Complainant

Respondent

Anonymised Parties

A Parent

A Secondary School

Representatives

  Self-Represented

Lorcan Maule Mason Hayes and Curran

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00059206-001

03/10/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant gave his evidence under affirmation while two witnesses for the respondent, the chair of the Board of Management and the School Principal gave evidence under oath.

The complainant sought that the decision should be anonymised as it might identify a minor, the respondent did not object.  Given that there is the possibility of identifying a minor, the decision has been anonymised.

The complainant is taking a case on the basis that the respondent school is discriminating against him because he has no religion when compared to other parents who are religious.

The complainant noted that he is entitled to have arrangements for his non-religious children during religious classes defined as a written policy by the Board of Management however the school has instead allowed for arrangements for the complainant’s son to be made on an ad-hoc basis by the School Principal. The complainant submitted that there are separate roles and responsibilities from the Principal and the Board of Management defined within the Education Act.

The complainant submitted that there are specific harms that have been caused to him because this particular policy role has been reassigned to the Principal rather than defined in writing by the Board of Management. The school has not reassigned any of the policy issues relating to religious parents from the Board of Management to the Principal.

The complainant submitted that only policy issues relating to non-religious parents like the complainant have been assigned in this way which treats him less favourably than the religious parents.

The complainant submitted that the current case being taken is different to the previous case he took against the school in that it related to how his daughter who did not want to take religion classes was treated as opposed to how his daughter who is religious was treated.  He stated that this complaint relates to his son who does want to take religion classes.

Although the complainant notes that the instant case relates to the how his non-religious son is being dealt with, his complaint form details how he as a non-religious parent is being treated.  At the heart of this complaint is the issue that the complainant believes that the School Principal is making decisions but that those decisions should be made by the Board of Management. 

The respondent submitted that this complaint is the second complaint brought by the complainant against the respondent in relation to arrangements for his children who do not want to attend religion class. The respondent submitted that the complainant failed to establish his complaint on the last occasion and did not exercise his statutory right of appeal. The respondent submitted that the matters are res judicata.

The respondent noted that the complainant sort of specific solution to the circumstances of his son who did not wish to attend religion classes. It submitted that the Board of Management considered their request and that the School Principal wrote back to the complainant. The respondent submitted that the complainant remains dissatisfied even though he was accommodated in what he asked for and acknowledges this his claim form.

The respondent submitted that the complainants’ allegations regarding the inconsistent implementation of policy are incorrect. The school operates and bespoke policy based on individual requests, an approach which was expressly given imprimatur by the WRC on the last occasion.

The respondent submitted that it is difficult to discern, from the narrative in his complaint form, what the complaint revolves around on this occasion. He makes very similar points in terms of the treatment of his children however it appears that it is solely the mode of decision making rather than the content of the decision which is being challenged. The respondent submitted that there is no differential treatment of the complainants’ children in a manner amounting to discrimination under the Equal Status Act, there is no discrimination in breach of the provisions of the constitution, and in offering bespoke arrangements the school has operated consistently with its policies and procedures as set out and approved by the previous WRC decision.

The respondent submitted that there is no unfavourable treatment or harm outlined in the complaint form. The complainant appears to be making the point that the letter outlining the proposed course of action came from the School Principal rather than the Board of Management.

Both witnesses for the respondent, the School Principal and the Chair of the Board of Management, gave evidence regarding the use of resources at the school and the manner in which the Board of Management considers matters but noted that from a practical position the School Principal may respond to parents’ queries having consulted with the Board of Management. Cross examination was facilitated, and the witnesses gave answers that were consistent with the position put forward by the respondent.

Although the complainant notes that this case relates to the how his non-religious son is being dealt with, his complaint form details how he, as a non-religious parent, is being treated.  At the heart of this complaint is that the complainant believes that the School Principal is making decisions but that those decisions should, in fact, be made by the Board of Management. 

The respondent submitted that the matters are res judicata.  However, the previous complaint appears to deal with the manner in which his child was accommodated regarding non-attendance at religion class, the compliant in this case revolves around the decision-making process undertaken by the school and whether it is in accordance with the Education Act.

Section 3(1) of the Equal Status Act, 2000 states as follows:

3.—(1) For the purposes of this Act discrimination shall be taken to occur—

(a) 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) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) where a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

or

(c) where an apparently neutral provision F10[would put a person] referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

Although the complainant relates a situation where decisions regarding his son are being made by the School Principal rather than the Board of Management in writing, the Equal Status Act requires that he establish that he, or at least his son, is being treated “less favourably than another person”.  He posits that the decisions should not be made by the Principal under the Education Act. 

The role of an Adjudicator of the WRC in a case such as this is not to ascertain whether the Education Act is being followed but requires a decision on whether “a person is treated less favourably than another person” or not.

The complainant made written submissions and provided oral evidence on how he was perhaps treated differently to another person.  However, the Act requires a person to establish that he was treated ‘less favourably’ not simply treated differently.

Section 38A(1) of the Act states 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.”

To my mind, however, the complainant has not established facts.  He has simply stated that he believes that he was treated less favourably than someone else, he has put forward an argument that the Education Act has not been followed.  He may be right in that contention, but this situation does not fall into the consideration of the WRC unless he can demonstrate that he, or his son, has been treated less favourably.  I am not satisfied that the complainant has established such facts in this case.

On the basis of the foregoing I find that the complainant was not less favourably treated than someone else was or would have been and I find that he was not discriminated against in accordance with the Act.

During the hearing, the complainant raised an issue that his son, along with other students, are at a greater risk of being harmed by a school place fire.  This matter is not contained in either his initial submission to the WRC or in the ES1 form he submitted to the respondent. 

Section 21(2) of the Equal Status Act requires a complainant to notify a respondent of the alleged prohibited conduct in advance of the hearing.  It states as follows:

(2) Before seeking redress under this section the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act,

and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

(2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.

(3) (a) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may—

(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction,

and, where such a direction is given, this Part shall have effect accordingly.

 (b) In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including—

(i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii) the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.

The complainant failed to notify the respondent of alleged prohibited conduct relating to fire safety in accordance with the legislation and haw that would amount to discrimination, nor did he seek to waive such notification.  In circumstances where the complainant has taken previous complaints under the Act and is aware of the notification requirement, I do not consider that the circumstances of this case warrant a direction that subsection (2) does not apply and I find that the complainant has not notified the respondent in advance as required by the legislation.

Accordingly, on the basis of the foregoing I find that the complainant was not less favourably treated than someone else was or would have been and I find that he was not discriminated against in accordance with the Act.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant was not discriminated against contrary to the provisions of the Act.

Equal Status – Religion ground – facts of discrimination not established