Complainant

Respondent

Anonymised Parties

A Child

A Primary School

Representatives

Rosemary Mallon B.L. instructed by  Mason Hayes and Curran

Act

Complaint Reference No.

Date of Receipt

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

CA-00061151-001

23/01/2024

This is a complaint under the Equal Status Act; the formal complainant in this case is a six-year-old child who has an autism diagnosis, and the respondent is the primary school which he attends.

At the request of his father, who represented him at the hearing, the parties will be anonymised. Much of the detail of what follows will also be rendered having regard to the need to ensure the identity of the formal complainant in particular is protected.

(For ease of reading, references to ‘the complainant’ are, in the main, to the contents of the submission prepared by his father and/or to his father’s oral submission at the hearings, and it would be normal to use ‘complainant’ when referring to a party advocate.

There is, however, a further complication below in relation to whether certain alleged incidents directly impacting on the father may also be covered by this complaint. Where this occurs, attention is drawn to it in the text) .

A substantial submission (just over 4000 words) was made on behalf of the complainant outlining various aspects of his relationship and engagement with the school. It also set out his family’s dissatisfaction with some of the school’s responses to the child’s, admittedly challenging, behaviour. These were submitted under five headings.

While the complainant referred in that submission (and on the ES1 Form) to a number of incidents which referred to ‘discrimination’ and in one case to ‘less favourable treatment’, it was not necessarily certain what the specific grounds of complaint actually were.

From the point of view of efficient case management, the complainant was invited at the commencement of the hearing to crystalise his complaints, and the hearing adjourned briefly to permit him to do so.

On resuming he itemised six specific items, and a seventh general complaint related to what was alleged to be a pattern of exclusion of his child. These formed the basis of the next stage of the hearing which was a review of whether they were within jurisdiction.

Following a short adjournment, the complainant specified the various complaints as follows.

1)               Pressure to attend a meeting.

The week before school restarted in late August 2023, he received a call from the school about supports for his child  and this led to a meeting being arranged for Monday September 11th, at 9am to discuss the year ahead.

On Wednesday September 6th, 2023, he received a call from the school Principal insisting on a meeting before the Monday 11th meeting. He explained that he had work commitments which he could not change, but he ended up having to go to the school immediately This, he submits, was discriminatory behaviour.

2)     Email following meeting with psychologist.

Following a consultation with a psychologist the complainant received an email to which he took exception and alleged that the school had put an interpretation on the psychologist’s opinion which did not accurately reflect his views.

3)       Email of September 20th, 2023

In the course of an email from the school reference was made to the child’s adverse behaviour. The complainant said that this misrepresented his child’s general disposition and characterised him as excessively violent and stigmatised him.

4)       First Suspension

The complainant said the school’s actions in suspending his child in December 2023 represented an act of discrimination, and that as it followed the service of the ES1 form it also constituted penalisation.

5)   Suggested change of school, June 21st, 2023

This is the first of two incidents in June 2023 and concerns alleged comments made by the school about the adequacy of its support resources to provide a service to the child, by reference to other schools which had better resources.

6)   Pressure to remove the child from the school.

He also stated that this conversation was an attempt to pressurise the family to remove their child from the school and was discriminatory.

7)   The complainant submitted that taken together the actions of the respondent represented a pattern of discrimination. He also said that the respondent‘s actions had resulted in huge pressure on the family.

In summary the complainant said all these actions constituted less favourable treatment of his child on the grounds of his disability.

The respondent submitted that none of the matters referred to meet the test of a prima facie case, several fell outside the cognisable period, and some involved complaints by the complainant’s father, who was not the complainant in this action.

Two of them (items 5 and 6) occurring in June 2023 fell outside the cognisable period, and such parts of item 7 as are included in the submission are likewise not within jurisdiction.

Regarding Item 1, this concerns the father and relates to a degree of pressure being applied to him to attend a meeting in the school due to the urgency of the situation. There is no act of less favourable treatment on any of the protected grounds in respect of the formal complainant, i.e. his child.

Item 2 concerns the contents of an email which did no more than relate the outcome of the meeting with the psychologist. Counsel read the extract from the email and submitted that it could not be represented as having any adverse meaning nor could it constitute an act of less favourable treatment as no adverse action followed.

Counsel read the email complained of at item 3 of the complaints and submitted that there was nothing in it to bring a complaint to the standard of a prima facie complaint. The purpose of the email was to reduce the hours the child would attend and any other child with a similar pattern of behaviour would be treated similarly (and this reflected the view of the external psychologist).

Regarding item 4 it was submitted that the suspension in December 2023 followed a period of extremely challenging behaviour by the child (details of which were submitted and are referred to in the Decision below) which left the respondent with no alternative but to have the child remain at home.

In relation to items 5 & 6, in addition to the submission on time limits the respondent submitted that no action is disclosed by the complainant. The complaint relates to a conversation which took place, but which did not result in any act that could be seen as a breach of the Act; it was merely a review of possible options for how the child might be better supported I the future.

The respondent concluded by submitting that the complainant had not made out a prima facie case on any of the specific complaints he had submitted for the hearing, a number related to incidents in which he, and not his child, was the alleged subject of action by the respondent but he had not made a complaint on his own behalf and had no locus standi.

This was obviously a very difficult matter indeed for the complainant family; the child at the heart of the issue and his parents who are focused on finding the best possible outcomes for him and for his development.

Likewise for the school which is seeking within constrained resources to balance the needs of its entire population of students and deliver the best possible outcomes in a safe environment for everybody involved, including its teaching and support staff.

It is not difficult to imagine the tensions that can result from this difficult situation nor is it possible to avoid feeling great empathy for everyone involved. A less adversarial and more solution focused form of alternative dispute resolution might have served the parties better in resolving their differences.

But once it is before it, the role of the tribunal is to consider whether the law, in this case the Equal Status Act has been breached. In other words, has the complainant (who is a six-year-old child) been the subject of a discriminatory breach on the grounds, in this case, of his disability.

It is not the tribunal’s role to consider, nor indeed could it, whether either the school or the complainant ought to have managed their interactions and communications a bit better in both directions.

The first question is whether the standard of proof necessary to ground a case of discrimination has been met. This means establishing that a particular action took place, which adversely affected the complainant (the child), and which was an act of less favourable treatment based on his disability.

The submissions were that he was capable of very disturbed behaviour at school. His father submitted that this was a reversal of the more common experience of an autistic child being more disruptive at home, than at school.  While that may be true, at no stage was there any evidence to suggest that the school’s actions were not informed by the child’s actual conduct and a proportionate and professional response to it.

It is not sufficient to submit that because a child had a disability then any action about which the parents were unhappy would automatically become a discriminatory act.

The three limbs of the test in determining a prima facie case (as submitted by the respondent, and which I accept) are, whether the complainant is covered by a discriminatory ground, secondly, whether there is evidence of specific treatment by the respondent of the complainant relied upon, and, finally, what evidence is there that the treatment received by the complainant was less favourable than the treatment someone not covered by that ground would have received in similar circumstances?

I also take into account, although it barely arises on the facts of the case the respondent’s submission on Section 4(4) of the Equal Status Act where it states:

“whereapersonhasadisabilitythat,inthecircumstances,couldcause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.”

There were other submissions on the case law exemplified by the High Court decision of Clare v. Minister for Education and Science (2004 IEHC 350) where it was decided that.

“The school was entitled to balance the rights of Richard and the other students in his (intended) class… such that on the basis that the facts and the correspondence are true, is not discrimination. (Section 7.4(b) of the Act of 2000)”.

However, I turn first to an analysis of the discrete complaints identified by the complainant, and as enumerated above in both parties’ submissions.

I cannot discern a prima facie case in any of them.

Complaint 1 related to the pressure applied on the father to attend a meeting in advance of one already arranged. While this was undoubtedly inconvenient for the complainant it does not remotely resemble an act of less favourable treatment on a protected ground by reference to the legal test for either his child, or him (leaving aside whether he has locus stand at all in the complaint).

Complaints 2 and 3 related to the contents of emails which may have caused discomfort to the parents, but they were entirely unexceptionable. One of these was primarily relating the views of the psychologist who had been consulted about the young child.

They again fail to meet the lowest bar of what might constitute a prima facie case, and as above they did not involve the child at all.

Complaint 4 related to the suspension of the child in December 2023 after a period of very disruptive conduct. A flavour of this may be gained from the letter sent by the school Principal after the suspension

“Asyouwereaware,[your child] hasrepeatedlybeeninbreachoftheSchool’s CodeofPositiveBehaviourwhichhasledtoclassevacuations,very aggressivebehaviorandbehaviorthatposesathreattosafetyofchildren staff in the school. The school cannot accept class evacuations, very aggressive behavior or behavior that poses a threat to the safety of children in the school or members of staff to continue in any shape or form. The school has an obligation to ensure that [he] receives an education, however that right also has to be balanced with the other children's education in the school and the health and safety of students and staff.

…ThisActionisfollowinganumberofseriousincidentsason5/12/2023, whereby [he]  was aggressive in the following way;

Using inappropriate language to other children, throwing food and his lunch box across the classroom, throwing crayons and pencils at other children as they were being evacuated from the room, throwing a chair,

While of course this arises from the child’s disability the complainant was not able to say how it represented less favourable treatment on that ground viewed by reference to an appropriate comparator.

The respondent also submitted the following case law on the right of the school to balance the well-being of other pupils and staff  in assessing  any decision on excluding a child even temporarily.

In Ms A v. Board of Management of a National School (DEC-S2014/016)the Equality Officer found that.

 “taking all the evidence into account, I conclude that the Respondent made the decision to reduce the son’s hours because they considered his behaviour was having a seriously detrimental effect on, the provision by an educational establishment of its services to other students and find their conduct does not amount to discrimination of the son on the grounds of his disability.”

In Mr. A v. Board of Management of a Community School (ES/2012/048)the Equality Officer found that the Respondent could rely on Section 7.4(b) in that

“to have dealt with the Complainant without due cognizance of the school rules and accordance with the individual education plan would, in his view, have resulted in a serious detrimental effect on the provision by an educational establishment of its services to other students.”

upendingtoys,rippingupchildren'swork,throwingclassequipmentat [***]

Unfortunately,thisisnotthefirsttimethat [he]  hasactedinthismanner. Attached please see a copy of incident logs of the previous recent incidences that have occurred. In order to [his] participation in school, the Code of Positive Behaviour was not invoked previously. It appears that this system is not working and we have been in contact with NEPS for their further assistance.

It is my view as Principal that is suspension is appropriate given that [his]  behaviour has had a seriously detrimental effect on the health and safety of other children and staff as well as on the education of other students.”

The complainant relied on the simple fact of the exclusion of his child, and the fact that the conduct complained of was not typical of his conduct at home. He was not in a position to offer any evidence that this represented less favourable treatment of his child within the meaning of the Equal Status Act and again he fails the test of establishing a prima facie case.

I find that complaints 5) and 6) as set out above fall outside the cognisable period. The complainant could only explain any delay in submitting them by saying that it was due to the upcoming summer school break, which is not a sufficient explanation to bring it within the ‘explain and excuse’ text set out in Cementation Skanska (Formerly Kvaerner Cementation) v Carrol Determination DWT 0338 and other cases.

Complaint 7) was a general complaint that all of the above individual complaints represent a breach.

On the basis of my findings above that none of them individually make out a prima facie complaint on their own, this fails also.

For the reasons set out above complaint CA-00061151-001 is not upheld as the complainant has not made out a prima facie case.

Equal Status Act, prima facie case