive Measures – Promote Equality of Opportunity