Complainant

Respondent

Anonymised Parties

A parent

A school

Representatives

 Self.

Catherine Kelly, Mason Hayes & Curran LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00033892-001

17/01/2020

The Complainant is the step father of a child attending the Respondent school.

Due to the nature of the complaint I have decided that the parties will not be named.

In the Complainants own words his complaint is as follows:

1.       I am the person that has registered the complaint against the Respondent school in relation to the discrimination I felt that was directed towards me commencing on the 17th of May 2019 to date. In particular I will focus around particular dates in 2019 and I will provide evidence showing that the principal, deputy principal, teacher and Board of Management not only made false and misleading allegations about me, but they clearly discriminated against me due to my relationship to my son (name removed). I have provided evidence to date that not only have the school directly discriminated against me, but they have in fact fabricated lies and documents so that my character can be called into question and that they can stand over their unprofessional conduct. The school has stated via letters that they will no longer deal with me as I am not a parent/legal guardian of a child in the school. No other parent has received this to date.

2.       My son who is not my biological son, this fact is true but I class him as my own and I always have. I believe the school in their actions on the 17th and 20th of May 2019 discriminated against me by believing allegations made against me by a 3rd party and a very troubled teenager. The school were aware of our circumstances at home surrounding our troubles with our son at this time. They reported me to Tusla on the back of allegations made that I was physically assaulting our son. They state that a direct disclosure was made to them by our son. That is false.

3.       My son will give evidence to show that the school were aware of an incident in our home through a 3rd party, my sons biological father on the 17th May. The school denies this, but I have evidence showing this not to be true. I believe the school took the opinion that I was guilty of some offence and discriminated against me as I was just seen as the Step Father.

4.       I have been involved with my son’s education since 1st class. I have watched him complete primary school and I enrolled him in the School in 2015 in 1st year. I have attended parent teacher meetings, I have paid fees towards the school, I have attended evening meetings and in particular I have helped fundraise for the school and in particular donate money towards the school. The school have denied this ever existed. The school

have sent me over 298 text messages to my phone. They have phoned me to come collect     my son when he is unwell, they have accepted notes in his journal for permissions on trips/school visits etc. This has all ended due to the lies that were made against me, I have completed the investigation from Tusla who apologised to me for the false and misleading report they were given via the principal of the school. I do not think the outcome of that investigation should matter but the school and in particular took the view, I was

guilty and have removed me from my son’s existence in school. They state they haven’t but, in their error, they forgot to appropriately add me back in correctly. I have not received one text message to date.

5.       My wife will give evidence she has received over 100 messages since that date.

6.       The school state that a direct disclosure was made to them by our son, He will state this is not the case and that he never spoke to the principal who submitted the report. She states she spoke to our son. That is a lie. He was removed from class and asked what happened and then was made write a report to Tulsa in the school assembly hall unaccompanied by any school staff. Other students were present at this time. The school state they were concerned about my son’s welfare and safety, yet they left him unattended and asked to write a report, that is against all procedures of the Children’s First Act. They then allowed our son to leave the school with a 3rd party who has no legal guardianship over our son at all. The teacher then only attempted to contact my wife after submitting the report. My wife did no answer but as per procedure, I should have been contacted next. She (the Principal) refused to do this.

7.       The story goes on, but I plan to produce evidence and witness reports showing the school continued to manipulate and lie so that they could not be found answerable to their actions. They have attacked my character on two occasions and set out to make me out as a violent and aggressive person. That is far from the truth, I am persistent and I would like an apology from all those involved. The embarrassment I have had to endure will not make up for

this but I have to stand my ground for what I believe was a direct attack on me by discriminating against me as I am my sons step father. Not once did they ask me to prove that I had legal guardianship of our son.  They just presumed this and stated that they will not deal with me as I am not a parent.

8.       My wife will give evidence to show that I have always been involved in our son’s life

and in particular his education. She will back up my claims about the school in relation to meetings, attendance and fees etc. She will also state how the 3rd party involved has no legal guardianship of our son. She will also describe how the school stated she must carry out an individual complaint against the school through the appropriate complaints’ procedure. She will state how I was told I cannot take a case. She will give evidence how this s investigation was carried out and that no evidence was provided to her or any transparency during the investigation.

She will also explain in detail the days surrounding the 17th and the 20th of May in relation to the school and the submission of a report to Tusla. She will state like me that we never had an issue with the report but with the false and misleading information contained in this report. She will state how the principal directly attacked me as a step father and that is should be only her who disciplines her child etc. My wife will back up all my claims and can provide evidence if required in relation to text messages she has received to date since our removal from the system.

9.       She will explain a meeting she had with the school stating she wanted our son’s biological fathers’ details removed from the system. She did not give them permission to do so and that she wanted me added back. My wife can back up everything I state also in relation to the fabrication of documents in relation to a donation I made to the school. She can also provide information into how she received her freedom of information request much quicker than mine, and that in fact she received information in her requests that included me. This was not included in my FOI request.

10.   My step son is willing to give a detailed witness statement surrounding the details on the 17th and 20th May 2019. He will state that he never in fact gave a direct disclosure as stated by the school. He will tell the truth, his version of how he was asked to hand a note to his year head on the 20th from his Dad containing his address.

11.   He will then go on to tell how a teacher removed him from class and asked him what happened in his home on the 16th May 2019. He will tell you his side of the story but how when he was finished he went back to class only to be removed again and asked to write a report in the school assembly hall unattended and with other pupils walking by talking to

him. He will verify that he never spoke to the Principal once. He will also give evidence that in December 2019 he was removed from class by both the Principal and Deputy Principal and questioned about my letter to the school back in September in relation to concerns I raised about the school. He will verify that neither myself or his mother were contacted and asked to attend or to tell us that they were removing him from school.

Background.

The Student commenced in the school in 2015 and is currently in 6th year. The Student’s enrolment form is signed by his mother/legal guardian.

On 20 May 2019 a mandated report was made by the School Principal, in accordance with the provisions of the Children First Act 2015. The Principal is a mandated person for the purposes of the said Act. A mandated person who has a concern about a child is legally obliged to make a decision as to whether the concern meets the threshold for a mandated report under the Children First Act 2015. The Student had reported that on 19 May 2019, his stepfather, the Complainant, allegedly grabbed him and physically assaulted him. There is a note from the student dated 20 May 2019. For the avoidance of doubt, the Principal is obliged to make a referral in those circumstances regardless of the gender, marital status or family status of the individuals concerned. It is a matter for TUSLA to investigate the allegations made and not the Respondent.

On 29 May 2019 the Respondent received a letter from the Student’s mother, which stated that she was the sole legal guardian of the Student. On 17 June 2019 the Principal wrote to the pupil’s mother to confirm, as discussed on the phone, that retaining the contact details of the Student’s father on the system was purely a practical arrangement in the event that the school needed to contact the Student or his father urgently. The Principal assured the student’s mother that the school only had the Student’s safety and security in mind. She also assured the mother that she would always be contacted in any event if there was any issue with the Student in the future.

On 24 June 2019 the respondent received a letter from the Complainant. The Principal responded to the Complainant to state that she would present this letter at the next meeting of the board in September 2019. The Respondent received a further letter from the Complainant dated 28 August 2019. The Principal responded to the Complainant to state that the next board of management meeting was on 24 September. Further correspondence was received from the Complainant.

The Respondent wrote to the student’s mother by way of letter dated 23 September 2019. The student’s mother was informed that she could bring her complaint to the Chairperson of the Board of Management. 

The Respondent has complied in full with the Complainant’s request under the Data Protection Acts. The Respondent has confirmed to the Complainant that copies of records in relation to the referral to TUSLA are subject to the restrictions under the provisions of section 63 (a) (ii) (iv) of the Data Protection Act 2018.

The Principal wrote to the Student’s mother by way of letter dated 3 October 2019. This letter explained that the Student had approached the school in May 2019 and advised that he was living with his father. The Student gave contact details for the arrangement to put on file. Up to that point there had been no instruction on the file that the school was not to contact him. The Principal referred to the Student’s more recent request that his father’s details be removed from the school system. The Principal confirmed that the school would comply with the Student’s request that any information was to go to his mother and her only.

On 18 November 2019 the Respondent wrote to the Complainant in relation to the Complainant’s attendance at the school on 21 October 2019 and his aggressive behaviour. The Complainant was requested to refrain from any such behaviour in the future and confirmed that if there was another incident of this nature the Respondent would have no option but to take action against the Complainant up to including barring him from the school and its environs. The Complainant was asked to consider the interest of the students of the school and its employees on reflecting on the matter. By way of letter dated 25 November 2019 the Complainant wrote that he had informed the Gardai of the Respondent’s request.

Following further correspondence from the Complainant, the Respondent confirmed that as the Complainant was not a legal guardian it would not be communicating with him. The Respondent only communicates with legal guardians of students regardless of the gender, marital status or family status of the individual involved. Notwithstanding this, the Complainant has engaged in a campaign of constant correspondence with the Respondent. The Respondent’s school has 467 students and 65 staff and the constant correspondence from the Complainant is both unwarranted and disruptive. The Respondent is in regular communication with the Student’s mother in relation to the Student as she is his legal guardian.

The Complainant has made a complaint to the Department of Education & Skills. The Respondent received no communication from the Department in this regard. The Complainant has made a complaint to the Data Protection Commissioner. This investigation is ongoing.  The Complainant has made complaints to An Garda Síochána.  The Garda Síochána did not contact the school in relation to this. The Complainant’s partner has made a complaint to the Board of Management alleging that the Principal behaved unprofessionally, did not follow appropriate protocols and made errors of judgement. The Respondent dismissed the complaint and recognised that the Principal had acted in the best interests of the child and complied with her statutory obligations.  The Complainant has made a complaint to the Teaching Council. In a letter to the Principal dated 20 November 2020, the Teaching Council said that they refused to consider the complaint because the core underlying issues raised by the Student’s mother to the Board of Management in a separate complaint were of the same nature as the Complainant’s complaint to the Teaching Council.  As the Student’s mother’s complaint with the school was then at Stage 4.2 of the school’s complaint process, the committee decided that procedures established under Section 24 of the Education Act 1998 had not been exhausted and that there were not good and sufficient reasons for proceeding notwithstanding this.

It has always been made clear to the Complainant that the school has a duty to protect the privacy of all students in the school and therefore has an obligation to only communicate with parents/legal guardians of students enrolled in the school unless directed not to do so by way of court order or upon receipt of a request from the student not to communicate. The Respondent’s parental complaints procedure applies in relation to issues which a parent/legal guardian may have in relation to students in the school. The Student’s legal guardian has availed of the respondent’s complaints procedures and her complaint was not upheld.

The Complainant has made a number of serious allegations against the deputy principal. The Respondent has informed the Complainant on a number of times that he, the Assistant Principal is an employee of the Respondent. He has not corresponded with the Complainant as alleged. The allegation that the Assistant Principal removed the Student from school and informally spoke to him without the consent of the Complainant or his wife is categorically denied. The Assistant Principal called the Student out of class and escorted him to his own office to talk with the Principal and himself in relation to statements made by the Complainant in relation to the Student’s welfare. He did not leave the school at any time.

The Complainant has also been in correspondence with other employees in the school and has been asked on a number of occasions to direct any correspondence to the Respondent as the employer of those employees.

Prima Facie Case

At the outset, the Workplace Relations Commission must first consider whether the existence of a prima facie case has been established by the Complainant. A person making an allegation of discrimination under the Equal Status Acts, 2000 to 2015 must first demonstrate that a prima facie case of discrimination exists. Prima facie evidence has been described by an Equality Officer as,

“Evidence which in the absence of any convincing contradicting evidence by the employer would lead any reasonable person to conclude that discrimination had probably occurred.” (Dublin Corporation v. Gibney EE5/1986).

If a prima facie case of discrimination is established by the Complainant, the burden of proof then shifts to the Respondent to rebut the presumption of discrimination. In more recent employment discrimination cases the Labour Court has applied the test and stated,

“The first question the Court has to decide is whether the claimant has established a prima facie case of discrimination.” (The Rotunda Hospital v. Noreen Gleeson DEE003/2000)

And in another case stated,

“...the claimant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the claimant succeeds in discharging that evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her sex. If she does not, her case cannot succeed.” (Dr. Teresa Mitchell v. Southern Health Board (Cork University Hospital DEE011)).

The shifting of the burden of proof in discrimination cases was also applied in very clear terms by the Supreme Court in Nathan v Bailey Gibson (1998 2I.R.162) and referred to by the High Court in Conlon v University of Limerick (1999 ILRM131).

In Nathan v Bailey Gibson the Supreme Court stated,

“In such a case the worker is not required in the first instance to prove a causal connection between the practice complained of and the sex of the complainant. It is sufficient for him or her to show that the practice complained of bears significantly more heavily on members of the complainant’s sex than on members of the other sex. At that stage the complainant has established a prima facie case of discrimination and the onus of proof shifts to the employer to show that the practice complained of is based on objectively verifiable practice which have no relation to the complainant’s sex”.

Distilled down, the test readily applied by the Workplace Relations Commission is:

Is the Complainant covered by a discriminatory ground?

Is there evidence of specific treatment by the Respondent of the Complainant relied upon? 

What evidence is there that the treatment received by the Complainant was less favourable than the treatment of someone, not covered by that ground, would have received in similar circumstances? 

In A Complainant v The Board of Management of a Secondary School (DEC-S2017-030), the Adjudication Officer held that a person making an allegation of discrimination under the 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 Adjudication Officer found that the Respondent was in a difficult and delicate situation trying to balance the needs of a pupil in the school together with dealing with the relationship with her parents. The Adjudication Officer was of the view that the Respondent was in a difficult position and was constrained and that having carefully examined all of the evidence she concluded that the Complainant was not subjected to discrimination.

The Education Act 1998 defines parent to include a foster parent, a guardian appointed under the Guardianship of Children Acts, 1964 to 1997, or other person acting in loco parentis who has a child in his or her care subject to any statutory power or order of a court and, in the case of a child who has been adopted under the Adoption Acts, 1952 to 1998, or, where the child has been adopted outside the State, means the adopter or adopters or the surviving adopter. The Complainant’s partner is the Student’s legal guardian. The Respondent’s actions in relation to the Complainant are not based on his gender, marital status or family status.

Conclusion

1.       The Respondent denies that it has discriminated against the Complainant in any manner.

2.       The Respondent requests that the Complainant’s claim is dismissed. Applying the above criteria to the facts of this case, it is respectfully submitted that the Complainant has failed to demonstrate a prima facie case of discrimination.

3.       It is respectfully submitted that on the facts of this case there is no evidence of less favourable treatment of the Complainant by the Respondent on the grounds of gender, marital status or family status.

4.       In consideration of the above evidence and foregoing arguments, we would respectfully request the Adjudication officer to support the position of the Respondent in this matter.

The representative for the Respondent has raised the question of a prima facie case – has one been established in the instant complaint?

Prior to answering this question, we should look at what exactly a prima facie case is. Again, the representative for the Respondent has presented case law on this and I will briefly look at these examples:

“A person making an allegation of discrimination under the Equal Status Acts, 2000 to 2015 must first demonstrate that a prima facie case of discrimination exists. Prima facie evidence has been described by an Equality Officer as,

“Evidence which in the absence of any convincing contradicting evidence by the employer would lead any reasonable person to conclude that discrimination had probably occurred.” (Dublin Corporation v. Gibney EE5/1986).

If a prima facie case of discrimination is established by the Complainant, the burden of proof then shifts to the Respondent to rebut the presumption of discrimination. In more recent employment discrimination cases the Labour Court has applied the test and stated,

“The first question the Court has to decide is whether the claimant has established a prima facie case of discrimination.”(The Rotunda Hospital v. Noreen Gleeson DEE003/2000)

And in another case stated,

“...the claimant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the claimant succeeds in discharging that evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her sex. If she does not, her case cannot succeed.” (Dr. Teresa Mitchell v. Southern Health Board (Cork University Hospital DEE011)).

The shifting of the burden of proof in discrimination cases was also applied in very clear terms by the Supreme Court in Nathan v Bailey Gibson (1998 2I.R.162) and referred to by the High Court in Conlon v University of Limerick (1999 ILRM131).

In Nathan v Bailey Gibson the Supreme Court stated,

“In such a case the worker is not required in the first instance to prove a causal connection between the practice complained of and the sex of the complainant. It is sufficient for him or her to show that the practice complained of bears significantly more heavily on members of the complainant’s sex than on members of the other sex. At that stage the complainant has established a prima facie case of discrimination and the onus of proof shifts to the employer to show that the practice complained of is based on objectively verifiable practice which have no relation to the complainant’s sex”.

Distilled down, the test readily applied by the Workplace Relations Commission is:

Is the Complainant covered by a discriminatory ground?

Is there evidence of specific treatment by the Respondent of the Complainant relied upon? 

What evidence is there that the treatment received by the Complainant was less favourable than the treatment of someone, not covered by that ground, would have received in similar circumstances? 

In A Complainant v The Board of Management of a Secondary School (DEC-S2017-030), the Adjudication Officer held that a person making an allegation of discrimination under the 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 Adjudication Officer found that the Respondent was in a difficult and delicate situation trying to balance the needs of a pupil in the school together with dealing with the relationship with her parents. The Adjudication Officer was of the view that the Respondent was in a difficult position and was constrained and that having carefully examined all of the evidence she concluded that the Complainant was not subjected to discrimination.

In (Dr. Teresa Mitchell v. Southern Health Board (Cork University Hospital DEE011)) quoted by theRespondentabove the Labour Court has quoted the following:

“...the claimant must first prove as a fact one or more of the assertions (emphasis added) on which her complaint of discrimination is based.

In another case (not quoted by the Respondent), Valpeters v Melbury Developments Limited [2010] E.L.R.64 the Labour Court have stated:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit.  This requires that the complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule”.

In the instant case it would appear that the Complainant’s step son, a pupil at the Respondent school, reported to the school that he had had been grabbed by his stepfather (the Complainant) and physically assaulted. A mandated report was made by the School Principal, in accordance with the provisions of the Children First Act 2015 on 20TH May 2019. The Principal is obliged to make a referral in those circumstances regardless of the gender, marital status or family status of the individuals concerned. It is a matter for TUSLA to investigate the allegations made and not the Respondent.

On 29th May 2019 the school principal received a letter from the pupil’s mother, the Complainant’s wife, stating quite categorically that she was sole legal guardian of the pupil and stated as follows:

“As sole legal guardian only my name and contact details should appear on these records, and only I should be contacted concerning my son”.

In an undated note to the principal the pupil quite clearly states “Anything in relation to myself is to go directly to my mother and her only”

Any further correspondence with the Complainant in relation to his stepson is prohibited by the content of these two pieces of correspondence received by the Respondent.

On 17 June 2019 the principal wrote to the pupil’s mother to confirm, as discussed on the phone, that retaining the contact details of the Student’s biological father on the system was purely a practical arrangement in the event that the school needed to contact the Student or his father urgently. The Principal assured the student’s mother that the school only had the Student’s safety and security in mind. She also assured the mother that she would always be contacted in any event if there was any issue with the Student in the future.

It should be noted that at this point the student had not been living with his mother and step father since the date of the incident (ref: letter from complainant to Board of Management dated 24th June 2019). In these circumstances it may have been necessary for the Respondent to contact the person who was ‘in loco parentis’ i.e. his biological father.

In conclusion I have formed the opinion that both parties could have managed the situation better and possibly resolved any differences between them. The tone of the letters dated 25/11/2019 from the Principal and Chairperson of the Board to the Complainant could have been better. It’s worth pointing out that the Respondent school had no difficulty accepting the Complainant as a parent during the first three plus years of his step son’s attendance at the school.

I can find no evidence of a prima facie case of discrimination being established and therefore must conclude that the complaint as presented under the Equal Status Act, 2000 is not well founded.

As outlined above.

Equal Status.