Complainant

Respondent

Anonymised Parties

A Father

A Primary School

Representatives

The Complainant was represented at the Hearing by his father

Burns Nowlan Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00013469-001

29/08/2017

The Complainant’s daughter attended the Respondent’s primary school for a period of time from 2014 to 2017. The Complainant contends that the Respondent’s policy of communicating with the custodial parent who in turn communicates with the second parent is directly discriminatory against him on the grounds of gender, family status and civil status contrary to Section 7(2) of the Equal Status Acts.

The Respondent denies that the Complainant was subjected to discrimination on the grounds claimed contrary to the Equal Status Acts in relation to the manner in which it communicated with him in relation to matters concerning his daughter’s education during the period of her attendance at its school.

The Complainant is an unmarried father and no longer has contact with his daughter’s mother. The Complainant was granted joint custody of his daughter on 9 January, 2017 by the Family Law Court under the Guardianship of Infants Act 1964.

The Complainant submits that his daughter was enrolled at the Respondent’s school in September, 2014 without his knowledge as the child’s mother did not inform him about her school selection. The Complainant contends that he only became aware that his daughter had been enrolled at the school when he received a telephone call from his daughter’s teacher in November, 2014 to inform him about a parent/teacher meeting. The Complainant contends that he was taken aback by this information as he had previously been informed by the School Principal that his daughter had not been enrolled at the school.

The Complainant contends that the Respondent’s policy whereby it communicates with the custodial parent only is discriminatory against him as an unmarried/single father on the grounds of his gender, family status and civil status. The Complainant contends that the ramifications of this policy cause much grief to the second parent especially if they are in conflict with the custodial parent. The Complainant claims that this policy alienated him from the school and resulted in a situation whereby he did not have the same status as other fathers.

The Complainant claims that the implementation of this policy excluded him from receiving relevant information and participating in school activities involving his daughter such as annual school reports, attendance and punctuality, sports activities medical issues, school fundraising elections for the Board of Management/Parents Council and special meetings with the mother relating to incidents at the school. The Complainant adduced evidence in relation to specific incidents concerning such issues which occurred during the period of his daughter’s attendance at the school which he claims amounted to unlawful discrimination by the school against him contrary to the Equal Status Acts.

The Complainant accepts that he did receive certain information in relation to his daughter from the school by way of text messages. However, he contends that this system of notification by the school was totally unsatisfactory as the texting system lacked detail and was mainly used as a reminder or “thank you” mechanism.

The Complainant submits that he raised concerns in relation to this policy with the School Principal on several occasions and made representations to the School’s Board of Management with a view to having the policy changed. However, the Complainant claims that the Respondent consistently failed to address any of his concerns in relation to the policy or to make any changes to the manner of its implementation.

In summary, the Complainant claims that the Respondent has engaged in acts on-going discrimination against him throughout the entire duration of his daughter’s attendance at the Respondent’s school as a result of the implementation of the policy in which it only communicates with the custodial parent. The Complainant maintains that this less favourable treatment has occurred on the grounds of his gender, family status and civil status.

The Respondent disputes the Complainant’s claim of discrimination on the grounds of gender, civil status family status contrary to the Equal Status Acts in relation to the manner in which it communicated with him during the period of his daughter’s attendance at its school.

The Respondent is a large primary school which had approx. 400 children enrolled as students when the Complainant’s daughter started attending in September, 2014. The Respondent contends that the school did not have a written policy in place at the material time the Complainant’s daughter was enrolled at the school in relation to the communication with parents of students. However, the Respondent contends that it was obliged to communicate with the custodial parent as identified on the enrolment form but would endeavour to communicate with both parents if specifically requested to do so. The Respondent contends that in circumstances where there was a request to communicate with both parents all reasonable efforts would be made to comply but adherence to such requests was very much dependent on adequate resources being available to do so.

The Respondent contends that the difficulties which arose in relation to the communication of information to the Complainant relating to his daughter’s education were largely attributable to the difficulties in his relationship with the child’s mother. The Respondent, in support of this contention, submits that the Complainant was neither made aware by his former partner, who was the custodial parent at the material time in question, that his daughter had been enrolled at its school nor did she include his contact details on the enrolment form when enrolling the child at the school. The Respondent submits that the school made all reasonable attempts to provide information to the Complainant about his daughter’s education when requested to do so having regard to the limited resources available to it.

The Respondent submits that measures were put in place to try and facilitate the Complainant to have an active part in his daughter’s education at the school. In this regard, the Complainant was provided with information in relation to his daughter’s participation at the school by way of text message and was also provided with other information such as school reports and details relating to school activities. The Respondent confirmed that the Complainant’s daughter no longer attends the school.

The Respondent denies that any of the issues raised by the Complainant in the context of the present complaint in terms of his interaction with the school amount to discrimination within the meaning of the Equal Status Acts. The Respondent submits that any issues which arose between the parties were matters relating to communication and that there was absolutely no intention by anyone connected to the school to discriminate against the Complainant.

Issue of Jurisdiction

The Complainant, in his Complaint Referral Form and the accompanying written submissions relating to the instant complaint under the Equal Status Acts, raised certain issues firstly, in relation to matters arising from proceedings before the Family Law Courts involving his daughter and former partner, and secondly, the manner in which the Respondent communicated with him and his former partner in relation to matters connected to the proceedings before the Family Law Courts.

These issues were raised by the Respondent at the outset of the oral hearing on 8 February, 2018 and it was submitted that the Director General of the WRC did not have any jurisdiction to proceed with the investigation of this complaint under the Equal Status Acts on the basis that it may infringe upon proceedings which have previously arisen, or are currently being dealt with, before the Family Law Courts.

The hearing was adjourned on 8 February, 2018 and both parties were afforded the opportunity to forward written submissions in order to address the issue of jurisdiction and facilitate my consideration as to whether or not it was within my remit to proceed with the investigation of this complaint under the Equal Status Acts. Both parties subsequently forwarded written submissions to me for consideration on the issue of jurisdiction. The Complainant also forwarded written confirmation from relevant State authorities to confirm that there were not any proceedings involving him and his daughter pending before the Family Law Courts at that juncture.

Having carefully considered the respective submissions from both parties, I issued a written direction to the parties on 19 June, 2018 to confirm that I was satisfied that I had jurisdiction to investigate the complaint of discrimination made by the Complainant under the Equal Status Acts in relation to the application of the abovementioned communication policy.

In arriving at this decision, I am cognisant of the fact that the WRC is the quasi-judicial body within the State that has been established to inquire into complaints of discrimination under the Equal Status Acts. Accordingly, it is clear that the only jurisdiction which I have under the Equal Status Acts, in my role as an Adjudication Officer, is to investigate complaints of alleged prohibited conduct on any of the discriminatory grounds in relation to the provision of goods or services.

I have also taken cognisance of the fact that the core issue in the present complaint under the Equal Status Acts relates to the application of the alleged discriminatory policy operated by the Respondent whereby it communicates with the custodial guardian who in turn communicates with the second parent. The Complainant claims that this policy discriminates against him, as a separated father, on the grounds of his gender, civil status and family status.

Having carefully considered the respective submissions from both parties, I am satisfied that I have jurisdiction to investigate the complaint of discrimination made by the Complainant in relation to the application of this policy within the meaning of the Equal Status Acts. However, I wish to make it clear that I do not have any jurisdiction under the Equal Status Acts to investigate any extraneous matters or allegations referred to by the Complainant in supporting documentation submitted with the instant complaint which fall within the remit of the Courts service or other relevant authorities within the State.

Having regard to the foregoing, I informed the parties at the outset of the reconvened hearing on 13 September, 2018 that my investigation of this complaint would be confined strictly to the issue as to whether or not the policy in question, as was allegedly implemented by the Respondent in the specific circumstances of the instant case, was discriminatory or otherwise within the meaning of the Equal Status Acts. I directed the parties that any evidence adduced and/or oral submissions made during the course of the proceedings should be confined strictly to such matters which fall within my remit under the Equal Status Acts.

Substantive Issue

The Adjudication Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts, 2000 to 2015 sets out the burden of proof which applies in a claim of discrimination.   It requires the Complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred in relation to him. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised. In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.  

The Respondent in the present case is an educational institution which, inter alia, provides primary education to students and, as such, it is an educational institution within the meaning of Section 7(1) of the Acts and is therefore subject to Section 7(2) of the Equal Status Acts, 2000 to 2015 which states that:

“7.- (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

(d) the expulsion of a student from the establishment or any other sanction against the student”

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)(a) defines discrimination on the grounds of “gender” as: ”(a) that one is male and the other is female (the “gender ground”)”, Section 3(2)(b) defines discrimination on the grounds of “civil status” as: “(b) that they are of different civil status (the “civil status ground”)” and Section 3(2)(c) defines discrimination on the grounds of “family status” as: “(c) that one has family status and the other does not or that one has a different family status from the other (the “family status ground”)”.

The Complainant has claimed that the Respondent’s refusal to communicate with him in relation to matters concerning his daughter’s education during her period of time as a student at its school amounted to discrimination contrary to Section 7 of the Equal Status Acts. The Complainant has claimed that the Respondent had a policy in place whereby it communicated only with the custodial parent of the student who attended the school. He claims that this policy was discriminatory against him as an unmarried father on the grounds of his gender, civil status and family status.

The Respondent disputes the claim of discrimination and contends that it was obliged to communicate with the custodial parent as identified on the enrolment form but would endeavour to communicate with both parents, if specifically requested to do so. The Respondent contends that in circumstances where there was a request to communicate with both parents all reasonable efforts would be made to comply but adherence to such requests was very much dependent on adequate resources being available to do so.

Therefore, the question that I must consider is whether or not the Complainant as an unmarried father and/or a man was treated less favourably than a woman and/or a woman with the same civil status/family status or a woman with a different civil status/family status was, is or would be treated in similar circumstances in terms of the manner in which the Respondent communicated with him in relation to matters concerning his daughter’s education during the period of her attendance at the school.

In considering this matter, I note that the Complainant is an unmarried father and did not have custodial rights to his daughter when she was enrolled at the Respondent’s school in September, 2014. It was not in dispute that the Complainant’s daughter was enrolled at the Respondent’s school by her mother, who was the custodial parent at the material time in question, and that she did not make the Complainant aware about his daughter’s enrolment at that juncture.

The Complainant maintains that despite the fact that he was an unmarried non-custodial father of his daughter at the material time of her enrolment and for a significant period of time thereafter, that the Respondent ought to ignore such a reality and treat the two parents as they would treat a couple who did not have such a fractured relationship. In this regard, it should be noted that the Equal Status Acts recognise the difference between the comparators provided for in each protected ground. Different treatment does not necessarily equate to less favourable treatment as the very purpose of these Acts is to recognise the inherent difference in various grounds.

I am satisfied that the Respondent was obliged to communicate with the mother of the Complainant’s daughter following her enrolment at the school given her status as the custodial parent and that the Complainant did not have an automatic right to information in relation to his daughter’s education until he was granted joint custody by the Courts under the Guardianship of Infants Act 1964 on 9 January, 2017.

It is clear that the lack of communication between the Complainant and the mother of his daughter contributed significantly to the frustration experienced by him in relation to his attempts to access information in relation to his daughter’s attention. Having regard to the evidence adduced, I am satisfied that the Respondent engaged with the Complainant and made reasonable efforts to keep him informed in relation to matters concerning his daughter’s education after he had raised concerns with school management during the period following her enrolment in 2014 until she left the school in 2017.

Having regard to the totality of the evidence adduced, I find that I have not been presented with any evidence from which I could reasonably conclude that the Complainant was treated less favourably on the grounds of his gender, civil status and/or family status in the circumstances of the present case in relation to the manner in which the Respondent communicated with him concerning matters relating to his daughter’s education at its school.

Accordingly, I find that the Complainant has failed to establish a prima facie case of less favourable treatment on the gender, civil status and/or family status ground(s).

In accordance with section 25(4) I conclude my investigation and I find that the Complainant has failed to establish a prima facie case of less favourable treatment on the gender, civil status and/or family status grounds. Accordingly, I find in favour of the Respondent.

Equal Status Acts 2000 to 2015 – Discrimination – Section 3(1) – Gender – Civil Status – Family Status – Educational Establishment – Section 7(1) – Unmarried Father - Failure to establish a Prima Facie Case