THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
A Primary School
(Represented by Siobhan Phelan BL, instructed by Mason Hayes + Curran, Solicitors)
File Ref: ES/2006/0032
Date of Issue: 10th June, 2009
Equal Status Acts, 2000-2008
Equality Officer Decision DEC-S2009-040
A Primary School
(Represented by Siobhan Phelan BL, instructed by Mason Hayes + Curran, Solicitors)
Equal Status Acts 2000-2008 - Direct discrimination, section 3(1)(a) - Gender ground, section 3(2)(a) – Marital status ground, section 3(2)(b) Disposal of goods and provisions of services, section 5(1) – separate parent/teacher meetings – school policy.
1. Delegation under the Equal Status Act 2000 to 2008
1.1 This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts. In accordance with her powers under section 75 of the Employment Equality Act 1998 to 2008 and under the Equal Status Acts, 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 Acts. The hearing of the case took place on 11th March 2009.
2.1 This dispute concerns a complaint made by Mr. A, that he was discriminated against by the respondent, a primary school, on the gender and marital status grounds in terms of section 3(1)(a), 3(2)(a) and 3(2)(b) of the Equal Status Acts, and contrary to sections 5(1) of the Equal Status Acts.
3. Summary of the Complainant’s Case
3.1 The complainant, Mr. A, is a separated father, whose son was a student at the respondent’s school in January 2006. The complainant’s daughter has since joined the school as of September 2006. The complainant claims that the respondent has adopted an unlawful policy with regard to the procedure it has put place for the arrangement of parent/teacher meetings for separated parents. He claims that this discriminates against him as a separated father. The complainant maintains that this policy excludes non-custodial parents from their position as joint legal guardians of their children. The complainant refers to a school document which it has produced in relation to how it deals with cases where the parents of children in the school are separated. It includes a provision to offer the option of separate parent/teacher meetings to separated parents, if they so desire.
3.2 The complainant claims that on the 26th January 2006 the school held a parent/teacher meeting with his son’s mother, Ms. B, and that this arrangement excluded him as a legal guardian of his child from that meeting. The complainant claims that the school’s actions discriminated against his rights as a legal guardian and contravenes his rights under the Guardianship of Infants Act 1964 where he claims that Section (6)(1) of that Act provides that the father and mother of an infant shall be guardians of the infant ‘jointly’. Mr. A claims that the school’s decision to allow for and hold two separate parent/teacher meetings goes against this provision of the 1964 Act.
3.3 The complainant maintains that the school should allocate a time for the parent/teacher meeting and invite both parents to attend, as it does in all other situations, and if one parent chooses not to attend then let that be their decision. He believes that the meeting should proceed and no alternative date should be offered to the parent who chooses not to attend. He claims that it is not in the interest of the children to provide for two separate meetings as there is a potential for conflicting reports/conclusions to derive from the discussions at two separate meetings.
3.4 The complainant also raised a number of other issues, subsequent to the referral of the initial complaint and also on the day of the Hearing. These relate to a number of the school’s other policies particularly in relation to its “Custody/Separation policy” document. He questioned the school on issues involving separated fathers including its policy on sending notes home; the releasing of children for collection from school to non-custodial parents; the requirement for enrolling children in the school and the infringement of his constitutional rights as joint guardian of his children.
4. Summary of the Respondent’s Case
4.1 The respondent, a primary school, totally refutes the allegation that it has discriminated against the complainant in relation to its policy for parent/teacher meetings. The school has drawn up a document entitled Custody/Separation policy where it sets out its approach in how it deals with situations in school life where the parents of a child in the school are separated. It claims that, in this, it attempts to facilitate the parents and children as much as possible and not to get involved in the private matter of the relationship of the parents.
4.2 The school agrees that it offered Mr. A and Ms. B different parent/teacher meeting appointments once it was made known to it that Ms. B would not agree to attend a meeting with Mr. A. It accepts that this treatment is different but they claim it is reasonable in the circumstances and it does not amount to less favourable treatment. The school claims that had its policy been the reverse, namely if it had not facilitated a separate meeting, the child could conceivably claim that he had been treated less favourably by not facilitating each of his parents with a meeting with his teacher. It claims that such an approach would constitute less favourable treatment and be detrimental to the child and the parents. It maintains that it has developed this policy to facilitate both parents to meet with the teachers for the benefit of the children.
4.3 During the course of the hearing discussions between the parties strayed into other areas of school life. The school’s Principal, Mr. C, outlined the various measures it has put in place to provide for the complainant in relation to a number of these issues. In relation to the parent/teacher meetings, Mr. C was adamant that the information discussed at these meetings was structured in such a way so it would be identical for both the mother and the father, thus ensuring fairness to both parents. The respondent said that it could not compel parents to meet one another if one of the parents objected to that, so it felt that the fairest approach was to offer to arrange separate meetings with each parent where the teacher would concentrate on the same information for both meetings. The school claims that it made every effort to ensure it put a structure in place to handle the information discussed at the meetings and to stick to that structure.
4.4 The school maintains that the present complaint is limited to the lawfulness of the school policy to afford separate meetings to parents who are separated and it submitted that all the other issues that have been added since the original complaint was referred to the Equality Tribunal should not form part of the complaint as these are matters in respect of which the Tribunal has no jurisdiction to adjudicate on.
5. Conclusions of the Equality Officer
5.1 In making my decision, in this case, I have taken into account all of the evidence, written and oral, made to me by the parties to the case. 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, 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.
5.2 The first question that I have to address is in relation to the jurisdiction of this Tribunal in relation to the investigation of the complaint that was referred to the Director of the Equality Tribunal. Section 21 of the Equal Status Acts sets out the procedure for a person who claims that prohibited conducts has been directed against. Section 21(2)(a) makes provision for the time limits to which a complainant is obliged to adhere to before a complaint can be deemed admissible and this subsection also includes that the complainant shall notify the respondent of the nature of the allegation (section 21(2)(a)(i)). Having considered that the original notification of the complaint sent to the respondent was limited to the parent/teacher meeting policy issue and having read the referral form lodging the complainant with the Director for investigation, I am satisfied that the jurisdiction of this Tribunal is limited to the parent/teacher meeting policy issue adopted by the respondent. All other references, complaints and issues raised by the complainant post referral of the complaint are outside of my jurisdiction for adjudication.
5.3 I also note that the complainant has stated that his constitutional rights were infringed and that as a non-custodial parent he is unable to jointly act as guardian of his son. The question with regard to the complainant’s constitutional rights is beyond the power of this Tribunal to determine. Therefore, I am satisfied that these issues are entirely outside of the scope of the present complaint under the Equal Status Acts. The question that I must address in relation to the Equal Status legislation is whether the treatment the complainant received as a separated father was less favourable treatment under the gender and marital status grounds.
5.4 The school has adopted a policy to allow for separated parents of children attending the school to meet with the teachers in order to discuss issues that are relevant to their children. The policy was developed as a solution to instances where one or both parents did not want to have a joint meeting with their spouse because their relationship has broken down. The policy provides for both of the parents to access the school services for the benefit of their children. The complainant’s view that his rights as a non-custodial father are somewhat impaired and he cannot act as guardian with his child’s mother jointly is not a question I have to consider under the legislation to which this complaint is taken. However, I cannot agree with his position – it is my view that the school allows both parents to discuss their child’s progress albeit at two meetings amounts to allowing for joint access to the school and joint guardianship.
5.5 The school’s policy in relation to parent/teacher meetings, and in many other areas of engagement with separated parents, is built on the reality of the situation where it recognises that the relationship of the parents should not invariably affect their children’s school life. The respondent has stated that it has no interest in getting involved in the relationship of the parents nor does it have any role in compelling the parents to meet together in such circumstances as parent/teacher meetings. Accordingly, it has attempted to develop a fair approach to reflect the reality of the situation. The school has a duty of care to report the children’s progress to their parents or guardians, and nothing was shown to me that this should constitute a joint meeting. I am satisfied that the respondent’s reasons for putting such policies in place were not discriminatory, nor were they drafted so that one parent may gain a benefit over the other; their sole purpose is to allow both of the parents access the school so that the overall benefits will gravitate to their child/children.
5.6 The action of holding two meetings thus facilitates the separated parents rather than treating one less favourably than the other. In fact it could be said that the complainant was treated more favourably to a married couple who may not be able to attend jointly and must be satisfied for only one of the parents attending. It is also obvious that both Mr. A and Ms. B are being treated the same – both are invited to attend a meeting with the teachers of their children and I am satisfied from the evidence presented by the respondent that it attempts to present the same structured report at both meetings to ensure equality and fairness.
5.7 I am satisfied that had the respondents policy been in the reverse, namely, that it would not agree to provide separate meetings for separated parents that this could allegedly be considered as discriminatory treatment under the Equal Status Acts. I am satisfied that the respondent’s current policy is reflective of its role and its duty of care for the children and I am satisfied that it is as fair to both the mother and the father and to separated parents as it is to married couples in that it allows everyone meet with the teachers in the school and discuss their children. Accordingly, I am satisfied that the complainant was not subjected to discriminatory treatment on the gender or the marital status grounds within the meaning of the Equal Status Acts.
6.1 In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision. I find that a prima facie case of discrimination has not been established by the complainant on the gender and marital status grounds in terms of sections 3(1), 3(2)(a) and 3(2)(b) of the Equal Status Acts and, accordingly, I find in favour of the respondent in the matter.
The Equality Tribunal
10th June, 2009