Equal Status Acts 2000 - 2008
Equality Officer Decision
Ms A (on behalf of her son Mr B)
(represented by John F. Mitchell & Co., Solicitors)
A Community School
(represented by Arthur O’Hagan, Solicitors)
Date of Issue 30 January 2009
File ref ES/2005/025 & ES/2005/077
Equal Status Acts 2000 - 2008
Ms A (on behalf of her son Mr B)
(represented by John F. Mitchell & Co., Solicitors)
A Community School
(represented by Arthur O’Hagan, Solicitors)
Equal Status Acts 2000 - 2008 - Direct discrimination, section 3(1)(a) - Gender ground, section 3(2)(a) - Victimisation, section 3(2)(j) - Supply of goods and services, section 5(1) - Suspension from school of a Leaving Certificate student over the length of his hair
1 Delegation under the Equal Status Acts 2000 - 2008
1.1 Two complaints against a Community School, were lodged by Ms A on behalf of her son Mr B (the complainant) in early 2005. The first complaint, alleging discrimination on the gender ground, was referred to the Director of the Equality Tribunal under the Equal Status Acts on 16 February 2005. The second, alleging victimisation, was referred on 28 April 2005.
1.2 In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Acts, the Director delegated both 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 Acts 2000 - 2008. My investigation commenced on 22 May 2008, a full Hearing of the two complaints was held on 3 September 2008 and correspondence with the parties continued until 11 December 2008.
2 Summary of Complaint
2.1 This dispute concerns a complaint by Mr B alleging that a Community School discriminated against him in suspending him for refusing to cut his hair. The complainant also alleges that a Community School victimised him after he had lodged his original complaint by refusing to reinstate him in accordance with the Department of Education and Science’s ruling in the matter.
3 Evidence Provided by the Parties in their Submissions and at Hearing
3.1 Mr C acted as Principal of a Community School from the time it was established in 1990 until 2008. The school caters for 455 to 480 students annually divided equally between boys and girls.
No students were expelled from the school in that time although some students were cautioned and parents alerted where breaches of dress code had occurred. These included breaches of the school’s code relating to uniforms, wearing of jewellery, facial piercings, hair dye and hair length in the case of male students. In all other such cases students have complied with the school’s requests for adherence to the school’s dress code
The school’s dress code is outlined in the Code of Behaviour contained in the annual Parents Handbook. This code is agreed through partnership of teachers, parents and students. The 2004 edition included the following reference under Neat Dress and Presentation at the top of Page 31 of the Handbook:
“All students are expected to be neat and tidy and be aware of the importance of personal hygiene. In no circumstances can the school allow students to follow the latest trends in dress, hair fashion/colouring and presentation”
3.2 Mr B enrolled in a Community School in 2000 and sat his Junior Cert in 2003 passing in all subjects
At the end of 5th year in 2004, Mr B decided to let his hair grow and recalls the Deputy Principal, Ms D, remarking on the length of his hair before the school holidays.
On his return to school on 1 September 2004, Mr B said that Ms D met him in the corridor and told him that “it was time to cut your hair” and that he was not to return to school until he had done so. He did not believe that other pupils with long hair had received the same instruction.
When he did not get his hair cut, he says that he was called to Ms D’s office a few days later and she referred to his “girls hair style”, said he was “nothing but a trend-setter and asked him if he “wanted to be a girl?”
He said that he was then referred to the Principal, Mr C, who told him to cut his hair by the end of the week or go to another school. At that point he told his mother Ms A what had happened and she wrote to Mr C asking that nothing further be said to Mr B as he was in his exam year, that she had given him permission to grow his hair and asking that he deal directly with her in the matter from then on. Mr C responded by letter to Ms A saying that he was concerned about the tone and content of her letter and that he was referring the matter to the Board of Management.
3.3 At the Hearing, Ms A stated that she fully supported her son’s view that he should be allowed to grow his hair once it was kept neat and tidy and she referred to the fact that, for many years, teenage students, both male and female, have endeavoured to follow conventional trends in hair styles and clothes in an effort to establish their own identity. She also said that she could not accept Mr C’s comparison between girls and boys in relation to jewellery and hair styles as jewellery could be worn after school whereas hair length could not be changed.
Ms A said that she had written to the Chairman of the Board of Management, Mr E, pointing out that there was no specific rule in the Parents Handbook requiring boys to wear their hair short and that the school rules only called for neat and tidy presentation. She said that Mr B had his parents’ permission to grow his hair.
On 24 September 2004, Mr B said that he was asked by the Music teacher to play drums in the school band but that he was subsequently refused permission to play by Mr C unless he cut his hair first. On Monday 11 October, the complainant states that Mr C approached him in school and gave him an ultimatum to either cut his hair or “face the full force of the disciplinary system”
On 21 October 2004, Mr C wrote to Ms A explaining that “school as a partnership can only work successfully when the balance of rights between the individuals and the greater number acquiesce in a balance that embraces the common good” and asking Ms A to reconsider the situation. Mr C went on to say that unless Mr B complied with the school’s “reasonable request” with regard to his hair length and presentation, that he would be suspended from 8 November. In his letter Mr C also advised Ms C that she had a right to appeal his decision to the Board of Management.
3.4 Ms A appealed Mr C’s the decision on 29 October and received a response informing her that any suspension was being put on hold pending the outcome of the appeal.
The Appeal Hearing was heard before the Board of Management on 16 November 2004. The minutes of the meeting describe how Mr C was invited first to outline the issue at the heart of the appeal which he said was the refusal of Ms A to allow Mr B to cut his hair and so conform with the schools regulations as outlined in the Parents Handbook. Mr C then withdrew and Mr and Mrs A’s’ were called before the Board at which point Ms A suggested that to suspend their son for his hair length was questionable and that she had obtained advice on current legislation in this regard from various bodies.
After the A’s’ had withdrawn from the meeting, the minutes show that the Board unanimously decided to uphold Mr C’s decision to instruct Mr B to cut his hair and, if not complied with, to impose a suspension. The minutes concluded by reporting that the suspension would not commence until 29 November 2004 to facilitate further efforts at reaching a solution.
On 29 November 2004, Mr and Mrs A’s received a letter from Mr C informing them that Mr B was being suspended with effect from 3 December 2004 for failing to cut his hair and present himself in accordance with the school rules as set out at the top of Page 31 of the Parents Handbook. In the letter they were informed that they could appeal the decision to the Department of Education and Science.
3.5 Mr B was suspended from 3 December 2004. Prior to his suspension he sought, and was given, guidance from teachers on how he should focus his studies for the immediate future.
On 13 December 2004, Ms A submitted an appeal under Section 29 of the Education Act, 1998 to the Department of Education and Science asking for an early appeal hearing as she was concerned about Mr B’s project work for the Leaving Certificate which remained incomplete and was due for submission in the New Year.
In January 2005, the Department of Education and Science appointed a facilitator to try and resolve the issue between the Principal and the A’s. While the facilitator suggested that the school re-admit Mr B on condition that he cut his hair to collar length, the facilitator was unable to resolve the matter between the parties as the A’s maintained that it was gender discrimination to force Mr B to cut his hair.
The Appeal Hearing before the Department’s Appeals Committee was held on 26 January 2005 with the Committee deciding to uphold the appeal of Ms A against the decision of a Community School to suspend Mr B. The Committee ruled that Mr B be re-admitted on condition that “Mr B’s hair is groomed to collar length.”
The decision of the Appeals Committee was communicated to all parties by letter dated 27 January 2005 from the Secretary General of the Department of Education and Science.
3.6 Ms A states that, on the day she received the letter, she brought Mr B to a local barber and asked him to cut Mr B’s hair in accordance with the ruling. The barber then cut Mr B’s hair to collar length.
On 10 February 2005, Mr E wrote to Mr and Mrs A’s stating that he was referring the Departments decision to a special meeting of the Board of Management on 14 February 2005.
On 15 February 2005, Mr E again wrote to the A’s informing them that the Board had decided to accept the Appeals Committee’s report and that Mr B should return to the school on 23 February 2005. The letter went on to say that, in order to avoid any confusion, dispute or conflict, the Board had hired the service of a barber for 23 February to make an independent professional adjudication on “grooming to collar length”, as it applies to Mr B’s hair.
Also on 15 February 2005, the Chairman wrote to the Department informing them that the Board had decided to accept its report adding, however, that the members of the Board had “expressed their confusion and disappointment, at the logic of the decision and the omission of vital factors in this issue”.
3.7 On 23 February 2005, Mr B returned to school in his school uniform expecting to be readmitted directly to his class having had his hair cut to collar length. On arrival, he and his mother were brought to meet the Principal and Deputy Principal where Ms A complained about the hiring of a barber as this had not been a requirement in the Department’s report.
Ms A and Mr B were then brought from the meeting to the barber by Ms F, the Home School Liaison Officer. When the barber had checked Mr B’s hair, Mr B and Ms A were asked to leave the room. The respondents report that the barber conveyed his findings to Ms F who wrote them down and he signed them. She then brought the findings back to the main meeting and read out the findings of the barber. Mr B was not permitted to attend the meeting. According to the minutes of that meeting on 23 February, the following were the findings of the barber, as read out by Ms F:
“The hair is slightly below collar length therefore it is his opinion that Mr B has not complied with the section 29 condition. In order to comply Mr B would need to take an inch off the hair at the back and that should keep parties happy”
Ms A again complained about the process involving the barber and asked that Mr B be admitted to the room. Following a discussion with Mr B, Ms A announced that they were not prepared to comply with the barber’s recommendation.
Mr B did not return to a Community School but instead enrolled in the G School where he had no problem over the length of his hair.
Because of his suspension, Mr B was not able to sit his mock exams. He sat his Leaving Certificate in G and passed the subjects he sat. However, he lost marks in Art and Construction Studies because of his incomplete project work.
At the conclusion of the Hearing the respondents were asked to submit copies of the minutes of all Board of Management meetings and other relevant meetings between June 2004 and June 2005. These were subsequently submitted and passed to the complainants for consideration.
4 Respondents’ Legal Arguments
4.1 In this case, the respondents argue that decisions taken by a Community School cannot be deemed to be discriminatory as the authority of a school to decide on its own policies and methods of management is clearly set out in the Education Act 1998 and a school is entitled to decide on its own policies in accordance with that Act.
They claim that a Community School is managed by its Board of Management, which, pursuant to the provisions of Section 14 of the Education Act 1998, has been appointed by the Patrons of the school. Pursuant to the said Section, the Board of Management is obliged to fulfil, in respect of the school, the functions assigned to the school by the Act. The functions in question are set out in Section 9 of the Act as follows:-
“A recognised school shall provide education to students which is appropriate to their abilities and needs and, without prejudice to the generality of the foregoing; it shall use its available resources to-
promote the moral, spiritual, social and personal development of students and provide health education for them, in consultation with their parents, having regard to the characteristic spirit of the school,
promote equality of opportunity for both male and female students and staff of the school,
Accordingly the respondents state that they are relying on Section 14 of the Equal Status Acts 2000 – 2008 which states that
“14.— Nothing in this Act shall be construed as prohibiting—
(a) the taking of any action that is required by or under—
(i) any enactment or order of a court,”
The respondents therefore argue that a Community School, in applying the rules and regulations devised by the Board of Management, were acting in accordance with their obligations under the Education Act, 1998. They also claim that, in implementing the Appeals Committee’s decision, that they were acting in accordance with their obligations under Sections 28 and 29 of the Education Act, 1998 with regard to appeals brought by parents against decisions of Boards of Management.
4.2 In defending their decision to ask the complainant to have his hair cut, the respondents maintain that the school was adhering to its rules and regulations relating to grooming and hair length and that these rules had been accepted by the student’s parents on his enrolment.
The respondents also refer to a number of UK precedent cases which they maintain support their position that discrimination was not a factor. These include a number of EAT cases from the UK where it was accepted that different rules with regard to uniform (Schmidt v Austick’ Bookshop  IRLR 360 and Burrett  IRLR 7) and hair length (Smith v Safeway PLC  IRLR456) can apply to men and women in workplace situations.
With regard to school dress codes, the respondents rely specifically on the ruling of the Northern Ireland High Court in the case of a Judicial Review Application from theBoard of Governors of Ballyclare High School (REF WEAL4827T Delivered 18/1/2008) where the school sought a declaration that the adoption and application of the school’s uniform policy and its disciplinary policy were lawful and in particular that the policies were not discriminatory under the Sex Discrimination (Northern Ireland) Order.
In his judgement, Judge Weatherupfound that, overall, the requirements of the code taken as a package were not more onerous on males than females and that the code was not unlawful under the Sex Discrimination (NI) Order 1976. However, he did not deliver the formal declaration sought - that the adoption and application of the school’s uniform policy and the disciplinary policy was lawful and not discriminatory under the Sex Discrimination (Northern Ireland) Order 1976.
5 Conclusions of the Equality Officer
5.1 Section 38A (1) of the Equal Status Acts 2000 to 2008 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that he/she suffered discriminatory treatment. 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 this particular case, the complainant claims that he was discriminated against on the Gender ground. He claims that he, a male student, was treated less favourably than female students in that he was instructed to get his hair cut while female students were not.
5.2 In considering the respondents claim that they are entitled to rely on Section 14 of the Equal Status Acts 2000 – 2008, which states that nothing in the Act shall be construed as prohibiting the taking of any action that is required by or under any enactment, I find that I cannot accept this argument as it is patently clear that the development of the school’s Code of Behaviour was not specifically required by any enactment.
Similarly, I cannot accept that the Appeals Committee’s decision was implemented in accordance with any enactment. It is clear that the manner in which the Appeals Committee’s decision was implemented (through the recruitment of a barber) was by decision of the Board of Management and not on the direction of the Appeals Committee. Accordingly, I cannot accept that the Board, in the manner they implemented the Appeals Committee’s decision, were acting in accordance with their obligations under the Education Act, 1998.
For this reason, I cannot accept the argument that the suspension of Mr B by a Community School constituted a measure or activity required under an enactment.
5.3 In considering the Ballyclare and other precedent cases in UK law relied upon by the respondents, I note that all delivered different opposing outcomes to similar cases heard under Irish law (apart from the issue in the Ballyclare case which, to my knowledge, has not as yet come before the courts in Ireland)
In the Ballyclare case, the Judge drew a specific comparison between boys not being allowed to wear long hair and girls not being allowed to wear school trousers. This would not, however, appear to be an appropriate comparison as girls are free to wear trousers as soon as they leave the confines of the school each day while boys cannot change the length of their hair at the end of the school day.
This view echoes the ruling in Pantry Franchise Ireland Ltd v A Worker (Labour Court EED 9310) which found that a male employee had been discriminated against by being asked to get his hair cut. In that case, the Labour Court recognised the right of the individual to determine their own appearance and highlighted the impact that such a rule had on the employee outside of work
5.4 O’Byrne v Dunnes Stores also involved this same principle (the right of the individual to determine their own appearance) where an employee’s goatee beard was the issue. In that case, the Labour Court stated that
“In considering whether a dress code operates unfavourably with regard to one or other of the sexes, the conventional standard of appearance is the appropriate criterion to be applied. Other factors to be considered are the relative degree of comfort or discomfort which one or other of the sexes may experience in complying with the code and the relative degree to which it impinges on the right of men and women to determine their own appearance, particularly where it extends outside the workplace (where it relates to such matters as hair length or in this case a beard). A clear distinction must also be drawn between rules which relate to appearance and those imposed by the requirements of hygiene and safety.
Taking the dress code as a whole, the Court is satisfied that it operated in the case of the complainant in a way which restricted his freedom to determine his own appearance to a significantly greater degree than it does in the case of women. This constituted unfavourable treatment on grounds of gender.”
5.5 The following is a further extract from the Labour Court ruling in O’Byrne v Dunnes Stores (Labour Court EED 0314):
“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.”
In considering this statement and its relevance to the case before me, I consider that there is clear evidence to demonstrate that A Community School does not treat boys and girls equally. In the case of a female student, as soon as she leaves the school grounds, she is free to transform her appearance and wear her hair in whichever modern conventional style she chooses. This is not the case for a male student whose freedom to determine his own appearance has been seriously restricted by the requirements imposed on him by the school regarding the length of his hair. Consequently, the hair-length requirement imposed on a male student has a much greater impact on him after school than the requirements placed on female students.
5.6 Having considered both sides of the argument at length, on balance I find the Labour Court rulings more persuasive as I consider that the school’s code of behaviour unfairly impinges on the right of males to determine their own appearance by placing a disproportionate burden on male students with regard to hair length. As long as male students agree to be bound by the same rules and conditions that apply to female students with regard to hair appearance, grooming and cleanliness, they should not be treated any differently, in my opinion.
Accordingly, I find that the male student in this case did suffer less favourable treatment compared to female students in the school and that the school’s actions constituted discrimination on the gender ground contrary to the provisions of the Equal Status Acts.
6 Victimisation Claim
6.1 The complainants also lodged a complaint of victimisation against the Board of Management of A Community School after the original complaint of discrimination had been lodged. The complainants maintain that the Board were unhappy over the matter being referred to the Department of Education and Science and with the Department’s decision in the matter. In addition, the complainants maintain that the school was unhappy about receiving notification that an equality complaint was being considered. The complainants believe that these developments led to the Board creating an additional obstacle for Mr B to overcome before re-admission (passing a barber’s inspection) rather than accepting the Department’s ruling in the matter. The complainants maintain that this action constituted victimisation against them contrary to the provisions of the Equal Status Acts.
In considering the above allegation, I note that the School did send a strongly-worded letter to the Department expressing “their confusion and disappointment” at the logic of the decision of the Appeals Committee to uphold the appeal of Ms A. This indicates that there was an unwillingness at the time on the part of the Board of Management to fully accept the Department’s decision and this might explain why an additional obstacle (a barber) was placed in Mr B’s way before agreeing to his readmission.
6.2 In considering whether the school’s actions constituted victimisation, I have revisited the evidence supplied in relation to the “barber” incident. On that day Mr B arrived at school expecting to be re-admitted having had his hair cut to collar length in accordance with the Department’s Appeals Committee’s ruling. However, instead of being readmitted, he was subjected to an inspection by an unknown barber who had been engaged by the school (and presumably paid by the school). Mr B was then refused admission by the school based on the barber’s findings which were reported in the minutes as follows:
“The hair is slightly below collar length therefore it is his opinion that Mr B has not complied with the section 29 condition. In order to comply Mr B would need to take an inch off the hair at the back and that should keep parties happy”.
6.3 As mentioned earlier, at the conclusion of the Hearing the respondents were asked to submit copies of the minutes of all Board of Management meetings and other relevant meetings between June 2004 and June 2005 and these were subsequently submitted to the Tribunal. Apart from the minutes sought, these documents also contained the original barber’s note prepared by Ms F and signed by the barber. Of interest here is the wording of the note itself which reads as follows:
“The hair is slightly below collar length. Therefore it is your opinion that he has not complied with the Section 29 condition. In order to comply Mr B would need to take an inch off the hair at the back and that that should keep all parties happy”.
On comparing the two pieces of text quoted above, I consider that it is significant that in his original signed note the barber clearly states that “it is your opinionthat he has not complied with the Section 29 condition” compared to “it is his opinion” in the version which appears in the minutes.
The fact that an inaccurate version of the barber’s conclusions was presented to the Board and then used to refuse re-admission to Mr B indicates to me that the complainants were not treated in accordance with fair and equitable procedures when they attended the school on 23 February 2005.
Having considered this point at length, I find that I am satisfied that the engagement of the barber, and the manner in which his opinion was misrepresented to the complainant’s disadvantage, constituted a clear act of victimisation against the complainant contrary to the provisions of the Equal Status Acts 2000 – 2008.
7.1 I find that a prima facie case of discrimination has been established by the complainant on the Gender ground in terms of sections 3(1) and 3(2)(a) of the Equal Status Acts 2000 - 2008 and that the respondents have failed to rebut the allegation. I also find that the complainant suffered victimisation contrary to section (3)(2)(j) of the Equal Status Acts 2000 – 2008.
In considering the amount of redress to award, I have taken into account the impact that the school’s actions had upon the complainant. This included being removed from the school band, being asked whether he “wanted to be a girl ?”, being expelled for three months, not being able to sit his mock exams, not being able to complete his Art project for the Leaving Certificate and having to move school so close to his Leaving Certificate exams.
In respect of the discrimination suffered, I order that the complainant be paid the sum of €500 for the serious upset, disruption and inconvenience caused to him during his final Leaving Certificate year.
In respect of the victimisation suffered in terms of section 3(2)(j)(v) of the Equal Status Acts 2000 – 2008, I order that the complainant be paid an additional sum of €3000 for the distress that was caused particularly in having to move school at such an important point in his educational development.
30 January 2009