Complainant

Respondent

Anonymised Parties

A parent

A Primary School

Representatives

Paul McDonald AJP McDonald Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00031399-001

07/10/2019

The respondent is a recognised primary school within the meaning of the Education Act 1998. The complainant’s daughter was enrolled in the respondent’s school in 2015 by her mother, who is her joint legal guardian.  The complainant, who is the other joint legal guardian informed the school prior to the commencement of that school year, in March 2015 that he did not consent to her enrolment at the school.

The complainant claimed that the respondent’s actions in enrolling his daughter without his consent and the respondents continuing to do so each year since, amounts to discrimination against him on the prohibited grounds of gender and family status, contrary to the Equal Status Acts.  In his complainant form the complainant confirmed that the first date of discrimination was 6 March 2015 and the most recent date of discrimination was 22 January 2020.  He contended that the discrimination took the form of ignoring his wishes not to enrol his daughter in the school and failing to include him in matters relating to his daughters’ on-going participation in the school and associated activities.

 The respondent disputed the claim of discrimination, claimed the complaints were out of time (as per Issue 3 above), and contended that the it understood that the question of enrolment had been resolved between the child’s parents in 2015 and that it acted upon the written instructions provided by the child’s mother and in accordance with it’s admissions policy.  The respondent contended that it is normal practice to accept applications for places at the school made by one parent/guardian.  In addition, the respondent contended that the specific issues raised by the complainant as having occurred since the date of enrolment, while they might demonstrate challenges with the relationship between the complainant and the school, did not constitute discrimination under the act.

The complainant attended and was unrepresented at the hearing. 

Mr. A, former school Principal, Mr. B, Principal and Mr. C, Chairman of the Board of management attended on behalf of the respondent.  The respondent was represented at the hearing by Mr. P McDonald, Solicitor.

The complainant did not provide a submission in advance of the hearing, but did provide copies of emails between him and the respondent and copies of the ES1/ES2 form submitted to the respondent on 8 October 2019 and the ES1/ES2 form submitted to the respondent on 12 December 2019.

In his complaint form, the complainant advised that he had been discriminated against on the grounds of gender and on the grounds of family status. He outlined that the first incident of discrimination occurred on 6 March 2015 and the most recent incident of discrimination occurred on 22 January 2020

His complaint outlined that he had been discriminated against on the grounds of gender in relation to the absence of his consent for the enrolment of his daughter in the respondent school having been ignored, in favour of the child’s mother, by the office of the principal, despite his objections having been made in writing and having been acknowledged.  He drew attention to a recent WRC precedent, providing the link through the relevant national newspaper website.  He outlined that as the father of the child he had been discriminated against on the grounds of gender, the absence of his consent for the enrolment of the child having been ignored in favour of the child’s mother and he outlined that the office of the principal had continued to ignore his position.

Complainant evidence at hearing:

At the hearing the complainant stated that when it came to his attention that his daughter had been enrolled in the school, he raised his objections straight away.  He confirmed that he emailed the school setting out his objection and that as far as he was concerned nothing was done to address his objection.  He stated that the respondent enrolled his daughter according to the wishes of her mother and did not take his position into account.  The complainant pointed out that he had raised his objections in advance of the academic year, that he had a fundamental concern in relation to the catholic ethos of the school and that his concerns were ignored. The complainant submitted that in so doing the respondent discriminated against him on the prohibited grounds of gender and family status.

The complainant stated that this act of discrimination manifested itself as a pattern throughout his daughters’ time at the school and in his dealings with the school.  He stated that not only was he excluded by the respondent but he was aggressively excluded by the respondent.  He stated that it was those incidents of aggressive exclusion that gave rise to the additional grounds of discrimination and he stated that he had set out his additional concerns in some detail in his second ES1/ES2 form.

At the hearing the complainant outlined the example of the comments made by his daughter’s teacher in a school report where the teacher referred to a “very special home situation…”  He stated that he considered the comment to be completely inappropriate and he outlined that he was not facilitated with any understanding.

The complainant also outlined that he was not included in any circulation of information from the respondent to parents, that he was not engaged with in relation to school activities.  He advised that when notes were sent out to parents, they were not sent to him, that he was not facilitated in terms of a discussion regarding his concerns in relation to the teachers’ comments in the school report, that he was not included in the preparation arrangements for first communion.  He also stated that he had initially not been advised about the availability of school photographs but that when he found out about them, he had to go online to order and made arrangements for payment.  He stated that there was then a problem in relation to him obtaining the photographs but that when he raised his concern, he was ignored due to school holidays. 

The complainant described a further occasion when he attended at the school to deliver a birthday present to his daughter and he stated that this present was not delivered for a number of days.  The complainant outlined his upset at the thought that his daughter might think he had not remembered or had ignored her birthday.

The complainant stated that he had a parent teacher meeting arranged with his daughter’s teacher and that the purpose of the meeting was to update him on his daughter’s progress at school . He stated that the time slots for teacher meetings was approximately 20 minutes and that it didn’t allow time for other discussion.  He stated that in an “underhand” manner the principal sought to take over that meeting to discuss issues regarding the relationship between him and the school.  He acknowledged that the relationship wasn’t good but advised that he told the principal that he would not have that discussion at that time, that he didn’t want to discuss matters at that time, that he wasn’t prepared for such a meeting. He stated that while he went ahead with the parent teacher meeting, he felt out of place and distracted given what had happened.

The complainant provided copies of emails exchanged between the parties from 6 March 2020 onwards.  Upon receipt of the respondent email documentation the complainant outlined his objections in writing to the workplace Relations Commission, stating that given the volume of paperwork involved and the fact that these were only submitted a couple of days in advance of the hearing he proposed that the documents be disregarded by the Adjudication Officer.

The complainant’s concluding remarks:

The complainant stated that in relation to the phone call which took place between him and the former Principal he was advised by the former Principal to “go and sort things out” himself with his wife and he opined “as if that was an option”.  He stated that the Principal had not “let on” that he had gotten legal advice but that it was clear he was treated less favourably than the mother. He stated that he didn’t understand the reference made at hearing by the former Principal in relation to a discussion about another school in the area but that nothing in that phone call could be substantiated.  He stated that it was clear that the respondent did not have his consent to enrol his daughter.

The complainant stated that when the confirmation of acceptance slip was returned the former Principal should have reverted to him but he had not done so.  Instead, the complainant stated, the former Principal had accepted the acceptance slip and email from the mother.  He pointed out that his objection was never withdrawn nor did he ever give consent.  He posed the question as to why the former Principal would have proceeded when he had failed to get clarification and failed to get consent from the individual raising the objection.  He stated that in the absence of agreement between the parties it was a matter for the courts to decide and that the former Principal had acted ultra vires.  The complainant stated that the former Principal should have emailed both parents.

In relation to the Alladin App the complainant stated that it was a social media website, that it gave generic information e.g.; where not to park but that it di not provide any information in relation to an individual child.  He stated that in his view there was no real interaction from the respondent, that if there is a note it should be sent to both parents.  He stated that he believed that the view was if there was an acrimonious parent they could be left out.

The complainant expressed his disbelief that the comment made by the teacher on the report could be considered to be a positive comment, he stated that was not his opinion of the comment and that he takes a different stance on the matter.  He stated that he wanted the comment retracted and that the respondent shouldn’t label people.

The complainant challenged the account of the communion schedule/events given by the respondent, stating that he received a communication, A4 sheet with dates for communion events.  He stated that in his experience that a school with a strong catholic ethos was hugely involved in arrangements relating to the communion.  He stated that the teacher was in almost every photograph.  He advised that he attended a meeting as per the schedule and that it was over by the time he got there.  He stated that “to be excluded is repugnant”.

He advised that in relation to the issues surrounding the photographs he wasn’t notified about the photographer and that when he asked the photographer he was advised to go through the school.  He confirmed that he did that but that ultimately the photographs went missing.  He advised that he considered this to be a matter of child protection, the photographs were missing and nobody knew where they were. He confirmed that he eventually had to go directly to the photographer and he emailed him directly.  He stated that the school left him high and dry.

In relation to the gift left on his daughters’ birthday the complainant stated that he left the “hamper” in a conspicuous place, addressed to the teacher including a card/letter setting out the reasons for the delivery. He confirmed that there was nothing sinister about the gesture, that it was at the teachers’ discretion but that he heard nothing back.  He stated that it was only at the teacher meeting that he learned that the sweets etc had subsequently been distributed when the teacher told him that his daughters’ eyes had lit up when she informed the class of the gift.  He stated that he found it very upsetting.

The complainant stated that he was entitled to information in relation to his daughter’s education, he acknowledged the new system “Seesaw” the was in use post Covid but advised that it hadn’t been available heretofore.  He posed the question, why not embrace an open policy, facilitate everybody and email both parents.

The respondent did not provide a submission in advance of the hearing but did submit 171 pages of emails exchanged between the parties from 6 March 2015 up to the time of the hearing in April 2021.

The respondent submitted that the complainant’s daughter had been enrolled with the respondent in August 2015 and that at the date of the hearing she remained in the school and that despite initial concerns back in 2015 the complainant had not initiated a complaint of discrimination until after the article was published regarding another case in 2019. The respondent outlined that initially the complainant had submitted an ES1/ES2 form om 7 October 219 that specifically related to the enrolment of his daughter with the respondent school.  The respondent outlined that the complainant was seeking to put forward an argument that there were continuous acts of discrimination over the intervening 4 years but the respondent submitted that the complaint should be ruled out of time.

In relation to the case referred to by the complainant in his ES1/ES2 form and in his complaint form, the respondent submitted that the Adjudication Officer in that case had erred and submitted that enrolment of a child is a single event/action and cannot be said to be an ongoing act.

The respondent outlined that Section 19 of the Education & Welfare act places an obligation on schools in relation to enrolment of children and Section 20 states that when a child attends on the first day of school, they cannot then be removed.  The respondent stated that this was a complicating factor in this case.

In addition to the preliminary issue 3 the respondent stated that a number of the issues raised by the complainant were also out of time.

The respondent stated that on or about 5 February 2015 an application was made for the complainants’ daughter to be admitted to the respondent school.  The respondent noted that the application was made by the mother only but that this was not in any way unusual.  The respondent outlined that on 6 March 2015 the respondent received an email from the complainant advising that he did not give his consent for his daughter to be enrolled in the school. 

The respondent outlined that a phone call took place with the complainant, explaining that the matter ought to be resolved between the parents.  There was no further contact from the complainant, however, an email was received from the mother of the child confirming acceptance of the place that had been offered.  The respondent outlined that it was assumed that this reflected the position of both parents and in those circumstances the child was enrolled in the school.  The respondent submitted that if the parents could not agree a way forward then it was open to either parent to seek a court order.  In the absence of such an order and upon receipt of an acceptance of the place the respondent submitted that the former Principal assumed agreement had been reached and so, he proceeded on the basis of the written response.

In relation to further issues the respondent denied all allegations and stated that it had passed on all information to the complainant as it did to all other parents.  The respondent outlined that it had adopted the “Alladin App” which allowed it to communicate with parents.  The respondent confirmed that the complainant signed up to the App in 2018, and that in addition to the app, the respondent had information available to all parents on its’ website and through a regular newsletter.  The respondent further advised that, from time to time, notes are sent home with children in relation to school events, a reminder of those notes is also published on the App.  For all such events the respondent confirmed that each child is entitled to bring 2 guests and that it is for the child to invite.

The respondent noted that the issue raised by the complainant in relation to the school report occurred in 2017 and is therefore out of time. Notwithstanding the timeframe the respondent submitted that at the time of receipt of the complainant’s email of concern the teacher was out of school and in those circumstances the former Principal responded advising the complainant of those circumstances.  The respondent noted that there was nothing discriminatory in the report, that it was a positive comment in an overall positive report and that the report was sent to both parents.  The respondent stated that it was simply a report on the child’s progress.

The respondent also noted the issue raised by the complainant in relation to the involvement in the planning and preparing for Holy Communion.  The respondent noted that communion day was 25 Amy 2019 and so considered this matter to be out of time.  In any event, the respondent outlined that the planning and preparation for the communion was done by the parish priest.  The respondent outlined that the complainant was furnished with a copy of the form from the parish priest (a copy of same was provided).  The respondent confirmed that all parents of children for communion received the same information.

The respondent further noted the issue raised by the complainant in relation to photographs and noted that this occurred in or around the same time and was therefore out of time.  The respondent advised that an external photographer was taking calls photographs, that there was no obligation on parents to purchase those photographs.  The respondent outlined that a couple of days after the photographer attended the school order forms were sent home with the children and that any photographs for the complainant’s child were sent home with her.  The respondent confirmed that it did not have any photographs and did not withhold any from the complainant.

The respondent referred to the issue raised by the complainant in relation to the gift he brought to the school for his daughter’s birthday.  The respondent outlined that this occurred in October 2018 and was therefore out of time.  In addition, the respondent stated that this should have been included in the first ES1/ES2 form dated 7 October 2019. The respondent outlined how the package had been left in the school and that when opened the teacher found a thank you card to her, together with seers and cakes.  The teacher brought the matter to the attention of the Principal who noted that it was against school policy to allow sweets to be consumed during school days and so it was parked.  Sometime later, the teacher found the birthday card and, in those circumstances, gave out the sweets to the children in the complainant’s daughter’s class.  The respondent submitted that there was nothing discriminatory about this issue, that it was merely a matter of following school healthy eating policy.

The respondent noted that a number of issues raised by the complainant did not relate in any way to allegations of discrimination, but were in fact, issues relating to custody arrangements. The respondent described where certain matters e.g.; homework (pre Covid) and sample Christmas cards were sent home with the children.  The respondent advised that all children brought such messages home at end of day and that the complainant’s daughter was treated no differently.

The respondent drew specific attention to the complainant’s position that the respondent continued to discriminate against him by continuing to enrol his daughter in each subsequent year, in opposition to his expressed wish, set out in his email of 6 Marc 2019, which the complainant argued was never withdrawn.  The respondent stated that this position was misconceived as admission/enrolment was not an annual event and was therefore not on-going.

Finally, the respondent outlined concerns at the tone and manner of correspondence from the complainant and further complaints received from him throughout the Summer of 2020. 

Witness evidence given by the former Principal (Mr A)

Mr. A confirmed that he had been the principal of the respondent school at the time of the admission of the complainant’s daughter.  He confirmed that an application for a place at the school had been made in early February 2015 by the child’s mother.  He stated that it was not at all unusual to receive applications signed only by the mother of a child.  He stated that on 6 March 2015 he received an email from the complainant advising that he did not give consent for the child to be enrolled in the school.

Mr. A confirmed that he did initially respond by email, offering to have a phone conversation on the matter.  He stated that was acceptable to the complainant who provided contact details.  He confirmed that he phoned the complainant and that, to the best of his recollection they discussed other options in the general area.  He stated that he advised the complainant that the school would not involve itself in family law matters and that it would be best if the matter could be resolved between the two parents.

Mr. A also advised that he made telephone contact with the child’s mother to advise her that an objection had been received and to advise her that the school would not involve itself in family law matters and that it needed to be resolved between the parents.  He stated that all letters of offer issued thereafter and that the offer slip was returned by the child’s mother, confirming acceptance of the place at the respondent school.  He stated that on 17 March the child’s mother emailed to confirm that her daughter would be accepting the place offered.  Mr. A stated that once he received that further confirmation it was his understanding that the issue had been resolved between the parents.  He stated that no further issue was raised with him in relation to the child’s enrolment until November 2019.

Mr. A clarified that there was no requirement to get both parties consent, that the offer slip went out with all offers and that once he received that he believed there was no further issue.  He stated that he had very clearly explained to the child’s mother the position that they should both come to an agreement and he stated that once he received the email, he made the assumption that agreement had been reached between the parents.

Evidence given by the Principal (Mr. B)

Mr. B confirmed that the parish priest had given a presentation in relation to the first communion and that the invitation to that presentation had issued vis Alladin.  He confirmed that the complainant was not at the meeting.  He further confirmed that the parish priest outlined the events for parental preparation for the communion at that meeting and that these events were then listed in a schedule on 25 February 2019

In relation to the photographs Mr. B confirmed that the slips were put on Alladin and were sent home in schoolbags, together with order forms.  He advised that the photographer attend the school and collected the orders a few days later. He confirmed that while the school facilitated the photography arrangement, it was a matter between the parents and the photographer.  He also confirmed that he had asked the school secretary to phone the complainant about the photographs and that she had done so and left a voice message.

He further confirmed that the sweets were not distributed on the day the complainant left them due to the schools’ healthy eating policy.  He confirmed that later, in or around Halloween time, the teacher found the card and the teacher mentioned it to him and the sweets were distributed.

Mr. B referred to what the complainant had described as the “impromptu hijacking of the parent teacher meeting”.  He stated that on the day of the teacher meeting in November 2019 as there was no school secretary in the afternoon, he answered the door to the complainant who was a little early for the meeting.  He stated that, in that context, he invited the complainant “for a chat” and he offered to meet him once each term to keep him updated. He stated that the complainant had said he didn’t want special treatment, he asked if there would be an agenda for the meetings and had said he didn’t want to be spoken to differently.  Mr. B confirmed that he advised the complainant that he would ring him the following day if that was OK.  He confirmed that he explained to the teacher why the complainant was late for the teacher meeting and he thanked him for chatting to him.

Finally, Mr. B confirmed that the complainant’s statement that he had binned his emails was inaccurate. He stated that he did not say to the complainant that his emails would be binned, that he had actually advised that he wouldn’t be able to respond to the volume of emails.  He stated that he had advised the complainant to make contact through a general email in the first instance, like all other parents.

Preliminary Matters:

Issue 1

The respondent had sought that the matter be held in private and that an anonymised decision be issued consequent to the hearing.  The complainant did not object to this course of action.  Taking into account the protection of the minor child at the heart of this case it seemed reasonable to me that this should remain a private matter and in that context I have exercised my discretion to anonymise this decision.

Issue 2

The respondent had sought that the former principals’ name be removed as a respondent in the case and had highlighted the correct name of the respondent.  The complainant accepted this amendment.  I have reflected the changes requested in the record of the complaint, whilst also anonymising the published version of the decision.

Issue 3

The respondent argued that the complainant had not fulfilled his obligations in relation to the correct provision of the ES1/ES2 form, that the second form was submitted merely to overcome the issues of time limits and that additional grounds were included in the second form following the publication of a decision in another case.  In that context the respondent submitted that the Adjudication Officer did not have jurisdiction to hear this complaint.

I carefully examined the details of ES1/ES2 forms submitted on both occasions by the complainant and I noted the following:

·         ES1/ES2 forms submitted to the respondent on 7 October 2019

o   The forms were dated 7 October 2015, though it is clear from the date of submission and from the content of the forms that it should have been dated 7 October 2019

o   This error was accepted by the complainant at hearing and advised as having been an administrative error

o   The form related only to a complaint of discrimination on the prohibited ground of gender

o   The form outlined specific issues that occurred in relation to the enrolment of the complainant’s child on 6 March 2015

o   The form refers to continuing discrimination up to 7 October 2019 but does not outline any specific occurrence of alleged discrimination

o   The forms were sent to the respondent by email of 7 October 2019

o   The respondent emailed the complainant on 8 October 2019 to advise that he could not open the attachments to the email i.e., the ES1/ES2 forms

o   The respondent emailed the complainant again on 14 October 2019 to check if he had received the respondents’ previous email

o   No response was received to either of those emails

·         ES1/ES2 forms submitted to the respondent on 12 December 2019

o   The forms were dated 12 December 2019 and were submitted by email to the respondent on the same date

o   The forms related to complaints of discrimination on the prohibited grounds of gender, family status and civil status

o   The form outlined issues between 6 March and 14 November 2019

o   Under details of the complaint the complainant outlined that his concerns related to “the absence of my consent for the enrolment of my child in a school having been ignored, (annually) in favour of the child’s mother

o   In outlining the grounds for his allegations of discrimination, the complainant set out a number of on-going issues in relation to communication between him and the school and specifically referred to what he described as a “hijacked parent teacher meeting by the Principal” which he alleged occurred on 14 November 2019

Section 21(2) of the Equal Status Act states that before seeking redress the complainant “shall, within 2 months after the prohibited conduct is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent of –

      (i)            The nature of the allegation

    (ii)            The complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress by referring the case to the Director”

In relation to the form submitted by the complainant on 7 October 2019 I note that it was submitted within 2 months of the last alleged occurrence and it did seek to inform the respondent of the nature of the allegation and to notify the respondent of the complainant’s intention to refer the case to the WRC if they were not satisfied with the respondent’s response.  However, I note that the respondent, while receiving the cover email was unable to open the actual ES1/ES2 forms and notified this difficulty to the complainant on 2 occasions.  I note that the complainant did not respond directly to those emails and in the context that the respondent was unable to view the details of the allegations, I consider that the complainant’s first ES1/ES2 form of 7 October 2019 did not meet the requirements of Section 21(2) of the Act.

In relation to the form submitted by the complainant on 12 December 2019 I note that it was submitted within 2 months of the last alleged occurrence and that it did inform the respondent of the nature of the allegations and of the complainant’s intention to refer the case to the WRC if they were not satisfied with the respondent’s response.  I note that there was no indication that the respondent had not received this correspondence. In this context, I consider that the complainant’s second ES1/ES2 form of 12 December 2019 did meet the above requirements of the Act.

I note that Section 21(4) of the Act states that “The Director shall not investigate a complainant unless he or she is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent”.  I note that the respondent did not provide a response to the notification.  I further note that the ES1/ES2 forms were submitted to the respondent on 12 December 2019 and that the complainant submitted his complaint form to the Workplace Relations Commission on 30 January 2020.  In circumstances where the complaint was lodged some 7 weeks after the date on which the ES1/ES2 form was submitted to the respondent I find that the requirements of Section 21(4) have been satisfied.

I further note that Section 21(6) of the Act states that a complaint “may not be referred under this section after the end of a period of 6 months from the date of occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of it’s most recent occurrence.” I note that the last alleged occurrence referred to in the ES1/ES2 form is recorded as having taken place on 14 November 2019.  As the complaint was submitted to the Workplace Relations Commission on 30 January 2020, I find that the requirements of Section 21(4) have been satisfied.

Finally, the respondent raised concern that the complainant only added additional grounds for discrimination after he had learned of the outcome of a separate case heard by the Workplace Relations Commission.  This may well be the case, but there is no evidence to verify this position and even if there were, the complainant’s case of discrimination would still need to stand on it’s own merit.  This argument does not provide grounds to limit the jurisdiction of an Adjudication officer.

Based on the details outlined above, I find that I do have jurisdiction to hear this complaint.

The Substantive Case:

This is a complaint of discrimination pursuant to the Equal Status Act.  It is on the grounds of gender and family status.  It relates to a claim that the respondent’s actions in enrolling the complainant’s daughter without his consent, continuing to do so each year since, and other instances of failing to provide information individually to the complainant amounts to discrimination on the grounds of gender and family status. 

I note that Section 5. -(1) of the act states that “A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”

I note also that Section 7 of the act provides:

7.-(1) In this section “educational establishment” means a preschool service within the meaning of part VII of the Child Care Act, 1994, a primary or post-primary school, an institution providing adult, continuing or further education, or a university or any third-level or higher-level institution, whether or not supported by public funds.

(2) An educational establishment shall not discriminate in relation to –

(a) the admission or the terms and 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, or

(d) the expulsion of a student from the establishment or any other sanction against the student.

(3) An educational establishment does not discriminate under subsection (2) by reason only that –

Section 2 defines a service as follows:

“service” means a service or facility of any nature which is available to the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes –

(a)   Access to and the use of any place,

(b)   Facilities for –

(i)                  Banking, insurance, grants, loans, credit or financing,

(ii)                Entertainment, recreation or refreshment,

(iii)              Cultural activities, or

(iv)              Transport or travel,”

It is clear that the respondent is a provider of education to the complainant’s daughter and as such must engage in various interactions with the parents of children attending their school.  I am satisfied that the interactions between the school and the parents fall within the meaning of a service as defined in the Act. I also find that the complainant was seeking such a service from the school and that his complaint of discriminatory treatment comes within the scope of the Act.

I have already noted that I have jurisdiction to hear the complaint based on the notice served to the respondent in the ES1/ES” form of 12 December 2019, a set out under Findings – Issue 3 above.

The complainant in this case alleged that he was discriminated against and treated less favourably on the grounds of gender and on the grounds of family status. 

I must now consider whether the complainant has established discriminatory treatment on the gender.  In considering this matter, I paid close attention to the complainant’s written complaint form and to the evidence given by him at hearing.

Section 85A (1) of the act provides: that “(1) where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

In any case involving an allegation of discrimination an Adjudication Officer must first consider the allocation of the burden of proof as between the complainant and the respondent. 

Section 85A provides that where a complainant establishes facts from which discrimination may be inferred it then falls to the respondent to prove that the principle of equal treatment was not infringed.  Once these facts are proved, and if an Adjudication Officer considers them to be sufficiently significant to raise an inference of discrimination, then the onus of proving the contrary shifts to the respondent.  If a complainant does not prove the primary facts upon which they rely or if those facts are insufficient to raise an inference of discrimination the claim cannot succeed.

It is for the complainant in the first instance to establish surrounding or primary facts which could lead to an inference that discrimination has occurred before the burden of proof shifts to the respondent.

In Melbury Developments Ltd. V Valpeters [2010] ELR 64, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”  The established test for ascertaining if the burden of proof shifts to the respondent was set out by the Labour Court in its determination in Mitchell v Southern health Board [2001] ELR 201.  That test provides:

1)      It is for the complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination.  If the complainant fails to do so, he or she cannot succeed.

2)      If the primary facts relied upon are proved, it is for the Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination

3)      If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the respondent.

In this case the primary facts relied upon by the complainant are:

(i)      That he advised the respondent, in writing, that he did not give his consent to his daughter being admitted to the respondent school

(ii)    That he never withdrew his objection or confirmed his acceptance of a place in the school, yet the school enrolled his daughter thereafter, based solely on the confirmation received from the child’s mother, without ever reverting to him to clarify his position.

(iii)  That the respondent continued to enrol his daughter each year, thereafter, without taking account of his objection which remained on the record.

(iv)  That the respondent did not communicate information and messages directly to him as the child’s father and that he was excluded from participating in various school and associated events as a consequence.

(v)    That he had left a “hamper” into the school on the day of his child’s birthday with a card and letter of explanation for the teacher and that he later found out that the teacher had not distributed these on the day of his child’s birthday.

(vi)  That he was not aware initially that he could purchase class photographs, that he was obliged to make direct contact with the photographer, that the photographs went missing, that the respondent did not assist him in tracking the photographs.

(vii) That the school Principal “hijacked” his parent teacher meeting, reducing his time available for discussion with the teacher, in circumstances where that was already a short time slot. 

Family Status Ground

In relation to the complaint that the complainant was discriminated against by the respondent on the ground of family status I note that the comparator referred to, throughout the hearing was his child’s mother and I note that she would have had the same family status as the complainant. I also note that Section 3(2) of the act describes discrimination as occurring “as between any two persons, the discriminatory grounds (and the description of those grounds for the purposes of this Act) are…(c) that one had family status and the other does not or that one had a different family status from the other (“the family status ground”)”

The complainant and the mother of his daughter had, at the relevant time, the same family status, both were separated and both were parents.  Therefore, the alleged difference in treatment cannot have been on the grounds that the complainant was of different 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 family status ground.

Gender Ground

The remaining element of the complaint relates to the claim that the respondent treated the complainant less favourably than it did the mother of his daughter because he was a man and she was a woman, i.e.; on the gender ground in relation to her enrolment. In the school, in relation to her continued enrolment thereafter and in relation to the various incidents outlined by the complainant.

In relation to the complaint that the complainant was discriminated against on the ground of gender I note that the comparator referred to, throughout the hearing was his child’s mother. I note also that Section 3(2) of the act describes discrimination as occurring “as between any two persons, the discriminatory grounds (and the description of those grounds for the purposes of this Act) are: (a) that one is male and the other is female (“the gender ground”).  In this context, an educational establishment could be deemed to discriminate on the gender ground where it treats one parent more favourably that the other (where they are both of different genders) with regard to their child’s education, where both parents had equal guardianship rights.

In this case, there was no dispute between the parties that the enrolment application was completed by the mother of the complainant’s daughter and that the complainant had set out his objections, in writing, to the respondent on 6 March 2015.  It was abundantly clear in that email that the complainant did not give his consent for his daughter’s enrolment in the school. It is clear, also, that the respondent made contact with the complainant on foot of that correspondence and advised that the school did not involve itself directly in family law matters and that the parents needed to resolve the matter between them.  Furthermore, it was clear from the evidence given by the former Principal that he made contact with the mother of the child and gave her the same advice.  His evidence that he later received written confirmation from the mother that she was accepting the place offered in the school on behalf of her daughter and that on that basis the respondent “assumed” that matters had been resolved between the parents and he proceeded to enrol the complainant’s daughter for the 2015/16 school year.  The complainant gave evidence that the respondent did not revert to him upon receipt of that correspondence to verify if, indeed, he had resolved the matter and this was borne out in the evidence given by the former Principal.

I noted that the complainant never withdrew his objection, nor sent any correspondence to overwrite his previous concerns and that the complainant’s daughter remained a pupil of the school at the date of hearing, which he argued constituted on-going discrimination.  I noted that the complainant did interact with the respondent throughout the years of his daughter’s attendance and did not raise any further objection throughout those years to his daughter’s attendance at the school until just prior to the submission of his claim.  I further noted the respondent position that once the child had been enrolled there was not a new enrolment process each year.

In relation to the remaining issues raised by the complainant I noted that there was no evidence put forward that the mother of the child was treated differently to the complainant in relation to ordering photographs or the delivery of the child’s birthday gift.  I do not accept that these issues, while frustrating for the complainant, constitute discrimination.  I also cannot identify any act of discrimination in the Principal asking to meet, albeit in an impromptu manner, on the evening of the parent teacher meeting to try to find better ways of opening the lines of communication between the complainant and the respondent.

Where the complainant identified a difference between the communication between the respondent and himself versus the communication between his daughter’s mother and the respondent centred on information provided by the school, which took the form of notes home in the school bag.  This it seemed to me, was at the heart of a number of the incidents described, where he was then not aware of details of activities/events taking place. I noted that the respondent had put in place the Alladin system in April 2018 and that the complainant had signed up to that App at that time. I noted further that both parties advised that this App was used to send out information of a general nature to all parents who signed up to the app.

In the circumstances outlined above I am satisfied that all of the specific instances referred to above occurred well over a year prior to the submission of the complaint and, as such, are out of time.  I consider that the complainant, in engaging with the respondent on an on-going basis throughout the years and in never again raising an objection to his child’s continued enrolment, in effect acquiesced with the enrolment of the child thereafter.  I also accept that there was no annual enrolment process available to the school each year thereafter, and I consider that it was not open to the respondent to simply remove the child from the school once she had initially been enrolled. In these circumstances I am satisfied that the respondent actions in this regard do not constitute discrimination.

While I have concern in relation to the respondent’s initial actions regarding the enrolment of the complainant’s daughter against his clearly stated wishes, in light of my findings that other matters raised do not constitute discrimination, this issue stands alone to be considered.  Given that the enrolment of the complainant’s daughter occurred in 2015 this complaint, unsupported by ongoing instances of discrimination, is out of time.

Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the family status ground.

CA-00031399-001:

For all the foregoing reasons, I find that the complainant has not established discriminatory treatment on the gender of family status grounds, contrary to the Equal Status Acts. In those circumstances, it is my decision that this complaint is not well founded.

Discrimination on the prohibited grounds of gender and family status, educational establishment