ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017475
Child care provider
Self - represented
Gleeson McGrath Baldwin Solicitors. Mr Des Ryan, B. L
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000
Date of Adjudication Hearing: 29/01/2019
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
In accordance with Section 25 of the Equal Status Act, 2000, following 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.
The complainant is the father of a child attending a publicly funded pre-school programme provided by the respondent.
He asked the respondent to change their final registration forms for this programme so that the names of both parents should be identified on the form and the consent of both parents sought when a child is being registered on the programme as opposed to the current practice which requires the signature of one parent only. In this case it was the mother who supplied the required signature.
The respondent dismissed his request.
As a result, he is claiming that he is being discriminated against on the grounds of gender, civil status, family status and contrary to section 3 of the Act of 2000 in relation to the provision of goods and services.
The last act of discrimination occurred on 24/9/2018.
He submitted his complaint to the WRC on 11/10 /2018.
Summary of Complainant’s Case:
The complainant maintains that his signature as well as the child’s mother should have been sought when his son was being registered in September 2018 for the Early Childhood Care and Education (ECCE) programme operated by the respondent. The mother alone can make the decision.
The complainant’s 3-year-old son was first enrolled in the respondent’s creche facility in June 2017. On 21/9/2018 he was registered for ECCE in the respondent’s facility. He has no problem with the creche other than for its location which is at the other end of the city from where he lives.
The complaint contends that this exclusion of him from the final registration process is evidence of discrimination on grounds of family status, gender and civil status. He is divorced from his ex-wife. He contends that because of his status he was treated less favourably than a person of a different civil or family status or a female, and contrary to Section 3(1) (a) of the Equal Status Act, 2000.
The disputed registration form has only one field, but two names can be added, and 2 signatures can be enforced. The complainant emailed this suggestion to the respondent. The respondent as the end service provider is responsible for its practices and must make sure the law is followed. Their claim that it's not their fault that the enrolment form requires one parent’s signature only as the form is designed by DYCA or Pobal the funder is not correct. They could have amended the form to provide for the signature of both parents. However, the respondent has always been very dismissive while enabling the other parent. The complainant was never asked to sign anything. He does not agree with his child being at this crèche only because of its distance from his home and that, he believes, is the main reason for their discrimination, because while enabling the other parent they keep the child. If his signature was required, the child would not attend that creche.
The situation is ongoing for at least for at least one year and has caused him a great amount of distress and anxiety which ultimately led to the loss of his job in April 2018.
The initial application form dated 15/6/2017 when the child was first enrolling with the respondent’s creche, included the names of both parents.
The complainant states that the respondent was aware of conflict between himself and his ex-wife, aware that he lived some 18 miles from the creche and considered him to be an inconvenience.
Summary of Respondent’s Case:
The respondent offers various child care services including the Early Childhood Care and Education Programme (ECCE). a state funded pre-school programme operated through the Department of Youth and Family Affairs.
The contested registration form for admission of the child on to the Early Childhood Care and Education Programme for the 2018-19 pre-school year, requiring the signature of only one parent is the subject of this complaint. This form is generated at the end point of the enrolment process when all other information has been submitted. It requires only one parent’s signature. This form and all documentation relating to his child’s admission to the facility has been generated by the software package operated by ECCE. ECCE is overseen by the Department of Children and Youth Affairs (DCYA). It in turn delegates responsibility for the allocation of funding of the ECCE programmes in different facilities to an organisation called Pobal. Pobal has exacting rules on the operation of this programme and if breached can lead to non-payment of the funds to a service provider and indeed refusal to register a child on the ECCE programme. The respondent does not have the authority to change the information requested by DCYA or Pobal, has no control over the forms produced or the manner in which they are filled. They facilitate the DCYA process, operated by Pobal, so as to assist parents/guardians enrol their child. The application form when returned enables the child to be enrolled on the programme and and the service provider will then be paid by Pobal for the care of the child.
The respondent emailed both parents on the 31/8/2018 advising them that a signature was required on the form for purposes of registering the child. The child’s mother submitted her agreement to the fee arrangements on the 4/9/2018. She signed the final registration form on the 24/9/2108 for the pre-school year 2018-19.
The complainant emailed the respondent on the 22 September asking why both parents’ signatures were not required on the registration form and stating that omitting to do so amounted to discrimination. The respondent replied on 24 September to state that they had no control over the forms suggesting that if he felt he was being discriminated to contact the parent department and/or Pobal, which controls this process with his complaint as they are not in a position to deal with his registration request in any other way. They asked that the form should be completed so as to confirm and conclude the registration of the child on to the ECCE programme.
The respondent stated that the signature required can be from either the mother or the father. As they have the names of both parents, obtained when the child was originally enrolled in the facility, they select a parent at random. The child’s mother had been in contact with them about payment of the fees.
Witness, 1 Ms H, financial accountant for respondent, advised that the parent government department require the signature of one parent only. On being asked as to how the respondent decides to select a mother or a father’s signature, the witness advised that as either signature is acceptable, they select a parent at random. It merely requires a parent’s signature. There is no reference on the form to mother or father, civil status or gender. The respondent’s witness advises that they have no control over the form. The respondent is unable to create their own forms.
The respondent referred to the complainant’s question as to why when his signature was on the original application form the respondent did not continue to seek both mother and father’s signature. They stated that it was the child’s mother who engaged with them about payment of fees from December 2017 onwards.
The respondent points to the option available to the complainant to use the services of the District Court to acquire an order under the relevant Family Law legislation which could determine primary care and control of the child.
The burden of proof requirement contained in section 38A of the 2000 Act, as amended, provides that
"whereas in any proceedings facts are establish bar on behalf of the 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 countrary”.
The respondent relies on Mitchell v Southern Health Board, 2001, DEE011,where the Labour Court outlined that
“a claimant must prove on the balance of probabilities the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the court and they are regarded by the court as being of a significant significance to raise a presumption of discrimination that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.
The respondent argues that the complainant has failed to raise an inference of discrimination on any of the grounds cited in the complaint form as required by section 38A (1) of the Act. The respondent also relies on Graham Anthony and Company Ltd v Margetts, EDA 038 where the Labour Court stated that mere membership of a protected class is insufficient to raise an inference of discrimination. The complainant is obliged to demonstrate that the less favourable treatment of which he complains is attributable to his civil or family status or gender. The respondent is not privy to the complainant’s civil status. The respondent denies that he was treated less favourably than a person of a different status in similar circumstances. The complainant has failed to discharge the burden of proof. An assertion that he has been discriminated against is insufficient to discharge the burden of proof. Based on the principles set out in the above two determinations, the complainant has not established a prima facie case of discriminatory treatment contrary to the Acts.
The respondent asks that the complaint should be dismissed in accordance with section 22 of the Act.
Findings and Conclusions:
I decide that the parties should be anonymised as a child is involved.
I am required to establish if the omission of the complainant’s signature, the father of the child, from the final registration form for admission to the Early Childhood Care and Education Programme (ECCE), contravenes the provisions of the Equal Status Act 2000 as amended.
Section 5(1) of the 2000 Act provides as follows:
“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 3(1)(a) of the Act prohibits less favourable treatment on grounds specified in section 3(2) and which include of gender, family status and civil status.
The Burden of Proof.
Before identifying any breaches of the Act of 2000, I must first consider if the complainant has met the probative burden as required by section 38A of the 2000 Act, as amended. The Labour Court in the case of Cork City Council v Kieran McCarthy, EDA 0821 set out the obligations which a complainant must meet.
“The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there had been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may be appropriately be drawn to explain a particular fact or set of facts which are proved in evidence”
Again, the Labour Court in the case of Dyflin Publications Limited v. Ivana Spasic, EDA 823, stated
“the Court should consider the primary facts which are relied upon by the Complainant in their proper context. It also indicates that in considering if the burden of proof shifts the Court should consider any evidence adduced by the Respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant”.
The surrounding facts.
The initial application form dated 15/6/2017 for admission to the respondent’s creche includes the names and mobile numbers of both parents and is signed by the complainant only on the 9/6/2017.His consent only was provided on that occasion.
I accept that the disputed registration form, submitted in evidence, does not require two signatures nor does it demand that the signatory should be the father or mother, merely one parent. It does not deny the mother or the father the opportunity to sign the form. The form does not ask if the signatory or parent is married, separated, unmarried or divorced. It is an open invitation to mothers or fathers. The evidence indicates that there was no practice or policy of excluding parents who were divorced, male or female. I accept that it is a random choice as to whether the mother, father or guardian’s ’s signature is sought.
On this occasion the respondent asked the mother to sign the form.
Forms are drawn up by Pobail who fund the entity.
Family status ground.
It is well established that mere membership of a protected class is insufficient to shift the burden of proof to the respondent.
The Equality Tribunal found in DEC DEC-S2010-046 that the failure to gain the father’s consent as well as the mother’s, where the child was undergoing a medical procedure could not constitute discrimination on the family status ground. The Tribunal stated
the question is whether the treatment of the complainant in this respect was less favourable than someone of a different marital or family status to him would have received in the same or similar circumstances. Clearly, any such person would have to have a child. By definition, then, the complainant could not have been discriminated against on the family status ground vis-à-vis such a comparator as they would have the same family status as the complainant. all people in the same or similar circumstances would have a child.”
The complainant could not have been treated less favourably than another person on family status grounds as all parents accessing the respondent’s facilities would of necessity have to have had a child attending the creche.
I do not find that the complainant has shifted the burden of proof on family status grounds.
Based on the evidence I do not find that the complainant has supplied facts which suggest that the respondent’s decision to ask the mother to sign the final registration form and not seek his consent on the form was related to his gender.
I do not consider this to constitute prima facie evidence of discrimination.
Civil Status ground.
This complaint requires the complainant to demonstrate that a person of a different civil status (married, separated, single, widowed) would have been treated more favourably.
The failure to consult both parents in a matter concerning their child was considered -as has been stated- in DEC-S2010-046. It dealt with a complaint from a separated father that the failure of a hospital to seek the consent of both parents to a medical procedure for their son amounted to less favourable treatment on the marital status grounds. In that case the respondent stated that its policy required consent from one parent only in all situations. It stated that it is not required to ask about the marital status of either parent and does not do so.
“As regards marital status, I am satisfied that the complainant was not treated less favourably than someone of a different marital status as it is clear that consent is sought from only one parent in all circumstances, irrespective of the marital status of the relevant parent, and even if the other parent is present when the consent is sought. Indeed, it is clear that the agent for the respondent seeking the consent often does not know the marital status of the parent from whom they are seeking that consent. I would add that for such a person to ask any question that sought to obtain such information would not be advisable in the context of the Acts as it could, depending on the circumstances, be a discriminatory question in and of itself”.
Single, married, divorced and widowed parents were treated equally.
The same situation applies in the instant case.
Bearing in mind the conclusions in Dyflin Publications Limited v. Ivana Spasic, EDA 823 stated above, I do not find that the totality of the evidence submitted supports the complainant’s contention that the respondent’s failure to secure his signature for and his consent to the enrolment of his child onto the ECCE programme choice of the mother in this instance raises an inference of discrimination on the grounds of civil status.
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 find that the evidence presented by the complainant has failed to raise an inference of discrimination under the gender, family status and civil status grounds and his complaint cannot, therefore, succeed.
Dated: 19th June 2019
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Equal status; parental consent of both parents concerning a child’s enrolment onto an educational programme.