THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2011
Parents (on behalf of their son)
(Represented by Anne Marie Giblin B.L. instructed by Hickey & Co. Solicitors)
A Secondary School
(Represented by Brian Foley B.L. instructed by Mason Hayes & Curran)
File References: ES/2011/0137
Date of Issue: 2 October 2014
Keywords: Conditions of participating in education – discrimination – member of traveller community
1.1. The case concerns a claim by Parents that A Secondary School discriminated against their son (hereinafter the complainant) on the grounds of membership of the traveller community contrary to Section 3(2)(i) of the Equal Status Acts 2000 to 2011.
1.2. The complaint was referred under the Equal Status Acts to the Director of the Equality Tribunal on 18 October 2011. On 27 February 2014, in accordance with his powers under S. 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the case to me, Hugh Lonsdale, Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Acts. On this date my investigation commenced. Submissions were received from both parties and, as required by Section 25(1) of the Equal Status Acts and as part of my investigation, I proceeded to hold a hearing of the case over two days on 11 June 2014 and 19 August 2014.
2. Complainant’s Submission
2.1. The complainant started at the Secondary School in September 2007 and in December 2010 was given a final notification of expulsion. The expulsion was appealed to the Department of Education and Skills on 4 May 2011 and overturned. The complainant submits that the respondent consistently deviated from its own code of practice when dealing with him.
2.2 The complainant submits that on 27 September 2007, less than four weeks after starting at the school, he was accused of bullying and he was suspended for 3½ days. The allegations were not fully investigated and the respondent kept no documentary record, including no record of his account of the allegations.
2.3 On 18 October 2007 the complainant was found with fireworks. He was suspended for one week, even though the school did not hear his side. The school said that he was ‘sent home on health and safety grounds’.
2.4 During the period 3 – 10 March 2008 the complainant’s parents said their son was being bullied but he was accused of bullying. Again the respondent did not hear the complainant’s side of events.
2.5 On 31 March 2009 the complainant was implicated in the theft of a bag in the school. His parents received a phone call from a detective. He mentioned no names or charges and said he was dealing with the matter informally. The parents said they wanted the matter dealt with formally. The complainant was suspended 2 days later. He submits that a few weeks later he was asked by a resource teacher if he had stolen a bag. He heard later that another pupil had been expelled over the incident. He received no apology for the way he was treated.
2.6 In September 2009 the complainant was told by fellow students that they have been told by the Principal not to associate with him. When asked about this the Principal denied this but agreed to stand back from dealing with the complainant directly.
2.7 On 2 March 2010 a false accusation of bullying was made against the complainant but he was not asked for his side of events. His father went to the school and was humiliated by the Principal when she corrected his grammar. The accusation was later proven to be false.
2.8 In May 2010 the complainant was told to go home as he had no bag. He said the bag had been stolen at the shops at lunchtime but he was not believed. He was suspended for three days immediately prior to his Junior Certificate exams. His mother wrote to the Board of Management and stated she believed the school was discriminating against the complainant. The reply from the Chairperson stated he believed the Principal and the suspension was upheld.
2.9 On 4 October 2010 there was an incident outside of school and the Principal wanted to suspend the complainant based on one-sided information. He was accused of throwing stones at a house and fighting, even though he was at a football match at the time. The fight was dealt with by the police and had nothing to do with the school.
2.10 On 13 October 2010 there was an incident which led to the complainant’s expulsion. He was accused of serious sexual harassment toward a female teacher. This was denied by the complainant. The CCTV footage used in the investigation was edited and altered. On 14 October 2010 his parents were sent notification of his suspension. On 27 October his parents were invited to a meeting of the Board of Management. This meeting was held on 15 November 2010. His parents expected the meeting to deal with the incident on 13 October but all previous incidents involving the complainant were listed. The Board of Management declined to release the full CCTV footage of the incident on 13 October 2010. His parents received notification of his permanent exclusion on 17 December 2010.
2.11 The parents appealed this decision to the Department of Education and Skills and a hearing took place on 4 May 2011. On 23 May the appeal board decided that the school breached its own practice and procedures and the complainant should be reinstated. However, by this point in time he had missed a whole year of schooling. The parents received a letter from the Principal on 27 June 2011. There was no follow up in relation to the direction that the complainant be reinstated. The parents wrote to the school asking to meet but got no reply. They were not happy with the lack of response and decided against their son returning to the school.
2.12 The complainant submits the appeal highlighted that the complainant was not treated fairly; the Board of Management had merely stood over the investigation of each incident. His treatment shows that the school is not good at including students from the Traveller community and took no action when discrimination was mentioned. It is further submitted that the sanctions imposed were in breach of the school’s own procedures and the complainant believes he was treated less favourably based on his membership of the traveller community.
2.13 The parents submit that the complainant has two older siblings who had attended the same school and they were also treated less favourably because of their membership of traveller community.
3. Respondent’s Submission
3.1 The respondent school has 700 students of whom 143 are non-nationals from 45 countries and they have 18 students from the traveller community.
3.2 The respondent submits that the complainant showed very challenging behaviour from the beginning. His disruptive behaviour escalated over his 3 years at the school. He was out of control and frequently refused to follow reasonable instructions. This resulted in frequent disciplinary measures which were not related to his membership of the traveller community. The school considers they did not have the support of his parents. At times his father refused to listen to members of staff and was, on occasions, very abusive to the Principal. They submit that they consistently applied their Code of Behaviour in relation to the complainant.
3.3 On 27 September 2007 there was a meeting of teachers which outlined and highlighted the high level of misconduct of the complainant. He had already received several warnings. It was decided to suspend the complainant. His parents were informed in writing but they made no contact with the school.
3.4 The respondent submits that fireworks are strictly prohibited at the school. Their policy is that any students caught in possession of fireworks are told to remain at home until the mid-term break. This is not considered to be a suspension but reflects health and safety concerns. The complainant was found in possession of fireworks and was treated the same as other students.
3.5 In March 2008 the complainant’s mother wrote to the school saying that the complainant was being bullied. Around the same time there had been several allegations of bullying made against the complainant. When they looked into the allegations the complainant accepted some bullying by him was going on. The respondent decided to move him to another class.
3.6 In March 2009 a teacher reported that her purse had been stolen during class and this was reported to the Gardai. It was never established who stole the purse. The complainant was suspended on 2 April but was because of his disruptive behaviour and not related to this incident.
3.7 The respondent submits that they do sometimes discourage groups of students from congregating together. This is related to behaviour and has nothing to do with the alleged discriminatory ground.
3.8 The Principal did ask the complainant’s father if he had been asked to stay away from the school, due to his aggression toward the Principal, but she did not correct his grammar. The Principal and the father had a very brief exchange.
3.9 On 10 May 2010 the complainant refused to take direction to go to class. He was asked why he did not have his school bag. He was suspended for 3 days. His parents raised no objections. Two meetings were arranged to discuss the situation but the parents did not come. During this period the complainant missed many classes and on many occasions he did not bring his bag and books and did no homework. He also exhibited very aggressive behaviour to teachers and other students.
3.10 On 4 October 2010 a parent complained to the school that their home had been attacked when a number of teenagers threw stones at it and the complainant had challenged her son to a fight. She had to call the Gardai twice and she named the complainant and a female student. The Principal met the complainant’s parents. They were very defensive. She asked for the son to stay at home for a few days whilst the situation cooled down, which is the same as she did with the female student. Her parents agreed to this request but the complainant’s parents did not.
3.11 On 13 October 2010 the respondent received a complaint that the complainant had sexually harassed and insulted a female teacher (Ms A). She was undertaking one-to-one tuition with the complainant and she had reported incidents regarding the complainant’s behaviour on 1, 4, 11, 12 and 13 October. On 13 October whilst walking down a corridor the complainant took out a fake penis from his pocket and refused Ms A’s requests to put it away. He was waving it about. Ms A felt harassed and was extremely upset. There was an investigation and this found there was clear evidence of sexual harassment by the complainant against Ms A. The complainant was given one week’s suspension. There was video evidence available, which was edited but all the relevant sections were intact. The respondent submits that the complainant was treated no differently than anyone else in the same situation would have been.
3.12 On 15 November there was a special meeting of the Board of Management to consider the incident. The parents attended and were given the opportunity to put their case. The Board of Management followed the same procedure as they would do for all cases before them. The Board of Management decided that the complainant should be permanently excluded. The parents made a Section 29 appeal, which was upheld. The appeal committee found that the school had failed to correctly apply the full procedures as outlined in their Suspensions and Expulsion Policy. The respondent submits that this does not mean there was discrimination in the way the incident was handled. The High Court subsequently overturned the decision of the Appeal Committee.
3.13 The respondent submits that the complainant had very serious behavioural problems and this led to a considerable number of complaints from teachers and to a number of suspensions. However, he was at all times treated the same as any other student would have been in the same circumstances.
4. Findings and Conclusions of the Equality Officer
4.1. The issue for decision in this case is whether the complainant was discriminated against by the respondent in relation to membership of the traveller community. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.2. The complainant started at the school in September 2007 and at the hearing his father gave evidence that his son started off fine. However, following 12 incidents in his first four weeks, he was suspended for 2 days on 27 September 2007. In accordance with their procedures the complainant and a parent (his mother) signed a re-admission form that they “understand that I am being re-admitted on the clear understanding that I will abide by the school code of conduct”. His mother wrote to the Chairperson of the Board of Management criticising the school for the suspension as they had not been made aware of their son’s behaviour and their son’s side had not been asked for before he was suspended. The Principal gave evidence that he was suspended because of allegations of bullying. When asked if they had considered any other causes of action her evidence was that because of the bullying allegations and all the other incident reports from teachers they had to step in and administer a big sanction which she considered was reasonable in the circumstances.
4.3. The respondent submitted the complainant’s student records which show that, in just over three years, teachers completed 66 Classroom Incident Sheets in relation to the bad behaviour of the complainant. Evidence was also given that the complainant was frequently unprepared for lessons because he did not have his books or equipment and had often not done his homework. Furthermore, particularly, in his third year in the school he was frequently absent from school for the whole day or part of it without a valid explanation. This evidence was uncontested by the complainant or his parents.
4.4. It is clear that the complainant was badly behaved from the start of his time with the respondent in September 2007 and this behaviour continued until he was expelled in October 2010. The respondent contends that the complainant was treated the same as any other student would have been in the same circumstances.
4.5. The complainant’s parents contend that he was treated differently; in that on most occasions their son’s side of the incidents was not asked for, as parents they were not made aware on the incidents and the respondent failed to put in place the appropriate supports for the complainant as a member of the traveller community.
4.6. The alleged discrimination falls under section 7 (2) of the Equal Status Acts which states:
“An educational establishment shall not discriminate in relation to—
(a) the admission or the terms or conditions of admission of a person as a student to the establishment,
(b) the access of a student to any course, facility or benefit provided by the establishment,
(c) any other term or condition of participation in the establishment by a student, or
(d) the expulsion of a student from the establishment or any other sanction against the student.”
and section 3 (1) which states:
For the purposes of this Act, 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) (in this Act referred to as the ‘‘discriminatory grounds’’)
4.7 In this claim the ground is membership of the Traveller community and the complainant must show that he was discriminated against by comparison with someone who is not a member of the Traveller community.
4.8 There may have been occasions when the school might have been better advised to have asked the complainant for his version of events and perhaps they could have involved the parents earlier in the process on occasions. However, there has been no evidence presented to me that any of their actions could be deemed to have occurred because the complainant was a member of the Traveller community. It is my conclusion that any other pupil who had behaved in the same way would have been treated in the same way. I therefore find nothing in the actions of the respondent that can be considered discriminatory.
5.1. Based on all of the foregoing, I find, pursuant to S. 25(4) of the Acts, that the Respondent did not discriminate against the complainant on the ground of membership of the Traveller Community contrary to Sections 3 and 4 of the Equal Status Acts 2000 to 2011.
2 October 2014