Complainant

Respondent

Anonymised Parties

A mother on behalf of a primary school student

A primary school

Act

Complaint Reference No.

Date of Receipt

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

CA-00012691-001

21/07/2017

The complainant asserts that her daughter was discriminated against on the grounds of her nationality and victimised in respect of her 4th class report; the respondent denies the claim.

The complainant submitted this complaint pursuant to the Equal Status Act on receiving her daughter’s end of year results for the 2016/17 academic year. She was shocked and blown away by her daughter’s results. Her daughter received 132 in maths, which is a high mark. Her daughter did better this year when compared to the previous year, but received a lower grade.

The complainant approached her daughter’s class teacher and asked for explanation. She said that her daughter had done better this year. She asked why her daughter had not received 5’s in maths; the teacher replied that no one received 5s in this subject. The complainant asked why her daughter was given 3’s when she received 4’s last year. The teacher said she has no problem with her daughter and the only problem was that she is not Irish. The complainant replied that her step-father is Irish and puts in work every day with their daughter. The teacher said that the complainant’s surname is not Irish and the complainant could not talk to her about being Irish because she was not Irish.

The complainant asked the teacher to provide her with the test results. The complainant had seen the mid-year test results, which were high. In relation to maths, the teacher said that she did not have to explain anything and the complainant should go to the school principal.

The complainant went to the principal and said that while her daughter’s work

Improved, she received lower marks. The principal said that the only students who received 5s in maths were those who received higher than 132. She raised the marking of her Irish and the principal said that these exam results did not matter. The complainant asked why then produce the report. The complainant’s partner also contacted the principal and said that their daughter was not scored fairly.

The complainant outlined that her daughter discussed her results with her friends. The friends said that that they received the same marks but obtained 5’s. The complainant’s daughter was hysterical and asked why she was treated unfairly. The complainant also spoke to the parents of her daughter’s friends. She raised this with the principal who confirmed that the friends obtained 5’s.

The complainant outlined that she looked through the test results for the year and her daughter scored very high. She was treated differently to Irish students. This was the only year where she scored poorly. The complainant said that her daughter was doing very well this year. She had no problem with the respondent school but it was what the teacher said and the reference to her daughter not being Irish that were issues. This crushed her daughter. This teacher had praised her daughter at parent-teacher meetings. She commented that her daughter did very well at the mini-tests held every Friday. The complainant said that there was another student who is Polish and who received 3’s and who was behind.

In reply, the complainant disagreed that her daughter was quiet but this was not what her teacher had said at parent-teacher meetings. Her daughter’s Irish friend was also quiet. The teacher said excellent things about her daughter and she was participating in the class. Her daughter did extra reading in English, but received low marks.

The teacher stopped at her daughter’s desk to discuss the amount of reading she did. Her daughter was respectful and helped her two friends with maths and long division.

The complainant said that the teacher made three references about nationality: her daughter not being Irish, her daughter’s surname and the complainant not being Irish. The complainant raised this with the principal. The teacher was angry and threw down the sheet. She refused to change the marks. The teacher said that she could not award higher than 3 because her daughter is not Irish. A named friend was treated differently as she was given higher marks because she is Irish.

The complainant put it to the principal that her daughter’s marks in Irish were low because she was not Irish. The principal denied this. The complainant outlined that the teacher had said that because her daughter was not Irish, she could not get 4s. The principal said that the report could be hidden from her daughter.

The complainant said that this was so unfair. Her daughter’s Irish friends had been given 5’s but her daughter received 3’s and 4’s. Her daughter’s Irish should not be affected because of her nationality. The complainant asked how a teacher could scream at her and refer to her not being Irish. On this day, the complainant asked the teacher where she trained and whether she had children. The teacher said that she could not give a higher mark and that the complainant should talk to the principal.

The respondent outlined that a school report is issued to every child and compiled by each teacher. The reports are the teacher’s professional view of each child. The respondent considered the report given to the complainant’s daughter to be very good. The “5, 4, 3, 2, 1” marks are not scores but references to levels. In the teacher’s view, she felt that the sentence that best described the complainant’s daughter was that “she was managing comfortably” and only one child scored 5. In maths, the complainant’s daughter was awarded “capable and confident”, a 4. The teacher said that the complainant’s daughter did well in tests and an award of a 5 is for children who are really superb. This takes into account participation in class and the extra work completed by some children. The teacher felt that the complainant’s daughter was not yet at the level of a ‘5’. The complainant’s daughter is meticulous about getting things right. Others are able to fly through the work.

The respondent refuted that the teacher made the comment about the mark in Irish because of the nationality of the complainant’s daughter. The complainant asked the teacher where she trained and whether she had children. The teacher then referred the complainant to the principal. The respondent outlined that one comparator skipped a page in a test and this was why she received a low score. The teacher awarded this comparator a ‘5’ because of her overall performance,

The respondent outlined that the grading took account of the complainant’s daughter’s school work over the year and her work in class, including participation. The child’s participation and taking on extra work was raised at parent-teacher meetings. The complainant’s daughter is quiet and not “show-offy” as other children.

The Principal outlined that when she met the complainant, she did not say anything about the teacher commenting on her daughter not being Irish. This was first raised in the ES1 form. The respondent replied on behalf of the school, having held an urgent meeting of the Board of Management and having spoken to the teacher. The teacher was very upset and was happy to say that she had no problem with the child. She said that it was her opinion that led to the scores.

The Principal spoke with the complainant’s spouse and later received the ES1 form. The last week of school is a busy week and the respondent formulated its response after the school closed on the 30th June 2017. She commented that the complainant’s daughter is a very good student and a gentle child. The child is the centre of the respondent’s ethos and they did not want anything to mar the child. She said that the “Sentence 3” assessment is managing comfortably, so there was no difficulty. The Principal accepted that she said to the complainant that she could not show her daughter the report if she was so upset. The complainant said she was not worried about the positive comments.

The Principal had no recollection whether the complainant said that the teacher had referenced the Irish mark being because of nationality. The complainant was more concerned about the marks awarded in maths. The complainant asked whether this was because her daughter was not Irish and the Principal replied that this was not the case. She commented that the conversation between the teacher and the complainant was fraught, especially when the complainant asked the teacher where she trained and whether she had children. The teacher then referred the complainant to the principal. At their second meeting, the Principal raised how the teacher was upset at the questions asked of her by the complainant, who replied that she was sorry but wanted the teacher to know how her daughter felt.

The Principal outlined that the respondent issued the reports before the end of term to give parents a chance to raise issues. It sent out 500 reports and might have seven or so requests for explanation or information on what to work on over the summer. A parent could ring in for an appointment at this time of year or at any time. Parent-teacher meetings are normally held in November and parents could also come in to speak to a teacher.

On the 21st July 2017, the complainant referred a complaint to the Workplace Relations Commission. The complaint is made pursuant to the Equal Status Acts and relates to the school report issued by the respondent in respect of the complainant’s daughter. The complaint relates to discrimination on grounds of race and victimisation.

The complainant sent the respondent an ES1 form on the 28th June 2017, to which the respondent replied on the 20th July 2017.

In the ES1 form, the complainant asks five questions of the respondent, addressing the contents of the report card and asks, “when I asked for an explanation of the low Irish result why was [Pupil’s name]’s surname mentioned as a reason?” The respondent refutes that the Principal or teacher referred to a surname.

The complainant submitted an impressive series of test results achieved by her daughter in English, Irish and maths. The teacher records the following comments on the tests: “well done [Pupil’s name]”, “good work”, “fabulous [Pupil’s name]” “brilliant [Pupil’s name]”, “great work”, “wonderful”, “amazing”, “wow”, “well done” and “beautiful work”.

The report of the 14th June 2017 addresses “your child as a learner”, “your child’s social and personal development” and “your child’s learning during the year” and gives a grade between 1 and 5. The complainant scores mainly 4’s “capable and competent”. She scores 3’s in relation to the Irish language and English spelling. The teacher makes the following comments in relation to the complainant’s daughter: “[Pupil’s name] has worked hard during her year in 4th class. She is a quiet and keen student who takes pride in her work and always worked diligently to complete tasks to a high standard. [Pupil’s name] did very well in her standardised tests and in particular has shown great ability in Maths – with a good skill in problem solving. [Pupil’s name] is a gentle and kind girl who is a thoughtful and considerate friend. I hope [Pupil’s name] continues her fantastic work ethic as she continues up the school, Well Done [Pupil’s name].”

Section 38A sets out the burden of proof in equal status complaints:

“38A.— (1) 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.”

In assessing whether there are facts from which discrimination can be presumed, I note that there is a conflict in evidence whether the teacher referred to the nationality of either the complainant or her daughter in the conversation of the 26th June 2017. The teacher did not attend the adjudication. In considering the evidence, I note that this was a fraught and emotional exchange and one can have an incorrect recollection of who said what. The complainant asserts that the teacher made three references to nationality. If this had been the case, I would expect this to have been front and centre of the complainant’s interaction with the Principal in their exchanges on the 26th and 28th June. It is not in dispute that the complainant did not state at the meetings with the Principal that the teacher had made three references to nationality. The evidence suggests that they mainly spoke about maths. I also note the juxtaposition of the positive comments made by the teacher throughout the school year and in the report with the allegation of discrimination. For these reasons, I find as fact that the teacher did not refer to the nationality of the complainant or her daughter or to their surname in the conversation with the complainant of the 26th June 2017.

It is clear that there was a difference in perspective in how academic performance should be reported. The complainant emphasised her daughter’s excellent test results, while the respondent states that the report provides a broader perspective, including participation in the classroom. Whatever the merits of either perspective, the fact that people have different views is not a fact from which discrimination can be inferred.

The teacher and the principal gave their professional assessment in the school report and this was not an act of discrimination.

The complainant also makes the claim of victimisation. Victimisation is distinct from discrimination and protects a claimant who has made an equality complaint. The complainant did not advance any instances where she or her daughter were victimised because of making this complaint to the Workplace Relations Commission. I determine that the complaint of victimisation is not well founded.

CA-00012691-001

In reaching my decision, I have taken into account all the submissions, written and oral, made by the parties. In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision: the complainant has failed to establish a prima facie case of discrimination on the ground of race or victimisation contrary to the Equal Status Acts, 2000-2015.

Equal Status Act

Burden of proof