THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Mr. Christopher Carr on behalf of his Son (a minor)
Gaelscoil Mhainistir Na Corann
(Represented by Ms. Deirdre Malone of P.J. O’ Driscoll & Sons, Solicitors)
File Ref: ES/2005/0528
Date of Issue: 9th April, 2009
Equal Status Acts 2000-2004 - Direct discrimination, section 3(1)(a) - Gender ground, section 3(2)(a) – Educational establishment, section 7(2) – Victimisation, section 3(2)(j) - Dress code for Holy Communion - School uniform.
1. Delegation under the Equal Status Act 2000-2008
1.1 This complaint was referred to the Director of Equality Investigations under the Equal Status Acts 2000 to 2004. 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 the complaint to me, James Kelly, 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 2000-2004. The hearing of the case took place on 11th February 2009.
2.1 This dispute concerns a complaint made by Mr. Christopher Carr on behalf of his son, that he was discriminated against by Gaelscoil Mhainistir Na Corann on the gender ground in terms of section 3(1)(a) and 3(2)(a) of the Equal Status Acts, 2000 - 2004 contrary to sections 7(2) of the Equal Status Acts, 2000 - 2004.
3. Summary of the Complainant’s Case
3.1 In 2004 the complainant was a student at Gaelscoil Mhainistir Na Corann in 2nd Class, which is the year Roman Catholic children prepare for and make their first Holy Communion. The complainant’s father states that there was a meeting held at the start of the school year, in September 2004, and the parents of the school children were invited to attend. The school informed all parents of the meeting, including Mr. Carr, however owing to no fault of the school, he received the notice too late to be able to attend. Mr. Carr claims that the dress code for children making their Holy Communion was discussed at this meeting. Mr. Carr claims he happened to meet with the School Principal, Ms. A, outside of the school a few days later, where he was “advised” by her that the dress code for the Holy Communion was decided upon at the meeting and that school policy was that boys making their Holy Communion would wear their school uniforms and that the girls would wear a communion dress. Mr. Carr claims that he was told that if he had a problem with the policy he could discuss it with the parents at the next parents’ association meeting; however, it was too late to change the policy at that stage, (where Mr. Carr outlined to me at the hearing, that the Holy Communion was some 8 months away). Mr. Carr claims he informed Ms. A that he was unsure what clothing his son would be wearing on the day. He also stated that he advised her that the policy could be in breach of the Equal Status Acts; however, he would not be raising the issue with the parents’ association at any meeting as it was not a parents’ policy, it was the school’s policy. He then claims that he asked her to inform other parents of his “dissatisfaction with the policy”.
3.2 Mr. Carr claims that in March 2005, the Carr family discussed the Holy Communion clothing options and left the choice with their son, who decided that he would prefer to wear a suit and not the school uniform but was afraid that the “teacher would give out to him”. On the 10th April 2005 Mr. Carr wrote to the School Principal to state that he was totally against the school’s decision in relation to the children’s dress code for the Holy Communion and that his son would be wearing the clothing of his choice on the day. He also went on to write that it was his opinion that the school was breaking the law by enforcing one rule for the boys and a different rule for the girls. He went on to suggest that the school should consider alternative options, which he provided, namely,
“(a) To allow boys to wear the clothing of their choice in the same way as girls are.
(b) To have all of the children wear the same clothing, i.e. their school uniform.”
Mr. Carr also wrote, that;
“I appreciate that this is not giving enough notice to parents, however, as I have only just learned of this rule being enforced again notwithstanding the fact that you had been advised two years previously that you were in breach of the said Act [Equal Status Act 2000].”
Mr. Carr also states in his letter that he had informally raised concerns with the school about this policy two years previously, when his other son was preparing for his Holy Communion. At that time he claims that he spoke with the current School Principal, who was then the class teacher responsible for preparing the children for Holy Communion, and he also spoke with the School Principal at the time.
3.3 Mr. Carr claims that on a number of occasions Ms. A approached him and asked if he had decided on what clothing his son was going to wear on the day of the Holy Communion. He claims that when he informed her that his son would be wearing a suit, he quoted the School Principal as replying, “well it’s up to you, but that’s our policy”, (reaffirming the school’s policy in relation to the dress code), where Mr. Carr states that she gave him a look of “total dissatisfaction”. Mr. Carr claims that on the day of the Holy Communion his son wore a suit. He said there were no comments passed about his son not wearing his school uniform; however, he claims that, “it did not go down well” with the School Principal, “which was obvious by the look of shock on her face on the day”.
3.4 Mr. Carr stated that he was invited to discuss the Holy Communion dress code at the parents’ association meetings but claimed that was not an option. He claimed that the parents’ association, ‘Cáirde’, “is made up of hand picked friends of the school” and were afraid to challenge the school on any of its policies as they would be seen as troublemakers. He maintained that there were other parents who were unhappy with the dress code policy, who also decided not to follow it and that should have been enough to show the respondent that not everyone was happy with it. Mr. Carr claims that he was unhappy with the School Principal’s attitude to remain so stubborn with a policy, which was clearly causing upset. He said that the school was discriminatory in its treatment of boys allowing girls pick the clothing of their choice where they could get “dressed up” for the day, whereas, boys had to wear the same old “drab” school uniform and did not get the same opportunity.
3.5 In his original notification documentation sent to the respondent on the 18 October 2005, Mr. Carr claims that the alleged discrimination was based on the gender grounds however, in the body of the notification he states that the respondent’s discussion of the Holy Communion dress code policy with the children in the school could be considered as victimisation. Mr. Carr continues this argument throughout the course of both the written and oral evidence, where he states at one point that his son was “afraid that the teacher would give out to him [for not wearing his uniform]”. However, he did qualify that statement by saying “I am not suggesting that his teacher said anything to him, only that the policy made him feel afraid and worried.” Also, when asked by me at the hearing, he states that nothing was ever said to his son about his choice of clothing, nor did the school impose any sanction or create any problems for him at the time.
4. Summary of the Respondent’s Case
4.1 The respondent totally rejects the allegation that it discriminated against the complainant on the grounds of his gender. Ms. A has been School Principal of Gaelscoil Mhainistir na Corann since 2003. She informed me that the school was established in 1999 with a small number of children and by the 2004/2005 school year, it had a student population of 200 pupils (circa) with 8 teachers. The school is managed by a board of management of eight people, and it is at this forum where all school polices are ratified, and likewise any changes to school policies are discussed and decided upon. The school also has a voluntary parents’ association, called “Cáirde”, which is primarily a parents’ representative association to help fund raise and to discuss issues in relation to the children and the school.
4.2 Ms. A stated that at first, when school numbers were small, it joined up with two other schools in the locality for Holy Communion mass, where it adopted the traditional practice of these schools including their tradition on dress code - where the girls wore white communion dresses and the boys wore their school uniforms. In 2003 the school was given permission to hold its own Holy Communion mass in Irish and it continued with the dress code tradition of former years as there was no specific issue raised by the parents to change it. It maintains that its main focus is on the preparation of the children for the Holy Communion sacrament rather than the dress code, however it highlighted that the catholic traditional dress for Holy Communion was that girls wore white communion dresses with a veil whereas there was no specific traditional catholic dress code for boys.
4.3 Ms. A refutes Mr. Carr’s evidence that he spoke with her about the Holy Communion dress code in September 2004. She claims that the first time this issue was raised with her was by Mr. Carr in April 2005, a few weeks before the Holy Communion on the 21st May 2005. The respondent said that preparation for the event was well in place at that time and that it felt it was too late, at that stage, to change the policy for the Holy Communion class of 2005. However, Ms. A agreed to raise the matter at the next Board of Management meeting, however, in the meantime she advised Mr. Carr that if he felt strongly on the matter to take it up with the parents’ association. She claimed that he did not attend any of these parents meetings. Ms. A also stated in her evidence that she had no recollection of ever discussing the Holy Communion dress code issue with Mr. Carr some years earlier and that she found no written evidence on records to support his claim. She also said that she checked with her predecessor who, she claims, stated to her that he had no recollection of Mr. Carr ever raising an issue of such a nature with him while he was School Principal.
4.4 The respondent states that the school is run in a very democratic manner and that open communication between the parents and the school is an integral part of the school ethos. The parents of the children are invited to partake in the decision making process. Cáirde, the parents’ association, holds its AGM every October and all parents are invited to attend; all in attendance elect the members to the association for the following year. Cáirde subsequently meets every second Monday of the month where all parents are invited to attend and where they discuss issues that are of interest to the parents and students of the school. Any items such as school policy that would be raised as an issue at Cáirde would feed into the agenda of the Board of Management meetings, who have ultimate responsibility to change school policy. The respondent claims that if any issue raised at Cáirde was supported by the parents, such as a change of policy, the Board of Management would carefully listen to the proposal. The School Principal claimed that the Holy Communion dress code issue was raised at a Board of Management meeting following her discussion with Mr. Carr in April 2005, and it was decided to leave the policy as it was as it seemed to have the general support of parents. However, it was decided that each year the parents of the children who will make their Holy Communion in the school year are invited to discuss the dress code policy and copies of letters that were sent to the parents were presented to me as evidence. The School Principal claimed that Mr. Carr was asked to bring his concerns to the parents for consideration and that he had an opportunity to do so at “four different meetings” but Mr. Carr did not avail of any of these opportunities.
4.5 The respondent maintains that the policy is communicated to all parents of children who are making their Holy Communion, and on 2 or 3 occasions, such as this case, the parents decided not to adhere to the policy and dressed their children as they choose. The respondent said it has no issue with this and nothing is ever said to the children or their parents. Ms. B, class teacher for 2nd Class with primary responsibility for preparing the children for the Holy Communion, was presented at the hearing to give evidence. She claims that the dress code never formed part of any of the children’s preparation for the Holy Communion. She also said that the School Principal never came into her class to discuss the issue of the dress code with the Holy Communion class.
4.6 The respondent maintains that there can be no claim of victimisation made against it, as the complainant was not excluded nor refused the opportunity to partake in the Holy Communion because he wore clothing other than the school uniform. Also, it states that nothing was ever said to the complainant about his choice of clothing, nor did the school impose any sanction or create any problems for him at the time. The respondent claimed that the complainant was always included in all of the school activities and that he was never singled out, sanctioned or victimised because of his choice not to wear the school uniform on the day of the Holy Communion.
4.7 The respondent stated that both the School Principal and the Board of Management of the school were named as joint respondents in this case. It asked that the case against Ms. A, the School Principal, be struck out under section 22 of the Equal Status Acts, as she was carrying out her functions as School Principal under section 23 of the Education Act 1998 on behalf of the school and cannot be personally liable for any claim.
5. Conclusions of the Equality Officer
5.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision, I have taken into account all of the evidence, written and oral, made to me by the parties to the case.
5.2 Therefore, the question that I must decide upon is whether the respondent discriminated against the complainant on the gender ground within the meaning of section 3(1)(a) and 3(2)(a) of the Equal Status Acts 2000 - 2008. I must also consider whether the respondent discriminated against the complainant on the victimisation ground within the meaning of section 3(1)(a) and 3(2)(j).
5.3 Firstly, I feel it is necessary to decide on the question raised by the respondent with regard to who is the correct respondent. The legal representative for the respondent has asked that the case against Ms. A be struck out under section 22 of the Equal Status Acts as she was simply carrying out her functions under section 23 of the Education Acts 1998. In considering this question I deem it necessary to take cognisance of the provisions of section 42(1) of the Equal Status Acts which provides:
“Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval”
I am satisfied that Ms. A was acting in her capacity as School Principal and therefore has no case to answer in her personal capacity. I am satisfied that the correct respondent in these proceedings is the Board of Management of the school, which is the service provider with responsibility for the school and its policies.
5.4 In the present complaint, in relation to the dress code policy, the onus is on the complainant to elicit facts which raise a presumption that unlawful discrimination on the basis of gender was carried out by the respondent against him. In the circumstances of the present complaint, it is not enough for the complainant to establish that the policy treats boys and girls differently, if he cannot show that he was treated less favourably because of his gender. With this in mind, I will consider the circumstances around the adoption, enforcement and of the policy itself and accordingly, decide if the complainant was treated less favourably because of his gender.
5.5 I am satisfied that from 2003, the school had the opportunity to organise its own Holy Communion event and it continued with the dress code policy that was adopted by the other schools in the area. I note that Mr. Carr claims he raised this issue informally with the respondent two years previously, however, the respondent claims that they have no recollection or evidence of such advances. Notwithstanding this difference of opinion between the parties I am satisfied that it was not an issue that was high on the agenda of the school as it was not, at least, registered formally with the school. No evidence was provided that the policy was causing distinct difficulties for the parents of the children in the school, at least, until this complaint was referred in 2005.
5.6 I am satisfied that the respondent operates a very open, democratic and consultative approach in running the school, where it would appear to give opportunities to parents of the school children to offer their opinions in relation to issues pertaining to the school. The parents’ association, which is democratically elected by parents each year, meets regularly to discuss issues in relation to the school and all parents are invited to contribute. It would appear that this is an open, transparent and inclusive way to ensure that parents are given a chance to raise concerns that they may have with the school and its policies. Also, I note that specific meetings are organised to discuss issues in relation to the Holy Communion, which I assume would be an appropriate forum to decide on all aspects of that event including dress code. It is clear from the evidence presented that Mr. Carr chose not to attend any of these meetings to raise his concerns. I am satisfied that in failing to do so he forfeited the opportunity to raise these concerns at the appropriate forum. That said, I do note that the School Principal claims that following a discussion with Mr. Carr a few weeks before the Holy Communion she raised the dress code with the Board of Management, who having not received any popular support for its change, decided to leave it as it was. I also note that they decided that they would be proactive for future years and write out to parents of children for Holy Communion inviting comments on the matter. I am satisfied that this reinforces the open, transparent and inclusive way the school carries out its business.
5.7 In relation to the disputed evidence regarding the first date the dress code for the Holy Communion was discussed between Mr. Carr and Ms. A, which I believe is significant in determining whether the issue having been raised was raised early enough in the school year to allow parents time to discuss and decide on it. Having considered the evidence adduced from both parties at the hearing and having examined the written evidence presented, I find that on the balance of probabilities the evidence of the respondent is more compelling, mainly, that had the discussion occurred early into the school year in September 2004, as claimed by Mr. Carr (see paragraph 3.4 above), why did he state in his letter to the school dated 10 April 2005, that, “I appreciate that this is not giving enough notice to parents, however, as I have only just learned of this rule being enforced again notwithstanding the fact that you had been advised two years previously that you were in breach of the said Act.” (Emphasis added)
Therefore, I am satisfied that it is more likely that the discussion on the dress code was held some six weeks before the Holy Communion and well after the dedicated meeting for parents of children making their Holy Communion (19 January 2005) and that arrangements were well in place at that time, as claimed by Ms. A.
5.8 I am satisfied from the foregoing paragraphs that the dress code policy was adopted from the catholic tradition carried on by other schools in the area, which was generally agreed on by the parents and that there was a facility to enable the parents to question it, if they so wished. I also note that the school has since invited parents to consider the policy at the start of the school year, which highlights its openness to engage with the parents. Notwithstanding the foregoing, I have to consider if the policy is in itself discriminatory whereby it treats boys less favourable on the basis of their gender. I note again that the policy is for boys to wear their school uniform and girls to wear white communion dresses. I note that Mr. Carr’s argument is that girls can wear what they want and get dressed up for the day whereas boys are left to wear their uniforms and that this is less favourable treatment. In considering this issue, I have taken cognisance of a Labour Court ruling in O’Byrne v Dunnes Stores (Labour Court EED 0314) with regard to the right of the individual to determine their own appearance, which has relevance for cases of this nature. In that case, the Labour Court stated,
“Dress codes by their nature apply different rules to men and women and it would be absurd to suggest that they should do otherwise. Anti-discrimination law does not require that men and women be treated the same in every circumstance. What it requires is that they be treated equally.” (Emphasis added)
5.9 Applying the criteria set out above, I am satisfied that the conventional traditional dress for girls making their Holy Communion is a white communion dress whereas, there in no specific traditional dress code for boys. The respondent wants to follow tradition and its policy reflects that tradition accordingly. That said, I note that it applied a rule to both girls and boys. The rule for girls is that they wear a white dress and the rule for boys is that they should wear their uniform. I accept that the dress code is different, however, I note from the Labour Court’s decision mentioned above in paragraph 5.8, that this is not detrimental as along as they are treated equally. I am satisfied that the respondent has set a policy for both the boys and the girls. The policy requires both the boys and the girls to wear specific clothing and I am satisfied that this is in line with the Labour Court’s decision, as it imposes a rule on both the boys and the girls, therefore, fulfilling the requirement of equal treatment as underlined above in paragraph 5.8.
5.10 Finally, I do note that both boys and girls have deviated from the dress code policy in the past, as did the complainant in this case, and I note that the respondent has not prevented those children from making their Holy Communion. Accordingly, I am satisfied that the dress code is nothing more than a guideline for the children who are making their Holy Communion, and that there are no adverse consequences for the children who fail to observe it. Under section 3(1) of the Acts, 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 discriminatory grounds. I have not been presented with any evidence in the present case from which I could conclude that the complainant has been subjected to a policy of less favourable treatment by the respondent on the gender ground.
6 Victimisation Claim
6.1 Mr. Carr wrote to the school on the 10th April 2005 informing the respondent that his son would be wearing the clothing of his choice, this was only a few weeks prior to the Holy Communion date. Mr. Carr claims that the policy was discussed in the school by the teachers, whereas the evidence from both Ms. B and the School Principal state that it was not. The evidence shows that the respondent never made any comments to Mr. Carr’s son directly about this decision, nor was Mr. Carr or his son advised that they could not wear his suit as it was contrary to school policy. In fact the evidence shows that the School Principal met with Mr. Carr and informed him that the decision of what to wear was up to him (see paragraph 3.3 above). It is not disputed that the complainant made his Holy Communion with the rest of his class and there were no sanctions against him leading up the event, on the day of the Holy Communion or afterwards, that could be seen as an inference of discrimination for his failure to follow policy. Mr. Carr suggests that the look on the principal’s face was one of disgust; I cannot conclude that the principal’s facial expression could be seen as an act of victimisation aimed at the complainant. Having considered the evidence in its entirety, I am satisfied that no evidence was presented to support that the complainant was subjected to victimisation by the respondent within the meaning of section 3(2)(j) of the Equal Status Acts, on the contrary, I am satisfied that the respondent behaved admirably. Accordingly, I find that the complainant has failed to establish a prima facia case of victimisation.
7.1 On the basis of the foregoing, I find that a prima facie case of discrimination has not been established by the complainant on the gender and victimisation grounds in terms of sections 3(1), 3(2)(a) and 3(2)(j), of the Equal Status Act, 2000 to 2004 and, accordingly, I find in favour of the respondent in the matter.
9th April, 2009