ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00031761
Parties:
| Complainant | Respondent |
Parties | Employee | Employer |
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-00042214-001 | 28/01/2021 |
Date of Adjudication Hearing: 03/09/2021
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Procedure:
In accordance with Section 25 of the Equal Status Act, 2000following 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.
Specifically, I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.
I explained the changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021. While the parties agreed to proceed in the knowledge that decisions issuing from the WRC would disclose their identities, I reflected on the matter after the hearing and out of concern for the negative effects that any publicity arising from this decision may have on the child concerned, I have decided to anonymise the Complainant.
The Complainant as well as three witnesses on behalf of the Respondent gave relevant evidence at the hearing. All four witnesses swore the Christian oath.
Background:
The Complainant’s daughter was enrolled in the Respondent’s school by her mother for the school year 2020/2021. The Complainant, who is divorced from her mother, notified the school on 25 May 2020 that he did not consent to her enrolment and asserted that the Respondent’s actions in approving the enrolment of his daughter without his consent constitutes discrimination against him on the grounds of gender contrary to the Equal Status Acts. |
Summary of Complainant’s Case:
The Complainant emailed the Respondent on 25 May 2020 after he became aware that his former wife and daughter’s mother had enrolled her as a student in the Respondent’s school for the academic year 2020/21. He stated in this email that the Respondent was obliged to obtain the consent from both parents of a child prior to enrolment and objected to her being enrolled in the school. The Complainant received an email reply from the School Principal on 27 May advising that both himself and his daughter’s mother should discuss the matter. The Complainant sent a further email to the Principal on 31 August 2020 requesting both a scanned copy of the enrolment form and that the school board reconsider its enrolment decision in relation to his daughter. He learned on receipt of the enrolment form that the Respondent was aware that his child’s parents were divorced and also highlighted that his contact details were on the form. He subsequently appealed the decision to enrol his daughter in an email on 13 October 2020 but was informed by way of reply on 4 November that his daughter’s enrolment was in order and valid. The Complainant submits that the Respondent deliberately discriminated against him as a father and failed to remedy the situation when the matter was brought to its attention. |
Summary of Respondent’s Case:
The Respondent highlighted that the Complainant’s ex-wife made an inquiry about a school place for their daughter on 16 January 2020 and subsequently completed an application form on 28 January. The applications were reviewed and a place was offered and accepted on 12 May. Specifically, the Complainant’s daughter was offered a place because there was a space in the classroom and she lived in the catchment area. The Respondent’s Principal subsequently received an email from the Complainant on 25 May objecting to his daughter’s enrolment, which was copied to his former wife. Further to this email from the Complainant as well as a subsequent email from his former wife, the Principal replied on 27 May advising that they should discuss the matter among themselves because their stories were at odds with each other. It was also asserted that, in the absence of a court order, the school was entitled to enrol the child because her application, which had been completed by her mother, met all of the relevant criteria. |
Findings and Conclusions:
I must firstly 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. The Respondent in the instant case is an educational establishment which, inter alia, provides primary education to students from third to sixth class. 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”)” The Complainant claims that he has been subjected to discrimination by the Respondent on the grounds of gender in relation to the enrolment of his daughter at its school without his consent as her father. The Respondent disputes the claim of discrimination and contends that that it was duty bound to enrol the child because there was a space in the relevant class and she lived in the catchment area. The Respondent also highlighted that the Complainant’s daughter was enrolled by her mother and that she had the right to enrol her child in the school in her capacity as her mother. The Respondent further asserted that in circumstances where there exists a conflict between parents of children as to which school a child should attend, it is a matter for the parents to resolve such conflict by way of mutual agreement in the absence of a court order. The central plank of the Complainant’s complaint of discrimination relates to his claim that the Respondent treated him less favourably than the mother of his daughter by disregarding and failing to recognise his authority as her father and proceeding to enrol her in the school without his consent. In considering this matter, I note that “Guardianship” in accordance with the Guardianship of Infants Act 1964 refers to a formal right to make important decisions in respect of a child, including the right to request directions from a court in relation to the welfare of a child. The rights of parents to guardianship are set down in Section 6 of the 1964 Act, as amended. Guardianship rights entitle a parent to make important decisions regarding that child's upbringing, for example, deciding on the child's religion, education, medical treatment and where he/she lives. If a child is born to parents who are married to each other, which in the instant case they were, her parents are automatically deemed to be the guardians. Discrimination on the Gender Ground The Complainant asserted that the Respondent treated him less favourably than it did the mother of his daughter in relation to her enrolment in the school because he was a man and she was a woman. It was not in dispute that the enrolment application form was completed by the mother of the Complainant’s daughter on 28 January 2020 and that the Respondent was fully aware at the time of her enrolment that the Complainant was her father and that her parents were no longer married given that his name and mobile phone number and the fact that her parents were divorced was stated on the child’s enrolment application form. I also note that the Complainant highlighted in an email sent to the Respondent on 25 May 2020 that he did not consent to her enrolment and objected to the school’s decision to do so. Notwithstanding the Complainant’s objection however, the Respondent proceeded to enrol his daughter in the school in accordance with the wishes of her mother and she commenced attendance at the start of the 2020/21 academic year on 31 August 2020. In the circumstances, I am satisfied that these facts are sufficient to raise an inference that the Complainant was treated less favourably than his daughter’s mother on the grounds of gender in relation to this matter. Accordingly, I find that the Complainant has established a prima facie case of discrimination on the grounds of gender and the onus now shifts to the Respondent to rebut the inference of discrimination. In terms of the rebuttal, the Respondent argued that the application was accepted on the basis that there was a place in the relevant class and that the Complainant’s child lived in the catchment area. It was also highlighted that a significant majority of the enrolment forms received by the school are signed by only one parent, normally the mother, and it is unusual that the forms would be signed by both parents. Specifically, the Principal highlighted in evidence that of the 29 students in the Complainant’s daughter’s class, twenty of the forms were signed by the mother, seven by both parents and only two by the father of the child. The Respondent acknowledged that it was made aware on 25 May 2020, prior to the Complainant’s daughter starting in the school on 31 August 2020, that her father objected to his daughter being enrolled there. While the Respondent highlighted that it was not made aware of any court order in relation to the guardianship of the Complainant’s daughter, I am satisfied that it was clear from the enrolment form which had been completed by his ex-wife that the Complainant and his child’s mother were divorced and that he was the father of the child. Accordingly, I find that the Respondent should have notified the Complainant’s ex-wife of his objection and informed her that they could not proceed with the enrolment until the matter had been decided upon by the courts. Given that the Respondent enrolled the Complainant’s daughter in the school despite his clear and unambiguous objection, I find that he was subjected to discrimination on the grounds of gender. Accordingly, I find that the Respondent has failed to rebut the inference of discrimination on the grounds of gender in relation to the enrolment of the Complainant’s daughter in the school. |
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 find pursuant to Section 25(4) of the Acts, that the Complainant has made out a prima facie case of discrimination on the ground of gender contrary to Sections 3(1), 3(2)(a) and 7(1) of the Equal Status Acts, which has not been rebutted by the Respondent and, that the Respondent has therefore engaged in prohibited conduct. In deciding on an amount of compensation for the effects of the prohibited conduct, in accordance with Section 27(1)(a) of the Acts, I note that it is not in dispute that the child is very happy in the school and is performing well. I also note that the father is fully apprised of his daughter’s well-being, that he is notified of parent teacher meetings and has access to the school’s management information system. While I find that these have mitigated the effects of the discrimination, I also noted the negative effects of the prohibited conduct on the Complainant and order the Respondent to pay €3,000 in compensation to him for this. I also order, in accordance with Section 27(1)(b), that the Respondent should review its admissions policy with a view to making any necessary amendments to ensure that the principles of equality are applied to both parents in the assessment of applications for enrolment. |
Dated: 13th September 2021
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Key Words:
Gender discrimination; school enrolment; |