Equal Status Acts 2000-2012
(represented by Hugh J. Campbell & Co.)
File Reference: ES/2013/092
Date of Issue: 21st October 2014
(represented by Hugh J. Campbell & Co.)
Equal Status Act, 2000 - 2013, Direct discrimination, Section 3(1) - less favourable treatment - gender, marital status, family status, race and victimisation 3(2)(a)(b)(c) and (j), Section 5(1) – provision of a service,, prima facie case.
Delegation under Equal Status Acts, 2000-2008
The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Act 2000-2012 on the 19th August 2013. On the 6th September 2013, in accordance with his powers under section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the case to me, Marian Duffy, 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. On this date my investigation commenced. A submission was received from the complainant on the 8th of October 2013 and from the respondent on the 18th October 2013. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the 21st January 2014.
1.1 The dispute concerns a claim by the complainant. The complainant alleges that the respondent discriminated against him in terms of Sections 3(1)(a) and 3(2)(a), (b) (c), (e) and (j) of the Equal Status Acts and contrary to Section 5(1) of that Act. The respondent denies that the complainant was discriminated against on any of the grounds cited.
The complainant states that he was discriminated against on the gender, marital status (now civil status), family status, race and victimisation grounds in relation to the provision of a service by the respondent. The race complaint was withdrawn during the course of the hearing.
2.1 The complainant is the separated father. He said that his daughter was enrolled in the respondent school without his knowledge or consent by his estranged wife (Ms. A) and he initiated a complaint to the Equality Tribunal. However this matter was resolved at mediation and the case was withdrawn from the Tribunal. He said that he withdrew the case because he wanted to improve the relationship with the school. The complainant said that there was a Court Order in place in relation to access to his daughter and when she was moved to the respondent school he was unable to exercise his midweek access as he lived in Dublin, had work commitments and furthermore, if he did exercise his access right it would impact on his daughter attending school.
2.2 On the 23rd of May 2013, the complainant said that he received an email from the school informing him that the school sports were scheduled to take place on the 24th of May 2013. He submitted that he got very late notification of the event compared to other parent and this was a pattern of the school not to inform him in good time of school events. On the 24th of May, he said that he was travelling from Dublin to the Midlands to attend the sports day and he telephoned the school Principal to confirm the details of the time and location of the event. The Principal returned his call and informed him that she had received a telephone call from his estranged wife (Ms A) to say that his daughter would not be attending the sports day because he was planning to attend. The complainant said that the Principal was very rude to him and told him that she could not have him engaging in disruptive behavior in front of other parents. She then requested that he produce Court documents on his access and custody arrangements for his daughter and she threatened that she would call the Gardaí in relation to the matter. He said that it was impossible to reason with the Principal and he terminated the conversation. He said that he then sent a text to Ms. A and asked her to take the child to the sports because he was not attending in the circumstances. He said in evidence that he did not want his child to miss out on the sports day because she enjoyed sport and was looking forward to the event.
2.3 The complainant said that he learned that the child attended school on the sports day but when the Principal informed Ms. A that he was attending she removed the child from the school and this upset his daughter. The complainant said that he telephoned the Principal later that day and she admitted to him that she had informed Ms. A that he had planned to attend the child’s sports day. He said that she did not provide any reason for informing Ms. A. He said that because the Principal aligned herself with Ms. A which resulted in his daughter not attending the sports day. The complainant said that the Principal then spoke to him about access and custody of his daughter and she wanted Court documents about his custody arrangements He said that the Principal was rude to him it was impossible to sustain a conversation with her and he terminated the conversation. On the 2nd of June 2013 he received a letter from the Principal requesting a certified Court Order or a letter from his solicitor to clarify for the school his access and custody arrangements for his daughter.
2.4 The complainant submitted that the school seems to inform Ms. A when he is coming to the school for events such as parent teacher meetings and Ms. A then removes the child from the school. He said that he was never informed by the Principal when Ms A is attending the school. He said that a non-separated parent could attend the sports day without any difficulty. He said that a non-separated father would not have to produce access arrangement or any details of the time he or she can spend with his child to the school. He submits that he was discriminated against on the gender and civil status. He also submits that he was harassed when he spoke to the Principal in relation to the school sports event and she victimized him in relation to the case he had taken to the Equality Tribunal concerning his daughter’s enrollment in the school.
2.5 He said that as a father he is the guardian of his child in accordance with the Guardianship of Infants Act 1964. He also referred to the Supreme Court Judgment in the case of B. V B.  I.L.R., where Walsh J stated that the purpose of the 1964 Act was to give both parents equal rights in guardianship matters. He said that as a father he is the guardian of his child in accordance with the Guardianship of Infants Act 1964 and is entitled to attend the school sports day and that the respondent has no right to question his access to his daughter.
3 Respondent's Case
3.1 The respondent denies that the complainant was treated in a discriminatory manner in relation to his daughter. It was submitted that the complainant cannot rely on issues raised in the previous complaint, which was withdrawn by the complainant on the 7th of May 2013, following mediation between the parties, to ground this complaint. It was further submitted that the case should be confined to matters relating to the school sports events. The respondent stated that they were aware that the complainant Ms A was separated and that there were difficulties between them. For these reasons, the school agreed with the complainant that they would keep him informed about his daughter and put him on the school mailing list for letters and circulars issued from the school. He was also notified of parent teacher meetings and a separate parent teacher meeting was arranged for him.
3.2 The Principal said that the school sports day is an annual event and is weather dependant so there is no fixed date. The matter was discussed at a staff meeting on the 21st of May 2013 and it was decided, that the sports would take place on the 24th of May, provided the day was dry. The letters were sent out to the parents in the schoolbags on the 22nd of May. The complainant was notified by email on the morning of the 23rd of May. She said that the complainant telephoned her on the 23rd May and informed her that he would probably attend the sports day. She said that she was aware of the differences between the parents in relation to the complainant’s access to his daughter. Ms. A had withdrawn her daughter from the school on the occasions when she knew the complainant was attending the school. She said that she wanted to ensure that there would be no difficulty in front of the children and parents on the occasion of the school sports day and she telephoned Ms. A and informed her that the complainant was attending the sports day.
3.3 Ms. A delivered her daughter to school on the 24th of May for the school sports day. The Principal said that about 10 minutes later Ms. A came to her office and told her that she was withdrawing the child from school and both the mother and daughter were very upset. She said that she was not sure if the complainant was on his way and she telephoned him as a matter of courtesy to inform him that his daughter was not at school. She said that it was busy that morning in the school and she does not recollect the telephone call or the full details of the call. She said that she received a telephone call from the complainant later that evening asking her who told Ms A that he was attending the sports day and she said that she had. She told him that she had concerns about access issues and she requested him to furnish her with details of his access to his daughter.
3.4 The matter was subsequently discussed at a Board of Management meeting and it was decided by them that the Principal should write to both parents seeking a certified copy of a Court Order or a letter from a solicitor concerning any Family Agreement/Court Order under the relevant family legislation in order to clarify custody and access arrangements in place. She said that she wrote to the complainant on the 6th of June 2013 requesting this information and she got no reply. A notification under the Equal Status Act complaining about discrimination was served on her on the 18th of June 2013. A letter was received from Ms. A’s solicitor the Legal Aid Board dated the 11th June 2013 stating that there was no Court ordered access arrangements in place in relation to the complainant.
3.5 The Principal said that she was concerned about the welfare of the child and she wanted to know what access the complainant had in relation to the school. She said that Ms. A delivered her daughter and collected from school almost every day and she (the Principal) had a very good relationship with her. When the child first started attending the school Ms. A told her that she could not tell her about the Court Order in relation to access as the case was held in camera. The Principal said that she called the Legal Aid centre to enquire about access arrangements. Ms. A told her subsequently that the complainant had supervised access to his child and then she was informed that the complainant was refused access by the Circuit Family Court. She said that the reason she asked for the Court Order in relation to access arrangements is that she given conflicting information she was operating with her hands behind her back. The Principal accepted in evidence that if there was a Court Order preventing a parent having access to their child that the school would have been notified and there was no such Order in place in this case.
3.6 The school received an email from Ms. A’s solicitor on the 24th of May 2013 stating that Ms. A had sole custody in relation to the child and that the complainant had no Court ordered access arrangements in place. It was submitted that the respondent has a duty of care to the child and in exercising that duty the school is entitled to make reasonable enquiry as to any Court Orders or arrangements in place that impinge or impact on the welfare of the child. It was submitted that the school has a legal and moral obligation to make enquires and that matters before the Family Courts which impinge upon access to the child during school hours when the child is in the care and control of the school is a matter for the school. The fact that the complainant does not have Court ordered access to his daughter is a matter that the school must be aware of and have regard to. It is also denied that the respondent colluded with Ms. A against the complainant to prevent him attending the school’s sports day. It was Ms. A’s decision to take the child out of school when she was made aware that the complainant was attending the sports day and that decision had nothing whatsoever to do with the school.
4. Conclusion of Equality Officer
4.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against pursuant to Section 3(1)(a) and 3(2)(a)(b)(c) and (j) of the Equal Status Act and in terms of Section 5 (1) of that Act. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
4.2 The respondent’s solicitor submitted that the respondent is an educational establishment as defined under Section 7 of the Equal Status Act 2000 as amended and therefore the discriminatory treatment as alleged does not fall within the jurisdiction of the Act. It is the respondent’s case that it owes a duty of care to the complainant’s daughter who is a pupil in the school and therefore has a right to information in relation access arrangements as it impacts on the school. It is submitted that for these reasons the terms of the Act does not apply.
Section 5.—(1) provides: " A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public".
Section 7 provides
7.—(1) In this section ‘‘educational establishment’’ means a preschool service within the meaning of Part VII of the Child Care Act, 1991, a primary or post-primary school, an institution providing adult, continuing or further education, or a university or any other third-level or higher-level institution, whether or not supported by public funds.
(2) 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.
(3) An educational establishment does not discriminate under subsection (2) by reason only that—
Section 2 defines a service as follows:
‘‘service’’ means a service or facility of any nature which is available to the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes —
(a) access to and the use of any place,
(b) facilities for —
(i) banking, insurance, grants, loans, credit or financing,
(ii) entertainment, recreation or refreshment,
(iii) cultural activities, or
(iv) transport or travel,”
4.3 The school is a provider of education to the complainant’s daughter and there is no allegation that the respondent discriminated against her in that respect. The school also has to have interactions with the parents of the pupils attending the school as regards their childrens education, attendance, academic achievements participation in the school etc. The list set out in Section 2 under the definition of “service” is not an exhaustive list. I am satisfied that these interactions with parents are part of the education process and amounts to a service under the Act as defined above. I am also satisfied that the service is available to a section of the public i.e to the parents of pupils in the school. I find, having regard to section 5 above, that the complainant was seeking a service from the respondent and his complaint of discriminatory treatment comes within the scope of the Act.
4.4 I have to consider is whether the complainant has established discriminatory treatment on any of the grounds claimed.
Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
“On any of the grounds specified...).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(g) provides that:
As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:
(a) that one is male and the other is female (the ‘‘gender ground’’),
(b) that they are of different civil status (the ‘civil status ground’’),
(c) that one has family status and the other does not or that one has a different family status from the other (the ‘‘family status ground’’),
The burden of proof is set out in Section 38A which provides:
38A.—(1)" Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary."
4.5 A person making an allegation of discrimination under the Equal Status Acts must first establish a prima facie case of discriminatory treatment. Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
The respondent submitted that the complainant has raised issues that were covered in mediation following which the complainant withdrew his complaint. The complainant said that his complaint is confined to the events surrounding the sports and the subsequent communications from the respondent.
4.6 Therefore the matters for consideration are
Did the respondent discriminate against the complainant in relation to the sports day?
Did the respondent discriminate against the complainant in seeking Court Orders in relation to custody and access arrangements in place in respect of his daughter.?
Did the respondent harass the complainant?
Did the respondent victimise the complainant?
4.7 The complainant submits that he was discriminated against him on the gender, civil status and family status grounds. He said that the school sided with Ms. A and withheld information from him in relation to his daughter. I note that the child was enrolled in the respondent school in 2011 and that the school was aware from October 2011 that the complainant was the father of the child and that he was separated from Ms. A. It is also clear that the respondent had regular communications with Ms A because the child resided with her and she delivered and collected her from school. It is clear that she had an ongoing good relationship with the school, whereas the complainant had less interaction with the school. I accept that the school was put in a difficult position because of Ms. A and the complainant’s differences particularly in relation to moving the child to the respondent school, which was the subject matter of the previous complaint referred to above. I note that the Principal informed Ms A about this complaint and showed her the referral documentation for her to comment.
4.8 It is clear from the evidence that the respondent facilitated Ms. A in relation to school matters. Despite knowing that Ms. A had withdrawn her daughter from the school on other occasions when she became aware the respondent was attending an event there; the Principal informed Ms. A that the complainant was attending the sports day. I note that she made no attempt to persuade Ms. A to allow the child to participate in the sports day despite the fact the child was upset. The reason given by the Principal was that she wanted to ensure that there were no difficulties between the parents on the occasion of the sports day. I am satisfied that the complainant was treated differently than other parents in the circumstance. I also note that the complainant was notified of the event a day later than the other parents. It seems to me that the complainant was not welcome at his child’s sports day.
4.9 It appears to me that the respondent had a negative perception of the complainant and she made an assumption that it was likely that he would cause trouble on the sports day and this was the reason Ms. A was informed that he was attending. It would appear the Principal wanted to ensure his daughter would be removed from the school to avoid any potential conflict. There was no basis for that assumption. I note that the complainant was in contact with the school and had attended on previous occasion and there was no complaint about his behavior on these occasions and he had also attended a cross border school concert in Galway with Ms. A in which his daughter was participating without any difficulties arising. Likewise, I note that the complainant attended a parent teacher meeting and asked the teacher to pass on some personal items to his daughter and the Principal considered this indicated to her that a normal parent child relationship did not exist between the complainant and his daughter. It is clear that the Principal made an assumption about the complainant’s relationship with his child on the basis that he was a separated father. The Principal accepted that both parents of all of the children attending the school are free to attend sports days and other school related events and all parents are informed of these events. For the foregoing reasons, I am satisfied that the complainant has established that he was treated less favourably than a person of a different gender and civil status was treated or would have been treated in similar circumstances.
4.10 In considering whether the complainant was discriminated against on the family status ground, I note the Act defines the family status as follows "that one has family status and the other does not or that one has a different family status from the other". Although he may have been living apart from his child, I consider that the complainant, as joint guardian of his children, had the same family status as all other parents of children attending the school in that they all had responsibility as a parent in relation to a person who had not attained the age of 18 years. Accordingly, I do not consider that the complainant suffered discrimination on the family status ground.
4.11 In relation to the request for Court Orders concerning the complainant’s access to his daughter, the complainant submits that this is discriminatory on the civil status ground in that non separated parents would not have been asked to prove that they had access to their children. I note that the Principal believed that the complainant had no access to the child because she was so informed by Ms. A and her solicitor. I accept the school was put in a difficult position because this information was incorrect. However I note that the respondent accepted in evidence that if there was a Court Order in existence preventing access by a parent to a child attending the school that she would have to be aware of its existence and she accepted that no such Court Order was produced to her. She accepts that the complainant showed her some documentation in relation to his access rights but would not give her a copy. She said that as a lay person she was not able to interpret the documents. The respondent was well aware the complainant was the father of the child and I cannot accept that it was necessary to request Court order in relation to access. It was accepted that no other parent in the school was asked to provide such documentation. I am satisfied that a non-separated parent would not have been requested to provide such proof. I find therefore the complainant has established a prima facie case of discriminatory treatment on the civil status ground in relation to this aspect of his case.
4.12 The next matter I have to consider is whether the complainant was treated less favourably on the victimisation ground. Section 3(2)(j) provides:
(j) that one—
(i) has in good faith applied for any determination or redress provided for in Part II or III,
(ii) has attended as a witness before the Authority, the Director or a court in connection with any inquiry or proceedings under this Act,
(iii) has given evidence in any criminal proceedings under this Act,
(iv) has opposed by lawful means an act which is unlawful under this Act, or
(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv), and the other has not (the ‘‘victimisation ground’’).
The complainant had referred a complaint to the Equality Tribunal as outlined above in respect of the enrollment of his daughter in the school and this case was subsequently withdrawn following mediation. The complainant submits that he was victimised following the referral. I note that the Principal informed Ms. A of this complaint and showed her the documentation. It is my view that the Principals actions served no useful purpose other than to cause friction between the parents and to portray the complainant in a negative way. I am satisfied that this treatment together with the treatment in relation to the sports day and the subsequent request for the Court Orders constituted victimisation within the meaning of the above cited section. I am satisfied that the complainant has established a prima facie case of victimisation.
4.13 The complainant also claimed he was harassed within the meaning of the Act.
11.—(1) A person shall not sexually harass or harass (within the meaning of subsection (4) or (5)) another person (‘‘the victim’’) where the victim—
(a) avails or seeks to avail himself or herself of any service provided by the person or purchases or seeks to purchase any goods being disposed of by the person,
(2) A person (‘‘the responsible person’’) who is responsible for the operation of any place that is an educational establishment or at which goods, services or accommodation facilities are offered to the public shall not permit another person who has a right to be present in or to avail himself or herself of any facilities, goods or services provided at that place, to suffer sexual harassment or harassment at that place.
(5) (a) In this section—
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or
effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
The complainant said that the respondent was hostile towards him and shouted at him when he telephoned seeking an explanation about what happened on the school sports day. I am satisfied that there was insufficient evidence presented to establish harassment. Accordingly I do not find that the respondent harassed the complainant contrary to section 11 cited above.
5.1 For all of the foregoing reasons I find that the complainant has established discriminatory treatment on the gender, civil status and victimisation grounds contrary to the Equal Status Acts. I find that there was no discrimination on the family status ground.
Under section 27(1) of that Act redress may be ordered where afinding is in favour of the complainant. Section 27(1) provides that:
“the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination;
(b) an order that a person or persons specified in the order take a course of action which is so specified.”
5.2 Under the above Section the maximum amount of compensation I can award is €6,348 in respect of discrimination and €6,348 in respect of victimisation. In considering the amount of compensation that I should award I have taken into account the effects of the discrimination had on the complainant. I order the respondent to pay to the complainant the sum of €4,000 (four thousand euro) to compensate him for the anxiety and distress he experience as a consequence of the discriminatory treatment and victimisation.
21st October 2014