A Mother and Son v A Secondary School
1.1 This dispute concerns a complaint by a Mother and Son that they were discriminated
against, contrary to the Equal Status Act 2000, by the management of a Secondary School in the West of Ireland. The complainants maintain that they were discriminated against on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Act 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act.
2. Summary of the Complainant's Case
2.1 The complainants state that the Mother was asked on a number of occasions to
remove her child from school for disciplinary reasons and that the Principal of the School did not follow Department of Education guidelines in relation to such matters when dealing with this case. The complainants claim that they were less favourably treated because of their membership of the Traveller community.
3.. Summary of Respondent's Case
3.1 The respondents totally reject that they operate a discriminatory policy against Travellers. They maintain that the complainants were treated in the same manner as the
school treats all parents and children where the child has breached the school's disciplinary rules.
4 Delegation under the Equal Status Act, 2000
4.1 These complaints were referred to the Director of Equality Investigations under the
Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director has delegated these complaints to myself, Brian O'Byrne, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000.
5.1 Background Information
The complainant in this case was 14 years old at the time of the last alleged incident of
discrimination in December 2001. In view of the fact that the complainant was a juvenile at the time, it was agreed at the Hearing on 15 January 2004, that it would be appropriate for the names of the parties involved in the case to remain anonymous.
5.2 Complainants' Evidence
- The family are settled Travellers living close to the Secondary School
- The boy is the second of 4 children from the family who have attended the school. His
older brother completed his Leaving Cert in 2003 while his younger brother and sister are still attending the school.
- The mother said that, on his first day in school in September 1999, her son was involved in a fight in town with a student from another school. When the Principal heard about the incident, he summoned the son to his Office and warned him about bringing the school into disrepute (the son was wearing the school uniform at the time).
- The following December, the Principal summoned the mother to the school to inform her that the son had been involved in a number of unacceptable incidents in the school. The Principal said that he did not wish to formally suspend him and suggested that she withdraw him from school for a short while.
- The mother said that the Principal appeared genuine in what he was saying and she kept her son out of school until after Christmas, on his advice.
- No further issues arose until April 2001, 16 months later, when the mother was again
called to the school. The Principal informed her that further issues had arisen in relation to punctuality, disruptive behaviour and bullying. The Principal again suggested that the son be removed from the school and suggested that she might consider enrolling him in a different school altogether. The mother kept her son out of school for the remainder of the school year
- Around that time, the school offered to make arrangements for the son to receive
additional tuition at home from a Literacy Skills Teacher. Arrangements were made for this tuition to be given in the son's grandmother's house for convenience. However, when the son failed to arrive at his grandmother's house one day to meet the teacher, the school cancelled the tuition.
- In October 2001, the mother was again asked to remove her son from school following allegations that her son had head-butted a girl (which her son denies) and other disruptive behaviour. She removed him for a further week and the son returned on foot of a phonecall from the Principal asking that he do so.
- In December 2001, the mother was again called before the Principal and, this time, he suggested that he be removed permanently. She refused to do so and told the Principal that he would have to expel her son if he wanted him to leave.
- The Principal informed the mother that he was suspending the son from that point and that the matter would be discussed at a Board of Management meeting a few days later.
- The mother then wrote to the Board of Management in advance of the meeting outlining her concerns
- After the Board meeting the school contacted the mother stating that the Board wished to meet her to discuss the son's position
- The mother met the Board on 24 January 2002 at which time they informed her that her son was welcome back in the school. She told the Board that her son did not feel
"welcome" and that he felt he was being picked on.
- As the son was due to do his Junior Cert the following summer, she asked for him to be allowed concentrate on only five subjects and that he be given extra tuition during his other "free" classes on these subjects.
- She was told that this was not possible because of Dept of Education guidelines and the non-availability of teachers to give this extra tuition
- As no satisfactory solution could be found, the son stopped attending school from then on.
- The mother has 3 other children who attended the school and she says that the youngest boy has been subjected to unwelcome comments from teachers associating him with his older brother.
5.2 Respondents' Evidence
- The Secondary School is a co-education school and caters for over 500 pupils annually
- The number of Traveller students attending the school has increased significantly in
recent years. There are now 27 Traveller students attending the school
- A Visiting Teacher comes to the school regularly to assist Traveller children
- The school has developed its own disciplinary code based on Department of Education Guidelines and all parents have been supplied with a copy of the rules that apply to students attending the school
- Under the School Rules, minor breaches of the rules are dealt with by the pupil's teacher or Year Tutor. More serious breaches are referred to the Principal. These might include disrespectful behaviour towards a teacher, truancy or a continued pattern of minor breaches.
- In more serious cases, the Principal can suspend children himself for up to 4 days or order some other form of sanction which he considers appropriate.
- If, in the opinion of the Principal, a student is facing suspension or expulsion, the
Principal said that he often recommends to parents that they voluntarily withdraw the
child from the school for a short period, in an effort to defuse the situation. This course of action ensures that the child's school record remains unblemished as no sanction is recorded.
- No distinction is made between Traveller and non-Traveller children in implementing
- The current Principal of the school has occupied that position since 1991 and has worked in the school for over thirty years
- In his 12 years in charge, the Principal says that he has had to deal with 12 incidents of serious misbehaviour by individual students. Apart from the complainant in this case, all the others were non-Traveller children.
- The mother involved in this case has three other children who have attended or still attend the school. The eldest son who sat the Leaving Cert in 2003, had appeared to be happy in the school and had never given any cause for concern in his years in the school
- A younger sister was now in second year and was progressing very well with her studies while another boy was now in third year.
- Because of the complainant's Traveller background, the school made an extra effort for the son in arranging that he receive personal tuition outside of the school from the
Literary Skills Teacher. This tuition was stopped, however, when the son failed to turn up to meet the teacher on one occasion.
- The Principal said that, because of a number of incidents involving the son, he had to call in the mother on several occasions and ask her to withdraw her son from the school for short periods
- Withdrawal for one week at a time would be the most that the Principal would have
suggested to the mother on each occasion. As there were over 500 pupils attending the school, it would not be obvious to the Principal whether the child had returned or not after the suggested week
- The Principal was particularly reluctant to formally suspend the son and was happy for the mother to remove him from school on each occasion
- Because of the history of incidents, the Principal believed that the best course of action would be for the son to start afresh in another school. He had suggested this to the mother in their more recent meetings but she had declined to consider it.
- When the mother met the Board of Management, she was told that there were only two realistic options open to her son. The first being that he enrol in another school. The second being that he return to the school, undertake to obey all rules, attend all classes and be the subject of "monitoring" as is usual for all students in a similar position
- The son chose not to return to school on these terms
- The mother and son were treated in the same way that every other parent and child have been treated over the years where a persistent pattern of bad behaviour has been involved
6 Matters for Consideration
6.1 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken to
occur where, on any of the grounds specified in the Act, a person is treated less favourably
than another person is, has been or would be treated. Section 3(2)(i) of the Act specifies the Traveller community ground as one of the grounds covered by the Act. Under Section 5(1) of the Act it is unlawful to discriminate against an individual in the provision of a service which is generally available to the public.
In this particular instance, the complainants claim that they were discriminated against on the grounds of their membership of the Traveller community contrary to Sections 3(1), 3(2)(i) and 5(1) of the Equal Status Act, 2000 in the manner in which the mother and son were dealt with by the school over the period September 1999 to January 2002.
6.2 In cases such as this, the burden of proof lies with the complainant who is required to
demonstrate that a prima facie case of discrimination exists. If established, the burden of
proof then shifts to the respondent who, in order to successfully defend his case, must show that his actions were driven by factors which were non-discriminatory.
6.3 In considering the approach to be taken with regard to the shifting of the burden of
proof, I have been guided by the manner in which this issue has been dealt with previously at High Court and Supreme Court level and I can see no obvious reason why the principle of shifting the burden of proof should be limited to employment discrimination or to the gender ground (see references in Collins, Dinnegan & McDonagh V Drogheda Lodge Pub
7 Conclusions of the Equality Officer
7.1 Prima facie case
At the outset, I must first consider whether the existence of a prima facie case has been
established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Membership of a discriminatory ground (e.g. the Traveller community ground)
(b) Evidence of specific treatment by the respondent
(c) Evidence that the treatment received by the complainant was less favourable than the
treatment someone, not covered by that ground, would have received in similar
If and when those elements are established, the burden of proof shifts, meaning that the
difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not.
7.2 What constitutes "prima facie evidence' and how a "prima facie case" is established
has been documented and considered in previous cases such as Sweeney v Equinox
7.3 With regard to (a) above, the complainants have satisfied me that they are members of
the Traveller community. In relation to (b), the respondents accept that the mother was asked to remove the son from school on a number of occasions and that the child did not return to school after a meeting with the Board of Management in January 2002.
To determine whether a prima facie case exists, I must, therefore, consider whether the
treatment afforded the complainants was less favourable than the treatment non-Travellers
would have received, in similar circumstances.
Key Points and Factors
7.3 In this particular case, I consider the key factors to be:
- The son is one of four children from the same family that have attended the school and he is the only one against whom serious disciplinary measures have been taken
- The Department of Education requires that each Board of Management prepare a code of behaviour in respect of students and have produced guidelines to assist in the preparation of same
- The school has produced its own code of behaviour and a copy of these "School Rules" are given to all parents.
- The sanctions imposed on the son in this case were in line with those described in the "School Rules"
- While the Principal admits that he threatened to suspend the son on several occasions and suggested that a different school be sought for the son, the evidence shows that it was not until December 2001 that the son was formally suspended from the school
- In situations where the mother agreed to the Principal's request that she remove her son from the school, there is no clear evidence before me to suggest that the Principal gave a direction to the mother that the son be removed from the school for more than a week at a time
- The school states that it has applied the same sanctions, in the same manner, in 12 other cases over the past number of years and has treated all students the same in these cases
- For comparative purposes, the school has produced reports of each of these 12 cases showing the action taken in each instance
- There are suggestions that the son was falsely accused of misconduct on a number of occasions by the school. However, there is insufficient evidence before me to indicate that these accusations arose from the fact that he was known to be a Traveller rather than the fact that he was known to have been involved in previous instances of misconduct.
- The allegation that the school has not provided the son with the additional tuition
required by Traveller children is countered by the mother's acknowledgement that the
school did arrange for a Literacy Skills Teacher to personally visit her son. This did not proceed, however, because of a failure on the son's part to attend for the tuition as arranged.
7.4 Having deliberated on the above points and having compared the reports submitted in
relation to the other cases which involved suspensions, I find that there is insufficient
evidence before me to indicate that the mother and son were treated less favourably than
non-members of the Traveller community have been treated by the school over the years, in similar circumstances.
It is also my opinion, from examination of the Secondary School's "Rules for Students" that
the school's disciplinary code was developed and applied in line with Department of
Education guidelines on such matters.
Accordingly, I consider that the complainants have not established a prima facie case of
discrimination on the Traveller community ground in this instance.
8.1 I find that a prima facie case of discrimination has not been made by the complainants
in establishing that they were discriminated against on the Traveller community ground in
terms of sections 3(1) and 3(2)(i) of the Equal Status Act 2000 in not being provided with a
service which is generally available to the public contrary to Section 5(1) of the Act.
Accordingly, I find in favour of the respondents in the matter.
12 March 2004