Complainant

Respondent

Anonymised Parties

A Father

A School

Representatives

N/A 

Barra Faughnan BL instructed by  Mason Hayes and Curran

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00055169-001

18/02/2023

The Complainant stated that his daughter, C, who does not want to participate in religion classes because she is non-religious, is receiving an inferior education to her religious sister, E. This discrepancy is attributed to the Respondent's failure to allow C to participate in alternative classes while religious classes are ongoing. The Complainant argues that this treatment constitutes an instance of discrimination.

The Complainant stated that, according to Section 30.2(e) of the Education Act 1998, and Article 44.2.4 of the Irish Constitution, his daughter C has exercised her right not to attend religion class. The Education (Admission to Schools) Act 2018 also provides parents with several legal rights and entitlements with respect to publicly funded schools. The Complainant highlighted that the Respondent has adhered to all aspects of the Act that are relevant for religious parents, such as Section 62.7(a) that relates to the characteristic spirit of the school but that they have not adhered to Section 62.7(n) that is especially relevant to non-religious parents. He further stated that the Act requires schools to publish the “details of the school’s arrangements in respect of any student” who has decided not to attend religion classes. Rather than publishing these details as required by law however, the Admission Policy for the Respondent simply states that “a meeting will be arranged” with the parents to discuss how the non-religious “may be accommodated”. He asserts that the actions of the Respondent are contrary to intention of the legislation which is to require the transparent disclosure of arrangements for children not attending religion classes.

Because the content of the religion class is contrary to her conscience, he has proposed to the school that his daughter C should instead attend one of the alternative classes for her year that is ongoing at the same time as the religion classes. He highlighted that C’s elder sister A has already been facilitated by the school in a process that allows for swapping to an alternative class during certain periods. However, the school has refused to facilitate C in swapping classes, even though such a process to attend alternative classes can demonstrably be implemented without requiring any additional school resources. Consequently, when C should be attending a different class and listening to relevant teacher delivered educational content, she is instead unlawfully and unconstitutionally forced to remain in the religion class where she cannot participate in any educational activity. This has resulted in C receiving two hours less education per week than her identical sister E, because E has religious belief whereas C has none.

The Respondent stated that they do not accept that a lesser service is being provided to the Complainant's daughter, C, when compared with his daughter, E, and argued that C is entitled to study other subjects during religion class. The Respondent also asserted that the Complainant mis-understands the law and that a school is entitled to provide a religious education programme but individuals are entitled to opt out of that programme.

The Respondent also stated that if C was to receive more mainstream tuition than E, which is what the Complainant is seeking, this could be seen as more favourable treatment on the grounds of religion. Specifically, it might expose schools to claims from other parents, on the basis that the non-religious students are getting an additional benefit.

The Respondent also highlighted that religious education is not the only subject in respect of which students in the school have exemptions from participation. The school has a number of students who opt out of certain subjects: Irish, French, science and geography, for various reasons. These may include learning needs or students, for example, not having covered that subject having moved from another school. These students do not swap into other classes as this has the potential to create chaos in the school. The students remain in their base class and complete other work or study during the period of the class they have opted out of following a meeting with the parents and guardians of same. In opting out of instruction in religion but still being physically in the classroom, C is being treated in the same way as other students who have a subject exemption. Were she to be facilitated to attend other classes at the same time, it could be argued that she was receiving more education / a better service than students with other opt outs and the only basis for that differentiation in treatment would be that C’s opt out is on religious grounds.

The Respondent also disputed that the school had breached the requirement of section 67 on the basis that the arrangements in relation to opts out of religion are not “transparent” as alleged by the Complainant. Specifically, it was asserted that the school has a detailed bespoke approach in relation to admission and to opting out of religion and provides that such arrangements are discussed with the parents and/or child concerned. The Respondent further highlighted that a "one size fits all" approach is unlikely to meet the requirements of each circumstance where students wish to opt out of religion. Rather, the school is flexible in terms of what it might do and what arrangements might be put in place and what the policy provides is that the school will liaise with the parents specifically in relation to this matter.

The Respondent also disputed that another child of the Complainant, A, is being permitted to swap classes as alleged by him and stated that she is student Mentor who visits first year classes for ten minutes on 2-3 occasions during the week during tutor class as part of a mentoring programme. This lasts for about 10 minutes and not a full class.

The Law

Section 62(7) of the Education Act 1998 as amended by Section 9 of the Education (Admission to Schools) Act 2018 requires that a schools must have arrangements in place for persons seeking to opt out of religious instruction that "shall not result in a reduction in the school day in respect of the student concerned."

The Equal Status Act at section 5(1) 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.”

Section 3(1) 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)…in this Act referred to as the ‘discriminatory grounds’.

Section 3(2)(e) lists the following as one such ground,

“…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”) as one such ground.”

Section 2 of the Act defines “service” as follows,

“a service or facility of any nature which is available to the public generally or a section of the public”

In addition to the foregoing, the Act makes express provision in respect of services provided by educational establishments. In this regard, Section 7(2) provides that,

“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, or

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

Regarding the burden of proof in respect of such claims, Section 38A(1) provides 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."

In the matter of In Melbury Developments Ltd v Valpeters [2010] ELR 64, the Labour Court, in considering a similar burden of proof under the Employment Equality Acts held that,

“…mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Preliminary Matter – Locus Standi

At the outset, I noted that the Complainant is not a student of the Respondent, but is the parent of C, who he alleges is being subjected to discrimination. Regarding the Complainant’s locus standi to maintain the present complaint, in the matter of The Father of a Pupil -v- Board of Management of a Primary School ADJ-00035882, the Adjudicator held that,

“Due to the nature of the relationship, the Respondent is required to have interactions with the parents of the pupils attending the school as regards their children’s education, attendance, etc. I note that the list set out in Section 2 of the Act under the definition of “service” is not an exhaustive list. I am satisfied that interactions with parents are an inseparable part of the education process and amount to a service under the Act. I am also satisfied that the service is available to a section of the public i.e. to the parents of pupils in the school. I find that the Complainant was seeking a service from the Respondent and his complaint of discriminatory treatment falls within the scope of the Act.”

Considering the foregoing, I am satisfied that the Complainant has locus standi to pursue the complaint. 

Findings

Despite the Complainant's references to the Education Act 1998, the Education (Admission to Schools) Act 2018 and the Irish constitution in both written submissions and oral testimony during the hearing, there was no supporting evidence presented to show that any legislation explicitly requires schools to offer alternative classes or additional tuition to a student who opts out of religious studies compared to a student who chooses to participate in them.

While the Complainant also stated that the Respondent breached the requirement of section 67 of the Education (Admission to Schools) Act on the basis that the arrangements in relation to opt outs of religion are not transparent, I am satisfied based on the evidence presented to me by the Respondent that this is not the case. In making this finding, I noted that the Respondent's mission statement allows for opt-out requests from religious classes and sensibly, in my view, acknowledges the absence of a universal “no one size fits all” solution for such requests. Considering this, I believe that engaging in a conversation with the child or the parents about the arrangements for the religious classes, as described by the principal in his evidence, constitutes a reasonable approach and does not breach the transparency obligations outlined in the Act.

In deciding whether the Respondent breached the Equal Status Act by not offering the Complainant additional classes instead of the religious ones she opted out of, I accept the Respondent's argument that providing alternative classes for opt-out students might potentially result in chaos within the school. Moreover, one can easily envision that the situation could become even more complex if students exempt from other subjects also sought alternative classes, citing the precedent set for those opting out of religion. Although I accept the Complainant's evidence that other schools do offer alternative classes for students opting out of religious education, without apparent issues, the Respondent's decision not to do so in this case does not inherently amount to discrimination.

However, what could potentially be considered discriminatory would be if the Respondent offered extra tuition in a different subject to a student who opted out of religion but refused to provide additional tuition to a student who chose to attend religious classes on the grounds of their belief. This difference in treatment based on students' choices regarding religious education could raise concerns of discrimination under the Equal Status Act as the Respondent’s representative correctly highlighted. Specifically, if the Respondent allowed C to participate in additional history classes due to her decision not to study religion, then it could be argued that E has a valid claim of discrimination because she chose to study religion but was not given the same opportunity for extra history classes.

Considering all of the foregoing, I find that the Complainant has failed to establish a prima facie case of discrimination.

As a prima facie case of discrimination was not established by the Complainant, I find that the Respondent did not engage in prohibited conduct.