Complainant

Respondent

Parties

Lee  Haines

Colaiste Pobail Setanta

Representatives

  self

 Liam Walsh School Principal

Act

Complaint Reference No.

Date of Receipt

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

CA-00032684-001

03/12/2019

The matter before the adjudicator relates to the how the application of twins/siblings who applied to the school were allegedly disadvantaged by the school selection policy at the time. In essence if one sibling/twin was accepted by the school, the other automatically was selected. The disadvantage is allegedly manifest in the limitations that this policy has had on the siblings selection of subjects, with specific reference to Engineering as an example that the siblings have as a subject; although, it is not what they would choose based on their first preferences.

The school states that the practice of combining siblings for same year admission arises from the  fact that there are too few places and experience has shown that where one sibling is successful and the other not, it can have a very devastating and traumatic impact on both siblings. The joining of the applications on balance is seen as the most enlightened approach based on the possibilities that exist. It strikes the balance of recognising the unique needs of twins, triplets, siblings applying at the same time while not giving them an advantage that would compete with other applicants.

This policy has now changed and all applications are treated exactly the same based on changes introduced in the 2018 Education Act.

The siblings in this case were both successful in their application based on the selection procedure applying at the time.

The preferred procedure that the complainant seeks, where both would be treated separately and also benefit from automatic preference over others if one was selected, according to the School would create an unfair advantage.

The claim is brought under the Equal Status Act alleging discrimination on the ground of Family Status.

In their complaint and at the hearing the Father of the siblings states:

The school enrolment policy of Colaiste Pobail Setanta discriminates against multiple births. This policy can be accessed at http://cpsetanta.ie/Enrolment/College-Enrolment-Policy and relates to the treatment of siblings in the same year Page 3 and 4. In this policy sibling applying for the same year i.e. my twin children, Peter and Olivia Haines, were treated as one application for a random drawing process. This reduced their chances and on the original draw on the 6/6/19 they were unsuccessful in enrolment

The school at the hearing and as detailed state:

The probability of an individual student getting a place:   = 0.614035 = approx. 61.4%

The probability of a student not getting a place is:

  = 0.385964912= approx. 38.6%

The probability of twins getting a place if put on separate but connected tickets.

Working out the probability of twins getting chosen is a complicated one as there are 3 separate scenarios to consider. 

•             Twin A is chosen, Twin B is not. Both get placed. 

•             Twin B is chosen, Twin A is not. Both get placed. 

•             Both twins having the probability of being chosen.

The probability of getting placed and not getting placed are mutually exclusive events. If we work out the probability of the twins not getting selected in this scenario we can easily work out the probability that they would get chosen.   P(Getting a place)            = 1 – P(Not getting a place) 

•             P(Not getting a place) = P(Twin A not chosen AND Twin B not chosen) =   ×   = 0.148273911 = 14.8% of not being selected

•             Therefore the probability of the twins getting a place. P(Getting a place) = 1 - 0.148273911 = 0.851726089 = 85.2% of getting selected (versus 61.4% for every other student)

Probability of twins both getting placed if on the same ticket

Note: You can use either of these values to argue your point. The first one takes into consideration that if there is only one place left you might exclude the twins from the draw for the last place. The second one overlooks the issue of the twin ticket coming out last. 

  =  0.612903226 = 61.3%               =  0.615835777 = 61.6%

Versus 61.4% for everyone else.

As you can see their probabilities of being selected actually increases as there are fewer tickets to choose from. Either way the difference in probability is negligible. 

Probability of twins being separated if admissions policy did not put students on same ticket. 

P(Twin A selected and Twin B Not) or P(Twin B selected and Twin A Not)

= 

= 0.236995999 + 0.236995999

= 0.473991998

= 47.4% chance of being separated.

The selection process applied by school was enlightened and fair.               

Family Status in the Equal Status Act 2000 as amended is defined as:

“family status” means being pregnant or having responsibility—

( a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

( b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;

The complainant in the first instance to ground their case is required to make out a prima facie case that raises the presumption of discrimination or gives rise to an inference of discrimination.

In Cork City Council v McCarthy EDA 21/2008, the Labour Court stated in this regard:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

The Court elaborated on the what the prima facie burden means in Southern Health Board v Mitchell [2001] ELR 201 –  and considered the extent of the evidential burden imposed on a Complainant by section 85A and held:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

It follows that a complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination”

In this case that burden is detailed at section 38 (A) of the Equal Status Act as amended:

38A. — (1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

It is clear that the complainant feels aggrieved and has pursued this claim in the best interests of his 2 children; however, the law requires that the complainant must meet the test of establishing a prima facie case.

The complainant has not presented facts that have a significance where it could be determined that a prima facie case had been established that raised a presumption of discrimination based on the ground of family status. The complainant must present facts that give rise to a presumption that because of his family status it would appear that discrimination has taken place or may have occurred. No such facts have been presented that could give rise to such an inference; that in turn would have to be rebutted by the respondent school.

On the facts it would appear that the school has struck the right balance to ensure fairness and avoid unnecessary hurt to one sibling. It would appear that the Father is looking for a more preferential selection process that combines the current system along with allowing for the applications to be treated as separate, increasing the probability of admission.

 As no prima facie case has been made out to give rise to an inference that the complainant may have been discriminated against arising from allegedly prohibited conduct based on family status; I determine that the respondent school has not engaged in prohibited conduct and that this complaint is not well founded.

I determine that that the respondent school has not engaged in prohibited conduct.

The complainant has not presented facts that have a significance where it could be determined that a prima facie case had been established that raised a presumption of discrimination based on the ground of family status. As no prima facie case has been made out I determine that the respondent school has not engaged in prohibited conduct and that this complaint is not well founded

Family Status-Burden of Proof