Complainant

Respondent

Anonymised Parties

A Primary School Student

Board of Management of a Primary School

Representatives

James Rooney BL

Mary Paula Guinness BL

Act

Complaint Reference No.

Date of Receipt

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

CA-00051092-001

07/06/2022

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

CA-00051204-001

Closed

13/06/2022

A person contemplating a complaint of discrimination under the Equal Status Act 2000 (“the Act”) is generally expected to comply with two separate time limits.  The first, at section 21(2) of the Act, provides that a complainant must, within two months after the date on which the prohibited conduct is alleged to have occurred, or within two months of the last incident of the prohibited conduct, notify the respondent in writing and inform them of his or her intention to seek redress.  In accordance with the Regulations referred to at s.21(5), the WRC has developed a specific form, known as an “ES.1,” for the purpose of notifying a respondent of an intention to seek redress regarding discrimination on any of the nine grounds set out at s.3(2) of the Act.   

The second time limit is set out at section 21(6) and this provides that a complaint of discrimination “may not be referred” to the WRC more than six months after the most recent incident of discrimination.  There are provisions for an extension of these time limits at ss.21 (4) and (5).

To consider if “John’s” complaint has been submitted within these statutory time limits, I intend to set out the chronology that led to his mother submitting this complaint to the WRC on June 7th 2022.

John was in sixth class from September 2020 until June 2021.  In her submission on his behalf, Ms Barry wrote,

“Arising from his sexual orientation, the complainant was subjected to long-term bullying and harassment, starting in 2015 and only ending when he left … in June 2021.”

In an undated letter, John’s parents wrote to the school’s board of management to make a formal complaint about the principal and his class teacher.  Ms Barry’s submission states that this letter was sent to the board of management by registered post on Saturday, June 26th.  I am satisfied that this is not the date on which the letter was sent, because, on page 14 – 16, John’s mother refers to confusion in the school on Monday, June 28th about July provision for John and a conversation she had with his class teacher that day.  Whatever date the letter was sent, on September 27th 2021, John’s parents attended a meeting with the chairperson of the board to discuss their complaint.   

The following day, John’s parents contacted the Minister for Education to advise her about what they described as the “homophobic bullying” their child had suffered in the school.  On October 1st, John’s mother sent Tusla a copy of the letter they had sent to the board of management after June 28th.  On November 3rd 2021, John’s parents wrote to the board of management to inform them that they did not agree with the minutes of the meeting of September 27th and they asked for a meeting with all the members of the board.  At a meeting with the full board on March 8th 2022, John’s mother claimed that the school had neglected John and was not interested in dealing with the bullying she alleged he endured from first to sixth class and she claimed that this was discrimination on the ground of his sexual orientation. 

The chairperson of the board wrote to John’s parents on March 14th 2022.  She informed them that there was insufficient evidence to corroborate their complaint and that it was “unsubstantiated and has been rejected.”

On April 6th 2022, using an ES.1 form, John’s mother sent a written notification to the school, informing them that she intended to make a complaint under the Equal Status Act.  In the narrative section of the form, John’s mother stated:

“My son… was a victim of severe homophobic bullying while in your school.  Having made multiple reports to both agents of the school this bullying did not stop as the school failed to take the matter seriously and act or take reasonable steps to prevent this discriminatory bullying.  This inaction and passive attitude from the school in response to my communications, I believe, is discrimination.

“I do not feel that the school responded well to my complaints.  I do not believe that we, as (John’s) parents, were listened to in an adequate or satisfactory manner.  We feel as if you viewed this issue as a nuisance or annoyance and throughout (John’s) final year in school that the school was merely biding its time to dispose of the problem.  Additionally, we feel that, when we reported the matter to teachers, the Deputy Principal and the Principal that we were given false promises and insincere reassurances.  We also feel that when we complained to the Board of Management of the school that the attitude taken was disingenuous, that irrelevant issues regarding (John’s) alleged misbehaviour from a number of years ago was intentionally raised in bad faith and as a distraction and that we were required to sit in a strange position at the first meeting which left us feeling alienated.  We have been made to feel that our family is the problem and not the bullying.”

In an ES.2 form on May 3rd 2022, on behalf of the board of management, Ms Catherine Kelly of Mason Hayes and Curran Solicitors responded to the allegations in the ES.1.  Ms Kelly stated that the board of management dealt with the complaint submitted by John’s mother in accordance with the provisions of a nationally agreed Parental Complaints Procedure.  She said that the decision of the board of management of March 14th 2022 is final and that the school did not treat John’s mother differently to any other parent.

On June 7th 2022, on behalf of her son, John’s mother submitted this complaint to the WRC.  She alleges that her son “was the victim of homophobic bullying by fellow students” and that the failure of the school to adequately address this and its ongoing failure to put in place measures to ensure it did not continue, including a lack of policies to address LGBT bullying, constitute less favourable treatment on the ground of sexual orientation.

The WRC complaint form which was submitted on June 7th 2022, states,

“This complaint is submitted by Karl Gill of Dublin South Citizens Information Service, on behalf of our client (name of John’s mother), being a parent acting on behalf of the complainant, her minor son (John), aged under 18 years.

“(John) was a student of the Respondent School until June 2021.

“This complaint relates to indirect discrimination by the respondent towards (John) and his parents acting on his behalf.  We are taking the unsatisfactory response in the ES2 form as a further act of discrimination, in that it compounded, denied and sought to defend the previous discriminatory acts….The ES2 form is the last date of discrimination being the 3rd May 2022.  We are taking the second last date of discrimination as the 14th March 2022, being the date of the final decision of the board of management of the school’s investigation into the complainant’s parents’ complaint.

“(John) was the victim of homophobic bullying by fellow students of the respondent.  We submit that the school failed to act to prevent these acts, despite being aware of them, and when the complainant’s parents complained to the respondent, they were treated poorly, made feel like an annoyance and disrespected.  We submit that the school did not follow their own anti-bullying policy, or any fair procedures and failed in their responsibility to submit a Child Protection Notice to Tusla.  The school failed to reprimand or sanction any student that engaged in bullying towards the complainant, failed to initiate any Restorative Practice between students and failed to address homophobia in the school or create an LGBT friendly school environment.  We submit that the school did not take this matter seriously due to the fact that the nature of the bullying related to the Complainant’s sexual orientation (s.3(2)(d) of the Equal Status Act 2000 as amended).”

Finding on the Issue of the Time Limits

The fundamental issue that John’s parents complain about is how their son was treated in primary school, and the bullying they claim he endured from when he was in first class until his last day in school on Friday, June 25th 2021.  Having submitted a formal complaint to the board of management sometime after June 28th 2021, they claim that they were also subjected to discriminatory treatment, because they considered that the response of the board of management to their complaint was unsatisfactory.

John completed his primary education on Friday, June 25th 2021.  Ms Barry’s submission describes some very distressing incidents that John’s mother alleges occurred in his last few weeks of school, ending in the final week with an awards ceremony, a group photograph, penises drawn on John’s tee shirt and a graduation event.  It is my view that the latest date on which discrimination could be said to have occurred is Friday, June 25th 2021, when it is alleged that John was subjected to homophobic bullying by some of his classmates.

Having complained to the board of management about how he was treated by the school, on the ES.1 form dated April 6th 2022, John’s mother criticised how the board dealt with her complaint.  On the form that she sent to the WRC on June 7th 2022, her dissatisfaction with the response of the board is joined to the original complaint about how John was treated and is submitted as a new complaint about how she and her husband were treated by the board.  In effect, in addition to the original complaint of discrimination of her son on the ground of sexual orientation, the complaint submitted to the WRC on June 7th 2022, contains a new complaint of indirect discrimination, arising from the response of the board of management on March 14th 2022 and the response in the ES.2 on May 3rd 2022.

It is apparent to me that this attempt to connect John’s complaint to his parents’ dissatisfaction with the outcome of the investigation into how he was treated in the school, is a strategy to bring his complaint within the statutory time limits.  The complaint about how John was treated by his classmates, and how their behaviour was dealt with by the teacher and the principal, is separate from how his parents were treated by the board of management and I reject the belated connecting of these two issues for consideration as one complaint.  I am satisfied that, if discrimination occurred, the last date on which it occurred was John’s last day in primary school on June 25th 2021.

As the respondent was notified of this complaint in an ES.1 form on April 6th 2022, they have been notified outside the statutory time limit of two months which is set out at s.21(2) of the Act.  The date of the notification also exceeds the extended time limit of four months which is provided for at s.21(3).  As the complaint was submitted to the WRC on June 7th 2022, it has been submitted outside the second statutory time limit of six months which is set out at s.21(6).  No application was submitted for an extension of the time limit.

I have concluded that the complainant’s mother has not established that there was a reasonable cause for her failure to notify the respondent of her intention to submit a complaint of discrimination within the two-month time limit specified at s.21(2)(a) and the four-month limit specified at s.21(3)(a)(i) of the Equal Status Act 2000.  I have also concluded that there was no reasonable cause for her failure to submit a complaint to the WRC within the six-month time limit which is specified at s.21(6)(a) of the Act.  For this reason, I decide that this complaint is not well founded.

Complaint submitted outside the statutory time limit