Complainant

Respondent

Anonymised Parties

A Minor (next friend, Mother)

Board of Management of a Co-Educational Post Primary School

Representatives

Kiwana Ennis B. L. instructed by the Irish Human Rights and Equality Commission (IHREC)

Rosemary Mallon B. L. Instructed by  Mason Hayes & Curran

Act

Complaint Reference No.

Date of Receipt

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

CA-00049612-001

11/04/2022

On April 11, 2022, An Advisory and Advocacy Service submitted a complaint of Discrimination on behalf of the Complainant, a minor, on grounds of race and membership of the Travelling Community, in relation to provision of services in Post Primary Education. The Complainants Mother is her next friend.

The Primary notice of prohibited conduct was submitted by the Advocacy Group on 23 November 2021, in letter format. (ES1 framework)

A response was received by the complainant in letter format on 16 and 21 December 2021.

The most recent date of discrimination for the purposes of the WRC complaint form is listed as 11 October 2021.

On 8 June 2022, the WRC wrote to the Advocacy Group to both acknowledge the complaint and to flag that the claim as submitted may have been received outside of the Statutory Time Limits.

Dr AB at the Advocacy Group responded on June 8, 2022, and outlined that the cited date of October 11, 2021, had been relied on erroneously as the most recent date of Discrimination as further occurrences of Discrimination had followed into 2022.

 On 15 June 2022, Mason Hayes and Curran Solicitors came on notice for the Respondent, the Board of Management of a Post Primary School. The claim of Discrimination is denied.

On 16 November 2023, IHREC came on notice for the Complainant.

Two postponements followed.

On 15 April 2024, in preparation for the first day of hearing, I reached out to both Parties seeking submissions and copies of the ES1 and ES2 forms mentioned on the complaint form, to inform my investigation.

Both Parties filed comprehensive written submissions.

 IHREC clarified that the typical notification forms of ES1 and ES2 format were not relied on in this case. Instead, the Complainants representatives relied on the 23 November 2021 letter used in notification of intention   to claim a remedy under the Equal Status Act 2000.

This case was heard over 3 days 22 April, 17 and 18 September 2024.

I have used my discretion to anonymise this decision out of respect for the complainants standing as a minor and the sensitivity of the issue at the center of the case.

Preliminary Issue

On the first day of hearing, April 22, 2024, the Respondent opened a Preliminary Argument which submitted the claim was statute barred. I listened to this argument and the Complainants response in the contrary.

It became apparent to me very quickly that I needed to hear from the representative who had carriage of this case at initial level of advocacy, Dr AB (November 2021 -November 2023), who had in turn submitted the complaint to the WRC in April 2022.

IHREC were secondary appointments in this case.

I made this observation as Dr AB was directly involved during the cognisable period permitted in the case.

I made the request for Dr AB to attend the resumed hearing to help me understand just how the complainant had interfaced with the provisions of Section 21(2) of the Act prior to the submission of the Complaint on 11 April 2022.

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.

The window in time is emphasised in chapter 12 of “Equal Status Acts “by Dr Judy Walshe as a period for opportunity to seek to resolve disputes.

In O’Brien and Mcarthy v Ruairi’s Bar, Tralee DEC S2007-039

1 It alerts the Respondent at an early stage about “the nature of the allegation and the fact that a complaint is being considered against them.”

2 It affords the Respondent the opportunity of communicating directly with the complainant with a view to resolving the issue between themselves without recourse to the (then) Equality Tribunal

 As I had not met an agent of this Advocacy Group previously, I wanted to understand their scope role and function as the Complainants’ representatives during the early days of this case. I also wanted to understand how this service was introduced to the Respondent in the case.?

 I also needed to explore whether Dr AB was a “lay litigant “as introduced in her correspondence, but disputed by the Respondent?

I understood this to be a reasonable request for assistance with my inquiry and the Complainants representatives agreed to follow through on my request at the end of hearing day one.

On 4 September 2024, I received confirmation that Dr AB would attend the resumed hearing on 17 and 18 September 2024. I was happy to confirm that her request for special facilities would be facilitated.

On September 13, 2024, the position had changed, and I received confirmation that Dr AB was medically unfit to attend the hearing. I had some unease at this development as it came with a historical medical certification.

I made a final attempt to explore with the Complainants representatives whether Dr AB could be available to the hearing by zoom from the comfort of her home.?

I received medical certification that this was not possible.

On 16 November 2024, I wrote to the Parties. I confirmed that the hearing would progress as planned and I would take submissions on Dr ABs’ involvement, the core objective and legal standing of the Advocacy Group she emerged from.

I am disappointed that the Advocacy Group did not put anyone forward to help in my investigation. I have had to proceed without that requested cooperation.

The Complainant and her next friend gave evidence by oath. Ms. P Advocate in Traveller Support gave evidence by affirmation.

Ms. L, Class Teacher, Ms. S, Deputy Principal, Mr. E, Principal and Ms. Z, Chair of Board of Management gave evidence by oath.

I wish to record my appreciation to both Representatives and their respective delegations for their high level of preparedness, professionalism and empathetic approach to the very sensitive subject matter at the center of this case.

I wish to record that the Parties did endeavor to resolve the matter prehearing by means of an open letter of offer, shared with the WRC by IHREC. This did not conclude in a mutual agreement.

I wish to apologise to both Parties for the delay in concluding this Decision, which was due to a period of unexpected extended sick leave.

On 11 April 2022, Dr AB of the Advocacy Group submitted a complaint of Discrimination on grounds of Race and membership of the Travelling Community on behalf of the Complainant, a Minor, then aged 12.

Dr AB detailed the incident at the centre of the case on behalf of the Complainant on her complaint form.

The Complainant was 12 years old and a member of the Travelling Community when she moved from Primary School to the Respondent Post Primary School in Autumn, 2021. Her cousins also attended here. Her older sister had also attended there. I requested and was provided with the Complainants application for the school place.

The Complainant kept company in a homogeneous grouping of members of the Traveller Community.

On 27 September 2021, she and her mother were late arrivals to the school as a result of a logistical delay by a younger sister, the circumstances of which were known by the school.

On approach to the school entrance, Mr E, School Principal confirmed that she was late and sought access to her school journal. He then approached the Complainants Mother / next friend for sign off. A conflict arose, where the Complainants’ Mother refused to sign the journal and left.

The School Principal then placed the complainant alone in a ventilated waiting area on the ground floor of the school for an extended period until a fellow student contacted her mother. The Complainant was anxious and fearful and was not participant in her class work.

Some uncertainty followed on the complainant’s whereabouts before the Complainants Mother arrived back at the school at c 1.10 pm, where the complainant helped her gain access to the building.

The Complainants Mother interacted once more with Mr E, School Principal, before being requested by him to take the complainant home. She requested a letter setting out reasons for removing her from Education.

 She disputed the principal’s direction and confirmed that the complainant would be in attendance on the next day.

On 28 September 2021 the Complainants Mother wrote a letter of complaint to the Board of Management. The school, through Mr E, the Principal also wrote but did not explain his actions but instead prompted her to read through of the Code of Behaviour.

On October 5, 2021, efforts were initiated to resolve the matter but failed. This meeting was attended by the Principal, Class Year head, Education Welfare Officer, The Complainants next friend and Ms P, an advocate from the Traveller Visibility Group

 The Complainants’ next friend contended that the negative treatment was discriminatory.

On 11 October 2021, the Chair of the Board of Management responded to the 28 September 2021 complaint and concluded that “this matter was fully discussed at a meeting with the Principal and the Education and Welfare Officer “.

On 23 November 2021. Dr AB sent an ES1 letter to the school.

This was a notification of Discrimination.

 The Respondent Solicitors responded on 21 December 2021 stating that the principal was unaware of the complainant’s status as a Traveller prior to the incident of 27 September 2021.

“We are instructed that on occasion, students who have been late have been separated from their peers to complete a detention. Our client can confirm that this applies to all students, regardless of their background “

The school directed that any “future engagement by the Complainant Mother was to be made in accordance with the school policies”.

The Code of Behaviour denotes that detention can be used “during a break or after school hours “

The Parental complaints procedure provides for a framework for resolution which requires an acknowledgement of the complaint and appointment of two authorised representatives, one of which may be the principal.

The Complainant contends that the principal has not apologised for or explained his conduct. The Board of Management has not activated its own “parental complaints procedure “

The Complainant has been in pursuit of relevant records via Data Subject Access requests, which remained outstanding.

The Advocacy Group representative continued to press for an adequate explanation for the principals’ actions.

The Complainant via her next friend concluded that she had been left with no options other than to refer the matter to the WRC in light of the discriminatory and unsubstantiated treatment. It is her case that she suffered less favourable treatment on grounds of her membership of the Traveller Community in the provision of education.

It is the Complainants case that 27 September 2021 marked the first occurrence of Discrimination and “thereafter she continued to suffer ongoing discrimination by the refusal as communicated by the Board of Managements communication of 11 October 2021, and the Respondents Solicitors correspondence   21 December 2021 and 17 January 2022.

There was an absence of reply to requests to explain the events of 27 September 2021 and to investigate the complaint made by the next friend.

The complainant introduced the comparator as Ms R. This was another student, not a member of the Traveller community who had also arrived on site late, just as the complainant had engaged with the principal, who was permitted to join her class.

The complainant returned to school on 28 September 2021 but was never comfortable as she felt the principal avoided making eye contact with her. She left the school in favour of scoping out the possibility for   home schooling and has not returned.  The Complainant had planned to stay in school until her leaving Cert and to realise her ambition to become a beautician.

Counsel for the Complainant, Ms Ennis BL called on Section 7 of the Equal Status act 2000 as providing that educational establishments shall not discriminate against students.

1 in access to any course, facility or benefit provided by the school or to any other term or condition of participation in the school by a student.

2 any other term or condition of participation in the establishment by a student.

Mitchell v Southern Health Board [2001] ELR 201

City Council v Mc Carthy EDA 0821

Nevins and others v Portroe Stevedores [ 2005} 16 ELR 282

Discrimination “is usually covert and often rooted in the subconscious of the discriminator “.

In addressing the statutory time limits for lodging a claim

21 (2) Equal Status Act on notification requirements of the alleged prohibited conduct within two months of occurrence.

Section 22(6) sets out the time limit for lodging a claim with the WRC as 6 months from date of occurrence of the prohibited conduct or from the date of the most recent occurrence, which may be extended for reasonable cause.

Section 22(11) refers to a continuum which incorporates occurrences “which operate over a period, throughout the period “

Counsel confirmed that the notification requirements had been met by the serving of the letter dated 21 November 2021.

The notification of the claim to the WRC on 11 April 2022 reflected a continuum of occurrences which commenced on 27 September 2021 – 17 January 2022.

The Complainants case is that she suffered less favourable treatment on the basis of her membership of the Traveller Community by way of:

1 Prevention from attending class on 27 September 2021 and being placed alone for several hours for lateness, while her stated comparator was permitted to attend class.

2 The resultant lack of justification for the principals’ actions towards the complainant. The Board of Managements failure to explain the principal’s behaviour.

3 The TUSLA Education Welfare Officer, (not present at hearing) maintained that the complainant should have been returned to class.

4 The detention fell outside the scope for such practice.

5 The Complainant rejects the Respondent stated lack of awareness of the Complainants status as a member of the Travelling community when her older sister had been a past pupil. Her cousins were also co attendees.

“Their identity as members of the Traveller community was readily apparent through their appearance, artwork and conversation.

Complainant response to the Preliminary Argument:

Counsel for the Respondent, Ms Kiwana Ennis BL submitted that she was not seeking an extension of time as permitted under 21(6)) b) the Act.

 (b) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

Instead, Ms Ennis confirmed that the Discrimination    had continued over a continuum as provided for in Section 21(11). The Complainant

Ms Ennis outlined that September 27, 2021, constituted the first occurrence when the complainant was denied class attendance and separated from her class over several hours. It has never been identified just what procedure underpinned this action. Another student had been treated differently.

The Complainant accepts that she was late on arrival, but the school had not provided an explanation for the complainant’s treatment.

The Board of Management had been given an opportunity to investigate the Next friend complaint, but this had not been investigated.

On 17 September 2024, the Complainant side introduced the Advocacy Group 1 as a Legal Clinic and Partnership between external Agencies It is funded through EU award to 2023 and was set up to respond to high levels of Traveller Discrimination and “unmet legal needs” and an identified need “for legal service for Travellers for “day to day “discrimination in the Southern part of the country.

The Project also reported a “Participatory research mapping Traveller experiences of Equality Law system and adjudication bodies.

On a careful reading of this document, it’s hard for me to picture of Dr AB as “lay litigant “. I am disappointed not to have met Dr AB or indeed any other Agent of the Project. In my role of Adjudicator / Mediator, I have a good working knowledge of advocate groups for members of the Travelling Community, and I always learn something new when I interface with their work.

While the three-page document was welcome, it was not probative. However, I am satisfied that the service has emerged with the support of EU, Flac and a University Law School and I am satisfied that they provided an advisory and advocacy service to the Complainant in the early circumstances of November 2021- November 2023, which led to this case.  

Evidence of the Complainant: A Minor

The Complainant is currently 15 years of age. She was 12 when she commenced First year in secondary school in September 2021.

She recalled being late for school on 27 September 2021. She estimated that she was 15 mins late on arrival to the school. She stated that she got out of the car and walked into the school as she was meant to be in class.

She encountered the Principal, Mr E, who instructed her to take out her school journal, which hadn’t been signed by her mother. The journal is home to timetables and homework. Mr E looked very irritated.

The Complainant named her Comparator as Ms R and submitted that she had arrived at school later that she and the principal had allowed her to access class.

 She maintained that she had been placed in the small room for “being late “and the Principal, Mr E had the option of putting Ms R in the room also, however, he did not do so.

The Complainant told the hearing, that around 09.20 hrs the principal told her to go to “the room” by the office, as her mother was coming to pick her up.

He opened the window in this very small room, which hosted a table and chair and told her to stay there.

She remained there until at some time between 1 and 2pm, she discovered her mother knocking on the door. She stated that nobody checked on her. This was later contested by the Deputy Principal, Ms S.

She didn’t have    homework and spent her time “just scribbling on paper “without talking to anyone.

The Complainant said that she didn’t have her phone with her.

She could not recall having a follow up conversation with her mother on the event.

The Complainant confirmed that she went back to school afterwards for a few days and couldn’t recollect when she stopped attending. She added that she had not felt comfortable in school after the 27 September 2021.

She recalled that after that day, the principal used to talk to “my friends but not to me “

She clarified that she was one of 10 -12 students who started that year. She was friendly with Ms Y, a fellow Traveller, but she tended not to mix with other students.

She submitted that some Teachers knew that she was a Traveller e.g. the Art Teacher. This was because of her older sister having been a past pupil at the school.

The Complainant confirmed that she had joined the school from a named Primary school. She had planned to stay at school and move on to train as a Beautician, but things had changed, and she had changed her mind. She described feeling isolated and not wanting to mix or talk to anyone.

During cross examination, the complainant confirmed that she had missed the School / Class Induction due to Covid 19. She had not spoken to the principal previously and agreed that she was 15 minutes late.

She understood that the Code of Behaviour directs that the journal must be signed when late.

When asked by Counsel, she confirmed that she had overheard a verbal exchange between her mother and the principal but did not hear shouting.

She disputed that the Deputy Principal had checked in on her by way of surveillance while she remained in the room.

She was unsure what classes she had missed. She was clear that her late arrival had not been actively managed at the school, and she was not aware of a record of lates/absences.

The Complainant confirmed that she had signed up for second year at the school.

She confirmed that her reported anxiety which caused to walk out of classes had not been reviewed by a doctor.

The Complainant clarified that the outcome she sought amounted to not wanting this treatment to be directed at anyone else.

She also clarified that Ms R was not in her class, but she had discussed the incident with her. Ms R had subsequently left the school.

Evidence of the Next friend: Complainants Mother:

Ms M recalled September 27, 2021. She outlined that she had been delayed in dropping the complainant to school as there were issues in getting the complainants younger sister out of the house.

She submitted that she was sitting in her car when she saw the principal had connected with the complainant and she “guessed things were underway “.

Ms M confirmed that she had an exchange of words with the principal, but she could not recall the content. She confirmed that the exchange lasted 3-4 minutes and voices were raised.

She recalled that the principal walked into the school, and she went home.

Ms M confirmed that around 11.30 am, her niece from second year at the same school phoned her and told her that:

“The complainant is in the room, sitting there, not in class” This was confirmed by another cousin.

Ms M stated that she rang the School Secretary asked her if her daughter was in class? She was directed towards “the room “The Secretary said that “she was so sorry the complainant was in the room “

Ms M submitted that she left home around 1.05 pm and pressed the school buzzer. She was admitted to the school by the complainant following her knocking on the window of “the room “

Ms M recalled meeting the Principal and his Deputy and she was informed that the complainant was not to return to the school. She protested and argued that “my child is entitled to education “

Ms M wrote a letter to the school with the support of the Traveller Visibility Group on 28 September 2021.

She recalled attending a meeting at the school on 5 October and seeking an explanation    as to why her daughter was placed in the room and tried to find the rationale for this action within the Code of Behaviour.

Ms M recalled that she herself was struggling at this time and accepted that the complainant may not have had her schoolbooks. However, she was aware of the school journal from the complainant’s older sister’s tenure and contended that.

“If I had been asked to sign, I would have “

She didn’t accept that she had adopted a bad tone.

Ms M was unhappy to receive the Board of Management letter of October 11. She requested a meeting, but nobody called her.

This prompted her to obtain legal support as she felt unsupported.

She expressed a fondness for the Complainants primary school.

Ms M submitted that had she not gone down to the school then the complainant would have remained in the room until 4 pm. The letter of 23 November followed.

Ms M confirmed that Ms R, the stated comparator had been allowed to go to her class.

She had some recollection of meeting the principal previously but had no recall of the detail. She understood that her older daughter had issues of “feeling cold “and she had been asked to remove her coat during school.

Ms M confirmed that the September 28 letter constituted a stage 2 complaint but there was no provision made to appoint “two authorised representatives “

During cross examination, Counsel drew Ms Ms’ attention to the Journal which incorporated codes of behaviour at the school.

Ms M recalled signing for the complainant’s older sister but not for the complainant.

When asked if the Deputy Principal was in attendance prior to the exchange of words with the principal? Ms M said I don’t know.

Ms M confirmed that she had filled in the school application form for the complainant. There was no link to Traveller status.

When asked by Counsel why she had not asked why the complainant was placed in the room within her 28 September letter?

Ms M responded that she was furious and felt intimidated by the principal.

She disagreed with the school’s verdict contained within October 11 letter from the school.

She recalled being present when the ES1 formatted letter was compiled.

Ms M could not remember if she was aware that the opportunity to advance a parental complaint was open to her.

She viewed her daughter’s accommodation in the room as neglect and wanted to know why she had been placed there?

She identified Ms R as being treated differently to the complainant when she walked by. She was unaware that Ms R was a member of the Travelling Community on her mother’s side.

During redirect, Ms M struggled to clarify how she felt diminished and looked down on by the school, when she stated that “I am someone too “

The matter of the room remained unresolved, and she was unaware of a record of lates / absences.

Ms M sought justice as her preferred outcome in the case.

She denied that Ms R was a Traveller.

When asked when she had placed the school on notice of a potential for the complainant’s late arrival, she attributed this practice to her older sister.

Evidence of Ms P Director of Advocacy Group 2

Ms P recalled that she was approached by a Caseworker to attend a meeting with Ms M and the Complainants School on 5 October 2021.

She understands that the topic of the meeting was to address:

1. Why was the Complainant kept in the school office?

2.  How could Ms M be assured that this would not happen again.

Her core objective was advocacy. she was aware that the school had been participant in a named Project aimed at achieving better outcomes for Travellers and Roma Groupings.

Ms P recalled that the meeting demonstrated the clear tension which existed between Ms M and Mr E, the Principal. The latter was defensive.

Ms P contended that she felt that her presence there was an issue.

There was discussion but no resolution and no visible Policy which covered what had occurred.

Cross Examination:

Ms P confirmed that nobody seemed to know that she was coming to the meeting. She kept notes.

The Complainant was not in attendance.

Ms P had no further involvement in the case. She did not know if Ms M accessed the named Project.

 Closing remarks:

Ms Ennis BL argued that the date of October 11, 2021, relied on by Dr AB on her complaint form and argued by the Respondent as statute barred placed that argument in a moot state. The letter was in transit on 12 October 2021 (exclusionary act) and formed a continuum within the statutory 6 months.

Ms Ennis contended that the continued refusal of the Board of Management to address the complaint of 28 September amounted to Prima Facie evidence of Discrimination on Traveller grounds.

The Complainant disputes that her status as a Traveller was unknown by the principal. The Board was aware from 5 October.

Ms Ennis contended that the school had notified the Dept of Education of the complainant’s ethnic status through a system of administrative census returns.

She pointed to a complete lack of transparency in how information was gathered in the case, where there was a loose reference to the Secretaries role in compiling PPOD. (a system of administrative census returns.)

She drew a correlation to Ms Ls reliance on “you know “on how traveller status is identified in a school setting as early opinion formation.

Ms Ennis argued that when the principal spoke to Ms M on 27 September, “he knew “

There was no explanation shared for the lack of records. There was no rational explanation for the complainant remaining in the room.

This action was not drawn from any Policy or code as it is simply not open to the school to exclude a student from a classroom in sanction.

The principal took his anger out on the complainant and remained in denial on his interaction with Ms M. He did not call her to inform her that the complainant had been placed in the room, and he did not request surveillance. The Complainant was left in the room for 4 hrs without an apology.

The Board of Management backed the principal 100% as demonstrated by their lack of action in the stages of resolution open to it or investigation. The Complainant was not heard on 5 October meeting.

The lack of explanation for the treatment towards the complaints satisfies the burden of proof required.

Prior to this treatment, the complainant had liked school and carried aspirations to qualify as a Beautician.

The Respondent operates a Post Primary School run by the Board of Management and has disputed the claims made.

Preliminary Argument:

Counsel for the Respondent, Ms Mallon, B. L submitted that the claim lodged on 11 April 2022 at 13.45 hrs was statute barred.   She contended that occurrences relied on by the Complainant after October 12, 2021, were not permitted within the provisions of Section 21 of the Act.

(6) (a) Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.

 (b) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

Ms Mallon disputed Dr Abs’ reliance on her Lay Litigant status in her response to the WRC. She outlined Dr ABs credentials in Law, which were not disputed.

Troia (UK) Restaurants ltd, The Ivy v Lenka Laiermoanova UD 227

 She submitted that there were no grounds to extend time through continuum as the two key events relied on September 27 and October 5, 2021, were distinct from responses to the ES1 notification.

The Respondent accepted that the date 27 September 2021 constituted the date of the first act of alleged discrimination relied on by the Complainant. She refuted that the second act relied on, that of the 11 October 2021 response from the Schools Board of Management constituted Discrimination.

Ms Mallon    argued that the chain of events broke on 21 December 2021 as the Board   response of disagreement could not be interpreted as discriminatory action. 

In summarising aspects of the written submission, Ms Mallon outlined that the Complainant was a first-year student at the respondent school where the Principal, Mr E had been appointed Principal one year earlier.

The Complainant applied to join the school in October 2020, where her sister was already a 3rd year student.

The Complainant enrolled as a student in Academic year 2021 but missed the school induction.

On 27 September 2021, the principal observed the complainant’s late arrival to the school. He requested access to her school journal to manage the late appearance. The principal observed the Complainants mother, Ms M and proceeded to seek to engage with her on the Journal. Ms M rebuked the principal and became verbally aggressive. She directed the Complainant to enter the school. The Principal, Mr E disagreed with that Direction and indicated that the Complainant should go home.

When this did not occur, he told the Complainant to wait in a room within the school which had been used for as a waiting room. The principal alerted the Gardaí as he was apprehensive regarding a repeated outburst from Ms M, if she returned. He updated the Deputy Principal, who made surveillance checks.

The Respondent case reflects that that the principal was unaware on 27 September 2021 that the Complainant was a member of the Travelling community.

Ms M collected her daughter, the complainant, later that day.  The Complainant resumed school the following day.

On 28 September 2021 the Complainants Mother and next friend wrote a letter of complaint to the Chairperson of the Board of Management which did not mention the complainants Traveller status.

This letter set out a complaint regarding the principal regarding both daughters at the school.

Ms M sought a full enquiry and explanation in relation to the complaints being kept in the room. Ms M also reflected that her other daughter had been treated unfairly when she had been told to leave the school. She requested to be allowed address the Board of Management.

Counsel pointed to the Parents omission to utilise the Parental Complaints procedure exhibited.

A conciliatory meeting was attempted on October 5, 2021, where the principal met with the Education Welfare Officer, Ms M and Ms P an Advocate. There was no reference to discriminatory treatment at this meeting.

On 23 November 2021, Dr AB, Advocate Grouping 1, made a complaint of discrimination and exclusionary treatment by the Respondent on behalf of the Complainant.

1 This outlined a claim:

“Ms M feels that the complainant has been unfairly excluded from class and that the conduct of Mr E has been in contravention of the school code of behaviour. Ms M seeks clarification on the issues raised and feels they were treated in a manner which was discriminatory owing to their membership of the Traveller Community as prohibited under the Equal Status Acts 2000-2018. In particular, we note the exclusion of a child from education or access to education is prohibited conduct under S. 7 of the Equal Status Acts.”

Details of the incident of 27 September 2021 were outlined. Points of clarification were requested.

1Temporary Separation from Peers friends or others / how was it implemented at the school.

2 Temporary Separation, frequency, duration and what is it used for?

3 Statistics on how often Mr E had actioned temporary separation over past 12 months.

4 Schools Equality, Diversity and Inclusion Policy

5 What the Board was told about the meeting with Ms M, Mr E and the EWO, (not present at hearing)

Notification to escalate if information not forthcoming.

On 21 December 2021, the Respondents Solicitors responded on their behalf. This set out the circumstances of what had occurred on 27 September and 5 October 2021.

1 The Principal had endeavoured to manage the complainant’s late attendance with Ms M, her mother and next friend. He found her parked in a disabled parking space. The principal   was then the subject of a “personal and derogatory remark” by Ms M, who ignored the principals request that she and her daughter both leave and directed the complainant into the school.

The Complainant was requested to wait in a room in the foyer.

The Gardaí were alerted and formed a presence outside the school the next day “in case of reoccurrence”

The school took issue at Ms Ms’ disruptive behaviour

The Respondent refuted that they had discriminated against the complainant or her mother and outlined that Mr E was “unaware of your client’s membership of the traveller community “

The Respondent sought to work with Ms M in an inclusive manner.

The school had a complaints procedure, available from the school.

Witness Evidence of Ms L, Class Teacher / Year Head.

Ms L was in her 34th year as a teacher in the school as was a Past Pupil. She confirmed that this was a DEIS School of over 100 students prior to its most recent rebrand.

She captured the objective of the school as to reach a child’s potential.

The school had hosted children of Spanish, Ukrainian, French, Irish and African origin.

She outlined that some members of the Traveller race in attendance at the school identified as Travellers while others did not.

Ms L was present at the October 5 meeting as a stand in for the Deputy Principal. She recalled meeting Ms P, who was introduced as an advocate.

They discussed the potential for Ms M to organise payment for books alongside the events of 27 Sept.

Ms L recalled that the complainant had been absent from school for over 10 days in the first term.    Túsla placed a 20-day limit on absence before intervention.

She confirmed that Parents habitually sent in notes to cover lates or absences within the School Journal.

Ms L recalled that she had attended the meeting for the Complainant, but the discussion   kept reverting to the altercation between Ms M and Mr E. The Complainant was not in attendance.

She recalled that Ms M had expressed a recollection of the altercation with the principal “in a sighed exasperation “.

Ms L understood that progress was made.

In relation to the named Comparator, Ms R. There was a similar named person in the complainant’s class, but she understood the person referred to as the Comparator here was Ms R who was two years ahead of the Complainant in class and was a Traveller.

In cross examination, Ms L confirmed that there were 50 students in first year in 2021 within an overall school population of over 100 (first year to sixth year)

There were 16/17 in the Complainants class.

Ms L had taught the Complainants older sister.

She confirmed that she did not return numbers of members of the Travelling Community, participant at the school, to the Dept of Education.

There were no specific grants for this grouping. She could not recall how many members of the Travelling Community were present at the school.

Counsel for the Complainant explored whether Travellers amounted to early school leavers? Ms L was unable to confirm this.

When probed on how a member of the Travelling Community was recognisable at the school? Ms L replied “they tend to tell you “She taught the comparator, Ms R.

She added that through her experience at the school “You don’t need to be told, but you know “and qualified this by stating that all students are treated the same.

Ms L recalled that the complainant had not attended the pre year Induction and had missed 10 days of school by 27 September 2021.

Ms L acknowledged that she had concerns for the complainant within the school community. She met with her in January 2022, and she tried to express her concerns that Ms M would get into trouble regarding her not wanting to do detention, but the complainant was unphased.

She continued to support the complainant but had not retained notes of her contact with the complainants’ parents.

She said she had met the complainant within her second year.

The Complainant had not sought access to the School Counsellor to address anxiety.

Ms L confirmed that was fully aware that the 5 October meeting comprised of Ms M coming to talk about her daughter, the complainant. She believed the minutes were accurate and was unaware of a Policy. She heard Ms P question the principal on procedure.

Ms L said she was aware that others had been asked to wait there for a span of “minutes or longer “

Ms L was 98% sure that Ms R was a Traveller on her mother’s side.

Ms L explained that Student Teacher and Parent were meant to be signatories in the Journal, and this would identify and record the reason for being late.

Ms L confirmed that the Complainant had not liked school and had walked out of classes which resulted in her writing to the Complainants parents with a statement of concern in October 2021 ….

The Complainant had been presented with the new school journal.

Witness Evidence of Ms S Deputy Principal, retired October 2023

Ms S recalled the morning of 27 September 2021, when she was stood at the school door with the principal.

She observed that the complainant had come into the school, and she had formed the impression that there had been back chat.

The principal told her there had been an altercation and he was “very distraught “.

Ms S gave evidence that she checked on the complainant on 2-3 occasions at 9.40 hrs, 10 am and 11 am. She was present in the room on the first two checks but was missing on the third to visit the toilet.

Ms S denied the room was small. There was round table there and a gap in the door.

Ms S presumed that the Complainant was asked to wait in the room as her mother had refused to take her home.

She denied meeting Ms M on that day and had seen the principal pop in and out.

During cross examination, Ms S told Counsel that it was possible that the principal had advised her of the complainant’s presence in the room. She had not queried the intended duration.

Ms S was not aware of the duration of the complainants stay in the room. She didn’t think too deeply as the Gardai had been summoned to the school.

She confirmed that it was not her decision to separate the complainant from her classroom. Ms S knew from the principal that Ms M was to collect the Complainant. She was aware that the principal had requested she take her home between 9.30 am and 9 .45am. Ms S submitted that Ms M should probably have taken the complainant home, when requested by the principal.

Ms S confirmed that she had used this room as a holding bay pending contacting parents for a duration of 20-30 mins in the past.

She had not seen the circumstances of 27 September before.

Ms S could not remember if she knew that Ms M and the Complainant were travellers.

She thought that the complainant had had   3-4 negative interactions on lateness but could not swear on that. She confirmed that there were no notes on the school file, and she had not participated in any discussions on this topic with the School Board. Punctuality was very important at the school.

During clarifications, Ms S confirmed that she had spent some minutes observing the complainant and did not detect any issues in her demeanour. She was offered refreshments but refused. The toilet was a few feet away.

She had no recollection of feeding back her observations of the complainant to anyone.

Ms S denied that the complainant was punished by the school and added that she ought to have been taken home.

Evidence of Mr E, School Principal

Mr E commenced as Principal at the School during the challenges of the Covid 19 pandemic, which comprised online classes   and a “very different experience “

By the end of August / September 2021, he had no recall of the complainant.

Mr E submitted that he was unaware of the complainants Traveller status until October 5 when Ms P attended as a Traveller advocate. He was unaware of the complainants Traveller heritage as she wore a uniform at school.

He denied withholding documents from date subject access request and in relation to PPOD/ Dept of Education   documents, he had seen it for the first time on the second day of hearing. “I do not use that “

He recalled the morning of September 27, 2021, and recalled that he had been at the front of the school from 08.45 hrs.

The Complainant arrived late, and he asked her why she was late?

The Complainant handed over her Journal and Mr E could see that the code of behaviour and other parts were not signed. He saw the car parked.

He had no recollection of seeing Ms R walk by. He submitted that had he seen her, he would have asked her to wait.

He walked towards the car with the journal. He asked Ms M to address the journal and was met with a tirade of accusations. He wanted to display the journal and engage Ms M on the omissions. He did not get to explain the benefits of the journal.

Instead, he heard Ms M accuse him of inappropriate behaviour. He was conscious of the potential audience for this as the windows above were open for health and safety reasons.

He denied any rudeness and emphasised that he was afraid, not being from the Area.

Mr E said that in the face of the verbal abuse he asked Ms M to take the complainant home “to diffuse a highly volatile situation and not to punish her “

He submitted that was seeking to have the Journal addressed as the Education Act requires.

He recalled that Ms M was sitting in her car at the entrance to the school and she shouted at the complainant “You stay there “.

Mr E stated that he was upset and hoped that Ms M would take the complainant home. He believed that Ms M was still on the school premises when the complainant was going to the room.

He confirmed that he left the door ajar and opened the window as he tried to figure out his next step. He was mindful that the students were aware of the fracas, and he had concerns regarding health and safety.

Mr E told the hearing that he went upstairs to his office and called the Gardaí as he feared that Ms M might return to the school.

Two Gardaí attended the school.

He informed Ms S of what had occurred and did not ask her to check in on the complainant but was aware that she had checked.

Mr E submitted that he had no desire to keep the complainant from her class, but he was faced with a situation where her Parent was unwilling to converse or want to know about the supports available.

He denied refusing the complainant access to school.

He recalled Ms Ms’ return to the school later that day. He heard a disruption and saw Ms M standing in the hall. There was another Teacher present, who was not Ms S.  He had no recollection of the complainant being with her.

He wrote the letter of September 28 as he wanted the child to come back to school, but did not receive a response.

5 October Meeting

The Education Welfare Officer, Mr X, not present at hearing asked him if he was willing to meet with Ms M. Mr E had reservations but agreed to meet. He was unaware of Ms Ps inclusion in the meeting.

Mr X had told him that he didn’t know who she was and questioned whether Mr E wished to proceed.

Minutes were not agreed. Ms Ps recorded notes were not inaccurate.

Mr E recalled the atmosphere of the meeting as inquisitorial, which made him uncomfortable as the purpose of the meeting was to bring the child back to school.

He recalled being asked “why was the room used? “Mr E felt that Ms M and Ms P had an “ulterior motive “Ms M instructed Ms P to cease writing.

On 11 October 2021, he informed the Board of Management on the progress of this meeting.

Mr E had no awareness of the complainant’s panic or anxiety. He was not aware of a medical certificate or mention of this on the application for access to the school.

Mr E denied averting his gaze from the complainant or treating her differently subsequent to September 21, 2021.

During cross examination

Mr E confirmed that he had 15 years’ experience across the roles of Teacher and Principal. In September 2021, there were 150-200 students at the school. The figure is now 150. He was not familiar with all new students.

He recounted that his practice was to maintain a presence in the school yard and corridor at commencement of the school day. The objective was to address late arrivals and make interventions. He was aware of the Complainants high absence rate.

In response to Counsels question on whether he habitually made it his business to intervene and probe attendance, he replied that “I try and talk to parents “He added the complainant had a 13-day absence at that time i.e. 21 September 2021.

He confirmed that there were no minutes of the 21 September call as he didn’t believe he made that call.

He did not have records of the attempts made to get the complainant back into school.

He confirmed that he had no role in gathering ethnicity information as there were no ethnic record maintained prior to 2024 at the school. He had checked with the School Secretary as he was unsure of the practice.

In answering what supports were available for members of the Travelling Community, he listed.

Home Support Teacher

Journal

Book Support

Uniform

Refunds on Equipment

Counsel posed the question “If you don’t know their ethnicity, how can they claim supports? “

Mr E confirmed that books were offered on 5 October. The Complainant was provided with a journal as needed. The Home School Teacher had a good knowledge of the family.

He confirmed that a named support programme had operated during Covid.

In answer to the question on whether he accepted that Travellers were early school leavers, he replied that he accepted that additional supports were available, and Travellers succeeded at Senior Cycle.

Mr E had no recollection of any argument with the complainant’s older sister but was aware that her school attendance was low.

Counsel asked Mr E when he became aware of the complainant’s ethnic status. Mr E replied.

“I did not know she was a Traveller on that day “

He denied that he had overreacted and qualified this by stating that he had been threatened by the complainant’s mother. He did not recall placing notes on the journal and reaffirmed that he had tried to talk to Ms M. He stated that the Gardai endorsed his concerns.

He denied that the complainant had been punished as other students had occupied the room. He denied stopping the complainant going to class. Mr E submitted that he had asked her to wait in the room following a “significant event “. Ms M drove off and left the child.

He rejected Counsels probe that he should have been able to deal with the challenging situation as Principal. He described a high level of volatility which preceded “the child was asked to wait “

He contended that the meeting of October 5 had met with some success as “calm was needed “after September 27. He denied appearing defensive. It was not the role of the EWO to opine that the complainant should have returned to her class.

He shook hands with Ms M and Ms P.

He had not invited Ms M to meet him in his letter dated September 28.

He contended that the grievance procedure was freely available to Ms M.

He had seen the December 21 response from the Board of Management. He spoke to the Chair but had not retained notes or email s.

During clarifications, Mr E confirmed that the Code of Behaviour forms the basis of the Parent-School and Child relationship with the school, tantamount to a contract.

He did not have an Incident report or a Garda Report for 27 September 2021.

He confirmed that cars were not meant to be near the school door.

I asked Mr E if Ms M had asked him why he had placed the complainant in a room? He replied that he had explained in his letter.

Evidence of Chair of Board of Management, Ms Z.

Ms Z was a voluntary chair who had retired from roles as Principal and Deputy Principals in other schools.

Ms Z confirmed that she had received the letter dated 28 September from Ms M on 6 October 2021.

She rang the principal the next day in a call lasting 5 mins. She read out the letter and heard of the meeting which had occurred the previous day.

She became aware that the Complainant was a Traveller.

Mr E had understood that Agreement had been reached on 5 October engagement on

The Code of Behaviour

Attendance

Absence

Books

Mr E told her that he had been accused of abusing children in the school. When he wasn’t getting anywhere with the Parent, he asked her to take the child home. He said that he had not received a response to his letter dated 28 September.

Six weeks later, the letter of 23 November followed, which prompted a connection with Insurers and legal representatives.

Ms Z outlined the disputes resolution procedure at the school and emphasised stage 2. She confirmed that she did not have knowledge of PPOD.

During cross examination, Ms Z confirmed that she had received Ms Ms’ letter, when it was passed on by the school.

When asked when she had told Ms M that she was not following procedure, Ms S replied “I wasn’t taking sides “It was open to them to “solve it themselves “

The Complaints procedure is publicly available.

When asked if she had considered stepping in? Ms S confirmed that the Insurers were advised after November 23, and she had not spoken with Ms M.

Ms S stressed that Parents are obliged to sign the Code of Behaviour in accordance with the Education Welfare Act and she contended that it was probably illegal that the code had not been signed.

She reflected on the events of 27 September and qualified that she had never had to call the Gardaí in a 37-year service in a senior teaching role. She contended that the primary responsibility of parents is to cooperate with the school.

Ms Z agreed that it was unfortunate as the child was better off in class if she could have been.

She did not have any day-to-day management role at the school.

In redirect, Ms S confirmed that the School Complaint procedure remained dormant throughout.

In clarification, Ms S clarified that the School Community was comprised of

Pupil

Parent

Teacher

Local Community

Board of Management.

I asked if she had reflected on why the complainant had not been brought to the meeting of October 5. Ms S said that she had thought of this but did not suggest it.

Ms Z was unaware of punctuality cards. She had not sought the Incident report of 27 September as it was not her role to investigate.

In response to a portion of the letter of 28 September having made reference to the complainant’s sister, she was unaware of any mention or any complaint.

Concluding Remarks

In conclusion, Ms Mallon, BL argued that this case was not to be viewed through the prism of whether the school was good or bad. It was not about the School Secretary’s completion of PPOD, or whether the Board of Management were pedantic. It was not focused on notes or Attendance records, codes of behaviour as contracts or complaints procedure. Instead, it was a claim for Discrimination on the grounds of membership of the Travelling Community.

In summary, the complainant arrived late to school. In the process of the school’s response to that lateness, the Complainants mother shouted at the principal.

The complainant was placed in a room, where she remained.

This did not attract the provisions of Section 21 (11) on continuum and an extension of statutory time limit was not warranted. It Is not a claim of Discrimination by Association. The case must fall at the hurdle of October 11, 2021.

Ms M had not given evidence that she received the letter on 12 October. The claim was out of time.

Ms Mallon argued in the alternative that the Complainant had not attained the Prima Facie evidence of Discrimination she complainant had submitted in her own evidence that she had been placed in the room because she was late. There was no proof that the school had knowledge of the complainant’s ethnicity, relying on Valpeters, these assertions cannot be taken as fact.

The PPOB was not the principal’s evidence, and the Chair of the Board had not submitted them.

Ms Ls knowledge referred to in evidence was borne out of 34 years teaching experience.

The Comparator did not give evidence and was an insufficient comparator.

There was no mention of the complainant’s ethnicity in September 28 letter or during the October 5 meeting. It was first mentioned within the Advocate letter of 23 November 2021 and Dr AB had not attended to give evidence.

I have been requested to make a decision in this claim of discrimination on grounds of Race, Membership of the Travelling Community in the provision of education.

 In reaching that decision, I have had regard for all written and oral submissions which accompanied the evidence adduced in the case.

My jurisdiction is derived from Sections 5, 7 and 21 of the Equal Status Act 2000.

This is a case involving a Child and member of the Traveller Community and her then School. During the case, I learned that the complainant no longer attended school proper. She herself was unsure when she ceased. I inquired how the Complainant was managing within the Education field?

 I learned that she continued outside of the Education structural setting and remained in contemplation of home schooling with some supports.

It is also a case of a Child and her mother, Ms M who were both present on the grounds of the Respondent school on September 27, 2021. It is this disputed interface between Ms M and Mr E, the Principal on that date that goes to the very centre of this case.

The Role of Advocacy Group 1, as early participants in this case.

In reading the prepared submissions, it became very clear to me that I would benefit from an engagement with the author of the ES1 formatted letter to the Respondent dated 23 November 2021. I was satisfied that the Section 21 notification requirements had been met in the strictest sense, however, I was very keen in light of the clear vulnerability of some of the Participants in this case to understand what measures if any were adopted to resolve this matter prior to its referral to the WRC on 11 April 2022? I explained this was “jumping up off the page to me “.

 I also wanted to clarify the reference to “they “in the body of November 23 letter from the Advocacy Group. The complaint before me was on behalf of one named child and I did not have a complaint of Discrimination by Association. Coleman V Attridge Law and Stephen Law C-303/06 at CJEU refers.

The complainant side submitted that Dr Abs absence was irrelevant. The Respondent side submitted that the case must proceed after a 2.5-year delay.

For my part, I want to record that I had a very strong sense that Dr AB as the chosen Complainant Advocate in the aftermath of the October 5, 2021, meeting would be helpful to my investigation.

 I wanted to know what informed the decision to refer the case to the WRC i.e. what were the perceived shortcomings in the Respondent responses in the latter end of 2021 and early 2022 to move to trial in the case of this complainant.?

 I also wanted to understand whether the suggested tributary of for a progression localised complaint was ever considered or actioned? It seemed to me, at least that Dr AB was the sole owner of that detail as the only other Advocate, prior to IHREC appointment in November 2023.

 Note R19) Persons who have been subject to discrimination based on racial and ethnic origin should have adequate means of legal protection.

Recital 19 of the Race Directive.

 Ms P had a limited involvement on one day only, October 5, by her own admission. Mr E submitted concerns that her written records were prematurely constrained by Ms M.

I appreciate that I hold powers under Section 25(1) (b) on interested persons, on balance, I have accepted Dr Abs medical reason for nonattendance at hearing. However, best practice would inform a minimum level of participation by an Advocate in a Statutory Inquiry involving a Child. Dr Abs absence has made my investigation more difficult.

Preliminary Issue on Time Limits

Ms Ennis helpfully clarified that she not seeking an extension of the statutory time limit for reasonable cause in accordance with Section 21 (3) but rather reliance on the argument of continuum   permitted 21(11) of the Equal Status Act 2000.

The notification of the claim to the WRC on 11 April 2022 reflected a continuum of occurrences which commenced on 27 September 2021 and endured to 17 January 2022.

Redress in respect of prohibited conduct.

21.— (1) A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director of the Workplace Relations Commission.

11) For the purposes of this section prohibited conduct occurs—

(a) if the act constituting it extends over a period, at the end of the period,

(b) if it arises by virtue of a provision which operates over a period, throughout the period.

1 Events of September 27, 2021, and September 28 letter from Ms M to the Board of Management.

2 October 11 letter from Board of Management authored by Ms Z.

“… I understand that this matter was fully discussed at the meeting with the Principal and the Education Welfare Officer.

I wish (the complainant) every success for the rest of the year and in her future. First Year is a very exciting time “

3 Interparty correspondences to 26 January/ 9 -16 February 2022

“ …. All attempts thus far to gain justification for the isolation of the complainant during teaching hours remain unanswered. Ms M has attempted to engage with the procedures stipulated in the Code of Behaviour, as per your repeated instructions, to no avail. We remain confused as to why this is repeatedly recommended as it fails to recognise your client’s unwillingness to engage appropriately on this matter.

It is furthermore clear and disheartening that neither we, nor our client, have received am assurance which leads us to believe that this matter may be resolved through the channels stipulated in the schools’ policies and procedures “

The WRC Complaint form of 11 April 2022 recorded October 11, 2021, as the date of most recent Discrimination.

When met with the stated concerns of the WRC that this dated may place the complaint outside the statutory time limit, Dr AB made a further submission dated 8 June 2022 that the “Discrimination remains ongoing, the first instance of Discrimination occurred on 27 September. A further core act occurred on 11 October 2021 with these continuing through December 2021 and January 2022 “

“The date of 11 October was erroneously used “

A careful read of the Respondent Solicitors letter dated 17 January 2022 placed the complainant as absent from school for “several weeks despite efforts by the school and a referral to EWO. Our client would urge your client to allow her daughter to return to school as soon as possible and to use the complaints procedure available to her to resolve any issues she may have. “

The complainant was unsure when she ceased school attendance. It is clear from, Ms Ls evidence that she enrolled in second year.

The Complainant has submitted that concerted efforts were made to bring the issues of September 27, 2021, to the Board of Management on 28 September 2021, but the matter was not progressed.

The Complainant stated that Mr E, the Principal had ignored her after the events of September 27, but no dates were advanced for this exclusion.

I can accept that there was a continuum of instances of alleged Discrimination from September 27, 2021, which moved into January 2022. However, I am also mindful that the Complainant was not in attendance at school for an extended period during this period and was unable to provide me with dates of prohibited conduct by Mr E, the Principal. I accept that the Complainant Representatives were actively in pursuance of Data Access Subject requests during this period.

Locus Standi

 Section 3(2) Discrimination shall be taken to occur 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.

Section 3 (2) (i) describes that one is a member of the Traveller Community and the other is not.

Section 2 defines the Traveller Community  

“Traveller community” means the community of people who are commonly called Travellers and who are identified (both by themselves and others) as people with a shared history, culture and traditions including, historically, a nomadic way of life on the island of Ireland.

I accept that the Complainant is a member of the Traveller Community.

However, the Complainants Representatives spent some time in seeking to emphasise that this was a known fact by the Respondent prior to the 27 September 2021. Much was made of the administrative returns to the parent Dept from Primary and Post Primary School POB and PPOB.

Nobody came to give evidence on the practices around these returns. Both Teachers at the School told me that this was not their domain.

 I was handed extracts from an Administrative hub that POB records from Primary School do not automatically populate PPOB records at Post Primary School  but rather the sole document of transfer between the schools is the end of year report  , dated at 31 May 2021 , which did not record the Complainant ethnicity but rather a concern for attendance , marked as 62/120 days absence in her last year in  Primary School .

It seemed to me that consent is required to record ethnicity and while this seems to have been shared at Primary School level, I could not find any such consent in Post Primary School or no automatic sharing of this key record.

I must conclude that these extracts linking PPOD on 21 May 2021 cannot amount to evidence in this case.

I accept the application form for access to the Respondent School did not have a section on ethnicity. The Complainant recorded her Nationality as Irish has not   demonstrated just how the Respondent was aware of her ethnicity outside of the extracts from inter party correspondence which emanated prehearing in Summer 2024.

In this, I am mindful of the Grand Chamber Judgement in 2010, 15766/03 Orsus and Ors v Croatia, a case of 15 Roma Children who were segregated into Roma only classes within certain primary schools in Croatia which led to early school leaving and higher attendance problems. The European Court of Human Rights found by a narrow majority that this segregation had not been justified with insufficient safeguards and in violation of Article 14 taken in conjunction with Art 2 of Protocol No 1.  Right to Education.

All Parties in the instant case accept that the complainant participated in an integrated class.

The Burden of Proof

Section 38 A of the Equal Status Acts provides for a primary burden of proof on the complainant to establish facts “from which it may be presumed that prohibited conduct has occurred “before it falls to the Respondent to prove the contrary.

Mitchell v Southern Health Board [2001] ELR 201 refers these facts as having to be “of sufficient significance to raise a presumption of discrimination “

I must be satisfied that in establishing this prima facie case that on the balance of probabilities.

1 The Complainant is covered by membership of the Traveller Community.

2 There was specific treatment by the Respondent

3 The treatment of the complainant was less favourable than the treatment that was or would have been afforded to the comparator in similar circumstances

I am satisfied that the Complainant is a Member of the Traveller Community but am not certain that the Respondent was aware of her status as a Traveller by the morning of 27 September 2021. Her application form cited nationality as Irish without mention of ethnicity.

It is important for me to reflect in my findings that I fully accept the backdrop of Covid 19 as relevant context and background in this case, both in terms of a time of great uncertainty as well as active risk management practices at large.

I realise that an extended period of time had passed prior the hearing in this case. I did not meet the EWO, who, it seems to me was the Architect of the October 5 meeting.

The Complainants case has been focussed on the harshness of her treatment from September 27   as a result of her being a Traveller. Counsel contended that the case was impeded by the reluctance by the Respondent to release key policy documents relating to the use of the room and data on ethnicity at the school.

The Respondent has an opposing view and places the complainant in the context of being late to school. The attempted management of that lateness brought the principal in direct conflict with the complainant’s mother, Ms M.

The Respondent said this intervention was standard and not linked to the complainants Traveller status. Their case moved to nothing could have prepared Mr E for the verbal attack directed at him by Ms M and placing the complainant in the room was aimed at diffusing the situation while Mr E called the Gardaí and sought to recover.

For my part, my investigation would have been assisted if CCTV footage of the interaction that morning had been presented by either Party.

Instead, I have listened carefully to all witnesses who came to hearing and here are my findings on whether I can establish inferences of Discrimination in relation to this case.

It was unfortunate that neither the Parents nor the complainant were able to participate in the preschool year information or induction sessions. This may have prompted a mutual awareness surrounding the central role played by the School Journal.

I am mindful that the journal is typically joined with schoolbooks, but the school had issued the Journal as a support pending the acquisition of the schoolbooks. Ms L told me that the complainant was given the journal as she needed it. I found this to be a benevolent gesture.

The Complainant fully accepted that she was late that morning. As the Complaint form had indicated the school’s prior awareness, I probed this, only to learn that this was not an agreed arrangement and by 27 September 2021, the school had formed a genuine concern via Ms L and Mr E that the Complainant was experiencing difficulty in attending on time.

A short extract from the VSAR records produced at hearing placed the following records of concern, albeit redacted authors.

27 August 2021 complainant missed Induction due to covid related activity.

20 September 2021 Home Visit explored by the school

21 September 2021 Late for school, contact made with mother, tie to be bought, note to be given in future

27 September 2021 Mother parked in disabled space, verbally abusive and uncooperative

22 October book loan addressed, complainant absent on sick leave

5 November 2021 Both sisters out of school, efforts underway to manage their return.

I listened very carefully as the complainant gave her evidence. She confirmed that she was late and attributed this for her entry to the room. She was aware of an encounter between Ms M, her Mam and Mr E the Principal. She was unaware that Mr E had sought that she leaves the campus with her Mam following the encounter.

I found it unusual that the events of Sept 27 did not form the topic of a follow up conversation between Mother and daughter as confirmed by the complainant.

I also listened very carefully to Ms Ms’ evidence. I admitted that I was troubled by her mixed memory of both encounters with Mr E on that day.  I appreciate the three-year interlude; however, I found that she had no recall of content outside of loud voices during the first encounter. I have reflected on Ms Ms contention that she felt diminished by Mr E.

 While her recollection improved on the second encounter, she then sought a letter of explanation for the school placing her daughter in a room on her own.

Mr E maintained that he had addressed this request. However, I can see that the school headed letter of 28 September may not have satisfied that request as it became embroiled in the action first in time, that was the unexpected negative reaction to being requested to sign a journal for her daughter.

The principal’s letter of 28 September, set out

1 A request for both Parents to read and agree to the code of behaviour for the school. (enclosed)

2 they were requested to sign the pages and check the journal daily

3 To avoid driving into the school

4 Verbally Aggressive and threatening behaviour by a parent towards any member of school staff is unacceptable and will be reported to the relevant authorities

Ms Ms letter to the Board, seeking an opportunity to address them   clearly overlapped

1 It was a letter of complaint against the principal

2 Ms M had refused to sign the journal in response to both her and her daughter’s treatment

3 Around 11 am, she learned that the Complainant was “still in the waiting room in the foyer of the school. She was not allowed to enter class.”

4 She was informed not to bring the complainant back to school when she collected her.

5 A full enquiry and explanation

6 Unfair treatments towards a second daughter by the principal

I listened to Ms S the only person who submitted that she had seen the complainant in the room on 2 out of her three surveillance checks. I believed her and accepted her evidence. It is regrettable that records of observation did not accompany her surveillance. CT and Dunnes Stores Ltd [2023] IECC 4

I listened to Mr E who had a very comprehensive recall of the events of the morning of 27 September 2021. Despite the passing of time, I found his recollection vivid and for me it formed a cogent account of what occurred. I could see that he was carrying the impact of what he heard some three years previously.

I could see that Mr E had not recognised himself in the allegations levelled at him by Ms M. I accept that he was shocked and shaken by the statement he heard, which if formalised could be career altering. I also accept that this was compounded by his view that the allegation may have been overheard by the school population through windows open for safety measures.

  I accept his evidence that he called the Gardaí to report his concerns. I also accept from his evidence that a Community Guard attended the school next day. However, once more records of this were not available to me.

I have had to rely on the direct evidence.

Ms M did not formalise the allegation heard by Mr E.  I was struck by her lack of recall of this. In this, I prefer Mr Es’ evidence over Ms M. I also found the Schools Code of Behaviour to be instructive on the objectives being chased at the school.

I have found that it is more probable than not that Mr E did request that the complainant be taken home in the immediate aftermath of the altercation and either Ms M actively refused or just left the school in fury without heed.

At this point, it is hard not to reflect that had Ms M brought the complainant home as requested, the next step of the room may have been avoided. however, by then the boundaries within the school relationships were creaking.

I have no idea why the complainant’s family utilised the disabled parking space as their appearance at hearing was not accompanied by a request for special facilities.

I found that Ms Ms reflections of that day centred on the complainant’s journey and there was no reflection on her personal interaction with the principal.

This brings me to the October 5 meeting, where I am grateful for the notes taken by Ms P.

I don’t think any one in attendance had a clear idea what the meeting was going to be about and that is why I would have benefitted from the EWO/ Architect recollection.

Ms L had the strongest point when she said that she thought she was going to a meeting about the complainant, but she was disappointed when she wasn’t there.

I accept that by then Ms L had developed genuine concerns that the complainant was getting lost in terms of attendance.

I found the requested response sought by Ms M in the minutes worthy of delineation.

“… Ms M wanted to get an understanding of what had happened to the complainant on the day. Mr E noted that it was because of the verbal abuse he received from Ms M that led him to leave the complainant in the office.

At this point in the meeting Mr E pauses and explains that he would like Ms P to write verbatim what he is saying so that notes are accurate

Mr E   I was verbally attacked by Ms M and abused because I had been trying to explain to Ms M that I wanted her daughter to be in school and want her to see the journal because I was aware that the complainant had missed time in school and knew that Ms M had not seen the notes in the journal.

…….

Ms M asked Ms P to stop taking notes to make everyone more comfortable.

The rest of the meeting carried on with Ms M and Mr E discussing their altercation in the car park ……

Ms L brought the meeting back to focus on the complainant and her future in the school.

1 The journal was emphasised as key tool

2 Ms M undertook to obtain schoolbooks

3 Mr E offered the services of the Home School Liaison to go through the journal to support the family

4 Ms L advocated for the school’s team accounts to cover school absence catch up. This was endorsed by Mr E.

5 Ms P noted that Ms M could link in with the Traveller Project. This was endorsed by Mr E.

6 Ms M asked whether in future the complainant would be put into an office on her own as a result of being late? Ms L said that the policy is that if a child is late, they will have a note in their journal from the teacher and the parent will be expected to sign this note and has the opportunity to provide an explanation for the student being late.”

Ms M left to collect her young daughter.

At a careful glance, this meeting seemed to set seeds for an equilibrium which placed the complainant at the centre of the school experience.

Yet, the Complainant has determined that Ms Zs response dated 11 October 2021 was an exclusionary act of prohibited conduct. I did not concur with that view as it remained open to Ms M to respond.

Ms M did not make a response to that letter and the correspondence linked to ES1 followed some 5 weeks later.

I am struck by the divergence between the record of the October 5 meeting and the ES1 letter as the latter did not reflect any weighting for the reasoning provided by Mr E, which went unchallenged .

I found that the Respondent sought to resolve matters in the ES2 dated 21 December 2021 and follow up correspondence.

The Complainant wished to action the claim under the Equal Status Act, as is her right.

I am minded by Ms Zs evidence that once the 23 November / ES1 form was received, the Legal Advisors took the next step.

For my part, I am struck by an early loosening of boundaries in this case. The rules around Information evening and Induction, all foundation stones were unfortunately not complied with by the complainant or her parents.

I recognise that the complainant was on the school’s radar from late August 2021, not because of her Traveller status, but due to her lack of induction or visible parental attendance at information session. She was assisted by receiving a Journal in advance of her schoolbooks.

This was a tool to monitor attendance. Yet, when the school sought to make an intervention on that monitoring of attendance, I must conclude that Ms M levelled a wholly inappropriate comment at Mr E, who arguably has not recovered from it. The Journal, to me at least seems to serve as a passport within the school systems.

I accept that Mr E  sought to continue to lead the school in the face of the  comments , however , I would have preferred if the school had managed the comments separate to  the lateness as the Principal may have unwittingly got caught up in both as he sought to  delegate responsibility for the complainant to Ms S as he interfaced with the Gardaí surrounding the disturbance .

The Complainant has asked that I draw inferences from the harshness of the complainant’s treatment and recognise this as prohibited conduct.

I have reflected on this and see a distinction from the harshness meted in Mc Greal v Clúid Housing DEC S-2011- 004, where a maximum compensation award was made for prohibited conduct.

I have found that the Complainant was placed in a room in her school as her mother refused to bring her home when Mr E requested her to. Ms M did not predict that the school would detain her daughter in a holding room as an intermediate placement. I appreciate when the phone calls came to alert her from her niece, she was shocked and angry. She subsequently learned that the school acted in this way as a direct consequence of the verbal interaction between her and the principal. She did not contest the explanation she received on October 5 until the ES1. Her home was 10 minutes away from the school.

The Complainant was 12 years old.

I accept Counsel for the Complainants submission that it is not my job to determine whether this was a good or a bad school. I reject that the period spent in the room was a detention as provided for in the code of behaviour, but rather a knee jerk reaction to an unanticipated verbal attack.

 Mr E viewed it as a necessary and proportionate measure to manage any fall out from a disruptive parent. Ms M failed to see the link as the September 28 letter she received was nuanced in that regard.

I have no doubt that the complainant should not have been placed alone in an open room, but was it prohibited conduct in accordance with the Equal Status Act 2000.?

I must conclude that what occurred on September 27 was a disproportionate response from a parent when approached to manage her daughter’s lateness via the schools’ tools.

The principal determined that this utterance placed him and the school in jeopardy and sought to manage the situation in two stages

1 call for external help

2 appeals to Ms M to bring her daughter home which was rebuked which led to a default placement in an open room with surveillance at intervals by Ms S.

I accept that there was further conflict as the complainant was collected and brought home for the afternoon.

The Complainant returned the next day, without incident.

I have not found inferences of discrimination on grounds of race or membership of the Traveller Community from September 27, 2021, to January 2022.

Instead, I have found that a School sought to welcome and support the complainant in her education. This was disturbed by the events of September 27, 2021, and despite the genuine and honest attempts of all present on October 5, the school relationship faltered from that day forward and the complainant got lost in the story. She had 23 absences by 22 October 2021 as highlighted by a co signed letter by Mr E and Ms L to Ms M.

Ms Ms letter of 28 September covered two of her daughters and was not elevated to a formal complaint within the schools’ procedures.

The Letter from the Board of Management dated 11 October 2021 indicated that the matter.

 “Was fully discussed “not resolved and was open to challenge. I cannot view it as an exclusionary act.

The Inter Party correspondence from ES 1 onwards likewise.

 I accept Ms Ls evidence that the Comparator relied on was a Traveller also.

I find that the Complainant has not adduced evidence from which I can reasonably conclude that she was treated less favourably than her comparator on Race and Traveller grounds in the provision of education.

I find that the complainant has failed to establish a prima facie case of Discrimination on race and Traveller grounds in how the respondent has dealt with her provision of education.

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

I find that the complainant has failed to establish a prima facie case of Discrimination on race and member of the Traveller community grounds in terms of section 3(2) h and 3(2) (i) of the Equal Status Acts 2000, as amended.

I find for the Respondent.

Claim of Discrimination on grounds of Membership of the Travelling Community in provision of Education.