ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00013996
Parties:
| Complainant | Respondent |
Anonymised Parties | A Father | The Board of Management of a Secondary School |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00018191-001 | 27/03/2018 |
Date of Adjudication Hearing: 23/05/2019
Workplace Relations Commission Adjudication Officer: Enda Murphy
Procedure:
In accordance with Section 25 of the Equal Status Act, 2000following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Given the sensitivities of the issues connected with the complaint, I have decided to exercise my discretion to anonymise the identities of the Complainants.
Background:
The Respondent is a recognised secondary school within the meaning of the Education Act 1998. The Complainant’s daughter was enrolled in the Respondent’s school by her mother, who is her joint legal guardian, for the school year 2017/2018. The Complainant, who is also his daughter’s joint legal guardian, informed the school prior to the commencement of the school year in August, 2017 that he did not consent to her enrolment at the school. The Complainant claims that the Respondent’s actions in enrolling his daughter without his consent, as her joint legal guardian, amounts to discrimination against him on the grounds of gender, civil status and family status contrary to the Equal Status Acts. The Respondent disputes the claim of discrimination and contends that it is duty bound to enrol children in accordance with its enrolment policy. The Respondent contends that the Complainant’s daughter was enrolled by her mother who is a legal guardian and as such has full legal status and the right to enrol her child in the school. |
Summary of Complainant’s Case:
The Complainant is an unmarried father and was granted joint guardianship of his daughter on 20 January, 2009 by the District Court under the Guardianship of Children Acts 1964 to 1997. The Complainant contacted the Respondent in April, 2017 after he became aware that his daughter’s mother had made an application to have her enrolled as a student in the school for the school year 2017/18. The Complainant provided the Respondent with a copy of the Court Order on 10 April, 2017 which granted him joint guardianship of his daughter and informed it that he did not consent to her being enrolled at the school at that juncture. The Complainant sent a letter to the School Principal on 14 August, 2017 to reiterate the position that he did not consent to his daughter’s enrolment at the school and requesting the Respondent to refrain from proceeding with the enrolment. The Complainant sent a further letter to the Chairperson of the Board of Management on 30 August, 2017 to indicate that it had come to his attention that his daughter had been enrolled at the school without his consent. The Complainant also indicated in this letter that it was a lawful requirement that the Respondent obtain the written consent from both guardians of a child prior to enrolment and he requested the Respondent to desist from this unlawful act immediately. The Complainant received a letter from the School Principal dated 30 August, 2017 advising that both himself and his daughter’s mother should sort this matter out between themselves in the interest of their daughter. The Complainant submits that the Respondent failed to treat him fairly and lawfully. The Respondent was notified of the Complainant’s position and wishes well in advance of his daughter attending the School. However, the Respondent enrolled the Complainant’s daughter according to the wishes of his mother and did not take his position as a male or father into consideration. The Complainant submits that the Respondent deliberately discriminated against him as a father, parent and legal guardian and failed to remedy the situation when the matter was brought to its attention. The Complainant contends that the Respondent failed to provide him with relevant information and documentation in relation to his daughter’s enrolment and attendance at the school. The Complainant contends that there was no invitation to any open day for parents/guardians sent to him prior to the commencement of his daughter’s attendance at the Respondent’s school and that he did not receive copies of any enrolment forms or confirmation that a space had been offered to her. The Complainant submits that this treatment also amounts to discrimination on the grounds of his gender, civil status and family status. The Complainant submits that the Respondent had a choice in relation to the enrolment of his daughter and ultimately chose in favour of her mother. If the Respondent had rejected the application for enrolment or held off accepting his daughter as a student until her mother had acquired a court order it may not have caused the damage that has been done. The Complainant submits that a similar situation arose in 2013 when it came to his attention that his daughter’s mother was attempting to move her from a primary school. On this occasion, the Complainant informed the relevant school that he did not consent to his daughter attending the school. The school advised his daughter’s mother accordingly, who then applied to the District Court where she acquired an order permitting her daughter to attend the relevant school. The Complainant submits that the Court acted as a lawful decision maker and ruled accordingly in this situation and he contends that no school has the same power or superior power of a court of law. The Complainant submits, that as a father and legal guardian, he has the exact same rights to choose his daughter’s education and welfare as that of her mother. The Complainant submits that the Respondent by virtue of its actions in this matter had acted contrary to its stated position that it does not get involved in family disputes. The Complainant referred to the judgement of the Supreme Court in the case of B v B [1975] IR54 where it was held by Walsh J. that “The main purpose of the Guardianship of Infants Act 1964 was to give both parents of an infant equal rights in guardianship matters. In doing so, it provided a statutory expression of the rights already guaranteed by the Constitution and, in addition, defined an infant as being a person under the age of 21 years. Section 6 of the Act states the equality of the parents and recognises them as the guardians of the infant; there is nothing in any provision of the Act which purports to confer on the court or any other body the power to displace either one or both of the parents from the position of guardian or guardians”. In summary, the Complainant submits that he has been subjected to discrimination on the grounds of gender, civil status and family status contrary to the Equal Status Acts in relation to the Respondent’s decision to proceed with the enrolment of his daughter despite the fact that he, being her joint legal guardian, did not consent to such enrolment. |
Summary of Respondent’s Case:
The Complainant’s daughter was enrolled in the school by her mother who is her legal guardian, in full compliance with the provisions of the School’s enrolment policy. The application form for enrolment was dated 20 January, 2017. On 30 August, 2017, the Respondent received a letter from the Complainant which stated that it had come to his attention that the school had enrolled his daughter without his verbal or written consent. The Complainant confirmed that he did not consent to his daughter being enrolled in the school and that if the school did not desist from this “unlawful act immediately” he would instigate proceedings against the Chairperson of the school and the Patron. By way of letter dated 30 August, 2017, the Respondent wrote to the Complainant to confirm that his daughter had been enrolled in the school and was in attendance. The Respondent also confirmed that the school secretary had been instructed to send all information pertaining to his daughter in the school to the Complainant. The Respondent advised that the Complainant and his daughter’s mother should sort the matter out between themselves in the interests of the Complainant’s daughter. By letter dated 11 September, 2017, the Chairperson of the Respondent wrote to the Complainant to confirm that his daughter was enrolled in the school in good faith and in the absence of any knowledge of any dispute regarding her enrolment. It was confirmed that the Respondent could not intervene in any family law dispute between legal guardians regarding attendance or enrolment of the school. The Chairperson advised that the matter may be resolved either by agreement between the legal guardians or by way of a Court Order. The Chairperson referred to the Complainant’s concerns over his role as a parent in the school and assured him that the school’s primary concern was the promotion of the welfare of every pupil in the school and to work with all parents jointly in that regard. The Chairperson confirmed that the school had no wish or interest in taking sides in any dispute between parents and that the school’s policy was to treat all parents equally. Finally, the Chairperson assured the Complainant the school respected the fact that he was joint guardian of his daughter and that his legitimate right as a guardian would be respected. It was submitted that the Respondent is a recognised school within the meaning of the Education Act 1998. In accordance with the provisions of Section 15(2)(d) of the 1998 Act the Respondent has published the policy of the school concerning admission to and participation in the school and has periodically revised same. It is the responsibility of the managerial authority of all schools to implement an enrolment policy in accordance with the Education Act 1998. The enrolment policy must be non-discriminatory and must be applied fairly in respect of all applicants. The Respondent school is obliged to enrol applicants in accordance with the provisions of its enrolment policy. The Complainant’s daughter was offered a place in accordance with the provisions of the enrolment policy. A refusal to enrol the Complainant’s daughter would have resulted in an appeal pursuant to Section 29 of the Education Act 1998. Under Section 38A(1) of the Equal Status Act 2000 the Complainant bears the burden of establishing a prima facie case that s/he has been discriminated against in terms of Section 3 and 7 of the Act. The Respondent submits that the Complainant has failed to discharge the burden upon him under the Act. The Respondent did not treat the Complainant less favourably than a person of a different gender, civil status or family status. The Respondent refers to the Adjudication Officer’s decision in the case of A Complainant -v- The Board of Management of a Secondary School DEC-S2017-30 in support of its position on this issue. The Respondent submits that the Complainant has failed to establish facts from which it may be presumed that there has been direct or indirect discrimination. Having failed to establish on the balance of probabilities the primary facts from which the presumption of discrimination may be raised, there is no onus on the Respondent to prove that there is no infringement of the provisions of the Act. In summary, the Respondent submits that it is duty bound to enrol children in accordance with its enrolment policy. This duty was adhered to. It is not a matter for the Respondent or any other school to interfere in family law issues. The Complainant’s daughter was enrolled by her mother who is her legal guardian and as such has full legal status and the right to enrol her child in the school. In circumstances where there exists a conflict between legal guardians of children as to which school that children should attend, it is a matter for the parents to resolve such conflict either by way of mutual agreement or by way of Court Order. The Respondent acted in accordance with its enrolment policy and applicable duty on schools to enrol children who apply to their school. In doing so, the Respondent complies with its duty to enable access to education. To act otherwise, as is suggested by the Complainant, would be a postponement of his daughter’s right to an education and would be contrary to public policy interest. The Respondent contends that there has been no less favourable treatment in this case and that the complaint under the Equal Status Acts should fail. |
Findings and Conclusions:
Issues of Jurisdiction The Respondent raised an issue in relation to the jurisdiction of the Director General of the WRC to investigate the instant complaint on the basis that the complaint has not been referred to the WRC within the relevant time limits provided for in Section 21(6) of the Equal Status Acts. The Respondent submits that the Complainant has indicated on the Compliant Notification Form (ES1) that the date of the alleged discrimination was 11 September, 2017 i.e. this was the date of the letter from the Chairperson of the Board of Management to the Complainant to confirm that his daughter had been enrolled in the school and that the Respondent could not intervene in any dispute between legal guardians regarding attendance or enrolment at the school. The Respondent submits, therefore, that the instant case was referred to the WRC on 27 March, 2018 which was outside of the six month time limit provided for in Section 21(6) of the Acts. The Complainant disputes that the complaint is out of time and contends that the alleged act of discrimination, namely his daughter’s enrolment at the school, was ongoing up to and including the date the instant complaint was referred to the WRC on 27 March, 2018. The provisions of Section 21(6) of the Acts require that a complaint be referred to the WRC within six months from the date of occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence. This period of six months can be extended up to a maximum of twelve months, if the Complainant can show that reasonable cause prevented referral within six months. Section 21(11) of the Acts provides that “For the purposes of this section prohibited conduct occurs – (a) if the act constituting it extends over a period, at the end of the period”. Having regard to the provisions of Section 21(11), I am satisfied that the Complainant’s daughter continued to attend and be enrolled at the Respondent’s school up to and including the date that the instant complaint was referred to the WRC. In the circumstances, I find that the alleged discrimination in this case was an ongoing act which extended up to the date of the referral of the complaint and I am therefore satisfied that the complaint was referred within the six-month time limit provided for in Section 21(6) of the Act. Accordingly, I find that I do have jurisdiction to investigate this complaint. Substantive Issue The Adjudication Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts, 2000 to 2015 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 can rely in asserting that prohibited conduct has occurred in relation to him. 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, both written and oral, made to me by the parties to the case. The Respondent in the present case is an educational institution which, inter alia, provides secondary education to students and, as such, it is an educational institution within the meaning of Section 7(1) of the Acts and is therefore subject to Section 7(2) of the Equal Status Acts, 2000 to 2015 which states that: “7.- (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 (d) the expulsion of a student from the establishment or any other sanction against the student” Section 3(1) of the Equal Status Acts provides that discrimination occurs “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)...".Section 3(2)(a) defines discrimination on the grounds of “gender” as: ”(a) that one is male and the other is female (the “gender ground”)”, Section 3(2)(b) defines discrimination on the grounds of “civil status” as: “(b) that they are of different civil status (the “civil status ground”)” and Section 3(2)(c) defines discrimination on the grounds of “family status” as: “(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”)”. Section 2 of the Act defines “civil status” as meaning being single, married, separated, divorced, widowed, in a civil partnership and defines “family status” as meaning having responsibility as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years. The Complainant claims that he has been subjected to discrimination by the Respondent on the grounds of gender, civil status and family status in relation to the enrolment of his daughter at its school without his consent as her joint legal guardian and in relation to the Respondent’s alleged failure to provide him with information relating to the enrolment process. The Respondent disputes the claim of discrimination and contends that that it is duty bound to enrol children in accordance with its enrolment policy. The Respondent contends that it is not a matter for it, or any other school, to interfere in family law issues and that the Complainant’s daughter was enrolled by her mother, who is her legal guardian, and as such has full legal status and the right to enrol her child in the school. The Respondent further contends that in circumstances where there exists a conflict between legal guardians of children as to which school a child should attend, it is a matter for the parents to resolve such conflict either by way of mutual agreement or by way of Court Order. The central plank of the Complainant’s complaint of discrimination relates to his claim that the Respondent treated him less favourably than the mother of his daughter by disregarding and failing to recognise his authority as her joint legal guardian and proceeding to enrol her in the school without his consent. In considering this matter, I note that “Guardianship” in accordance with the Guardianship of Infants Act 1964 refers to a formal right to make important decisions in respect of a child, including the right to request directions from a court in relation to the welfare of a child. The rights of parents to guardianship are set down in Section 6 of the 1964 Act, as amended. Guardianship rights entitle a parent to make important decisions regarding that child's upbringing, for example, deciding on the child's religion, education, medical treatment and where he/she lives. If a child is born to parents who are married to each other, the child’s biological parents are automatically deemed to be the guardians. This is in line with constitutional requirements, a husband and wife being jointly and equally entitled to make decisions on the child’s behalf. However, a father who is not married to the mother of his child does not have automatic guardianship rights in relation to that child. The mother may consent to the father being appointed a guardian and both parties may swear a declaration to this effect, or the unmarried father may apply to court, either with or without the consent of the mother, to be appointed a joint guardian with the mother. In the instant case, it was common case that the Complainant has been appointed joint legal guardian of his daughter (with her mother) by order of the District Court dated 20 January, 2009 pursuant to Section 6A of the 1964 Act. Civil Status and Family Status Grounds I am satisfied that no evidence was produced to support the case that the Complainant was treated less favourably than a hypothetical married parent or a person with a different family status in relation to this matter. The only evidence put forward of comparative less favourable treatment was in support of a claim that the Respondent treated the Complainant less favourably than they did the mother of his daughter. Therefore, the mother of his daughter is the only relevant comparator. The Complainant and the mother of his daughter had at the relevant time the same civil status and the same family status. Both were unmarried and both were parents. Therefore, the alleged difference in treatment cannot have been on the grounds that the Complainant was of different civil or family status from the mother of his daughter. Accordingly, I find that the Complainant has failed to establish a prima facie case of discrimination on the civil status and/or family status grounds. Gender Ground The remaining element of the complaint relates to the claim that the Respondent treated the Complainant less favourably than it did the mother of his daughter because he was a man and she was a woman, i.e. on the gender ground, in relation to her enrolment in the school. An educational establishment discriminates on the gender ground where it treats one parent (e.g. the mother) more favourably than the other (e.g. the father) with regard to their child’s education where both parents have equal rights of guardianship. In the instant case, it was not in dispute that the enrolment application form was completed by the mother of the Complainant’s daughter in January, 2017 and that the Respondent was fully aware prior to her actual enrolment and attendance at the school that the Complainant was also her joint legal guardian. In this regard, I note that the Complainant provided the Respondent with a copy of the court order to confirm his guardianship in April, 2017 and it was made clear by him to the Respondent at that juncture that he did not consent to her enrolment. However, notwithstanding the Complainant’s objection, the Respondent proceeded to enrol his daughter in the school in accordance with the wishes of her mother, and she commenced attendance at the start of the 2017/18 academic year. In the circumstances, I am satisfied that these facts are sufficient to raise an inference that the Complainant was treated less favourably than his daughter’s mother on the grounds of gender in relation to this matter. Accordingly, I find that the Complainant has established a prima facie case of discrimination on the grounds of gender and the onus now shifts to the Respondent to rebut the inference of discrimination. The Respondent has argued that it was obliged to publish an admissions policy under the provisions of Section 15(2)(d) of the Education Act 1998 and that it was duty bound to enrol applicants in accordance with the provisions of this policy. The Respondent further argues that the Complainant’s daughter was offered a place in the school in accordance with its admissions policy and that a refusal to do so would have resulted in an appeal under Section 29 of the Education Act 1998. I note that Section 14(1) of the Equal Status Acts provides an exemption from a claim of discrimination in circumstances where the taking of any action is required by or under an enactment or a court order. I have examined the aforementioned provisions of the Education Act 1998 and I cannot accept that there was a statutory obligation on the Respondent to proceed with the enrolment of the Complainant’s daughter at the material time in question given the circumstances that prevailed in relation to this matter. Accordingly, I find that the Respondent is not entitled to avail of the exemption provided for in Section 14(1) of the Acts in the circumstances of this case. It is clear that the Respondent was fully aware prior to the completion of the enrolment process of the Complainant’s daughter in the school that there was a dispute between her two legal guardians in relation to this matter. A school has no jurisdiction to decide matters pertaining to guardianship and in circumstances where such parents/legal guardians cannot agree to matters pertaining to their children’s welfare, including decisions relating to education, then such matters must be decided upon by a court. In the instant case, the Complainant, being a joint legal guardian, was fully entitled to object to the enrolment of his daughter in the Respondent’s school. In the circumstances, I take the view that it was incumbent on the Respondent to bring this objection to the attention of the mother of the Complainant’s daughter and to defer any decision on the enrolment application until this issue had been decided upon by the courts, being the relevant authority to decide such matters. I am satisfied that the Respondent failed to act in such a manner but instead proceeded to enrol the Complainant’s daughter in the school even though it was fully aware of the dispute between her parents (and legal guardians) in relation to this matter. I find that the Respondent in doing so, subjected the Complainant to discrimination on the grounds of gender in relation to his daughter’s enrolment in the school. Accordingly, I find that the Respondent has failed to rebut the inference of discrimination on the grounds of gender in relation to the enrolment of the Complainant’s daughter in the school in the circumstances of the present case. The Complainant has also claimed that he was subjected to discrimination by the Respondent by failing to supply him with documentation in relation to his daughter’s enrolment and attendance at the school. The Respondent adduced evidence that its policy is to disseminate information concerning a student to the legal guardian(s) of the child. Having regard to the evidence adduced, I am satisfied that the Respondent adhered to this policy in the instant case and that all relevant documentation concerning the Complainant’s daughter was forwarded to him after he had provided confirmation to the school in relation to his status as her legal guardian. In the circumstances, I find that the Complainant has failed to establish a prima facie case of discrimination on the grounds claimed in relation to this aspect of his complaint. |
Decision:
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
I have concluded my investigation of this complaint and based upon the aforementioned, I find pursuant to Section 25(4) of the Acts, that the Complainant has made out a prima facie case of discrimination on the ground of gender contrary to Sections 3(1), 3(2)(a) and 7(1) of the Equal Status Acts, which has not been rebutted by the Respondent. In accordance with Section 27(1)(a) of the Acts, I order the Respondent to pay the Complainant €3,500.00 in compensation for the effects of the discrimination. I also order, in accordance with Section 27(1)(b), that the Respondent should review its admissions policy with a view to making any necessary amendments to ensure that the principles of equality are applied to both male and female legal guardians in the assessment of applications for enrolment. |
Dated: 10/09/19
Workplace Relations Commission Adjudication Officer: Enda Murphy
Key Words:
Equal Status Acts 2000 to 2015 – Discrimination – Section 3(1) – Gender – Civil Status – Family Status – Educational Establishment – Section 7(1) – Unmarried Father – Guardianship – School Enrolment – Compensation Awarded |