Complainant

Respondent

Anonymised Parties

A Parent

A National School

Representatives

Anthony McIntyre

Mason Hayes & Curran LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00052247-001

15/08/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

Although the complainant took the affirmation at the start of the hearing, she declined to give any oral evidence.  Two witnesses for the respondent took the oath at the outset, however only one, the then Acting Principal, gave evidence and was cross examined.

The complainant submitted that her child was discriminated against on the grounds of religion when certain members of the school were given ice cream for participating in religious services whilst others were not. It was submitted that the children who were rewarded for taking part in the religious ceremony were called out from their classrooms and given ice cream as reward for taking part in the communion ceremonies the previous Saturday. Those children then returned to class eating their ice cream.

The complaint submitted that this had an adverse effect on students who are not of the Catholic faith.

In response to the preliminary submissions from the respondent regarding locus standi, the complainant submitted that it was clear she was referring to her child and that she was not for representing any group other than her child alone.  In relation to the second preliminary objection complainant confirmed that the complaint related to the treatment the child received on 16 May 2022.

As a preliminary matter that respondent submitted that there were two issues one related to the locus standi of the complainant and the second referred to the breadth of the complaint in front of the Commission.

The respondent submitted that the application form was completed in such a way as to be on behalf of a group of children and therefore the complainant had no locus standi.

The respondent submitted that in its later submissions the complainant sought to expand the complaint beyond what was originally mentioned in the original application form and ES2 form.

As to the substantive matter, the respondent submitted that notwithstanding it preliminary arguments, the complainant had failed to identify any comparator, and indeed had mentioned that Catholic children also did not get the reward. It also submitted that the complainant made related to more favourable treatment for children who had taking part in the choir's activities rather than less favourable treatment being given to anybody.

The respondent submitted that under the Equal Status Act, it is entitled to have a religious ethos but it is not required to shield children of another faith (or none) from the Catholic faith. It submitted that the ceremony was open all its students and the opportunity to sing in the choir was also open to all.  Accordingly, the respondent denied that any discrimination took place.

The witness for the respondent, who was the acting principal at the time, gave evidence that not all of the choir were Catholic and that there was no restriction on accessing the choir. He outlined that Catholic children did not receive the ice creams but only the 40 children who comprised the choir [out of almost 250 students].

Under cross examination the witness confirmed that no children received the ice cream we did not sing at the communion ceremony. He noted that he did not look at the choir participation as a religion religious ritual. When it was put to him that this amounted to subliminal messaging of a religious nature the witness confirmed that he did not consider it to be subliminal messaging or that he even thought about this aspect. He noted that it simply was a reward for working hard. The witness went on to identify two non-Catholic children who took part in the choir and who received the ice cream treat on Monday following the event.

Preliminary issues:

As regards the locus standi of the complainant I have considered the arguments put forward by both parties. I note the format of the non-statutory complaint form does not identify the complainant child but appears to refer to a group of children. However, in the ES1 form that the complainant submitted to the respondent I note that she took the case on behalf of her child and in that document outlined how she believed that her child was discriminated against. Accordingly, I find that the documentation grounding this complaint does seem to refer to the complainant acting on behalf of her child. I am satisfied that the complainant has locus standi to pursue a complaint against the respondent in respect of her child alone.

On the 2nd preliminary matter, the breadth of the complaint, I am satisfied that the documents submitted by the complainant grounding her complaint refer specifically to the matters that took place on 16 May 2022 and do not go beyond that point. In additional submissions made in July 2023 the complainant seems to expand upon the matters that were contained in her grounding documentation. Having regard to the complaint that was submitted to the Director of the Workplace Relations Commission, I am satisfied that I am limited in looking at the acts that took place 16 May 2022, all other matters fall outside my power to look at.

Substantive issues:

The complainant chose not to give oral evidence and sought to rely on written documentation and on the line of argument put forward by her representative.  The complainant submitted that her child was less favourably treated on the grounds of religion when he was not given an ice cream which was given to those people who took part in the choir 's activities for the communion services the previous Saturday. In her submissions the complainant noted that Catholic children were also not given ice creams. In fact, only 40 children were given ice creams and around 200 others were not.

The respondent noted that the 40 children were given ice creams to reward them for their participation in the choir and for giving up their Saturday. The respondent suggested that this amounts to more favourable treatment given to those students who participated in the choirs activities and was not indicative of less favourable treatment. Furthermore, the respondent noted that the choir comprised of children who are Catholic and others who were not and those who were not Catholic were not precluded from taking part.

Having considered the facts as outlined to me, which do not appear to have been in contention, I find that the reward given to the children who took part in the choir 's activities amounts to more favourable treatment accorded to a group (i.e. those singing with the choir) rather than less favourable treatment. I also find that as the choir was not restricted on the basis of religion that no religious ground has been established for the treatment which was given to those children who opted to take part in the choir 's activities.

Section 38A(1)  of the Equal Status Act, 2002 states that “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”.

The complainant has not established facts from which it may be presumed that the respondent discriminated against her child on the basis of religion.  Accordingly, I find that the respondent did not engage in prohibited conduct.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the respondent did not engage in prohibited conduct.

Equal Status Act – more favourable conduct – respondent did not engage in prohibited conduct