Complainant

Respondent

Anonymised Parties

A father of a pupil

Board of Management of a Primary School

Representatives

  Self-represented

Rosemary Mallon BL, instructed by Mason, Hayes & Curran

Act

Complaint Reference No.

Date of Receipt

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

CA-00047057-001

09/11/2021

The Complainant referred his complaint to the Director General of the WRC on 9th November 2021, alleging that he was discriminated against by reason of his gender, civil status, and family status.

The Complainant asserted that the most recent date of discrimination was 9th November 2021.

The Complainant notified the Respondent by using the ES1 form on 29th September 2021 and he received a reply from the Respondent on 29th October 2021. 

The Complainant submits as follows.

As per the ES1 form dated 28th September 2021 (posted on 29th September 2021), the Complainant became aware that his former partner had applied to have their son enrolled in the Respondent school for the commencement of school year in August 2021. When the Respondent contacted the Complainant in May 2021, the Complainant informed that the child was already enrolled in a different school in another town and had already attended there for a year, and that the Complainant knew nothing about the change of school. The Complainant advised that he would not consent to the enrolment and it was never discussed with him as his son’s parent and legal guardian. The Complainant submits that he was advised that the application would be put on file, and he took that to mean that the enrolment would not be proceeding at that time.

The Complainant was further contacted in August 2021 by the Respondent looking for an additional emergency contact number as the Respondent required four and had already had three. The Complainant further advised that he did not consent to his son’s enrolment and that his son was already enrolled and attended another school as was agreed between the parents/guardians.

The Complainant submits that when he contacted the Respondent in August 2021, to confirm if, in fact, his son started school, he was informed that it was not confirmed one way or the other that his son was enrolled and had actually started school there. The only response was that the Respondent was in receipt of a letter from his son’s mother’s solicitor which was not furnished to the Complainant.

The Complainant submits that he requested a copy of his son’s enrolment form, and he was provided with a redacted copy. The form included an acceptance form dated 31st January 2021 and it follows that the Respondent was aware since January 2021 that his son would be enrolled and only made contact with the Complainant in May 2021.

There was also a section on the application form “Please provide any further information pertaining to parental or guardianship circumstances here” which was also redacted even though the Complainant is the parent and guardian. The Complainant submits that not only he did not know what was written there, he was never given the opportunity to include any information in that section that may be relevant. There were also other sections of the form redacted with information that would be relevant to the Complainant as the parent and guardian.

The Complainant submits that also included in the application form was a photograph of the Complainant and his daughter which neither he nor his daughter were asked to provide. There were no other redacted photographs included in the application. The Complainant submits that, despite numerous requests, he had not been provided with a reasonable explanation as to why his and his daughter’s photograph was on file with his son’s application. Both the Complainant and his daughter were emergency contacts in the school that his son had attended for the previous year and at no time were they asked to provide photographs.

The Complainant submits that he was advised that he was not an emergency contact in the Respondent school in the event that his son had an accident or incident at school. In all previous schools that the Complainant’s children attended or are still attending parents/guardians are automatically emergency contacts and the other emergency contacts are only used in the event that neither of the parents or guardians are contactable at the time of an emergency. Therefore, one parent/guardian knows all the emergency contacts and the Complainant does not.

The Complainant, in his ES1 form alleges that he was treated less favourably in the following way.

The Complainant, in his ES1 form alleged that the Respondent proceeded and enrolled his son in the school in circumstances where he did not give his consent as his son was already enrolled in another school and had already attended for one year. Despite numerous requests, the Complainant has not been provided with an explanation as to why the Respondent proceeded with the enrolment and disregarded his objection.

The Complainant alleged that, even as a parent and legal guardian he would not be an emergency contact and could not be informed of who the other emergency contacts were which is information that is readily available to the other parent and guardian.

The Complainant alleges that there was a photograph of him and his daughter on file but no other photographs in circumstances where it would appear that neither was emergency contact, and no reasonable explanation was provided as to why they were there and who requested them and for what purpose in circumstances where there were no other photographs redacted or otherwise included.

In the submission received by the WRC on 18th November 2021, which the Complainant furnished in response to the Respondent’s ES2 form, the Complainant asserts that he did not consent to the enrolment as he could not have consented to what he knew nothing about. He submits that even though he repeatedly stated that he did not consent to the enrolment, the Respondent proceeded and enrolled his son in circumstances where the Complainant was advised that the application would be put on file.

The Complainant submits that there was no issue with the fact that there was only one signature on the application form. However, when he became aware of the matter, he clearly stated on numerous occasions that he had not consented to the change of school. He asserted that the policy of the Respondent disregards the fact that a parent and a legal guardian did not give consent.

The Complainant submits that the Respondent redacted information relevant to him as a parent and legal guardian and, despite requests, this information has not been provided to him but is readily available to his son’s other parent and guardian.

The Complainant submits that he never provided the Respondent with his solicitor’s details as there was no reason to. The Respondent had his contact details. He had never been asked to provide a photograph or a copy of photograph ID. The Complainant submits that the Respondent did not provide him with its policy on photographs. He submits that he would have provided a photograph of himself had he been asked for one and the Respondent’s policy explained the requirement for it. The Respondent never explained in a meaningful way why a photograph of the Complainant’s daughter was on file. The Complainant notes that the Respondent had now deleted the photograph, however, he was not aware as to who else now has a copy of the photograph.

The Complainant further asserts that the Respondent would not provide him with the details of the emergency contacts. He said that previously he always has always known who the emergency contacts were for his children and ensure that they had each other’s contact details. He submits that the child’s mother has this information. The Complainant submits that he was given the emergency contact details over the phone when the Respondent rang him, but he had no reason to write them down as the discussion was mainly around the fact that he knew nothing about his son changing school. The Complainant submits that he is not sure if he is an emergency contact for his own child and whether he would be contacted if an emergency did arise.

The Complainant submits that he was treated differently because he repeatedly advised that he did not consent to his child enrolling in the Respondent school when he was already enrolled and attended a school where he was quite happy to attend. The Complainant’s and his daughter’s was the only photograph on file, the paperwork around the Complainant’s son’s application and acceptance was heavily redacted which means that the other parent and guardian has access to all of the information and he does not, even in circumstances where the information directly relates to the Complainant as a guardian.

In an additional submission received by the WRC on 29th September 2022, the Complainant submits as follows.

The redacted enrolment form dated 11th of May 2021 was not the first contact the child’s mother had with the Respondent as there is a note on file dated 1st January 2020 which was checked and dated by the school on the 15th January 2020 which stated “applying for senior infants”.

The enrolment form does not appear to be signed by any parent or guardian, the information was only provided to the Complainant following a subject access request.

The Respondent states that it has no control over the information included or excluded in an enrolment form but that is simply not true as there is correspondence on file where there were omissions on the enrolment form that was communicated to the child's mother to be rectified and returned. The Respondent could also have requested the other omissions to be included.

The Complainant’s son did commence school on the 25th of August 2021 but did so without his consent. The Complainant was advised that the application would be put on file. When he further enquired if his son had commenced in the school there was no response from the Respondent, he had to ask his son where he was going to school. As a parent and a legal guardian, the Complainant was entitled to a response. There was never an issue that the Complainant’s son would not be attending school as he was already enrolled in a school.

The Complainant further submits that he was not advised by the child’s mother’s solicitors, his solicitor or the child's mother that his son was changing school. If such correspondence existed between the school and the child's mother's solicitor, it was not included in the Complainant’s data request.

The Complainant submits that he provided the Respondent with a copy of his guardianship in the form of a court order. A legal guardian has the right to make decisions in the major areas of the child's life e.g., religion, school, adoption, consent to medical treatment, passports and decisions about taking the child out of the country, where the child lives and other matters affecting the welfare of the child. The Respondent states that it would comply with any court order which is simply not true as the Complainant had to collect his son for a medical appointment for which he had a court order which was provided well in advance of the appointment date and yet the Respondent handed over his son to the child’s mother and he never made it to his medical appointment. The Respondent was aware that the child’s mother would be present and never advised the Complainant and left him in a vulnerable position at the school gate as she was present with her boyfriend who was previously removed from the Complainant’s home by the Guards.

Ongoing Issues

1.      An acceptance that the Complainant is the child’s parent and legal guardian and his rights as a parent and legal guardian be respected.

2.      Equal access to the same information as the child’s other parent and guardian.

3.      There was legal opinion sought from the child’s mother's solicitor and apparently an exchange of emails and correspondence not forwarded to the Complainant as part of his data request.

4.      There were also emails in relation to the Complainant’s son deleted and not forwarded as part of the Complainant’s data request.

5.      The requirement to have the Complainant’s photograph and a photograph of the child's sister on file neither of which were ever requested from the Complainant or his daughter.

The Complainant is not aware as to what is the status of the photograph taken in the privacy of his home, who has copies of it on file and for what purpose and whether there are photographs of all parents, guardians, carers, grandparents, emergency contacts on file and if so for what purpose.

6.      One parent knows who the emergency contacts are, and the Complainant does not.

7.      The Complainant is not aware if as a parent and legal guardian is he an emergency contact.

8.      The Complainant does not know in what circumstances he will be contacted in the event of an emergency.

9.      The Complainant queries whether court orders will be complied with in the future.

10.   Will the Complainant be treated the same as the other parent and guardian and provided with the same level of information and communication.

11.   Will the Complainant be welcome at parent teacher meetings the same as the other parent and guardian.

The Complainant submits that as the parent and guardian of the child, one of 4 children that he has, he has never been disregarded in any of the schools that his children attended until now.

The Complainant submits that a simple and robust policy to deal with separated parents would resolve a lot of issues but there is none evident in the Respondent school. The Complainant submits that the Respondent knew since 15th January 2020 that the child was enrolling in the Respondent school and did not make contact with the Complainant until May 2021. The Complainant submits that the Respondent was then taking legal advice from the child's mother’s solicitor instead of communicating directly with the Complainant.

Direct evidence of the Complainant

In his direct evidence, the Complainant said that he is a parent and a legal guardian of his son. He has right to make certain decisions such as regarding the child’s education.

The child was enrolled in a school and the Complainant was not made aware of the move to another school. When the Complainant was contacted by the Principal, he did not consent to have the child enrolled in the new school as he was not consulted.

The Complainant said that he sought information from the Respondent but most of the documents he received were redacted. Expression of interest was made in January 2020. It was followed up by an application of 11th May 2020. A copy received by the Complainant was heavily redacted e.g. medical and family information was redacted. In response to the Respondent’s assertion that it does not control what is in the form, the Complainant said that the Respondent sent the form back to the mother seeking additional information, so clearly it had control over what was in the form.

The Complainant said that when the Principal of the Respondent school contacted him by phone seeking his email address, he explained that he knew nothing about his son being already in the school. He was advised that the form would be put on file. The Complainant said that when he contacted the Respondent again, he could not get a response as to whether his son was in school or not. He had to ask his son directly.

The Complainant said that the child’s mother’s solicitor is neither the child’s parent nor guardian.

The Complainant said that he engaged in an exchange of emails but nobody would engage with him. He said that 70-80% of information received from the Respondent was redacted. He said it’s disturbing that the Respondent had a picture of him and his daughter. The Complainant said that he was never informed of the reason for the picture to be kept on file.

The Complainant further submits that it is not true that the Respondent would comply with a court order. He said that he had a court order referring to collecting of the child for medical appointments, he gave the Respondent plenty of notice but when he went to collect the child, the Respondent gave the child to his mother and her boyfriend. It took six weeks to reschedule the child’s appointment.

The Complainant said that he does not know who the emergency contacts are. He said that it seems that the child’s mother seems to say that he had changed the emergency contacts in the previous school but that is not true. They both knew the emergency contacts at the time.

The Complainant said that he made numerous requests for an unredacted copy of the application form.

Cross-examination of the Complainant

In cross-examination, the Complainant confirmed that his family status is a parent, the same family status as the child’s mother. The Complainant further confirmed that his civil status is single, the same as the child’s mother.

The Complainant said that possibly he was treated differently because he is a man and the child’s mother is a woman. He said that it appears to him, that the Respondent favoured the child’s mother because she was a woman. The Complainant was asked to clarify where was the link between the Respondent’s behaviour and his gender. He said that the Respondent engaged with a female and not with him, a male, and the Respondent consulted with the child’s mother.

It was put to the Complainant that one parent needs to sign the application form. Had the Complainant filled the form, he would be treated the same, he would be the person contacted. The Complainant said that he did not consent, but the Respondent went ahead with the enrolment. It was put to the Complainant that, if he filled out the form and the mother did not consent, the Respondent would have done the same.

The Complainant confirmed that he never provided a court order that the child can’t move to the new school. He said that he has his son’s best interest in mind.

It was put to the Complainant that he received the Respondent’s reply to his ES1 form. In the ES2 form, the Respondent clarified that it was given a copy of a letter dated 12th April 2021 from the child’s mother’s solicitors indicating that they had written to the Complainant’s solicitor informing of the child’s transfer. The Complainant insisted that he did not get a copy of the letter.

It was put to the Complainant that the Respondent, in the ES2 form clarified that personal data of other people, which could not have been given to him without their consent, was redacted and the Complainant was provided with the information concerning his son and himself. The Complainant disagreed and said that some of the information was not removed from the second copy of the form.

The Complainant confirmed that the Respondent contacted him to obtain his email address, so he would be on the contact list for updates, etc. He said that he could not see the names of emergency contact in the “system”. It was put to the Complainant that the Respondent strictly follows the GDPR rules and the emergency contacts are not visible to either parent.

The Complainant confirmed that he was asked to provide emergency contacts, but he did not do so as he was not clear on the enrolment process. It was put to the Complainant that he was given the same opportunity as the child’s mother. He replied that he did not give his consent to enrol the child.

The Complainant confirmed that the child’s mother has a new partner.

It was put to the Complainant that he was asked to provide a photograph as he was to pick up the child for counselling sessions but he refused to provide one, so the child’s mother did. As the Complainant’s daughter happened to be in the picture, it was deleted once the Complainant raised concerns. It was put to the Complainant that in terms of health & safety, and child protection the photograph was required as the Respondent never met the child’ father. The Complainant said that he had no problem with that, but he was never asked, the child’s mother’s solicitor did not contact him. It was further put to the Complainant that this explanation was given to him in ES2 form, he did not have to come to the WRC. The Complainant said that it was never replied whether everyone else was required to give a photograph.

Ms Mallon BL, on behalf of the Respondent submits as follows.

The Complainant appears to allege discrimination on the grounds of gender, civil status and family status contrary to the Equal Status Act 2000 (as amended) as against the Respondent.

The Complainant’s claim was received by the WRC on the 9th of November 2021. The Complainant is alleging that the first incident of alleged discrimination was on the 25th of August 2021 and the most recent date was the 9th of November 2021.

The Complainant sent an ES1 form dated the 28th of September 2021 and a detailed reply to same was sent setting out answers to all of the Complainant’s questions.

It is submitted that on examining the Complainant’s ES1, WRC form and submission that he has failed to establish any link between the alleged acts he complains of and any of the protected grounds.

FACTS

At all material times the Complainant and the child’s mother were not in a relationship – their relationship has ended. The Complainant’s child was enrolled in the school by his mother. (A copy of the redacted application was exhibited at the adjudication hearing). The application was received along with the child’s birth cert. The names of both parents were provided but only the contact telephone number and email address for the child’s mother. There was space available in the class and a place was offered to the child.

The application for enrolment was granted by the Respondent and this was in full compliance with the Respondent’s enrolment policy. (A copy of the enrolment policy of the school was exhibited at the adjudication hearing). The school has no control over the information included or excluded in an enrolment form by a parent. It is not unusual or contrary to practice for the application form to have only the signature of one parent.

The application to the school was made on or about the 6th January 2021. A school place was offered and accepted by the child’s mother on the 31st January 2021. The child commenced as a student in the school on or about the 25th August 2021 in Senior Infants class and he continues to be a pupil at the school.

On or about the 23rd June 2021 the Complainant was contacted by the school on a mobile number that was provided on the enrolment form to seek his email address so he could be included on all school communication. The Complainant indicated he was not consenting to the enrolment of his son in the school and complaining that this was done without his consent or knowledge. He did, however, provide an email address.

The Respondent, to ensure that all was appropriate and proper, did correspond with the solicitors for the child’s mother which indicated that the firm of solicitors had notified the Complainant’s solicitors in April 2021 of the intended change in school for the child.

At no stage has the Complainant provided the Respondent with any Court Order that suggested that his consent was required for enrolment of his child in the school. The position of the Respondent was that the child’s enrolment is in order and valid and it was in accordance with the enrolment policy of the school. The Respondent will of course comply with any Court Order.

The Complainant’s complaint of discrimination is in essence that his son was enrolled in the school without his consent.

LEGAL SUBMISSIONS ON THE FACTS AND THE LAW

The Complainant fails to raise a prima facie case

The Complainant bears the burden of establishing a prima facie case that he has been discriminated against in terms of Section 3 and Section 7 of the Equal Status Act 2000. The Respondent relies on, inter alia, the case of A Parent v A School ADJ-00026802 which usefully summaries the law in relation to the prima facie case including the Supreme Court judgement in Nathan v Bailey Gibson 1998 2 I.R. 162.

It is the Respondent’s position that the Complainant in this case was not a pupil of the Respondent school and therefore cannot legitimately avail of the services of the school and consequently cannot bring a claim of discrimination against the school. In this regard reliance is placed on the Workplace Relations Commission decision of A Father v A Primary School ADJ-00025364 where the Adjudication Officer held:

“Section 2 of the Equal Status Acts defines “service” as a Service or facility of any nature which is available to the public generally or a section of the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes access to and use of any place. The Respondent is an Educational establishment and therefore section 7 of the Act applies.

Section 7(2) of the Act states 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 or participation in the establishment by a student, or (d) the expulsion of the a student from the establishment or any other establishment against the student.

The Complainant was not a pupil of the Respondent or a person that could legitimately avail of the services provided by the Respondent as set out in Section 7(1) of the Act. On that basis the nature of the Complainant’s case does not apply to Section 7 of the Act. I therefore do not find a prima facia case of discriminatory treatment exists in this instance.”

Without prejudice to the foregoing, it is submitted that the Complainant has failed to establish a prima facie case on other grounds. He has failed to establish that he was treated less favourably than a person of a different gender, family status or civil status or any of the other protected grounds. In this regard the Respondent relies on the case of The Board of Management of a Secondary School v A Father, Southwestern Circuit Record No. 2019/00333 (transcript from DAR; transcript not yet approved by the Judge O’Callaghan). Factually this was a very similar case to the within case and the father was successful in the WRC in his claim under the Equal Status Acts. The school appealed that decision to the Circuit Court and was successful on appeal. Judge O’Callaghan held:

“That is the complaint that comes before this court for hearing de novo. The question is for this court did the practice complained of and employed by the Appellant towards Mr ON bear significantly more heavily on him because he was a man than it would have on members of the female sex? The court has taken the liberty of paraphrasing Nathan and Bailey Gibson when making that comment. If the evidence shows that it did, then a prima facie case against the Appellant exists, thereby shifting the onus of proof to the Appellant.

…

The School admitted this young lady because it had to on 29 August 2017. By law it was obliged to so do. The question is: did the practice employed by the Appellant school between 4 April 2017 and 29 August 2017, did that practice as so employed by the School, was it motivated? Was it altered in any way because the complainant was a man and not a woman? Because the complainant was a father and not a mother? As that is the sole issue before this court. Was there discrimination on the basis of gender and the issue is has Mr ON made out a prima facie case that it was so motivated and that such discrimination did probably exist. The court finds no evidence before it that Mr ON was treated in such a manner because he was a man and that a woman in a similar position would have been dealt with significantly less heavily by the Appellant. There is no such evidence to support that contention. Accordingly, in this court’s view, there is no prima facie case in existence before it to support Mr ON’s complaint that he was discriminated on the grounds of gender.”

The Respondent also relies on the recent Dublin Circuit Court case of The Board of Management of a School v A Father (Record No. 2021/004838- published on the Courts.ie website) and the judgement of Judge O’Connor which concerned a very similar case to the within proceedings - also an appeal by the school. In that case the child was enrolled in the Appellant school by the child’s mother for the school year 2020/21. The father and the child’s mother were divorced. The father notified the school that he did not consent to the enrolment by the child’s mother and asserted that the school’s actions in approving the enrolment of his daughter without his consent constituted discrimination against him on the grounds of gender, contrary to the Equal Status Acts. Judge O’Connor upheld the school’s appeal holding:

“Equality legislation needs to be interpreted first as equality legislation. However, it is not a stand-alone legislation which usurps other substantial rights particularly when those rights concern children. It must therefore be interpreted and balanced in conjunction with all relevant legislation and constitutional rights. For example, it is important to be cognisant of the Education Acts and the duty of a school to enrol a child in their school in accordance with and subject to its enrolment policy.

Schools should not discriminate against children or parents on the grounds of gender. However, schools should also be afforded a practical approach of interpreting that right in their enrolment policy so as to ensure a child is not deprived of their educational rights. This means in the absence of a court order, a school may have to take a practical approach in the interests of a child’s educational rights, provided it does not promote gender discrimination.

Applying the Law to the Facts: I am satisfied on the balance of probabilities that the Respondent has not demonstrated a prima facie case that he was treated less favourably on account of his gender.

It is clear both from the submissions, as furnished to the court, and the oral evidence of the School Principal, as given in court, the Appellant did not operate a gender discriminatory practice in favour of female parents over male parents in the enrolment policy of the school. It is also quite apparent from the facts that the Appellant was exemplary in its frequent communications with the Respondent in regards to the child’s education. I accept that the Respondent is, in conjunction with the child’s mother, the legal guardian of the child. However, this does not create an automatic right to force a school to refuse admission of a child in the absence of one parent’s consent for a child to attend the school, simply on the grounds of the parent’s gender. As the Respondent has not made out a prima facie case on the facts, it is not necessary to consider other legal principles outlined in the judgment, such as the balancing exercise outlined in paragraph 35 of this judgment.”

The Respondent also relies on the decision of the Workplace Relations Commission in A Complainant v The Board of Management of a Secondary School DEC-S2017- 30. In that case the complainant alleged he was discriminated against on gender and civil status grounds and that there was a legal requirement on the school to obtain written consent from both guardians on enrolment of his daughter. The Adjudication Officer held:

“...having examined this issue, the position is that there is no such legal requirement in place and school process is each application for enrolment on the basis of the information provided by the parent who make contact with the school”.

In that case it was held is that the complainant had failed to establish a prima facie case on the grounds of gender or civil status.

The mother does of course have a different gender to the Complainant. The Respondent submits that the Complainant has failed to establish any link or nexus between his gender and the action he now complains of. The link or nexus between any of the protected grounds and the act/acts complained of is missing. The Respondent relies on the wording of Section 3 and caselaw such as the Labour Court determination of Rescon Ltd v Scanlan EDA 085 (29 February 2008) and the High Court judgement in Mulcahy v The Minister for Justice & Waterford Leader Partnership Ltd [2002] 13 ELR 12.

In the within proceedings, it is submitted that there no facts established from which it may be presumed that there has been discrimination on the basis that the Complainant was a man or because of his family status or civil status. He has failed to identify a comparator in relation to any of the protected grounds.

The Respondent also relies on Madrassy v Nomura International plc, [2007] IRLR 246 – judgement of the Court of Appeal in England and Wales and the case of A separated father v A creche DEC-S2013-003

The duty of the Respondent to the child in question and Section 14 of the Equal Status Act

The Respondent is obliged to enrol students in accordance with its enrolment policy. The Complainant’s child was offered a place in accordance with the enrolment policy. The Respondent relies on the provisions of the Education Act, 1998 and in particular the provisions of Sections 9 and 15 of Act. Section 14(1) (a) of the Equal Status Act states that nothing in the Act shall prohibit the taking of any action that is required by or under any enactment or order of a Court. The Respondent has a duty to enrol and educate a child who enrols in its school provided of course that the child is entitled to be enrolled under the enrolment policy.

The Complainant appears to argue that without his consent his child should not have been enrolled in the school. There was no Court Order provided which determined where the child should attend school.

If the Complainant’s claim was conceded, the result would be twofold:

(a)    The immediate consequence would be the child would not be enrolled in the school until one or both parents applied to a Court for a determination. Depending on Court lists and possible appeals this could take months if not years.

(b)   The child was entitled under the admissions policy to attend the school. If as a result of the child’s father’s objection the school rescinded this offer then an appeal pursuant to Section 29 of the Education Act 1998 would in all likelihood be brought by the mother which would be impossible for the school to defend.

The Respondent relies of Section 14(1) of the Equal Status Act to submit that it was entitled to enrol the child in question because otherwise the school would have been in breach of its statutory duty and its constitutional duty to the child to educate her and protect her welfare.

At the adjudication hearing, Ms Mallon contended that the Complainant was unable to point how is his civil status different to his comparator, the child’s mother. Furthermore, the Complainant and the child’s mother both have the same family status.

With respect to the allegation of gender discrimination, Ms Mallon noted that the child’s mother filled out the application form. It is common that one parent/ guardian signs and fills out the application form. It is not the Respondent’s practice, and it would be inappropriate for the Respondent to look behind the form. The Respondent cannot insist that the other parent/guardian signs the form.

Ms Mallon said that the Complainant appears to be under a mistaken belief that his consent is required. However, if there is a dispute between the parents, the Respondent would follow a court order if provided by either parent. The Respondent’s position would not be different if it was a reverse situation. The Complainant presumes it has to do with is gender, but application forms are filled out by female and male, and are not treated differently.

Ms Mallon stated that the Complainant is not a pupil of the Respondent and has no locus standi to bring the claim.

Furthermore, Ms Mallon said that the Respondent relies on Section 14(1) of the Equal Status Act, as the Respondent is obliged to comply with statutory obligations under the Education Act.

Ms Mallon further asserted that the Complainant did not establish a prima facie case as there is no nexus between the protected grounds and his claim.

Ms Mallon noted that she has sympathy for the Complainant and recognises that family disputes are difficult for all, but the Complainant is mistaken as to the purpose of this case.

Regarding the events of 13th December 2021, Ms Mallon submitted that it is not the Respondent’s role to adjudicate or mediate when two parents have a dispute at the school gates. The Respondent received simultaneous correspondence saying that the child’s mother would pick up the child and the Complainant could collect him from her home, and an email from the Complainant saying that he would collect the child from school.

Regarding the Complainant’s statement that he was not invited to the “open day”, Ms Mallon noted that it took place prior to any contact between the Respondent and the Complainant.

Summary of the evidence of the Principal of the Respondent school

The Principal outlined the details of the Respondent school size, numbers of pupils, staff, etc.

The Principal confirmed that she reviews the applications that are received from parents. She said that she had reviewed the application forms received in the last four years and between 74.5% and 85% were signed by one parent only.

She said that it would not be feasible or practicable to ask for both signatures, it would be unfair for families with one parent and it would bring stress on parents.

The Principal confirmed that had the Complainant signed the application form and all other facts were the same, she would have accepted the child in the same way. If the Complainant enrolled his child and the mother of the child did not consent, the same procedure would be followed.

The Principal said that, if a court order is provided to admit or not to admit a child, the order would, of course, be followed, but the Complainant did not provide a court order. The Principal said that a place was available and the child was accepted.

The Principal said that contact was made with the Complainant by the Respondent’s Secretary as only his phone number was provided on the enrolment form (there was an email address for the mother of the child). The Respondent was proactive and contacted the Complainant to ask for an email address so he would receive everything that the other parent receives, information on how the child is doing in school, etc. The Complainant provided his email address and communication was received and read.

With respect to the photograph, the Principal said that on 24th May 2021, the Respondent received a letter from the child’s mother’s solicitors saying that the Complainant would pick up the child to bring him to a counselling session. At this stage, the Respondent had not met the child, guardians, etc. and was concerned that someone would turn up to collect the child. The Respondent wanted to make sure that the child was handed to the correct person. The Respondent replied to the child’s mother’s solicitor and they said that they would request a photograph. Ultimately, the child’s mother gave the Principal the photograph. The Principal said that all she was concerned with was that the child is handed to the guardian. She confirmed that the photograph does not exist anymore and was removed when the Complainant raised his objection.

Regarding the emergency contacts, the Principal said that the child’s mother nominated two contacts. The Complainant was contacted to provide one emergency contact, he was told that one of the mother’s would be taken off. He did not provide one.

Regarding the redaction of documentation, the Principal said that, as per the GDPR requirements anything pertaining to anyone else other than the Complainant and the child was removed.

Cross-examination of the Principal

The Principal was asked if she was satisfied that she received an application form in 2020 and she replied that some applications are received when a child is one month old.

It was put to the Principal that the procedure says “parents” i.e. plural, which means both parents. The Principal said that not every child has both parents.

The Principal confirmed that she did not receive a court order that the child was to go to the Respondent school. She said that if the Complainant provided a court order, the Respondent would be bound by it.

It was put to the Principal that the Complainant was contacted late. She replied that an application could be on file for years and the Respondent only contacts the parents when processing an enrolment.

A number of questions were put in relation to the incident when the child was not handed over to the Complainant on 13th December 2021. It was put to the Principal that she had the court order and a photograph of the Complainant, but the child was not handed to him. The Principal explained that on the day in question, the Respondent received two emails regarding the collection of the child. Both parents said that each of them would be collecting the child. The Principal replied that the Respondent would not intervene in the dispute between the parents. She wanted the parents to arrange the collection without causing anxiety to the child. Both parents were at the gate. The Principal said that she handed the child to both parents, she was not sure who did the child go with. She said that the Respondent was not in a position to adjudicate. The collection was to be done in a manner that doesn’t cause any stress to the child.

The Principal confirmed that the Complainant was not asked directly to provide a photograph. She said that the Respondent’s focus is for the best interest of the Complainant’s child.

When asked as to what is the Complainant’s role, she explained that, as per the form, the child’s mother is a Guardian 1 and the Complainant is a Guardian 2. She said that parents / guardians are not emergency contacts. She said that it was not within her remit to ask whether the Complainant was involved in filling out of the application form.

The Complainant asked the Principal whether she was satisfied that the application form was filled out as per the procedure (i.e. “parents”). The Principal said that if it had to be parents, it would not be practical, the Respondent could not have a single parent child in the school. The form was ratified by the patron body to be used in the school and follows the Admission Act. She said that if the Complainant has an issue with the policy, he needs to raise it with the ratifying body.

In reaching my decision, I have taken into account all the evidence and submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.

I am obliged to point out that I have no statutory function to consider any matters relating to the Data Protection or Freedom of Information legislation, such as the possession of the Complainant’s and / or his daughter’s photographs by the Respondent or the details contained in, or redacted from, the relevant records.

Section 7 of the Act provides as follows;-

7(1) In this section ‘‘educational establishment’’ means a preschool service within the meaning of Part VII of the Child Care Act, 1991, a primary or post-primary school, an institution providing adult, continuing or further education, or a university or any other third-level or higher-level institution, whether or not supported by public funds.

The Respondent in the present case is an educational establishment which, inter alia, provides primary education to pupils and, as such, it is an educational establishment within the meaning of Section 7(1) of the Acts and is therefore subject to Section 7(2) of the Equal Status Acts, 2000 to 2015 which states that:

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

(a) the admission or the terms or conditions of admission of a person as a student to the establishment, (b) the access of a student to any course, facility or benefit provided by the establishment, (c) any other term or condition of participation in the establishment by a student, or (d) the expulsion of a student from the establishment or any other sanction against the student.

The Respondent is a provider of education to the Complainant’s son. 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.

The Complainant served notification to the Respondent regarding the complaint on 29th September 2021 and received a reply on 29th October 2021.

The Complainant referred his claim to the Director General of the WRC on 9th November 2021 alleging that the Respondent discriminated against him by reason of his gender, civil status and family status. The Complainant asserted that the date of the first incident of discrimination was 25th August 2021, and the most recent date of discrimination was 9th November 2021.

Section 3(1) of the Equal Status Acts provides that discrimination occurs “where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)...".

Section 3(2)(a) defines discrimination on the grounds of “gender” as: ”(a) that one is male and the other is female (the “gender ground”)”, 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)(c) 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 the other (the “family status ground”)”.

Section 2 of the Act defines “civil status” as meaning being single, married, separated, divorced, widowed, in a civil partnership and defines “family status” as meaning having responsibility as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years.

The Adjudication Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Act sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred in relation to him. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

The central plank of the Complainant’s complaint of discrimination relates to his claim that the Respondent treated him less favourably than the mother of his son on the grounds of gender, civil status and family status by disregarding and failing to recognise his authority as his joint legal guardian and proceeding to enrol his son in the school without the Complainant’s consent. The Complainant also claims that he has been subjected to discrimination by the Respondent on the grounds of gender, civil status and family status in relation to the Respondent’s alleged failure to provide him with information relating to the enrolment process, including the redaction of relevant forms, the possession of a photograph of him and his daughter on the Respondent’s file, and the failure to hand over the child to the Complainant at the school gate on 13th December 2021.

The Respondent disputes the claim of discrimination and contends that that it is duty bound to enrol children in accordance with its enrolment policy. The Respondent contends that it is not a matter for the Respondent to interfere in family law issues and that the Complainant’s son was enrolled by his mother, who is his legal guardian. The Respondent further contends that in circumstances where a conflict exists between legal guardians of children as to which school a child should attend, it is a matter for the parents to resolve such conflict either by way of mutual agreement or by way of Court Order.

In the instant case, there was no dispute that the Complainant has been appointed joint legal guardian of his son (with his mother) by order of the District Court dated 23rd November, 2018 pursuant to Section 6A of the Guardianship of Infants Act, 1964.

Civil Status and Family Status Grounds

The Complainant alleged that he was treated less favourably than the child’s mother. The evidence of comparative less favourable treatment that was put forward was in support of the Complainant’s claim that the Respondent treated him less favourably than it did the mother of his son. There was no evidence put forward to support the case that the Complainant was treated less favourably than a hypothetical married parent or a person with a different family status. Consequently, the mother is the only relevant comparator.

There was no dispute that the Complainant and the mother of his son had, at the relevant time, the same civil status and the same family status. Both were unmarried and both were parents. Therefore, the alleged difference in treatment cannot have been on the grounds that the Complainant was of different civil or family status from the mother of his son. 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.

Gender Ground

The Complainant alleged that the Respondent treated him less favourably than it did the mother of his son because he was a man and she was a woman, i.e., on the gender ground.

An educational establishment discriminates on the gender ground where it treats one parent (e.g. the mother) more favourably than the other (e.g. the father) with regard to their child’s education where both parents have equal rights of guardianship.

The Complainant asserts that he has been subjected to discrimination by the Respondent on the grounds of gender in relation to

·        the enrolment of his son at its school without his consent as his father and guardian,

·        the lack of communication by the Respondent until May 2021;

·        the lack of opportunity to contribute to the application form that required to “…provide any further information pertaining on parental or guardianship circumstances”;

·        theredaction of relevant sections of the documentation provided to the Complainant;

·         the requirement for the Respondent to obtain a photograph of him and his daughter from the child’s mother; and

·        the failure to hand over the child to the Complainant at the school gate on 13th December 2021.

There was no dispute that the enrolment application form was completed by the mother of the child on or about 6th January 2021. The application is marked by the Respondent as “checked” and dated 15th January 2021. The Respondent offered a place for the child in its school to the child’s mother which was accepted by the child’s mother on 31st January 2021. The subsequent Enrolment Form is dated 11th May 2021, albeit it appears to bear no parent / guardian signature.  I note that the Respondent contacted the Complainant on or around 23rd June 2021 on a mobile number provided on the application form. The purpose of the phone call was to obtain his email address to include the Complainant in the school communication and to allow for sharing any information in relation to the Complainant’s son. The Complainant made it known to the Respondent that he did not consent to the child’s enrolment. I note that, at this stage the child had been offered and his mother accepted a place in the school and the Respondent decided to proceed with the enrolment. On 24th August 2021, the Complainant emailed the Respondent further informing that he did not consent to his child’s enrolment. The child commenced his education in the school on 25th August 2021.

I accept the Respondent’s submission and the Principal’s evidence that one signature, a mother’s, a father’s or a guardian’s suffices for the purposes of the enrolment application. In her undisputed evidence, the Principal stated that between 74.5% and 85% of the enrolment application forms in the last four years were signed by one parent only. Regardless of the signatory’s gender, the Respondent would proceed with the process of enrolment. Therefore, the Respondent’s enrolment process does not appear to be discriminatory on the ground of gender.

In the judgement in The Board of Management of a School v A Father 2021/004938 delivered on 25th April 2022 referred to by the Respondent it was held:

“31. In considering any complaint which affects children’s rights, the best interest of the child is a primary consideration but not only consideration. Essentially this means, the child’s interest must be considered first and other competing interest such as the rights of parents must be considered after that.

32. A child’s right to education is a very basic and important right…”

“34. Family disputes such as issues concerning gender rights of parents should not be used by a parent to usurp the fundamental rights of a child. The Commission should not be used by a parent or a guardian in upholding their gender rights as a substitute for a court in dealing with what are essentially family law disputes regarding the education of a child. While disputes between parents as to education are in the first instance a matter for the parties to resolve, in the absence of same it is ultimately a matter for the courts. It is a matter for the aggrieved party to initiate the appropriate court action and not the school.”

35. Equality legislation needs to be interpreted first as equality legislation. However, it is not a stand-alone legislation which usurps other substantial rights particularly when those rights concern children. It must therefore be interpreted and balanced in conjunction with all relevant legislation and constitutional rights. For example, it is important to be cognisant of the Education Acts and the duty of a school to enrol a child in their school in accordance with and subject to its enrolment policy.

36. Schools should not discriminate against children or parents on the grounds of gender. However, schools should also be afforded a practical approach of interpreting that right in their enrolment policy so as to ensure a child is not deprived of their educational rights. This means in the absence of a court order, a school may have to take a practical approach in the interests of a child’s educational rights, provided it does not promote gender discrimination.”

A school has no jurisdiction to decide matters pertaining to guardianship and in circumstances where parents/guardians cannot agree to matters pertaining to their children’s welfare, including decisions relating to education, then such matters must be decided upon by a court. I am satisfied that the Respondent in the instant case took a practical approach and, in the absence of a court order that would provide specific instructions, it enrolled the child on the basis of the application and acceptance by one of the child’s parents. Having considered the matter, I find that there is no evidence to suggest that the Respondent’s approach was discriminatory on the ground of gender. The Complainant, therefore, did not establish a prima facie case of discrimination on the ground of gender with respect to the enrolment process. 

Regarding the photograph that the Respondent had kept on file, I accept the Respondent’s assertion that the Complainant’s daughter’s picture was not required. It was supplied as a part of the photograph of the Complainant, and it was removed as soon as the matter was brought to the Respondent’s attention. In relation to the photograph of the Complainant, the Respondent asserted that it requires photographs for child protection and identity of guardian, carers, etc. In the ES2 form the Respondent stated that it “requested photographic lD from your son's mother of anyone who would have to collect your son in an emergency situation or for any other reason.” However, there appeared to be no other photographs, redacted or otherwise, included in the copies of records furnished to the Complainant or exhibited at the adjudication hearing. There was no evidence offered to suggest that the child’s mother was required to furnish her photograph for the Respondent’s file. The Complainant’s photograph appears to be the only photograph that was on the Respondent’s file. I find that the Complainant established a prima face case of discrimination in respect of this aspect of his claim.

The Respondent might well have had the child’s safety in mind when requesting a photograph of the Complainant, however, the Respondent did not offer any evidence to support the statement that it requested photographs of “anyone who would have to collect” the child.  It would appear that no other photographs were requested and/or provided to the Respondent by the child’s mother. It would appear that the child’s mother was not requested to furnish a photograph of herself. I was not presented with an appropriate policy, if such was in place at the relevant time regarding the photographic ID requirements. On that basis, I find that the Complainant was treated less favourably than the child’ mother.

Regarding the alleged lack of communication, I accept the Respondent’s position that it does not routinely contact the second parent/guardian once one parent/guardian had engaged in communication in relation to the enrolment. I also accept the Principal’s evidence that the Respondent does not engage in communication at early stages of an application process, at least not until the enrolment process commences.  I note that the Respondent contacted the Complainant prior to the child commencing his education in the Respondent’s school to obtain the Complainant’s email address to keep him updated on his son’s academic achievements, school events, etc. There was no evidence put forward to suggest that the Complainant would have been excluded from any communication in that regard. I find that the Complainant did not establish a prima facie case of discrimination in relation to this aspect of his claim.

With respect to the redaction of the forms, the Respondent asserted that due to the data protection restrictions, it provided the Complainant with his son's personal details and that of the Complainant - not the personal data of others. The Complainant contended that information was available to the child’s mother but was redacted from the documentation made available to him. Examples were given as follows:

·        In the Enrolment Form, the box that asked: “Please provide any further information pertaining to parental or guardianship circumstances” was redacted.  

·        The reply “yes” to the following “Has your child been referred to any other outside agency e.g. speech therapist, social, worker, psychologist, specialist” was not redacted. However, the box with comment was redacted.

The above examples appear to contain information pertinent to the Complainant and/or his son that was available to the child’s mother but not to the Complainant. I find that the Complainant established a prima facia case of discrimination in relation to this aspect of his claim.

I appreciate the Respondent’s difficult position whereby it needs to protect the rights of third parties when at the same time provide the Complainant with the information regarding his son. While I am cognisant of the restriction regarding data protection the Respondent is a subject to, there is also a requirement to share with the Complainant any information that a parent and/or a guardian is entitled to. In the absence of any clarification as to the reasons for the redaction of the details contained on the forms, as per the above examples, I accept the Complainant’s assertion that details pertaining to him and his child were redacted from the forms that were made available to him but were available to the child’s mother. Consequently, he was treated less favourably than the child’s mother in that regard.

With respect to the incident of 13th December 2021, the ES1 notification was sent to the Respondent on 29th September 2021, in excess of two months prior to the event of 13th December 2021. The within complaint was referred to the WRC on 9th November 2021. Therefore, I have no jurisdiction to consider the incident of 13th December 2021 in my findings.  

I declare this complaint to be partially well founded. In accordance with Section 27(1)(a) of the Acts, I order the Respondent to pay the Complainant €2,000 in compensation for the effects of the discrimination.

In accordance with Section 27(1)(b) I also direct the Respondent to put appropriate measures in place to ensure that the Complainant receives all relevant information a parent / guardian in the circumstances is entitled to receive regarding his son. 

Equal status – gender – discrimination - guardianship