Complainant

Respondent

Anonymised Parties

Child B, suing through his next friend, his Mother

National School

Representatives

The Complainant’s Mother

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-00030151-001

09/08/2019

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

CA-00030161-001

11/08/2019

The Complainant is a former pupil of the Respondent. Following a long-running dispute involving his parents and the management of the school, the Complainant, via his mother, referred the present complaints to the Commission. Herein, the Complainant’s mother alleged that he had been subjected to harassment and discrimination by the staff and management of the school. She alleged that said harassment and discrimination arose as a consequence of his parent’s election to exclude him from certain religious instruction and school outings. The Complainant’s mother referred three other complaints simultaneously to the instant matter. These complaints relate to an allegation of harassment and discrimination by the Complainant’s brother and allegations of harassment and discrimination by his two parents. These matters were assigned adjudication file references ADJ-0002600, ADJ-0002303 & ADJ-00023606, with 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it was accepted that the Respondent had been in fact lawfully notified and the preliminary objection was withdrawn.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’s mother 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 a former pupil of the Respondent school. Prior to his older sibling’s enrolment, the Complainant’s mother spoke with the former Chairperson of the Board of Management, a clergyman. During this conversation, the Complainant’s mother was assured that while the school maintains a religious ethos, they were welcoming of students of all religions and none. The Complainant’s older sibling 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’s mother enjoyed a close relationship with the principal, however over time she began to harbour some doubts regarding the direction of the school under this person. In particular, the Complainant’s parents became concerned that the religious aspect to the education of their child 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’s mother began to investigate the same and ultimately determined that the proposed trip was inappropriate for her child. Following the same, the Complainant’s mother informed the principal that the Complainant’s older sibling 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’s mother received a text message from the principal requesting that she attend the school for an informal conversation. As the Complainant’s mother was busy that this time Complainant’s father 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 Complainant’s older sibling should be enrolled in an educate together school. The Complainant’s mother submitted that these comments were discriminatory in nature. The Complainant’s mother submitted that from this point onwards, the principal’s attitude towards her and her partner changed considerably. 

Following this meeting, the Complainant’s mother and her partner continued to harbour concerns regarding the nature of the religious instruction being provided by the school. The Complainant’s mother 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’s mother 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’s mother 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’s mother stated that she noticed that the Complainant’s older sibling was becoming somewhat withdrawn, a development she attributed to a poor schooling environment.

Notwithstanding these issues, the Complainant’s mother did not wish to take the drastic step of removing the Complainant’s older sibling from the school. In September 2018, the Complainant’s mother enrolled the Complainant into the school. The Complainant’s older sibling also moved to a class taught directly by the principal. The Complainant’s mother continued to harbour doubts regarding the practices of the principal, now teaching her elder child. To this end, the Complainant’s mother 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 mother’s knowledge, no action was taken on foot of this correspondence.

From the commencement of his schooling, the Complainant returned home on numerous occasions having soiled himself. This naturally became a point of concern for the Complainant’s parents. The Complainant’s mother 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 the Complainant’s older sibling accompany the Complainant to the toilet at the appropriate time. The Complainant’s mother 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 father attended the school to speak with the Complainant’s teacher. In evidence, the Complainant’s father 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 father 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.

Thereafter, the Complainant parents became involved in a dispute with the Respondent in respect of various allegations of inappropriate behaviour. 

In early 2019, the Complainant’s mother issued further allegations of discriminatory behaviour by the Respondent against her children.  She further alleged that the Complainant’s new-born sibling was not invited to the school, she submitted that this behaviour was discriminatory as the exclusion arose from the Complainant’s opting out of certain religious instruction.   

The Complainant’s mother 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, including the Complainant. The Complainant’s mother further submitted that the Complainant was forced to sit outside alone during lunch break, again it was submitted that this constituted discriminatory behaviour. She submitted that the principal specifically took this action in order to isolate and punish her children.

In February 2019, the Complainant was excluded from a school outing organised by the Respondent. In this regard, the Complainant’s mother stated that she was not properly informed of the same, with the express intention of excluding her children.

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’s 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.

In answer to a question posed in cross examination, the Complainant’s mother 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 father 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 principle 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.

By closing submission, the Complainant’s mother 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 older sibling attended the school between the dates of 1st September 2017 and 27th March 2019, while he 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 his family and expressed their disappointment that matters have proceeded as they have.

From the date of enrolment of the Complainant, the Respondent has been aware of his parent’s instruction regarding religious instruction. In this regard, the enrolment form expressly stated that he was of “no religion”. The school, in line with their ethos of accepting children of all beliefs, had absolutely no issue with this position. In this regard, the Respondent stared that the first number of years of the Complainant’s older sibling 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 older sibling 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 as organisation. In this regard, she requested that the Complainant’s mother 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’s parents. As the Complainant’s mother 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 as 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 father 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’s parents enrolled the Complainant with the school. From the outset, it was evidence that this child unfortunately experienced some toileting issues. Following consultation with the Complainant’s parents, 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 father attended the school premises in an angry state. He then 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.

The Respondent denied subjecting the Complainant to any form of discrimination on religious, or any other, grounds. Both the principal and the teacher denied the various statements that were attributed to them by the Respondent.

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 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. The principal denied that this had anything to do with the ongoing dispute with the Complainant’s parents, but was a consequence of their express requests in this regard.

In evidence the student’s teacher confirmed that she previously enjoyed a good relationship with the Complainant and her family. 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.

In answer to a 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. The witness further denied any committing any discriminatory actions or statements in respect of the Complainant or his sibling.

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 his family. The Complainant’s mother submitted that said harassment and discrimination arose when she and her partner elected to exclude his sibling, and later himself, from religious instruction. The Complainant’s mother submitted that they have a legislative and constitutional right to take this course of action on behalf of their children. In denying this allegation, 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”.

The Complainant’s mother, 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 father 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’s parents elected to enrol their younger child into the school for the following school year. Having considered that narrative of events submitted by the Complainant’s mother, 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 Complainant in a different school would present difficulties for the family, the fact remains that this was an entirely voluntary action and is inconsistent with the allegation of discrimination against and harassement 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’s mother 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 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 harassment thereafter, the Complainant’s mother alleged that the principal and another teacher within the school commenced a campaign of discrimination against the Complainant and his sibling from the commencement of the academic year in 2018. Having heard the evidence in relation to this sequence of events, it is apparent that the catalyst for the breakdown of the relationship between the parties was the teacher’s allegation in respect of the alleged hostile and intimidatory behaviour of her partner on 9th October 2018. Thereafter, the Complainant’s mother made numerous allegations of discrimination against the Respondent, in particular the principal and her younger child’s teacher.

While the Complainant’s mother made numerous allegations of discrimination in respect of these two persons, the primary allegations in this regard are that the Complainant was allowed to become and remain soiled during the school day, that he was forced to sit outside in a designated area during break time, that he was not invited to present his new-born sibling to the school and that he was improperly informed of a school outing.

In relation to the first allegation, the essence of the complaint is that following the dispute in relation to the religious education of the Complainant and his brother, the staff and management of the school conspired to force the Complainant and his family from the school. The Complainant’s mother submitted that this arose in direct retaliation for their declining certain religious instruction for their children. She submitted that they were the first family to expressly make such a request and she suspected that the staff and management did not wish to allow a precedent to be set in this regard. Regarding the same, the first point to be noted is this specific allegation would involve the inclusion of the Complainant’s teacher, an employee of the school without any direct management function. The allegation would necessitate that this person would allow a child to become and remain soiled in her classroom in order to further a campaign, of management’s devising, to force the Complainant’s family from the school. Such an allegation contains numerous elements of supposition, and does not meet the burden of proof required by Section 38A. In addition to the foregoing, having had the benefit of hearing the Complainant deny this allegation, in the strongest possible terms, under oath and cross-examination, I find that there is no evidentiary basis for such a belief.

Regarding the next allegation, it is agreed that the Complainant’s mother issued a complaint regarding the failure of the Respondent to properly power-wash the school yard. As the Complainant’s mother believed that the same posed a risk to the health and safety of her children she requested that the students be permitted to stay inside the school building during break times. The evidence of the principal in this regard was that when they experienced a staffing issue, the student’s chairs were moved outside so as to allow the yard supervisor to observe the Complainant and his sibling, as well as the other children in the yard. Having considered the relevant evidence in this regard, it is apparent that the differential treatment experienced by the Complainant arose from his parent’s request that he be permitted to remain indoors as opposed to any discriminatory ground.

Regarding the second allegation, the Respondent’s failure to issue an invite to the Complainant’s new-born sibling, it is common case that the Complainant’s parents and the staff and management of the Respondent were embroiled in a bitter dispute at the relevant time. In such circumstances it is unsurprising that they would fail to invite the Complainant’s parents to the school in an informal, social basis.

Finally, regarding the school trip, it is again common case that the Respondent issued a permission slip in respect of the same to the Complainant. This permission slip was issued to all students simultaneously. Again, it is common case that the Complainant’s parents failed to return this permission slip. The position of the Complainant’s mother was that the Respondent failure to communicate with the Complainant’s parents informally in respect of the same constituted a further act of discrimination. In this regard, it is again noted that the Complainant’s parents and the staff and management of the Respondent were embroiled in a dispute at the relevant time. In such circumstances, it is again unsurprising that the person with whom the Complainant’s parents were in dispute with, would maintain any form of informal contact with the parties.

Having regard to the totality of evidence presented, it is evident that the parties became embroiled in a bitter dispute in late 2018. 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 his family under the matters heard in parallel. Having regard to the same, it is evident that while an issue arose regarding the Complainant’s sibling’s religious instruction in 2017, the nature of the dispute became much more rancorous and pronounced following the allegation of inappropriate behaviour on the part of this father on 9th October 2018.  Regarding the allegations of discrimination in raised on behalf of the Complainant, I find that the initial burden of proof has not been discharged. I further find that the Complainant was not harassed within the definition of the Act by the Respondent or agents of the Respondent.

CA-00030151-001

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

CA-00030161-001

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

Religious Instruction, Discrimination. Harassment