ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00023650

Parties:

Complaint(s):

Date of Adjudication Hearing: 09/12/2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with 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 complaint refers to an alleged discrimination of a student (the Complainant) on the religious ground by Yellow Furze National School (the Respondent) in relation to the Complainant not being provided with an equal opportunity to obtain homework passes. The Complainant who was represented by his mother and maintained that the because he is an atheist, when compared to other children in the school who are Roman Catholics, he did not have an option to partake in religious ceremonies such as choir practice and attending a church ceremony to which the homework passes applied, and where the Complainant could not avail of this benefit.

The Respondent denied that it discriminated against the Complainant.

Summary of Respondent’s Case:

The Respondent submitted that that the claim is wholly unfounded as there was an option for the Complainant to attend and participate in the school choir that was to sing at the school’s First Communion ceremony (“the Ceremony”). The Respondent maintained that as a Catholic School it enjoys a proud tradition of participating in religious ceremonies. It further contended that music is an integral part of this, and that the school provides the choir for the Ceremony.   The Respondent also submitted that singing is part of the music curriculum, and students who play instruments are also invited to participate in the Ceremony.

It maintained that all children from 3rd to 6th classes, regardless of religion (or none), are invited and welcome to participate in, and are all encouraged to give of their time for the benefit of others, including singing in the choir for those children receiving a sacrament. In this regard the school choir traditionally provides the music for the Ceremony on an annual basis. The Ceremony always takes place on a Sunday and not during the school week.

The Respondent submitted that all children are to participate in both the practice for the Ceremony and the Ceremony itself.

The Respondent’s Code of Behaviour (the Code) provides that all children who engage in positive behaviour such as participating in extra-curricular activities and/or events for or on behalf of the school will receive a “reward” for their doing so, particularly if the activity in question takes place outside of school hours. The Respondent also submitted that it has a “Discipline for LearningSystem (“DFL System”), which is based on rewarding good behaviour andactions. It argued that all parents of children enrolled in the school sign up to, accept,and agree to support the school’s DFL System.The DFL System specifically covers behaviour “beyond the environs of the school” i.e.school events etc. Children who participate in such activities can gain a reward by way of a lucky dip, and the DFL System states that,“the lucky dip may consist of homework passes, computer passes, sweets, toysand stationery”.The Respondent advised that homework passes have previously been provided for those students who haveparticipated in football final weekends, carol singing in the local shopping centre, and Green Team participation.

The Respondent contended that for participation in the choir at the Ceremony the children decided in a vote that the preferred award was a homework pass, and a goodie bag was also provided as a small token of appreciation to those children who participated in the choir practice. The Respondent submitted that the Complainant had participated in the choir practice and had received a goodie bag for his participation, as did another student who participated in the practice but not the ceremony.

The Respondent submitted that any student, regardless of his/her religion who opted not to participate in the ceremony was not rewarded by the school. Therefore, the Respondent denied that there was any unfavourable treatment of the Complainant on the grounds of religion. In furtherance of this argument the Respondent submitted that on the day in question, 70 out of 123 children did not receive a homework pass as they did not participate in the choir at the Ceremony.

The Respondent maintained another child in the Complainant’s class who is Catholic opted not to be involved in the Ceremony itself and did not receive a homework pass either. The Respondent submitted a letter from that child’s parents who confirmed their child, a Catholic, was unable to attend and she did not receive a homework pass. These parents did not deem this as being an act of discrimination against their child on the basis that their child understood she had not earned the homework pass on this occasion. On that basis the Respondent contended the claim that Complainant was treated less favourably and discriminated against on religious grounds is entirely unfounded.

The Respondent submitted it is relevant that over the past nine years the Complainant’s other siblings have taken part in the first communion ceremony; in Christmas Carol services; that one of his siblings name was displayed on a list of Confirmation names in the church; that they have attended mass on days designated by the Catholic church as holy days; and participated in the annual Grow in Love programme. It was also submitted that in 2010 the school was informed that the family were atheists and the Complainant’s mother was happy for the children to participate in class activities with no mention of opting out of religious events or activities.

The Respondent advised that the first indication of a problem, of a religious nature, was when the Complainant’s mother arrived at the school (without prior appointment), on 2nd May 2019. The Complainant’s mother was offered the Parental Complaints Procedure to address any concerns, but she consistently dismissed the procedure. The Respondent expressed concerns regarding the Complainant’s mother’s behaviour that day in how she spoke to the teacher. A meeting subsequently took place in June 2019 where the Complainant submitted notes of that meeting in her complaint form. The Respondent does not accept that note as a true reflection of the discussions, nor as true reflection of the alleged attitude of the school Principal towards the Complainant’s mother. The Respondent maintained the Complainant’s mother’s behaviour was difficult and upsetting at that time.

The Respondent submitted notes from some of its teachers which it argued highlight the inclusive, consultative, and sensitive approach taken by staff in engaging with the Complainant’s mother regarding religious matters, and their wish to ensure that children felt included and free to choose the extent of their involvement. The Respondent further maintained that when the Complainant’s older brother disclosed that he felt “left out” of the first holy communion ceremony in 2014, that the school included him in music for the ceremony with the full knowledge of his father.

Legal Argument

The Respondent submitted that the prohibition on discrimination in section 3 of the Equal Status Act, 2000 is couched as a prohibition on “less favourable treatment” on the basis of one of the “discriminatory” grounds. It argued that in accordance with section 5, the Act applies to less favourable treatment in the disposal of goods or provision of a service.

The Respondent contended that under section 38A(1) of the Equal Status Act, 2000 (as inserted by the Equality Act, 2004) the Complainant bears the burden of establishing a prima facie case that he has been discriminated against in terms of sections 3 of the Equal Status Act, 2000. The Respondent contended that the Complainant has failed to discharge the burden upon her under the Act. The Respondent denied that it engaged in prohibited conduct under the Act by discriminating against the Complainant either directly or indirectly. The Respondent maintained that it did not treat the Complainant less favourably on grounds of religion in that the Complainant was treated no differently than any other child who did not participate in the Ceremony.

It further argued that far from treating the Complainant less favourably contrary to the Act, the Respondent and its staff at the school were sensitive to the Complainant’s family non-religious beliefs and consulted with the Complainant’s family on numerous occasions in that regard.

Referring to less favourable treatment, the Respondent referred to Judge Hunt in Cahill v. Minister for Education (Circuit Court, October 19th, 2007) where the Court stated “Less favourable treatment connotes treatment that arises due to a preference, and a preference arising on the basis of a whim, a caprice, unreasonableness, bad faith, illogicality, irrationality, out or direct or indirect prejudice against the disabled. I cannot find any element of these types of considerations in the treatment afforded in this case”. Based on this juris prudence the Respondent submitted that the Claimant has failed to establish facts from which it may be presumed that there has been direct or indirect discrimination. Accordingly, the Respondent contended the Complainant has failed to discharge the burden upon him of demonstrating that he was subject to a specific treatment which constitutes “less favourable treatment” within the meaning of the Act.

The Respondent therefore submitted that the complaint should be dismissed.

Summary of Complainant’s Case:

The Complainant’s mother submitted that she was making a complaint of indirect discrimination on religious grounds on behalf of her son, the Complainant, due to an incidence of discrimination and other issues that they have experienced. She submitted that she has since withdrawn her children from the school.

The Complainant submitted that he is an atheist who is not baptised and was attending a catholic school at the time of the alleged discrimination. It was submitted that the Complainant’s parents had informed the school in circa 2009 when enrolling their eldest son that the family were not Catholic. It was further submitted that the Complainant’s parents had informed various teachers verbally that the children are not Catholic and do not participate in Catholic sacraments or ceremonies as a result. In addition, the Complainant’s mother stated that the Complainant’s teacher had been informed at a meeting at the start of the school year that the Complainant was not Catholic and would not be participating in religious ceremonies.

The Complainant submitted that the school did not have a religion policy and that the school never advised the Complainant’s family to provide his religious status to the school in writing.

The Complainant maintained that the initial act of discrimination took place on 2nd May 2019 when the Complainant was told by his class teacher that any child who did not participate in the choir for the 2019 communion ceremony would be penalised with homework. The class was informed that the children who did participate would receive a homework pass. As the Complainant was the only child in his class known not to be participating at the ceremony it was submitted that he came home from school upset and crying, and where he felt singled out. The Complainant believed that he was being punished for not being Catholic. On the 2nd May 2019 the Complainant’s mother told the Complainant’s teacher in no uncertain terms that the Complainant would not be participating in the choir for the communion mass because he is an atheist. The teacher was also advised that the Complainant was being penalised by the teacher for not being catholic and this was discrimination. The Complainant’s mother contended that her son could not recall a vote or discussion on the rewards to be given for children participating in preparations for the ceremony, or in attending the ceremony. It was argued that he was simply told. The Complainant’s mother received a letter from the Chairman of the Board of management dated 3rd May 2019 which she maintained did not accept the fact her son was being discriminated and where that letter did not display an attitude of conciliation or tolerance.  

The Complainant did not attend the communion mass or participate in the choir at the ceremony on Sunday 12th May 2019. The Complainant submitted that on Monday 13th May 2019 he was penalised for his non-participation by being given homework whereas the children who did participate received a homework pass. The Complainant submitted that as an atheist he could not access the benefit or opportunity for a homework pass, and this was contrary to section 7 of the Act. The Complainant’s parents wrote toe school on 14th May 2019 outlining their concerns. A meeting took place with the school on 7th June 2019 and the Complainant’s parents were dissatisfied with that meeting and wrote to the school on 14th June 2019. As it did not receive a response to its concerns a complaint was made under the Equal Status Act.

The Complainant maintained that the school had disregarded his Constitutional right under Article 44.2.4 to opt out of participating in religious ceremonies. The Complainant submitted that the school’s position is to use homework passes to reward 'good behaviour'. By not giving the Complainant a homework pass he was therefore identified by the school as not displaying 'good behaviour' because, as a non-Catholic, he did not attend the ceremony. It was argued that the Complainant’s nonparticipation as an atheist (or any other non-Catholic belief system) is identified by the school as bad behaviour. On that basis the Complainant submitted that he did not have an equal opportunity to other students to obtain a homework pass as a reward for participating in a religious ceremony for a religion he is not a member of.

The Complainant was dissatisfied with the school's response to his complaint where he maintained the school relied on its Code of Behaviour for not giving the Complainant a homework pass, and in maintaining this position the school denied that any discrimination had taken place. It was contended that the school's policy of rewarding homework passes for participating in religious ceremonies discriminated against non-Catholic children, and the Complainant specifically. It was submitted that the school failed to recognise that the Complainant has a different belief system to the ethos of the school and that the school has shown complete disregard to the Complainant’s non-religious beliefs by punishing him for not attending the ceremony.

The Complainant argued that he did not have an option to op-out as stated by the Respondent, and the Complainant denied that he opted out. As a non-Catholic the Complainant submitted that he did not have an option to “opt out” of the religious ceremony.

The Complainant further argued that the Education Act 1998 obliges that: "A Board shall...have regard to the principles and requirements of a democratic society and have respect and promote respect for the diversity of values, beliefs, traditions, languages and ways of life in society". The Complainant submitted that the school had failed to meet this requirement in his treatment.

Findings and Conclusions:

The matter referred for adjudication is whether or not the Complainant was discriminated against pursuant to Section 3(1)(a) and 3(2)(e) of the Equal Status Act and in terms of Section 7(2)(b) and (c)   of that Act. In reaching my findings 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.

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. The Respondent has argued no prima facie case of discrimination or less favourable treatment had occurred.

The Complainant has an obligation under S38A of the Act to prove the primary facts upon which he relies. Having considered this matter I am satisfied that the Complainant is an atheist who did not receive the benefit of a homework pass compared to that option for other students in the school who are of a Roman Catholic religion. Section 3(2)(e) of the Act identifies the one of the discriminatory grounds as being that one has a different religious belief from the other, or that one has a religious belief and the other has not (the “religion ground”).

As adduced in the evidence provided at the hearing, the Respondent operates a Code of Behaviour where it identifies that all children who engage in positive behaviour such as participating in extra-curricular activities, will receive a reward if the activity takes place outside of school hours. Furthermore, under its Discipline for Learning System the Respondent deems good behaviour as attending such extra-curricular as the First Communion Ceremony. The Respondent therefore decided to award children who attended or supported the church ceremony with a homework pass. I am therefore satisfied that under these circumstances a prime facia case existed.

The Respondent also maintained that the Act clearly sets out that discrimination is defined as occurring where “a person is treated less favourably than another person is, has been, or would be treated in a comparable situation”. The Respondent argued the Complainant was treated no differently than any other child who did not participate int the Ceremony.

In considering the aforementioned contentions, under section 7 of the Act, the Respondent as a primary school, shall not discriminate in relation to the access of a student to any … benefit provided by the establishment… and any other term or condition of participation in the establishment by a student.

The Respondent submitted that as a Catholic school it enjoys a proud tradition of participating in religious ceremonies. The school operates a Code of Behaviour where it identifies positive behaviour as participation in extra-curricular activities, and where it rewards such behaviour. It identified the attendance at the church ceremony was an extra-curricular activity that gained an award of a homework pass for those attending.   The Complainant as an atheist, was not in a position to attend the ceremony and therefore was not awarded a homework pass.

Having examined all the evidence in relation to the complaint, I am satisfied that the complainant was treated less favourably on the grounds of his non-religion in relation to being penalised by the Respondent for not attending the First Communion Ceremony. Homework passes were given to the children who did attend the Communion thereby causing deep upset to the complainant, who by virtue of this religious belief where he does not practice as a Catholic was not awarded the homework pass. I also find that the school did not respond reasonably to the concerns raised by the Complainant’s mother on 2nd May 2020, and whilst I acknowledge that meeting between the Complaint’s parents and the school on 7th June 2019 was emotive and adversarial, the Respondent again failed to address the situation in a timely manner.

It is acknowledged that school is entitled to establish and adhere to its religious ethos, but in so doing it cannot disregard its obligations under Section 7 of the Act by discriminating in relation to the access of a student to any … benefit provided by the establishment… and any other term or condition of participation in the establishment by a student. The case within refers to the reward of a homework pass for the attendance at a church ceremony, and by way of the Complainant’s religious beliefs he could not avail of the reward.

On examination of all the evidence in relation to this complaint, and the detailed testimony given by the parties, I find that the Complainant and his parents were deeply hurt and upset by the treatment of the Respondent towards them to the point they have removed the Complainant from the school. I find that the complainant has demonstrated prima facie evidence of discriminatory treatment on grounds of religion and the respondent has failed to rebut the presumption of discrimination.

I note the Respondent, by maintaining it is appropriate to award a benefit to children to attend a religious ceremony, does not appreciate this action had an adverse effect on students who are not of a Catholic faith. As such it is in breach of its obligations under section 7 of the Act. Whilst it is not required to change the ethos of the school, nor is it in my power under the Acts to make such an order, it must operate in manner that it does not discriminate students who are of a different religious belief, or of no religion,in relation to the access of any benefit provided and in any term or condition of participation in the establishment by a student.

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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.

Based on all the foregoing, I find that the Respondent has discriminated against the Complainant, on the grounds of religion contrary to the Equal Status Acts 2000-2015. In accordance with the provision of the Acts I award a sum of €5,000 in respect of the effects of the discriminatory treatment.

I also order that the Respondent reviews its policies and procedures to ensure that they are in line with and comply with the provisions of the Equal Status Acts and that a notice to this effect is placed in a prominent position within the school.

Dated:   24th April 2020

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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