ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033777
Parties:
| Complainant | Respondent |
Anonymised Parties | A Parent | A National School |
Representatives | Self-represented | Claire Bruton BL |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00044538-001 | 09/06/2021 |
Date of Adjudication Hearing: 19/07/2022
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 25 of the Equal StatusAct, 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. The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings. As provided for in Section 41 (13) and (14) of the Workplace Relations Act 2015 (revised), as the adjudication officer, I have decided that the proceedings should be held otherwise than in public. I have determined that due to the existence of special circumstances, that is the involvement of a minor, information that would identify the parties in relation to whom the decision is made should not be published by the Workplace Relations Commission.
Background:
The Complainant contends that she was discriminated against by the Respondent on the grounds of family status and Civil Status. |
Summary of Complainant’s Case:
The Complainant gave written and aural submissions summarised as follows: The Complainant and her former spouse have been legally separated since 2015. Their son was age twelve at the time of an incident which occurred in the school. The Complainant and her former spouse share joint custody. The Complainant stated that her former spouse does not engage in any form of communication with her written or verbal and therefore from the very beginning of their separation she left unambiguous instruction with the school that all correspondences and communications relating to any of their children be duplicated and sent to both parents. Statement of case The Complainant stated that as a separated mother she has been entirely excluded from any form of communication regarding her son of whom she shares joint custody. She takes exception to this discrimination and states that as a separated mother she is equally entitled to the same, any and all information about her son as his father. Moreover regardless of where her twelve year old child was perceived to be residing at the time by the school she should have been afforded the same opportunity to advocate for her child as her former spouse. She was completely denied opportunity to advocate for her son and was particularly horrified to discover that the entire matter was brought to the attention of the school; investigated and communicated to all other stakeholders involved, without her knowledge or inclusion. Furthermore the entire incident had been investigated and dealt with in a single day and on the fifth day it was then brought to her attention. The Complainant contends further evidence of discrimination against her by the school is demonstrated as they have not presented a record in any document of her many verbal or written communications or objection made by her to the school about the matter. She takes utter exception that her protests, concerns, proposed remedy, communications verbal and written, about process and procedures were completely excluded and not brought before the board at the Meeting of the Board of Management to discuss the matter and decide a course of action. This is evidenced in the minutes of the meeting whereby the only parent mentioned is her former spouse. The Complainant states that she was informed by the school that the board would be meeting on March 12th to discuss the matter and decide a course of action and was shocked when that afternoon she was invited in to meet with the principal and the deputy principal. She understood that this was to be her opportunity to be appraised of appropriate process and procedure, informed of the structure of an impartial investigation to inform a course of action and that she would be afforded with an opportunity to express and discuss matters including a remedy, presented by her in her email dated March 7th. She was devastated to learn that the board had met and arrived at a decision and that her voice and her son’s voice were excluded and not relevant. When she further objected and asked about the process of appeal it was at first considered, however at the end of the meeting she was informed that the decision of the board was final. The Complainant believes that she should have been afforded the right to appeal the decision of the board the same as any other parent. The impact of this treatment from the school has most definitely exacerbated stress in her life and her sons life affecting their mental and physical health at a volatile time in their lives. Conclusion The Complainant claims that the management of the school breached numerous policies; codes of professional conduct; guidelines; the requirement for fair procedures derived from the Constitution of Ireland, international Conventions and case law; The Equal Status Acts, 2000-2018 (ESA); Data Protection Act, 2018. She believes that there is evidence of poor management, Ineffective communications, feeble processes and procedures including and not limited to their investigation process, record keeping, decision making and report writing. She believes that the school management not only breached policies, guidelines , codes of professional conduct and law they breached the trust of the students, the parents and the board of management. Teachers’ relationships with pupils, parents, school management and the public are based on trust. Trust embodies fairness, transparency, openness and honesty. The Complainant states that honesty, reliability, impartiality and moral action are embodied in integrity. There is little or no signs of integrity shown by the school to her son, both his parents and the board of management in relation to the handling of this incident. In her evidence at the hearing the Complainant stated that she was not a legal expert and does not have the funds to engage one. She stated that she believed she was treated unfairly by the school and the school principal in their dealings with her. She referred to the fact that there was another parent involved (the parent of the other child involved in the alleged incident). She relies on that parent and her former spouse as comparators for the case of alleging discrimination or unequal treatment. |
Summary of Respondent’s Case:
The Respondent made written and aural submissions summarised as follows:
This claim is denied in its entirety, and it is submitted that these proceedings are entirely unmeritorious and misconceived in circumstances where there is no evidence of discrimination on grounds of family status and/or civil status put forward by the Complainant as alleged or at all.
Background
The Respondent is a national school. Its principal Ms A is a teaching principal. For the avoidance of doubt the assertions concerning lack of professionalism, lack of regard to fair and due process and lack of care for the Complainant’s son are denied in their entirety. During the first term of the academic year 2020 and under guidance from the Department of Education and Skills Circular 0074/2020, school staff drafted and completed a remote teaching and learning plan. This plan was to be put in place if there was a return to remote teaching and learning in term 2 or 3 of that school year. School closure was mandated by the government at the beginning of January 2021 due to the Covid19 pandemic. The school staff determined that Zoom would be used for weekly classes to communicate and connect with teachers and classmates. A Zoom permission letter was sent to every household for a parent’s signature allowing the parent to participate. A copy of the signed form was submitted in evidence. The Complainant’s former husband provided an undertaking that the child would adhere to the content of the letter in respect of his son. On 1 March 2021, the Complainant’s son took a screenshot during an online class in breach of the acceptable usage policy (AUP) of the Respondent as there was no permission for this data and/or photograph to be taken. As a result of the foregoing, that day the principal contacted the father of the child in relation to the breaches of the acceptable usage policy of the school and requested that he speak to his son. The reason the father was contacted was due to his signature being on the permission letter sent to each household for parental signature and the incident in question happened in the child’s father’s home where the student primarily resided. When a previous disciplinary issue arose in respect of the same student, the Principal had rung the Complainant and had been informed by the Complainant to speak to his father as the son resided primarily with his father. The contact made by the school principal to the father of the child was entirely proper in circumstances where his son primarily resided with his father and was a primary contact for the school regarding any issues with his son. It is accepted that on 5 March 2021 the Principal contacted the Complainant and referred to the breach of the acceptable usage policy. This was entirely in order. Thereafter the Complainant complained about the communication being with the father of the son and on 12 March 2022 the Complainant attended at the school where she was informed that the decision had been made by the board of management to suspend her son for a period of two days. There was no exclusion of the Complainant as alleged or at all and at all times the child’s father was communicated with and his views taken in respect of the actions of his son.
Legal Submissions
The Complainant fails to raise a prima facia case. The Complainant bears the burden of proof of establishing a prima facie case that she has been discriminated against in terms of section 3 and section 7 of the Equal Status Act 2000, as amended. The Complainant alleges that she was discriminated against on grounds of civil status and family status in respect of her treatment by the Respondent. Section 38A of the Equal Status Acts 2000-2021 sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts on which she can rely in asserting the prohibited conduct as occurred in relation to her and 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. It is accepted that the Respondent is an educational institution within the meaning of section 7(1) of the Acts. Section 3(1) of the 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)(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)(iii) 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 another (the family status ground)”. Section 2 of the Act defines civil status as meaning single, married, separated, divorced, widowed, in a civil partnership and defines family status as meaning having responsibility as a parent or as a parent in locus parenti in relation to a person who has not attained the age of 18. The Complainant has failed to provide any evidence of discrimination on grounds of civil status and/or family status. In this regard reliance is placed on the decision of the Workplace Relations Commission and A Father v. The Board of Management of A Secondary School wherein the adjudication officer held as follows: “I am satisfied that no evidence was produced to support the case that the complainant was treated less favourably than a hypothetical married parent or a person with a different family status in relation to this matter. The only evidence put forward of comparative less favourable treatment was in support of the claim that the respondent treated the complainant less favourable than they did the mother of his daughter. Therefore, the mother of his daughter is the only relevant comparator. The complainant and the mother of his daughter had at the relevant time the same civil status and the same family status that both were unmarried and both were parents. Therefore, the alleged difference in treatment cannot have been on grounds that the complainant on a different civil or family status from the mother of his daughter. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the civil status and/or family status grounds.” The foregoing has clear application to the instant case. The Complainant and her former husband/partner have the same civil status (being separated) and same family status (having responsibility for their son). Her claim relates to the contact made by the school to the father of her son and no discrimination as alleged or at all can arise. Equally the reason the contact was made with the child’s father was for non-discriminatory reasons – being his signature on the relevant permission letter and the fact that the incident involving his son took place within the father’s house. In this regard reliance is placed on the decision of the Workplace Relations Commission in A Parent v. A Childcare Provider where the adjudication officer considered whether the omission of the father’s signature from the final registration form for the admission into an early childhood care and education programme contravenes the provision of the Equal Status Acts. The adjudication officer held as follows: “I accept that the disputed registration form, submitted in evidence, does not require two signatures nor does it demand that the signatory should be the father or mother, merely one parent. It does not deny the mother or father the opportunity to sign the form. The form does not ask if the signatory or parent is married, separated, unmarried or divorced. It is an open invitation to mothers or fathers. The evidence indicates that there was no practice or policy of excluding parents who were divorced… I accept that it is a random choice as to whether the mother, father or guardian signature is sought.” In the same decision the WRC found no evidence of discrimination on grounds of family status in reliance on the decision in DEC-S2010-46 where it was held that the failure to gain the father’s consent as well as the mother’s where a child was undergoing a medical procedure could not constitute discrimination on the family status as: “The question is whether the treatment of the complainant in this respect was less favourable than somebody of a different marital or family status to him would have received in the same or similar circumstances. Clearly, any such person would have to have a child. By definition, then, the complainant could not have been discriminated against on the family status ground vis a vis such a comparator as they would have the same family status as the complainant all people in the same or similar circumstances would have a child.”
The foregoing demonstrates that the Complainant cannot establish facts from which discrimination may be inferred. The Complainant has failed to establish that she was treated less favourably than a person of a different family status and/or different civil status. Family status and the Acts complained of is missing.
As is clear from the foregoing the Complainant has failed to make out a prima facie case of discrimination. In Mitchell v. The Southern Health Board the Equality Tribunal considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out. It stated a claimant must “establish facts from which may be presumed the principle in equal treatment has not been applied to them. This indicates a claim a claimant must prove, on the balance of probabilities, that where primary facts which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these facts are established to the satisfaction of the court and they are regarded by the court as being of significant significance to raise a presumption of discrimination that the onus shifts to the respondent to prove that was no infringement of the principle of equal treatment.” In Melbery Developments v. Valpeters the Labour Court in considering an allegation of discrimination on grounds of race held as follows:
“Mere speculation or assertion as 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 the provision admits of no exceptions to that evidential rule.”
The Complainant has failed to provide any evidence of less favourable treatment and has failed to meet her evidential burden.
Lack of Comparator
The Complainant will have difficulty in establishing prima facie case against the Respondent by the fact that she has not identified an appropriate comparator of a different civil status and/or family status. In A School v. A Worker the Labour Court held that:
“Section 6(1)(a) of the Employment Equality Acts requires the Complainant to compare his or her treatment to that afforded to an actual or hypothetical comparator who is in a comparable position of the complainant. The requirement of the complainant and his or her comparator being in comparable situations finds resonance in the dictum of the former ECJ in C-342-93 Gillespie v. Health and Social Services [1996] ECR-475 then unlawful discrimination arises by the application of different rules to comparable situations of the application of the same rules to different situations.”
No Discrimination
In any event the Respondent submits that no discrimination actually occurred, and the Complainant has failed to provide any evidence of discrimination.
Findings and Conclusions:
The Complainant has contended that she was discriminated against by the Respondent on the grounds of family and/or civil status. She contends that in their dealings with her in relation to an alleged breach by her son of Acceptable Usage Policy (AUP) during the Covid Pandemic, the Respondent has discriminated against her and treated her unequally. The Complainant referred to the favourable treatment she alleges was given to a parent of another child involved. She also alleges that the father of her son was given more favourable treatment in circumstances where she made it clear she was to be consulted regarding any matter relating to her son. I will first examine the applicable law in respect of her complaints. The first relates to the definitions of discrimination. Section 3 is the relevant section which provides: 3.(1) For the purposes of this Act discrimination shall be taken to occur— (a) 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) or, if appropriate, subsection (3B) (in this Act referred to as the ‘discriminatory grounds’) which— (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned, ( b) where a person who is associated with another person— (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination, or ( c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. (2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are: ( a) that one is male and the other is female (the “gender ground”), ( b) that they are of different civil status – (the civil status ground”), ( 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”), ( d) that they are of different sexual orientation (the “sexual orientation ground”), ( e) 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”), ( f) subject to subsection (3), that they are of different ages (the “age ground”), ( g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”), ( h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”) ( i) that one is a member of the Traveller community and the other is not (the “Traveller community ground”).. (3B) For the purposes of section 6(11)(c), the discriminatory grounds shall (in addition to the grounds specified in subsection (2)) include the ground that as between any two persons, that one is in receipt of rent supplement (within the meaning of Section 6(8), housing assistance (construed in accordance with Part 4 of the Housing (Miscellaneous Provisions) Act 2014) or any payment under the Social Welfare Acts and the other is not (the “housing assistance ground”). The relevant clauses in this case are Section 3 (1) (a) and Section 3 (2) (b) and (c). In order for her claim to succeed, the Complainant must have been “treated less favourably than another person” on the grounds“that they are of different civil status – (the “civil status ground”) and 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”). [emphasis added] Section 2 of the Act defines civil status and family status as follows: ’civil status’ means being single, married, separated, divorced, widowed, in a civil partnership within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 or being a former civil partner in a civil partnership that has ended by death or has been dissolved. ‘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 or support on a continuing, regular or frequent basis… The onus is on the Complainant in the first instance to discharge the burden of proof that an inference of discrimination may be drawn from the established facts, this is the ‘burden of proof’ on her to establish a prima facie case. If she succeeds, then the burden of proof shifts to the Respondent to prove that it has not discriminated against the Complainant. Burden of proof. 38A of the Act provides: 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. As the Labour Court has found and as quoted in the Respondent’s submission: “Mere speculation or assertion unsupported by evidence cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”. The comparators being relied upon by the Complainant are (a) the father of her son and (b) the parent of the other child. I note the evidence proffered by the Respondent and not contested by the Complainant that both comparators are of the same status as the Complainant. The Complainant and her former spouse have the same civil status (being separated) and the same family status (having responsibility for their son). The Complainant and the other parent have the same civil status and the same family status according to the uncontested evidence. Therefore the alleged difference in treatment cannot have been on grounds that the complainant had family status or civil status and the other (comparator(s)) had not or had a different status. Accordingly I find that the complainant has failed to establish a prima facie case of discrimination on the civil status and/or family status grounds and her complaint is not well founded. |
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 that the Complainant has failed to establish a prima facie case of discrimination on the civil status and/or family status grounds and I have decided that her complaint is not well founded.
Dated: August 25th 2022
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Family status, civil status, not well founded. |