Complainant

Respondent

Anonymised Parties

Parent A

National School

Representatives

Self-Represented

Mr. Eamon Marry BL, instructed by Corrigan & Corrigan Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00030150-001

09/08/2019

The Complainant is the parent of two former pupils of the Respondent. Following a long-running dispute involving herself, her partner and the management of the school, the Complainant referred the present complaint to the Commission. Herein, she alleged that she had been subjected to extensive harassment and discrimination by the staff and management of the school. She alleged that said harassment and discrimination arose as a consequence of her seeking to exclude her children from certain religious instruction and school outings. The Complainant referred three other complaints simultaneously to the instant matter. These complaints relate to an allegation of harassment by the Complainant’s partner and allegations of discrimination by her two children. These matters were assigned adjudication file references ADJ-0002601, ADJ-0002303 & ADJ-00023606, and all matters were heard concurrently over numerous sittings. The factual matrix and witness evidence presented is relevant to all complaints and will be repeated across all four decisions. The outcome of the individual decision will focus on the complaint of discrimination or harassment relevant to the individual Complainant.

At the outset of the hearing, the representative for the Respondent raised an issue as to the lawful notification of the complaints in accordance with the stipulations of the Act. Following a review of the relevant correspondence, it was accepted that the Respondent had been in fact lawfully notified and the preliminary objection was withdrawn.

Both parties issued extensive submissions in advance of the hearing. The Complainant and her partner gave evidence in support of their own, and their children’s, complaints. The principal of the school and the former pupil’s teacher gave evidence in defense of the allegations as raised. All evidence was given under affirmation or oath and was opened to extensive cross-examination by the opposing side. 

In circumstances whereby the subject matter of the complaints relates to the education of two minors, I have exercised my discretion to conduct the hearings in private and to anonymise the decision in its published form.

The Complainant is the parent of two former pupils of the Respondent school. Prior to enrolling their eldest child in the school, the Complaint spoke with the former Chairperson of the Board of Management, a member of the clergy. During this conversation, the Complainant was assured that while the school maintains a religious ethos, they were welcoming of students of all religions and none. The eldest child was duly enrolled in the school and commenced his education on 1st September 2014.

Matters progressed without notable incident until the appointment of a new principal in 2017. Initially, the Complainant enjoyed a close relationship with the principal, however over time she began to harbour some doubts regarding the direction of the school under this principal. In particular, the Complainant became concerned that the religious aspect to the education of her children was becoming more pronounced and inappropriate.

In November of 2019, the school proposed an outing for the students to visit a particular organisation. Following concerns expressed by other parents in relation to the organisation in question, the Complainant began to investigate the same and ultimately determined that the proposed trip was inappropriate for her child. Following the same, the Complainant informed the principal her child would not be attending the trip. At this point, the principal become noticeably disappointed, however nothing further was discussed at this time.

On 4th December 2017, the Complainant received a text message from the principal requesting that she come in for an informal conversation. As the Complainant was busy that this time her partner attended the meeting. In the course of this conversation the principal advised that the Respondent school had a religious ethos and expressly suggested that the child should be enrolled in an educate together school. The Complainant submitted that these comments were discriminatory in nature. The Complainant submitted that from this point onwards, the principal’s attitude towards her and her partner changed considerably. 

Following this meeting, the Complainant and her partner continued to harbour concerns regarding the nature of the religious instruction being provided by the school. The Complainant sought to address these concerns during an informal meeting with her child’s teacher just prior to the Easter break in 2018. During this conversation, the Complainant outlined her concerns in this regard and indicated that while they did not want to change schools, it was something they were considering. By response, the teacher stated that the Complainant could speak directly with her if she had any concerns in this regard and provided general reassurance regarding the standard of education the pupil was receiving. Notwithstanding the same, the Complainant stated that she noticed her child becoming somewhat withdrawn, a development she attributed to a poor schooling environment.

Notwithstanding these issues, the Complainant did not wish to take the drastic step of removing her child from the school. In September 2018, the Complainant enrolled her second child into the school. The elder child also moved to a class taught directly by the principal. The Complainant continued to harbour doubts regarding the practices of the principal, now teaching her child. To this end, the Complainant wrote an anonymous letter to the Board of Management stating that the principal exhibited a “negative attitude” and was generally unapproachable. To the Complainant’s knowledge, no action was taken on foot of this correspondence.

From the commencement of his schooling, the Complainant’s younger son returned home on numerous occasions having soiled himself. This naturally became a point of concern for the Complainant and her partner. The Complainant and her partner met with the child’s teacher on numerous occasions in September and October in this regard, however the issue persisted. At this juncture the teacher did not implement a toileting policy in contravention of the relevant regulations in this regard, instead suggesting that his older sibling accompany him to the toilet at the appropriate time. The Complainant viewed this suggestion as an absolute dereliction of the Respondent’s duty to her child. She submitted that the school had an obligation to implement and main a robust toileting policy, as opposed to dealing with such matters in an ad hoc fashion.

Following a further recurrence of this issue, the Complainant’s partner attended to school to speak with the younger child’s teacher. In evidence, the Complainant’s partner accepted that this conversation became somewhat heated but submitted that this was unsurprising given the subject matter of the same. During this meeting, the Complainant’s partner outlined his concerns regarding the toileting issues his child was experiencing and expressed his disappointment at the school’s response to the same. He absolutely denied the Respondent’s characterisation of the interaction as hostile or intimidatory.

The following day, 10th October 2018, the Complainant and her partner issued correspondence to the Chairperson of the Board. This correspondence outlined how the Complainant’s belief that her family had been unfairly and discriminatorily persecuted on the grounds of their decision to opt out of the religious instruction for their children. The Complainant stated that she hand delivered this correspondence to the Respondent’s premises. She stated that she could not comment of the Respondent’s position that the same was not received, other than to confirm that she sent it.

On 15th October 2018, the Complainant received a message inviting her to an emergency meeting of the Board of Management. The Complainant assumed that this was an invite in her capacity as a board member. Shortly thereafter, she was informed that this meeting had been cancelled without any reason being provided for the same.

On 23rd October 2018, the Complainant received a registered letter from the Chairperson of the Board, requesting that she and her partner attend a meeting in the school. At this point, the Complainant believed that this meeting would relate to her earlier correspondence of 10th October. At this time, the Complainant was in the latter stages of pregnancy and requested that the meeting occur in two weeks’ time.

On the evening of 25th October, the Complainant attended a parent’s AGM at the school premises. As she was leaving the premises, the Chairperson of the Board requested that they meet in his office. At this point, the Chairperson (in the presence of the principal) informed the Complainant that an emergency Board meeting had been convened for the following day in respect of a complaint made regarding her partner’s alleged conduct during the meeting of 10th October 2018. This came as a complete shock to the Complainant as she had understood that the matter in progress was her complaint against the Respondent rather than any complaint against her partner. The Complainant informed the Chairperson of her disagreement to this proposed course of action. She submitted that the proposed meeting would have led to the defamation of her husband to the board. She further submitted that it was not apparent that the principal and the teacher involved would not be present, creating a manifest procedural unfairness. Following this meeting the Complainant left the office and exited the building through the open front door. She absolutely denied the subsequent allegation of closing the door in the principal’s face or any other form of aggressive action.

Once she had exited the school, the Complainant spoke with her partner informing him of the developments and sharing their concerns in respect of the same. Following this conversation, the Complainant elected to return to the school premises to inform that Chairperson of the rules of the Board of Management and to outline why she believed the proposed course of action to be fundamentally unfair. On informing the Chairperson of her position, he informed the Complainant that the meeting was the work of the principal. The Complainant then alleged that the school was engaged in a “witch hunt” in respect of her family for electing to decline a religious instruction for their children. Following the same, the Complainant left the premises.

The following day, 26th October, the Complainant spoke with the Chairperson of the Board. During this conversation no mention was made of any alleged assault or inappropriate conduct. The Complainant also received a message from the principal advising that the proposed Board of Management meeting had been cancelled. The Complainant later attended the school premises to collect a copy of the complaints procedure the teacher had utilised in making the allegation against her partner. On arriving at the school, the Complainant met with the principal and her younger child’s teacher. At this point she was informed that the teacher intended to make an allegation of assault against the Complainant’s partner in respect of his alleged conduct during the meeting of 10th October. The Complainant submitted that constituted an unfounded allegation and represented persecution against her and her partner for opting out of religious instruction for their children. The effect of this information was that the Complainant, who was in the final days of pregnancy, briefly lost consciousness and had to be taken to a classroom for attention. Following the same, the Complainant engaged in a lengthy conversation with the principal and her younger child’s teacher. During this conversation, the Complainant outlined her position as calmly and reasonably as possible. At the end of the meeting, it was agreed that matters had been blown out of all proportion and that it would be best for all parties if all parties reverted to their prior amicable relationship. In pursuit of this objective, the Complainant stated that he partner would correspond with the teacher to outline his wishes in this regard.

From that date the Complainant’s partner issued correspondence on 30th October 2018, accepting that the meeting was heated and emotive. In this correspondence he recognised the “pleasant and respectful parent / teacher relationship” the parties had previously enjoyed stated that he found “any insinuation that my manner upset you deeply concerning and in that regard I apologise if that was the case”. Following this delivery of this correspondence, the Complainant believed the matter to be finalised and relations with the Respondent proceeded somewhat normally.

On 13th November 2018, the Complainant received a registered letter. This correspondence outlined that contrary to what she had been expressly informed, both the principal and the teacher had reported allegations of assault against the Complainant and her partner to the Gardaí. This correspondence requested that the Complainant or her partner do not make contact with these persons pending a Board of Management meeting convened for the purpose of discussing the same. On this date, the Complainant issued responding correspondence vehemently denying any such allegations and stating that she intended to purpose an injunction against the school, in addition to a complaint of defamation of character. This correspondence further alleged that the principal had embarked on a vendetta against the Complainant and her family for expressing her wish to have her children excluded form religious instruction, and that she intended to pursue the present complaint, in addition to reporting the matter to the Gardaí. Thereafter the Complainant retained the services of a solicitor, who corresponded with the Respondent on 28th November 2018, again denying the allegations and alleging that the Respondent had engaged in a campaign of bullying and harassment on the grounds of religious belief.

In early 2019, the Complainant issued further allegations of discriminatory behaviour by the Respondent against her children.  She further alleged that she was not invited to present her new-born child to the school. She stated that this invitation was extended to all other families but was denied to her on the basis of her excluding her children from religious instruction. The Complainant submitted that she was excluded from all Board of Management meetings. As she had previously undertaken a health and safety function within the Board, she felt that these matters were being neglected. In particular, the Complainant stated that the school yard had was not power-washed, creating a risk for the students. In February 2019, the Complainant’s children were excluded from a school outing organised by the Respondent. In this regard, the Complainant stated that she was not properly informed of the same, with the express intention of excluding her children. In addition to the foregoing, the Complainant submitted that her children were forced to sit on their own during lunch break.

Following the accumulation of foregoing events, the Complainant removed her children from the school on 27th March 2019 and referred the present sets of complaints to the Commission on 9th August 2019.

In evidence, the Complainant outlined the series of events outlined above. She stated that she had enjoyed a pleasant relationship with the principal and all other staff members until such a time as she raised issue regarding her children’s religious education. From that date she observed distinct disapproval from the principle in relation to herself, her partner and her children. She submitted that all issues that arose thereafter arose as a consequence of the Respondent’s response to this decision. The Complainant gave direct evidence as to the events of 25th October and vehemently denied assaulting the principle or any other form of inappropriate conduct on that or any other date.

In answer to a question posed in cross examination, the Complainant accepted that the allegation of assault had proceeded to a District Court hearing. Nonetheless, she submitted that the presiding Judge elected to apply the Probation Act in respect of the issue and no sanction was applied. She further stated that the charge against her partner was dismissed in its entirety. In answer to a question posed by the Adjudicator, the Complainant stated that she did not appeal this sanction on legal advice. In answer to a further question posed by the Adjudicator, the Complainant denied that the alleged harassment arose as a result of the complaint issued by the teacher in relation to her partner. She submitted that the harassment and discrimination commenced many months prior to the same, and that the complaint itself represented a further act of harassment against her partner. In answer to a question posed in cross examination, the Complainant accepted that she received a permission slip in respect of the school trip organised for February 2019. Nonetheless, she submitted that she had not been informed of the same my text or any other method of communication.

In evidence, the Complainant’s partner gave a direct account of the meeting with the principal in December 2017. He stated that the principal stated that she was “disappointed” that the Complainant and her partner had opted out of the school trip as this may give the other children the notion that “religion is optional”. He stated that on this occasion, the principal stated that if he and his partner had an issue with the ethos of the school, they were free to enrol their children in the local educate together national school.

The Complainant’s partner gave further evidence as to the events of 9th October 2018. He stated that during the first month of his younger son’s attendance at the school he arrived home soiled, wet and cold. Following a further occurrence of this issue, he elected to attend the school to discuss the matter directly with the child’s teacher. He denied, in the strongest possible terms, that he acted in a hostile or inappropriate manner during this conversation. In answer to a question posed in cross examination, the witness accepted that he had issued the correspondence expressing regret thereafter. When asked why he would issue such correspondence when he felt that he had done nothing wrong, the witness stated that he did so in order allow normal relations to resume between the parties. He further stated that the correspondence did not apologisefor his actions, but for the teacher’s interpretation of the same. 

By closing submission, the Complainant stated that herself and her family had been subjected to a campaign of bullying, harassment and discrimination by the Board and management of the Respondent organisation. She submitted that all of these issues arose as a direct consequence of her election to remove her children from religious instruction. She submitted that she enjoys and constitutional and legislative right to take this course of action and that the Respondent’s action in this regard constitute a fundamental and severe violation of the Equal Status Acts.

The Respondent is a small, co-educational national school. While the school exists under the management of a religious organisation, it endeavours to be welcoming to students of all faiths and none. During the relevant period of for the purposes of the present complaint, the school retained two members of teaching staff, a principal and another teacher.

The Complainant’s eldest child attended the school between the dates of 1st September 2017 and 27th March 2019, while her younger child attended between 30th August 2018 and 27th March 2019. From the outset the Respondent denied any act of discrimination or harassment against the Complainant and her family and expressed their disappointment that matters have proceeded as they have.

From the enrolment of the Complainant’s eldest child, the Respondent has been aware of the student’s religious views. In this regard, the Respondent stared that the first number of years of this child’s education passed without major incident.

In November 2017, the school proposed an outing for the students for 1st December 2017. In the days leading up to the event, the Complainant’s child indicated that he would not be attending the same. The student did not attend the outing or the school on 1st December 2017.

Following the same, the principal of the school became concerned regarding the apparent lack of formal notice in relation to the student’s election to opt out of the trip. In this regard, she requested that the Complainant intend an informal meeting whereby these matters could be discussed. At this point, the principal stated that she enjoyed a good relationship with the Complainant and her partner. As the Complainant was busy on the proposed date, her partner attended meeting on 4th December 2017.

During this meeting, the principal requested that there be clear communication regarding non-attendance at school outings. She stated that such communication was required in order to ensure the correct number of bus seats were allocated along with other logistical matters. By response,  the Complainant’s partner expressed his dissatisfaction with the religious ethos of the school and stated his view that there was too much emphasis on religion. He stated that he was an atheist and enquired as to whether there was a national school in the area that would cater to his beliefs. By response, the principal stated that there was an Educate Together school in the region.

At the commencement of the academic year in 2018, the Complainant enrolled her second child in the school. From the outset, it was evident that this child unfortunately experienced toileting issues. Following consultation with the Complainant and her partner, it was agreed that their eldest child would accompany their younger child to the toilet in an effort to avoid any further incidents of this nature. On 9th October, at approximately 3pm, the Complainant’s partner attended the school premises in an angry state. He the began to speak to the teacher in an extremely angry and threatening tone. This interaction was observed by both the teacher in question and the principal and left both parties shaken and scared.

Thereafter, both employees of the school made complaint to the Board of Management regarding the Complainant’s partner’s behaviour on the day in question. A meeting was proposed in relation to these matters, but was postponed on the Complainant’s request. Notwithstanding the same, the principal and the teacher requested that a Board of Management meeting be convened to discuss their concerns regarding their safety at work. A meeting in respect of the same was proposed for 26th October 2018.

On the day prior to the same, the Complainant attended the premises for a parent’s AGM. After the meeting the Chairperson of the Board and the principal informed her that a Board meeting was proposed for the following day to discuss the events of 9th October. The Complainant was requested not to attend the same as a board member in circumstances whereby the subject of the same related to her partner. At this point, the Complainant became extremely irate and accused the Respondent of ambushing her and attempting to defame her partner. She demanded that the meeting be adjourned and insisted that she would be attending the same in the event that it proceeded. As the Complainant was leaving the premises, she forcibly threw the inner porch door into the principal’s face, causing a soft tissue injury. The principal was extremely shocked at this event.

A short while later, the Complainant returned to the premises and demanded to be let back in. She accused the Respondent of engaging in a “witch-hut” and behaved in an intemperate, intimidating and aggressive manner.

Following the same the proposed Board meeting was abandoned. The principal also attended the local Garda station with a view to making a complaint. Sometime later, the principal made a formal complaint in respect of the Complainant’s actions on the date in question.

On 26th October 2018, the Complainant attended the premises to collect copy of the Teacher’s Complaints Procedure. Following the same, the Complainant, the teacher and the principal discussed the recent events. During this meeting the Complainant accepted that her partner may have acted in an unreasonable fashion during his interaction with the teacher. She advised that he correspond with the teacher apologising for his behaviour on the date in question. Correspondence was duly received expressing regret for his actions and the impact the same had on the teacher.

Notwithstanding the foregoing, the teacher and the principal wished to progress their complaints regarding the Respondent’s apparent failure to provide a safe place of work. In this regard, the principal wrote to the Chairperson of the Board requesting that the events of 9th & 25th October be brought to the Board’s attention. A meeting in respect of the same was proposed for 13th November, with the Complainant being formally requested to recuse herself from the same via correspondence. Thereafter, the Complainant corresponded with the Respondent advising that she intended to pursue a variety of legal complaints, including the instant claim, against the Respondent. Following a number of further allegations in respect of the treatment of her children, the Complainant and her partner withdrew the students from the school in March 2019. This withdrawal occurred without any prior notice to the Respondent, with the children initially believed to be absent.

In the early part of the 2019, the Complainant referred complaints to the Department of Education, Child Protection Services and the Teaching Council. Each of these complaints were dismissed by the relevant governing body. The complaints made to the Gardaí were pursued and investigated and, in the Complainant’s case, resulted in the prosecution by the presiding Judge of the District Court- albeit subject to the application of the Probation Act.

In evidence, the principal outlined the native of events outlined above. Regarding the meeting 4th December 2017, she stated the purpose of the same was to ensure that proper and formal notification would be provided when the Complainant’s children would not be attending school outings. She stated that this request had nothing to do with the children’s election to decline religious studies. She stated that her concern in this regard was purely logistical in relation to the booking of buses etc. She submitted that it was the Complainant’s partner that brought up the issue of the apparent over-emphasis on religious instruction and requested the details of a school that would suit his requirements.

The principal also stated that she observed the Complainant’s partner’s behaviour on 8th October 2018 and stated that the same was aggressive, hostile and inappropriate. The principal outlined the events of 25th October 2018, and again outlined that the Complainant behaved in an inappropriate and aggressive manner. The principal denied having sight of the Complainant’s letter of complaint allegedly issued in October 2018, and stated that, to her knowledge, the same had never been received by the Respondent. In answer to a question posed in cross examination, the principal confirmed that she did not have any medical evidence of bruising or any other form of injury arising from the alleged incident of 25th October. The witness denied the Complainant’s assertion that no such incident occurred. She denied a broader set of allegations in respect of an alleged campaign of harassment against the Complainant and her family.  When asked when she attended the Gardaí to report the alleged assault, she stated that she attended the station to make enquiries in this regard shortly after the incident. Some weeks later she attended to make a formal complaint. When asked why she waited for this period of the time to make a formal complaint, she stated that she was within her rights to do so. In answer to a question posed by the Adjudicator, the witness denied that matters had been resolved during the informal meeting of 26th October. She stated that she had a right to a safe place of work and that the Respondent had an obligation to provide same for her and her colleague. The principal denied that the Complainant’s children were subjected to any form of discriminatory treatment in 2019. She stated that the Complainant raised issue a health and safety concern regarding the school yard and stated that she children were not permitted to walk on the same. As a consequence, the Respondent had to ensure that the children were observed by a member of staff in respect of the same. It was on this basis that the students were provided with seating during their lunch break.

In evidence the student’s teacher confirmed that she previously enjoyed a good relationship with the Complainant and her family. She accepted that she met with the Complainant prior to the Easter break in 2017 and had an informal discussion with the Complainant. She stated that this discussion was friendly and positive in nature and that she understood that the Complainant’s concerns were broadly addressed following the same. The witness accepted that the younger child experienced some toileting issues at the commencement of the school year. In this regard, she met with the child’s parents in an effort to resolve this issue. She vehemently denied, in the strongest possible terms, the allegation that she allowed this child to become and remain soiled in order to further a campaign of harassment against the Complainant and her family. The witness gave direct evidence as to the events of 8th October 2018 and stated that the Complainant’s partner acted in a hostile and aggressive fashion on this date. She stated that the interaction left her feeling scared and vulnerable in her workplace. In evidence she stated that she was initially unaware as to progress a complaint in this regard and following consultation with her partner she elected to bring a complaint to the Gardaí. Again, she denied that this complaint was made in order to further a campaign of harassment against the Complainant and her family, rather she stated that she had a right to a safe place of work. In this regard, she engaged with the Board of Management in respect of their duty of care to her as an employee. The witness stated that the informal meeting with the Complainant of 26th October was conciliatory in nature and went some way towards resolving these matters. During this meeting, the Complainant indicated that her partner would apologise for his actions on the 8th October. On reviewing his correspondence in this regard, the witness formed the view that the Complainant’s partner did not apologise but rather expressed regret for her subjective interpretation of events.

In answer to question posed in cross examination, the witness accepted that she did not report the incident of 9th October 2018 to the Gardaí on that date. She stated that following the incident she felt shocked and was initially unsure of how to progress a complaint in this regard. Following a conversation with her partner, she elected to report the matter to the Gardaí some days later. The witness denied that she did so on the command or under the influence of the principal. In answer to a further question posed in cross examination, the witness accepted that the school did not have a written toileting policy at the commencement of the academic year in 2018. Nonetheless, she stated that she met with the student’s parents in order to address the issue. She denied that the proposed resolution, that the child be accompanied by his older sibling, was a dereliction of her duty but submitted that it was a proposed solution to an ongoing problem.

In closing submission, the Respondent’s representative denied that the Respondent had engaged in any form of discrimination or harassment against the Complainant or any member of her family.

The present case involves an extensive set of allegations of harassment and discrimination by the Respondent against the Complainant and her family. The Complainant submitted that said harassment and discrimination arose when she and her partner elected to exclude their child, and later his sibling, from certain religious instruction. The Complainant submitted that they have a legislative and constitutional right to take this course of action on behalf of their children. In denying this set of allegations, the Respondent agreed that the Complainant has a right to determine their children’s religious instruction but denied that they engaged in any form of inappropriate behaviour as alleged.

In this regard, Section 5(1) provides 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”.

In the case of Olumide Smith -v- The Office of the Ombudsman [2020] IEHC 51, Simmons J. stated that,

“The effect of these legislative provisions is that a complainant is required to discharge a reduced burden of proof, and once this is done, the burden of proof is reversed. As explained by Advocate General Mengozzi in Case C415/10, Meister ECLI:EU:C:2012:8, [22], the effect of the burden of proof provisions under the Racial Equality Directive (and other related Directives) is that a measure of balance is maintained between the parties, enabling the complainant to claim his or her right to equal treatment but preventing proceedings from being brought against a respondent solely on the basis of the complainant’s assertions.”

Regarding the allegations of harassment, Section 11(1) provides that,

“A person shall not…harass…another person (“the victim”) where the victim (a) avails or seeks to avail himself or herself of any service provided by the person or purchases or seeks to purchase any goods being disposed of by the person.”

Subsection 5(a) goes on the define harassment as “any form of unwanted conduct related to any of the discriminatory grounds”.

At the outset it is noted that the Complainant is not a student of the Respondent, but is the parent of two former pupils. 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.”

Having regard to the foregoing, it is apparent that the Complainant enjoys standing to pursue the present complaint. 

The Complainant, in submitting a long and detailed history of her family’s interaction with the school, stated that relations between the parties were initially quite cordial and friendly. She submitted that this relationship changed somewhat when she informed the Respondent that her elder child would not attend a school trip to an event organised by a group with an express religious ethos. In this regard, evidence was provided by her partner in relation to a meeting with the principal on 4th December 2017 whereby the principal allegedly expressed her disappointment in relation to the same and suggested that an Educate Together school may prove more appropriate for her family’s requirements. In disputing this version of events, the principal stated that she called the meeting to request advance notification of a withdrawal from school activity of any description. She stated that the Complainant’s partner raised the issue of alternative schools to cater for atheists, it was only in response to this statements that she suggested the educate together school.

In this regard it is apparent that a conflict of evidence arises in relation to these events. Both parties gave sworn evidence in support of their version of events and contested the opposing account. In this regard an examination of the contemporaneous actions of the parties is necessary. In the months following this interaction, the Complainant and her partner elected to enrol their younger child into the school for the following school year. Having considered that narrative of events submitted by the Complainant, it is difficult to reconcile the allegation that the principal of the Respondent commenced a campaign of discrimination or harassment against the Complainant’s family, with this decision. While I am aware that the enrolment of the younger child in a different school would present difficulties for the Complainant and her family, the fact remains that this was an entirely voluntary action and is inconsistent with the allegation that her family had been discriminated against and harassed by the Respondent at this point.

In addition to the foregoing, I note that at the commencement of the academic term in 2018, the Complaint issued anonymous correspondence to the Respondent taking issue with the conduct of the principal. Whilst this correspondence takes issue with the principal’s attendance record, her lack of “approachability” and “negative attitude” and suggests that she had been “teaching for too long and lost her enthusiasm”, this correspondence is silent as to any allegations of adverse treatment on the grounds of religious belief. In this regard, I note that this correspondence was delivered anonymously and would not have resulted in any repercussions for the Complainant or her family. I further note that the allegations contained therein are wide-ranging and personal to the principal. In such circumstances, while it is apparent that a dispute arose in relation to the religious instruction of the Complainant’s eldest child in late 2017, these two points do not evidence a campaign of discrimination or harassment at this time.

Regarding the allegations thereafter, the Complainant alleged that the principal and another teacher within the school issued false allegations of assault against both herself and her partner in respect of incidents that occurred in October 2018. These complaints were made to both the Board of Management of the School and to the Gardaí. In this regard, it is notable the rate at which relations deteriorated between the parties at this point. At the commencement of the academic year in 2018, it is apparent the Complainant was content to enrol her younger child in the school. Within months of the same, staff members of the Respondent issued two complaints to the Gardaí, while the Complainant issued complaints to the Department of Education, child protection services and the Teaching Council in respect of the Respondent. Having heard the evidence in relation to this sequence of events, it is apparent that the catalyst for the breakdown of this relationship was the teacher’s allegation in respect of the alleged hostile and intimidatory behaviour of her partner on 9th October 2018. Whilst once again a conflict of evidence exists as to what occurred on this date, it is not in question that the teacher has a right to a safe working environment and should be permitted to issue a complaint in respect of alleged inappropriate behaviour.  In parallel to the same, the teacher has a concurrent right to issue a complaint to the Gardaí in the event that she believes she has been assaulted. Once these complaints had been received, it was the duty of the relevant investigative body to examine the same to determine their merit of the complaints.

In this regard, the Complainant has submitted that the alleged campaign of harassment spread from the principal to include her younger child’s teacher. The suggestion therein is that the teacher, in consort with the principal and the Board, conspired to harass the Complainant and her family in an effort to force them to leave the school. The specifics of this allegation are that the teacher firstly allowed her younger child to become and remain soiled, and thereafter issued a knowingly false allegation regarding her partner’s conduct to the Board and to the Gardaí. Having considered the relevant evidence in relation to the same, I find that this set of allegations is based upon a significant degree of supposition on the part of the Complainant. In addition to the foregoing, having heard the evidence of the witness in this regard, and particularly in respect of the initial allegation, it is apparent that there is no evidentiary basis for such supposition. While it is accepted that the Complainant’s child unfortunately experienced toileting issues at the commencement of the school year, there is no evidentiary basis for the allegation that the same was permitted to occur on purpose and that the same was in retaliation for the dispute about his sibling’s religious instruction some months previous.

The Complainant further alleged that the principal continued this campaign of harassment by making a complaint in respect of her own behaviour on 25th October. Again, it should be noted that the principal, as an employee of the Respondent has a right to a safe working environment. In this regard a conflict of evidence exists as to the events of this evening, with both sides absolutely disputing the opposing side’s account.

Again, the allegation that this complaint was made in an effort to continue a campaign of harassment against the Complainant and her family on religious grounds, constitutes supposition on the part of the Complainant. In this regard, I note that the complaint far from being deemed frivolous by the Gardaí, was pursued to the District Court and resulted in a successful prosecution, albeit subject to the application of the Probation Act.

Having regard to the totality of evidence presented, I accept that a dispute arose in relation to the Complainant’s eldest child’s religious instruction in December 2017. Thereafter, it is evident that the parties became embroiled in a bitter dispute in late 2018, following the issues experience by the Complainant’s younger son at the commencement of his education. As pointed out to the parties numerous times throughout the hearing, the purpose of this decision is not to determine who is to be successful in relation to this dispute or to resolve the myriad conflicts of evidence that arise in relation to the same. The sole jurisdiction afforded by the Act in this regard is to determine whether the Respondent discriminated or harassed the Complainant under this file reference, or her family under the matters heard in parallel. Having regard to the same, it is evident that while an issue arose regarding the student’s religious instruction in 2017, the nature of the dispute became much more rancorous and pronounced following the allegation of inappropriate behaviour on 9th October 2018.  From this point the dispute continued to escalate to the point where relations between the Complainant and the Respondent became almost non-existent, other than to issue accusations various illegal activities. While the Respondent must bear some of the responsibility for a failure to de-escalate or otherwise resolve this dispute at a local level, and in this regard I note that the first time the Complainant had an opportunity to ventilate the concerns expressed was during the hearing, having regard to the findings above I do not find that the Respondent discriminated against or harassed the Complainant on the grounds cited.

I find that the Respondent did not engage in prohibited conduct.

Religious Ground, Harassment, Discrimination, Burden of Proof