ADJUDICATION OFFICER DECISION
CORRECTING ORDER ISSUED PURSUANT TO SECTION 29 OF THE EQUAL STATUS ACT 2000
This Order corrects the original Decision issued on 23/05/18 and should be read in conjunction with that Decision.
ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00008562
Parties:
| Complainant | Respondent |
Anonymised Parties | A Complainant on behalf of her son | Board of Management of A Primary School |
Representatives | Represented by Cathy Smith BL and instructed by FLAC | Represented by Mason Hayes & Curran Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00011024-001 | 27/04/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00011024-002 | 27/04/2017 |
Complaint(s):
Date of Adjudication Hearing: 21/11/2017
Workplace Relations Commission Adjudication Officer: Valerie Murtagh
Procedure:
In accordance with Section 41 of the Workplace Relations Act, and Section 25 of the Equal Status Act, 2000, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant is taking a case on behalf of her son in relation to discrimination on grounds of being a member of the Traveller community in relation to access to a service. The complainant is also alleging that she was subjected to victimisation after making a complaint about the alleged treatment. |
Summary of Complainant’s Case:
1.1 The complainant is alleging that due to financial difficulties, she was unable to buy her son a school uniform at the beginning of the school year in September 2016. The complainant asserts that the School Completion Officer attached to the school agreed to fund the purchase of the school uniform. She states that the school is designated as a DEIS school and had additional funds which are directed to ensuring school completion and dealing with disadvantage. The complainant states that the school provided a uniform to the complainant’s son but he was not allowed to bring the uniform home. The complainant submits that her son was required to change into the uniform and change out of it each day in the school. The complainant states that she is unaware of where her son dressed and undressed in the school. She states that her son was called out each morning and evening in front of the whole class to go and change. The complainant submits that she had two meetings with the Principal of the school one in early September 2016 and the other on 28 October 2016 where the complainant assured the Principal that she would take care of the uniform if her son was allowed to bring it home but the School refused to allow her do so. The complainant contends that her son was embarrassed and ashamed in front of his class as he was singled out and made feel different from the other non-Traveller children. The complainant submits that her son did not have a history of losing/not wearing the school uniform. She states that the only time her son did have a problem with the uniform in the past was if the school shirt was not washed and dried on time for school. The complainant states that at the time she took the case, she had limited access to washing and drying facilities. The complainant is also claiming indirect discrimination in that the criterion of changing into the uniform at school put her son at a particular disadvantage as a person from the Traveller community vis a vis other pupils. 1.2 The complainant makes a further complaint of victimisation in that following her lodging an ES 1 form to the school, she was subsequently informed that the school planned to have a review meeting with her in relation to her son’s hygiene. The complainant submits that she was shocked that the school had any issue in relation to her son’s hygiene as the complainant ensures that all her children are clean and tidy at all times. In addition the complainant states that in March 2017, she was informed by a youth worker(involved in local advocacy group and works with her son) that she received a call from the school stating that her son had an accident in the school, in that he had urinated himself and requested that clean clothes be supplied for him. The complainant submits that when the youth worker arrived at the school to find her son and give him the change of clothes, she found that he did not have an accident and there was no basis for school to have called them. Two witnesses who work with BTAP gave evidence to say that they were not aware of any issues relating to hygiene issues in relation to the complainant’s son. |
Summary of Respondent’s Case:
2.1 The respondent states that the decision to have a school uniform initially came about following a request from parents in 1995 that a school uniform be introduced. Following consultations with the Parent’s Association and the teachers, a uniform was decided upon and introduced. The respondent submits that all of the boys in the school are expected to wear the school’s uniform and the vast majority are happy to do so. Prizes are awarded each month to boys who continually wear the full school uniform. Where there have been difficulties or mishaps with uniforms stained or lost, the school has sourced spare jumpers and trousers to be used by the boys. The respondent submits that on occasion when parents have requested assistance due to financial difficulties, full new uniforms have been provided. The respondent at hearing provided a table setting out the number of students who have been assisted in this way and their particular circumstances during the period 2012 to 2017. 2.2 The respondent states that in September 2016, the school purchased a new uniform for the complainant’s son. His Special Needs Assistant and the School Completion Project Worker brought the complainant’s son to Marks & Spencer on 7 September 2016. The school had signed parental consent for this initiative and uniform trousers and shirts were bought for the complainant’s son. The respondent asserts that it is not the case that the school simply refused to allow the complainant’s son to take his uniform home. The respondent states that when new uniforms have been provided on a number of occasions and repeatedly lost or not worn to school, the school has asked boys to leave the uniform in school for safe keeping. This practice is carried out discreetly and applies to all the boys in the school including members of the Traveller community. The respondent maintains that the school is acutely aware of the sensitivity of the situation for the children concerned and their parents and every effort is made to avoid embarrassment. The issue was never about keeping the uniform clean (which was never mentioned to the complainant) but to keep it safe and available for wearing. 2.3 The respondent submits that despite the school providing the complainant’s son with a uniform, the child often did not wear it to school. He would arrive in school in different clothes saying that he did not know where his uniform was or that it had not been washed or that where he and his mother were staying did not have a washing facility. The respondent states that this created a genuine difficulty for the school. It contends that when children do not wear their school uniform, they tend to stand out in class. They often do not have the sense of belonging to the class that the other children wearing their uniforms do. When it happens too often, they get into trouble. 2.4 The respondent states that in order to help the family, the school offered to keep the uniform in school (as per school policy) and to wash it for the complainant’s child. This would enable the child to be in a clean uniform every day. The respondent maintains that the complainant’s child is not the only child to have availed of this service. It states there were other children (who were not members of the Traveller community) who also availed of this service. The Principal gave details of other children of a non-Traveller background in this regard at hearing. The respondent asserts that this very sensitive matter was handled very discreetly by the school and the respondent contends that it may be the case that the complainant and her child believed that they were the only family availing of this service which was not the case. 2.5 The respondent submits that the children who availed of this service would come into school in the morning, come to the breakfast club building, get breakfast and then change into their uniform. At the end of the day, the Special Needs Assistant would bring the complainant’s son back to get changed out of his uniform. The respondent states that uniforms were washed in school twice a week. The respondent submits that all of this was done voluntarily outside of normal school hours by the School Completion Programme project worker and the Special Needs Assistant with the children’s welfare in mind. 2.6 In relation to the allegation of victimisation by the complainant; the respondent submits that the complaints of victimisation are vigorously denied. The respondent states that at the time of the meeting in February 2017 with the complainant, there were real concerns about the complainant’s son personal hygiene. The respondent submits that the raising of those concerns had nothing to do with the fact that the complainant had initiated a complaint under the Equal Status legislation. The respondent submits it had nothing to do with victimisation and there is no evidence whatsoever that the complainant or her son had suffered any victimisation or any detriment whatsoever arising from the raising of these issues. The respondent states that where issues concerning a child’s hygiene arise as they do from time to time, it is incumbent on the school to raise these issues, embarrassing and sensitive as they are, with the parent(s) concerned rather than ignore them and this is what happened in this instance. In conclusion, the respondent states that it is clear from the foregoing that the complainant and her son were not treated less favourably than any other student or parent of a child in the school because of their membership of the Traveller community.
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Findings and Conclusions:
3.1 The matter referred for investigation is whether or not the complainant was discriminated against pursuant to Section 3 (1) and 3 (2) of the Equal Status Act 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. 3.2 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 - (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 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” 3.3 The school is a provider of education to the complainant’s son and also has to have interaction with the parents of the pupils attending the school. The list set out in Section 2 under the definition of “service” is not an exhaustive list. I find, having regard to Section 5 of the Acts that the instant complaint comes within the scope of the Equal Status Acts and I now will consider whether the complainant has established discriminatory treatment on the Traveller community ground. 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)(i) provides that: As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are; (i) that one is a member of the Traveller community and the other is not (the “Traveller community ground”) 3.4 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. Having taken the testimony from witnesses 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 and welfare of the complainant’s son together with the general running of the school and ensuring that pupils are in compliance in relation to wearing the school uniform.
3.5 The complainant stated that in September 2016, there was a delay in the back to school grants and that she was not in a position to buy the school uniform for her son; the school stepped in and took the complainant’s son to Marks & Spencer to purchase a uniform. The complainant stated that it was very embarrassing for her son as he went into school in his normal clothes and then had to change into the uniform before class and then change back at the end of the school day but he was never allowed to take the uniform home. The complainant submits that this situation continued from 7 September to end of October 2016. The complainant asserts that there was a perception that she was not able to take care of her child’s uniform and not able to launder the uniform. The complainant brought the matter to the attention of the school Principal and requested that her son be able to wear uniform home but the complainant states that the Principal denied this request and said it would be better if the uniform was kept in the school. The Principal of the school stated that the school provided the uniform on a number of occasions to the complainant as items were repeatedly lost by the pupil. 3.6 The respondent submits that the washing and maintenance of uniforms is extra work and is done on a voluntary basis by the school; it is outside the remit of the school and is not required by the Department of Education. The Principal states that the complainant in the majority of the years her son was attending the school, requested the school to purchase a uniform for her son. In addition, during school term, if items were lost, on occasions the complainant requested purchase of lost items. The respondent states that the complainant’s son had issues with wearing the uniform and in recent years, the school has clamped down on the wearing of the uniform so as to improve the sense of belonging to the class and to create a general good overall effect in the school. The Principal gave details of two other pupils from disadvantaged backgrounds (non-Traveller) that the service of maintaining the uniforms and retaining the uniforms on school premises applies. I note that in early November, a local advocacy group BTAP who had been in ongoing contact with the complainant, purchased a new uniform for the complainant’s son so he could have a spare uniform.
3.7 In relation to the allegations of victimisation, the respondent submits that there have been issues with the complainant’s son’s personal hygiene over the years and as the school is in locos parentis it was worried about her son’s health and an issue relating to incontinence and that it appeared to be getting progressively worse. The Principal said there had been meetings over the years and issues of bed wetting confirmed by the pupil’s mother. The Principal stated that she viewed the matter as a child welfare issue and did inform TUSLA pursuant to the school’s Child Protection Policy-Children First. The Principal stated that the meeting in February 2017 with the complainant was to discuss her son’s weight, issues regarding his self-esteem and hygiene and to come up with ways to assist him. The Principal stated that she had similar type issues in the past with pupils and would bring in the parents to discuss ways to help. The Principal stated that she wanted to raise the issue with the complainant and do it in the most sensitive manner possible as they felt it could be an underlying medical issue relating to incontinence. The respondent denies emphatically the complaint of victimisation and states that the welfare of the pupil was at the heart of their actions. 3.8 Ms. O gave evidence at hearing. She was the main teacher dealing with the complainant’s son. She stated that the hygiene issue was there over the years since 2nd class but became very apparent during 2016 and was at the moment nearly a daily issue. It was mainly a urine smell and also sweat. She states that she discussed the issue with the pupil’s mother who confirmed that her son had a bed wetting issue. Ms. O stated that the incident in March regarding the complainant’s son soiling his uniform was correct and disputes the testimony of the youth worker from BTAP in this regard. Ms. O suggested to the complainant that she may wish to get her son seen by a doctor. Ms. O gave evidence to say that she had at all stages the best interests of the complainant’s son in mind and wanted to assist him and help him overcome the issues as she could see it was having a detrimental effect on his well-being and self-esteem.
3.9 Having adduced the totality of the evidence in the instant complaint, I find that this was a difficult and sensitive situation for all parties concerned. The respondent was in a delicate situation and in my view dealt with the issues in a sensitive and diligent manner. I am satisfied that there were issues relating to the complainant’s son losing the uniform and not wearing the uniform into school and I note that the school had taken a strict policy in the previous few years regarding compliance with wearing the school uniform. I was particularly struck by the testimony of Ms. O and fully accept the bona fides of her actions with the best interests of the complainant’s son at heart. Ms. O came across as a very caring, committed and compassionate teacher who went above and beyond the call of duty and in my view has a vocation in the teaching profession. She was dealing with the complainant’s son on a daily basis and I found that she gave her testimony with integrity and was very frank and honest giving her evidence. Overall, having carefully examined the matter, I prefer the evidence of the respondent as I found their testimony more cogent and convincing. In the circumstances, I find that the complainant has not adduced evidence to demonstrate a prima facie case of discriminatory treatment on the Traveller status ground. In relation to the claim of indirect discrimination, I am satisfied that other pupils within the school of a non-Traveller background were also availing of the service whereby the school washed the uniforms and retained them on the premises, therefore there is no prima facie case established in relation to indirect discrimination.
3.10 In relation to the complaint of victimisation, the criteria to be satisfied in order to establish a prima facie case of victimisation under the Equal Status Acts is (i) the complainant must show that she applied in good faith for redress under the Acts, indicated an intention to do so or otherwise satisfied section 3(2)(j), (ii) that she was subjected to specific acts of treatment by the respondent after she did so and (iii) that this treatment was less favourable than would have been afforded to a person in similar circumstances who had not taken the action at (i) above. Having adduced the totality of the evidence on this issue, I find that there is no prima facie evidence of a case of victimisation and that the meeting convened by the respondent with the complainant in February 2017 related to bona fide concerns by Ms. O and the Principal regarding the health and welfare of the complainant’s son. I also find that the contact made by the Principal with TUSLA was done pursuant to the school’s Child Protection policy- Children First on the basis of concerns regarding the welfare of the complainant’s son. I find no evidence to ground a claim of victimisation under the Acts. The complainant’s case fails. |
Decision:
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
I conclude this investigation and issue the following decision. I find that (i) the complainant was not discriminated against on the Traveller status ground in terms of section 3 of the Acts. (ii) the complainant was not subjected to victimisation by the respondent. |
Dated: 23nd May 2018
Workplace Relations Commission Adjudication Officer: Valerie Murtagh
ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00008562
Parties:
| Complainant | Respondent |
Anonymised Parties | A Complainant on behalf of her son | Board of Management of A Primary School |
Representatives | Represented by Cathy Smith BL and instructed by FLAC | Represented by Mason Hayes & Curran Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00011024-001 | 27/04/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00011024-002 | 27/04/2017 |
Complaint(s):
Date of Adjudication Hearing: 21/11/2018
Workplace Relations Commission Adjudication Officer: Valerie Murtagh
Procedure:
In accordance with Section 41 of the Workplace Relations Act, and Section 25 of the Equal Status Act, 2000, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant is taking a case on behalf of her son in relation to discrimination on grounds of being a member of the Traveller community in relation to access to a service. The complainant is also alleging that she was subjected to victimisation after making a complaint about the alleged treatment. |
Summary of Complainant’s Case:
1.1 The complainant is alleging that due to financial difficulties, she was unable to buy her son a school uniform at the beginning of the school year in September 2016. The complainant asserts that the School Completion Officer attached to the school agreed to fund the purchase of the school uniform. She states that the school is designated as a DEIS school and had additional funds which are directed to ensuring school completion and dealing with disadvantage. The complainant states that the school provided a uniform to the complainant’s son but he was not allowed to bring the uniform home. The complainant submits that her son was required to change into the uniform and change out of it each day in the school. The complainant states that she is unaware of where her son dressed and undressed in the school. She states that her son was called out each morning and evening in front of the whole class to go and change. The complainant submits that she had two meetings with the Principal of the school one in early September 2016 and the other on 28 October 2016 where the complainant assured the Principal that she would take care of the uniform if her son was allowed to bring it home but the School refused to allow her do so. The complainant contends that her son was embarrassed and ashamed in front of his class as he was singled out and made feel different from the other non-Traveller children. The complainant submits that her son did not have a history of losing/not wearing the school uniform. She states that the only time her son did have a problem with the uniform in the past was if the school shirt was not washed and dried on time for school. The complainant states that at the time she took the case, she had limited access to washing and drying facilities. The complainant is also claiming indirect discrimination in that the criterion of changing into the uniform at school put her son at a particular disadvantage as a person from the Traveller community vis a vis other pupils. 1.2 The complainant makes a further complaint of victimisation in that following her lodging an ES 1 form to the school, she was subsequently informed that the school planned to have a review meeting with her in relation to her son’s hygiene. The complainant submits that she was shocked that the school had any issue in relation to her son’s hygiene as the complainant ensures that all her children are clean and tidy at all times. In addition the complainant states that in March 2017, she was informed by a youth worker(involved in local advocacy group and works with her son) that she received a call from the school stating that her son had an accident in the school, in that he had urinated himself and requested that clean clothes be supplied for him. The complainant submits that when the youth worker arrived at the school to find her son and give him the change of clothes, she found that he did not have an accident and there was no basis for school to have called them. Two witnesses who work with BTAP gave evidence to say that they were not aware of any issues relating to hygiene issues in relation to the complainant’s son. |
Summary of Respondent’s Case:
2.1 The respondent states that the decision to have a school uniform initially came about following a request from parents in 1995 that a school uniform be introduced. Following consultations with the Parent’s Association and the teachers, a uniform was decided upon and introduced. The respondent submits that all of the boys in the school are expected to wear the school’s uniform and the vast majority are happy to do so. Prizes are awarded each month to boys who continually wear the full school uniform. Where there have been difficulties or mishaps with uniforms stained or lost, the school has sourced spare jumpers and trousers to be used by the boys. The respondent submits that on occasion when parents have requested assistance due to financial difficulties, full new uniforms have been provided. The respondent at hearing provided a table setting out the number of students who have been assisted in this way and their particular circumstances during the period 2012 to 2017. 2.2 The respondent states that in September 2016, the school purchased a new uniform for the complainant’s son. His Special Needs Assistant and the School Completion Project Worker brought the complainant’s son to Marks & Spencer on 7 September 2016. The school had signed parental consent for this initiative and uniform trousers and shirts were bought for the complainant’s son. The respondent asserts that it is not the case that the school simply refused to allow the complainant’s son to take his uniform home. The respondent states that when new uniforms have been provided on a number of occasions and repeatedly lost or not worn to school, the school has asked boys to leave the uniform in school for safe keeping. This practice is carried out discreetly and applies to all the boys in the school including members of the Traveller community. The respondent maintains that the school is acutely aware of the sensitivity of the situation for the children concerned and their parents and every effort is made to avoid embarrassment. The issue was never about keeping the uniform clean (which was never mentioned to the complainant) but to keep it safe and available for wearing. 2.3 The respondent submits that despite the school providing the complainant’s son with a uniform, the child often did not wear it to school. He would arrive in school in different clothes saying that he did not know where his uniform was or that it had not been washed or that where he and his mother were staying did not have a washing facility. The respondent states that this created a genuine difficulty for the school. It contends that when children do not wear their school uniform, they tend to stand out in class. They often do not have the sense of belonging to the class that the other children wearing their uniforms do. When it happens too often, they get into trouble. 2.4 The respondent states that in order to help the family, the school offered to keep the uniform in school (as per school policy) and to wash it for the complainant’s child. This would enable the child to be in a clean uniform every day. The respondent maintains that the complainant’s child is not the only child to have availed of this service. It states there were other children (who were not members of the Traveller community) who also availed of this service. The Principal gave details of other children of a non-Traveller background in this regard at hearing. The respondent asserts that this very sensitive matter was handled very discreetly by the school and the respondent contends that it may be the case that the complainant and her child believed that they were the only family availing of this service which was not the case. 2.5 The respondent submits that the children who availed of this service would come into school in the morning, come to the breakfast club building, get breakfast and then change into their uniform. At the end of the day, the Special Needs Assistant would bring the complainant’s son back to get changed out of his uniform. The respondent states that uniforms were washed in school twice a week. The respondent submits that all of this was done voluntarily outside of normal school hours by the School Completion Programme project worker and the Special Needs Assistant with the children’s welfare in mind. 2.6 In relation to the allegation of victimisation by the complainant; the respondent submits that the complaints of victimisation are vigorously denied. The respondent states that at the time of the meeting in February 2017 with the complainant, there were real concerns about the complainant’s son personal hygiene. The respondent submits that the raising of those concerns had nothing to do with the fact that the complainant had initiated a complaint under the Equal Status legislation. The respondent submits it had nothing to do with victimisation and there is no evidence whatsoever that the complainant or her son had suffered any victimisation or any detriment whatsoever arising from the raising of these issues. The respondent states that where issues concerning a child’s hygiene arise as they do from time to time, it is incumbent on the school to raise these issues, embarrassing and sensitive as they are, with the parent(s) concerned rather than ignore them and this is what happened in this instance. In conclusion, the respondent states that it is clear from the foregoing that the complainant and her son were not treated less favourably than any other student or parent of a child in the school because of their membership of the Traveller community.
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Findings and Conclusions:
3.1 The matter referred for investigation is whether or not the complainant was discriminated against pursuant to Section 3 (1) and 3 (2) of the Equal Status Act 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. 3.2 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 - (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 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” 3.3 The school is a provider of education to the complainant’s son and also has to have interaction with the parents of the pupils attending the school. The list set out in Section 2 under the definition of “service” is not an exhaustive list. I find, having regard to Section 5 of the Acts that the instant complaint comes within the scope of the Equal Status Acts and I now will consider whether the complainant has established discriminatory treatment on the Traveller community ground. 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)(i) provides that: As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are; (i) that one is a member of the Traveller community and the other is not (the “Traveller community ground”) 3.4 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. Having taken the testimony from witnesses 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 and welfare of the complainant’s son together with the general running of the school and ensuring that pupils are in compliance in relation to wearing the school uniform.
3.5 The complainant stated that in September 2016, there was a delay in the back to school grants and that she was not in a position to buy the school uniform for her son; the school stepped in and took the complainant’s son to Marks & Spencer to purchase a uniform. The complainant stated that it was very embarrassing for her son as he went into school in his normal clothes and then had to change into the uniform before class and then change back at the end of the school day but he was never allowed to take the uniform home. The complainant submits that this situation continued from 7 September to end of October 2016. The complainant asserts that there was a perception that she was not able to take care of her child’s uniform and not able to launder the uniform. The complainant brought the matter to the attention of the school Principal and requested that her son be able to wear uniform home but the complainant states that the Principal denied this request and said it would be better if the uniform was kept in the school. The Principal of the school stated that the school provided the uniform on a number of occasions to the complainant as items were repeatedly lost by the pupil. 3.6 The respondent submits that the washing and maintenance of uniforms is extra work and is done on a voluntary basis by the school; it is outside the remit of the school and is not required by the Department of Education. The Principal states that the complainant in the majority of the years her son was attending the school, requested the school to purchase a uniform for her son. In addition, during school term, if items were lost, on occasions the complainant requested purchase of lost items. The respondent states that the complainant’s son had issues with wearing the uniform and in recent years, the school has clamped down on the wearing of the uniform so as to improve the sense of belonging to the class and to create a general good overall effect in the school. The Principal gave details of two other pupils from disadvantaged backgrounds (non-Traveller) that the service of maintaining the uniforms and retaining the uniforms on school premises applies. I note that in early November, a local advocacy group BTAP who had been in ongoing contact with the complainant, purchased a new uniform for the complainant’s son so he could have a spare uniform.
3.7 In relation to the allegations of victimisation, the respondent submits that there have been issues with the complainant’s son’s personal hygiene over the years and as the school is in locos parentis it was worried about her son’s health and an issue relating to incontinence and that it appeared to be getting progressively worse. The Principal said there had been meetings over the years and issues of bed wetting confirmed by the pupil’s mother. The Principal stated that she viewed the matter as a child welfare issue and did inform TUSLA pursuant to the school’s Child Protection Policy-Children First. The Principal stated that the meeting in February 2017 with the complainant was to discuss her son’s weight, issues regarding his self-esteem and hygiene and to come up with ways to assist him. The Principal stated that she had similar type issues in the past with pupils and would bring in the parents to discuss ways to help. The Principal stated that she wanted to raise the issue with the complainant and do it in the most sensitive manner possible as they felt it could be an underlying medical issue relating to incontinence. The respondent denies emphatically the complaint of victimisation and states that the welfare of the pupil was at the heart of their actions. 3.8 Ms. O gave evidence at hearing. She was the main teacher dealing with the complainant’s son. She stated that the hygiene issue was there over the years since 2nd class but became very apparent during 2016 and was at the moment nearly a daily issue. It was mainly a urine smell and also sweat. She states that she discussed the issue with the pupil’s mother who confirmed that her son had a bed wetting issue. Ms. O stated that the incident in March regarding the complainant’s son soiling his uniform was correct and disputes the testimony of the youth worker from BTAP in this regard. Ms. O suggested to the complainant that she may wish to get her son seen by a doctor. Ms. O gave evidence to say that she had at all stages the best interests of the complainant’s son in mind and wanted to assist him and help him overcome the issues as she could see it was having a detrimental effect on his well-being and self-esteem.
3.9 Having adduced the totality of the evidence in the instant complaint, I find that this was a difficult and sensitive situation for all parties concerned. The respondent was in a delicate situation and in my view dealt with the issues in a sensitive and diligent manner. I am satisfied that there were issues relating to the complainant’s son losing the uniform and not wearing the uniform into school and I note that the school had taken a strict policy in the previous few years regarding compliance with wearing the school uniform. I was particularly struck by the testimony of Ms. O and fully accept the bona fides of her actions with the best interests of the complainant’s son at heart. Ms. O came across as a very caring, committed and compassionate teacher who went above and beyond the call of duty and in my view has a vocation in the teaching profession. She was dealing with the complainant’s son on a daily basis and I found that she gave her testimony with integrity and was very frank and honest giving her evidence. Overall, having carefully examined the matter, I prefer the evidence of the respondent as I found their testimony more cogent and convincing. In the circumstances, I find that the complainant has not adduced evidence to demonstrate a prima facie case of discriminatory treatment on the Traveller status ground. In relation to the claim of indirect discrimination, I am satisfied that other pupils within the school of a non-Traveller background were also availing of the service whereby the school washed the uniforms and retained them on the premises, therefore there is no prima facie case established in relation to indirect discrimination.
3.10 In relation to the complaint of victimisation, the criteria to be satisfied in order to establish a prima facie case of victimisation under the Equal Status Acts is (i) the complainant must show that she applied in good faith for redress under the Acts, indicated an intention to do so or otherwise satisfied section 3(2)(j), (ii) that she was subjected to specific acts of treatment by the respondent after she did so and (iii) that this treatment was less favourable than would have been afforded to a person in similar circumstances who had not taken the action at (i) above. Having adduced the totality of the evidence on this issue, I find that there is no prima facie evidence of a case of victimisation and that the meeting convened by the respondent with the complainant in February 2017 related to bona fide concerns by Ms. O and the Principal regarding the health and welfare of the complainant’s son. I also find that the contact made by the Principal with TUSLA was done pursuant to the school’s Child Protection policy- Children First on the basis of concerns regarding the welfare of the complainant’s son. I find no evidence to ground a claim of victimisation under the Acts. The complainant’s case fails. |
Decision:
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
I conclude this investigation and issue the following decision. I find that (i) the complainant was not discriminated against on the Traveller status ground in terms of section 3 of the Acts. (ii) the complainant was not subjected to victimisation by the respondent. |
Dated: 23nd May 2018
Workplace Relations Commission Adjudication Officer: Valerie Murtagh