Complainant

Respondent

Parties

Biyi Jacob  Abiola

LMETB

Representatives

Ms Maggie Kelleher-Byrne, Solicitor

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00063732-001

27/05/2024

The Complainant stated that the first incident of discrimination occurred on 17 November 2023 and on his Complaint Form he stated that the most recent date of discrimination was 1 March 2024. The Complainant stated that he issued the ES.1 Form to the Respondent on 6/5/2024 (incorrectly dated 6/5/2023). The Respondent acknowledged receipt of the ES.1 on 31/5/2024 and replied by way of Form ES.2 on 18/6/2024.

By way of preliminary objection on time limitation and procedural grounds, the Respondent disputed and denied there was any incident involving the Complainant on 1 March 2024 and stated that any suggestion to the contrary was a fabrication contrived to meet the time limitations periods in accordance with the Workplace Relations Act [2015-2021]. The Respondent stated it had no interactions with the Complainant after 17/11/2023, that the Complainant had not presented at the school since that date nor had there been any exchange of correspondence or emails, or any phone calls. The Respondent further stated that the ES.1 Form was issued out of time and that Form ES.1 was issued after the complaint was submitted to the WRC on 27/5/2024. Accordingly the Respondent maintained that the complaint was out of time and must be dismissed. In reply the Complainant stated that he had been subjected to a bodily assault on 17/11/2023 which impacted on his health and that his injury and sickness was ongoing after that date. The Complainant furnished various medical reports in that regard. He also stated that he didn’t understand the procedures.

The Respondent also raised the matter that the Complainant had not cited the correct Respondent on his Complaint Form. In that regard the Complainant had cited the name of the particular school at the centre of the complaint as opposed to the relevant ETB – ie Louth & Meath Education and Training Board (LMETB).

All relevant evidence, submissions and documentation received by me – including documentation received post hearing - has been taken into consideration.

Set out below is a summary of the Complainant’s and Respondent’s respective cases.

The Complainant outlined in detail his complaints. In particular he outlined an incident which occurred on 17 November 2023 when he came to the Respondent’s school at approximately 3pm. Prior to the Complainant going to the school he had alerted the Gardaí of his proposed visit to the school to enforce a court order. He stated that the Gardaí witnessed him walking towards the front door of the school. The Complainant stated that he was then blocked by the Principal from entering the school reception area and was accused of trespassing. The Complainant stated that the Principal referred to a letter which had been had been sent to him by the Respondent. He stated that he recorded the Principal on his mobile phone. The Complainant also outlined his interaction with the Gardai at the school that day. The Complainant played a video at the adjudication hearing which sought to capture what occurred on 17/11/2023.

The Complainant was cross examined on his evidence and I also questioned the Complainant. In response to various questions he stated he was endeavouring to apply court orders in relation to family matters and access to his children. Under cross examination the Complainant accepted that after 17 November 2023 he remained outside the school gate and had no further direct interaction or meeting with the Principal. In her questioning the Adjudication Officer clarified that her function was to consider alleged discrimination or unlawful treatment and not the Complainant’s role as a father.

The Complainant stated that he was “separated and not a principal custodian” of his children, that he was being treated less favourably than the mother and that his children were being influenced negatively against him by the Respondent. The Complainant stated that his treatment by the Respondent on 17 November 2023 amounted to a violation of his parental and human rights in relation to access to his children and constituted racial profiling and unlawful treatment.

It is the Complainant’s position that he was discriminated against by the Respondent on the gender, civil status, family status and race grounds and on the grounds of sexual orientation. The Complainant stated that he was treated unlawfully and was victimised and harassed.

The Respondent outlined the school’s procedure when a parent/guardian is collecting their child during normal school hours as specified in the school’s Code of Behaviour. In that regard the Respondent stated that the procedures require the parent to place a note in their child’s journal so that the student can leave their classroom and present at the office for collection. The procedures also require the parent to check in at reception. They also specify that a student cannot be forced to leave against their wishes.

The Respondent stated that the Complainant attended the school unannounced and with no prior appointment on 29/9/2023. The Respondent stated that notwithstanding the Principal granted the Complainant entrance. However the Respondent stated when the Principal informed the Complainant that his children did not want to leave the school with him and that no prior arrangements had been made for them to do so, that he started shouting and behaving aggressively, that he accessed areas of the school not open to visitors, that he shouted “threateningly at staff and students and [was] kicking doors” and caused huge disruption. The Respondent stated that all the while the Complainant was filming on his mobile phone and that at some point he made the following comment to the Principal that “It is is people like you that make people bring guns into school”. The Gardaí were called to the school on that occasion but the Complainant left of his own accord.

On foot of the encounter on 29/9/2023, the Respondent wrote to the Complainant on 23 October 2023 putting him on notice that he was prohibited from attending or accessing school premises for any reason as a result of his threatening behaviour. The Respondent stated that notwithstanding, the Complainant presented at the school again on 10 November 2023 and was again recording on his mobile phone. The Complainant had called the Gardaí prior to arrival and the Respondent stated that when the Principal explained the situation, the Gardaí escorted him off the school premises.

The Respondent stated that the Complainant attended the school again on 17 November 2023 and “demanded” of the Principal “that she produce his children”. The Respondent stated that the Principal reminded him that he was not allowed on the school premises and she asked him to leave. The Respondent stated the Complainant was again recording on his mobile phone. The Gardaí who were in attendance asked the Principal if she wished to press charges for trespass and when she confirmed she did, the Respondent stated the Complainant was then arrested. The Respondent stated that there were no further interactions with the Complainant after that date.

The Principal gave evidence and was cross examined. Under cross examination the Principal accepted that she was not pleased to see the Complainant coming into the school on 17 November 2023 and that she did not welcome him in. The Principal stated that her treatment of the Complainant was solely and directly connected with his behaviour and her concerns for the health and safety of the staff and pupils and was not a result of any discriminatory or unlawful factor – as alleged. The Principal rejected any such allegation. The Principal also stated that her obligation to report matters to the statutory authorities should not be seen as an indication that she had formed a view regarding the Complainant’s role as a father. In relation to the school’s code of behaviour, the Principal stated that this was published on the school’s website and that she regularly sent texts to parents/guardians – including the Complainant – about the code.

It is the position of the Respondent that it did not discriminate against the Complainant or treat him unlawfully or differently on any of the grounds specified in the Equal Status Act [2000-2018], that it did not harass or victimise him, that the Complainant had not specified many of his complaints, that the Complainant’s behaviour amounted to criminal or disorderly conduct and that the Complainant had not made out a prima facie case in support of his complaints.

Preliminary:

Section 21 of the Equal Status Act [2000-2018] provides as follows in relation to redress —

1.      “A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress…..

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……..and

b.       may……question the respondent in writing…..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 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 ….., 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 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.

4.      The Director of the Workplace Relations Commission…… shall not investigate a case unless the Director……is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.

5.      The Minister may by regulations prescribe the form to be used by a complainant and respondent for the purposes of subsection (2).

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…..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.

matters raised:

7.      Where a delay by a complainant in referring a case under this Act is due to any misrepresentation by the respondent, subsection (6)(a) shall apply as if the references to the date of occurrence of prohibited conduct were references to the date on which the misrepresentation came to the complainant’s notice.”

On a preliminary basis and taking the Complainant’s statement on the Complaint Form at face value, ie that the most recent occurrence of discrimination was 1/3/2024, I find as follows:

·        In relation to the ES.1 Form although this was dated 6/5/2023 – which was in fact 6/5/2024 and was not received by the Respondent until 31 May 2024 - In accordance with my jurisdiction under Section 21(3)(a)(i) of the Equal Status Act [2000-2018], I accept this Form was sent within 4 months;

·        Similarly on the basis that the most recent occurrence of discrimination was 1/3/2024, I deem the complaint was submitted within the prescribed 6 months as required by Section 21(6)(a) of the Equal Status Act [2000-2018];

·        Form ES.1 was dated 6/5/2024 (corrected) and the Respondent received the Form on 31/5/2024. The fact that the WRC received the Complaint Form on 27/5/2025 – ie prior to when the Respondent received the Form ES.1 – and prior the Respondent’s response via Form ES.2 on 18/6/2024 - does not, in my view, contradict or demonstrate a breach of Section 21(4) of the Equal Status Act [2000-2018].   

·        As regards the title of the Respondent, I am of the view that the Respondent was aware that as Patron of the school, it – and not the particular school  - was the correct Respondent. From my consideration of this matter, I am satisfied  that the correct Respondent was aware of the case and that it engaged legal representatives to submit a written response on its behalf – which response stated in the introductory paragraph “My client is Louth and Meath Education and Training Board (“LMETB”). [The school]….is within the patronage of LMETB”. LMETB was legally represented at the adjudication hearing in the course of which the Solicitor for LMETB accepted that it was not prejudiced by the error in the Respondent’s title. In all the circumstances, I am satisfied that the correct Respondent is LMETB and that no prejudice lies in my exercising jurisdiction to correct the Respondent’s title on the Complaint Form and replace the name of the school with the name of the Patron/LMETB.

In light of the foregoing I deem I have jurisdiction to decide this complaint and will now set out my findings and conclusions on the substantive matter of alleged discrimination, unlawful treatment, harassment and victimisation.

Substantive Matter:

Section 3(1) of the Equal Status Act [2000-2018] states that 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)…..which ­­­---

(i) exists,

(ii) existed but no longer exists,

(iii) may exist into the future, or

(iv) is imputed to the person concerned,….”

Section 3(2) outlines the grounds of discrimination as may occur between any two persons in terms of gender, civil status, family status, race and sexual orientation.

Section 5 (1) of the Equal Status Act [2000-2018] provides that “A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”

Section 2 (1) of the Act defines “service” as “a service or facility of any nature which is available to the public generally or a section of the public….”

Section 11 of the Act prohibits harassment.  

Section 38A (1) of the Equal Status Act [2000-2018] provides as follows in relation to establishing the burden of proof:

“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.”

The import of Section 38A(1) is that it requires the Complainant – in the first instance - to establish facts upon which he/she can rely in asserting that the prohibited conduct has occurred. Accordingly,  the Complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the Respondent to rebut the presumption of discrimination. In Southern Health Board v Mitchell [2001] ELR 201 – the Labour Court considered the extent of the evidential burden imposed on a Complainant as follows:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64, the Labour Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

In light of the foregoing, I must first consider whether or not the Complainant has established a prima facie case of discrimination. In this regard, I have considered all the evidence, submissions and documentation – including documentation received post hearing – and I have reached the following conclusions:

·        I am satisfied the Respondent was entitled to establish rules and procedures applicable to visitors to the school – including parents/guardians – consistent with its duty of care to the staff and pupils and its statutory duty for their education. In this regard I am satisfied that the school’s code of behaviour specified that “Parents who need to meet a teacher must make an appointment through the office. All parents must check in at reception on entering the school grounds” and that this rule was universally applied in the school. I consider such an approach was objectively legitimate, fair and reasonable;

·        I am persuaded by the evidence and submissions including the letter to the Complainant of 23 October 2023, that the Respondent deemed the Complainant’s behaviour on 29 September 2023 “threatening and aggressive” such that it was reported to the relevant statutory authorities. Arising therefrom the letter of 23 October 2023 formally put the Complainant on notice that he was “prohibited from attending or accessing [the school] or its premises at any time in the future for any purpose”;

·        I have carefully considered the evidence and submissions of the Complainant and the Respondent as to what occurred on 17 November 2023 and I am satisfied that what occurred on that day, was solely and directly because the Complainant breached the school’s direction that he not attend or access the school or its premises. In the circumstances, I am satisfied that the Complainant’s interaction with the Principal on 17 November 2023 and the encounter overall, did not constitute discrimination or harassment or unlawful treatment;

·        The Complainant has not adduced any and/or any sufficient particulars or detailed information in relation to any other alleged discriminatory or unlawful treatment. In that regard, whilst he has alleged discrimination and unlawful treatment on the gender, civil status, family status and race grounds and on the grounds of sexual orientation – he has not particularised/sufficiently particularised any other complaints such as would establish facts to demonstrate that the principle of equal treatment had been breached.

·        The Complainant gave evidence in the course of the adjudication hearing that after 17 November 2023 he had no further interaction or meeting with the Principal and that when he came to the school he remained “outside the gate…after closing hours”.  As a result I find there was no incident of discrimination on 1 March 2024 – notwithstanding that this date is cited on the Complainant Form as the most recent date of discrimination.

In light of the foregoing, I am satisfied the Complainant has failed to establish a prima facia case of unlawful treatment, harassment, victimisation or discrimination. In the circumstances, I consider it is not necessary to re-visit my preliminary findings on the time limitation matter – other than to say that having inquired into the matter, I am satisfied that the most recent date of alleged discrimination and unlawful treatment was 17/11/2023.

CA-00063732-001

For the reasons outlined this complaint is not well founded.

Discrimination, Time Limits