Complainant

Respondent

Anonymised Parties

Student (minor)

Secondary School

Representatives

John Gerard Cullen Solicitors

Mason Hayes & Curran LLP /Rosemary Mallon BL & Kevin Roche BL

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00065933-001

11/09/2024

The referral under the Equal Status Act relates to a practice at the school where all students wear an earring in the left and right ear but may not wear one earring. The difference between this student and the school principal first related to how the rule was drafted. The student maintained that it did provide for the wearing of one earring. The school differed in that interpretation. What subsequently occurred arising from this difference was a heated meeting where the student’s mother and grandmother attended what they describe as an extremely hostile and aggressive meeting. The school deputy principal and principal deny this account of an aggressive meeting.

However, what did follow were sanctions where the student, due to his failure to comply with a school rule, was disciplined. This involved restrictions such as not being allowed to leave the school with other students for lunch or a later end of school time.

The student states that this conduct was disproportionate and unwarranted and breached his right to wear one earring when the school allowed other students to wear 2 earrings one in each ear.

The school stated that the claim cannot succeed as no discrimination occurred. This student was treated like all the other students. There was no less favourable treatment and so the claim cannot succeed.

The school also argued that the claim based on gender and/or sexual orientation cannot succeed as wearing one ring on the right or the left ear or in each ear does not define a person’s gender or sexual orientation. The claim is misconceived as there is no ground detailed in the Act where it could be credibly argued that the wearing of a ring is a right protected under the Act.

The student claims that he was discriminated against on the following grounds:

·         Gender

·         Sexual Orientation

He also states that he suffered discrimination and detriment by being Harassed and Victimised.

He claims that he was directly discriminated against and indirectly as a female was more likely to wear an earring in each ear by choice and what appears a neutral provision is not.

The Complainant alleges that he has been discriminated against and alleges that the school has engaged in prohibited conduct  and seeks to ground his claims under the Equal Status Act on the grounds of gender and sexual orientation.

The principal would oblige the Complainant to wear two ear studs - instead of one. This ostensibly neutral requirement (which misreads the relevant Schools Rule ) inter alia impacts more unfavourably on the complainant, as a male student, compared to female students who are also required to wear two studs. The Complainant has inter alia been threatened with sanctions, ordered to insert a second ear stud, has had his mother shouted at and been penalised. The principal irrationally misinterprets the School Rule as mandating the wearing of a second ear stud in all cases where one ear stud is worn. A matching ear stud is a de rigeur accessory here -rather than any elective. The School Rules however do not oblige a parent to consent to a second ear piecing where one already exists. This reading and mandate are, in effect, a gender assigning measure in its application at this school. The Complainant has been publicly penalised, forced to sit in disgrace outside the principal’s office, has had his education traduced and disproportionately adversely affected. He has been left shocked.

 The student was victimised following the making of his complaint: he was subjected to public humiliation, left sitting in disgrace outside the Principal's office, removed from his normal classes for long periods (damaging his right to education under Article 2 of the First Protocol to the European Convention of Human Rights), denied the privilege of going down town with his peers during school lunchtime, denied access to a boy’s field trip and left to attend a girl’s field trip, threatened with after-school detention, had his mother shouted at etc. We refer to letters from the school showing such ongoing detriment to which this child was subjected. It then appears that this discrimination, victimisation and penalisation - which were applied for several weeks - was then just as abruptly and capriciously terminated by the Respondent who arbitrarily switched to ceasing to bully, harass and victimise this Applicant child during this process.

The Complainant, his mother and grandmother gave evidence which in  their view was a hostile and oppressive reaction to the boy’s right to wear one earring.

The rules of the Respondent school in relation to the school  uniform and appearance are set out in schools handbook under Code of Behaviour. The relevant rule that is the subject matter of the within proceedings provides:

 “The following are not permitted: 1. All body piercings except one small stud in each year”

The Complainant has attended school on numerous occasions this academic year wearing just one earring in one ear. The school states that the rule means the student has to wear a small stud in each ear. One must wear an earring in each ear, no more than one in each ear and one cannot wear only one earring – one must wear a stud in each ear. This rule is applied equally to all students both male and female as will set out in more detail below.

The Complainant was asked to either remove the stud during school time or place a plaster over his earring during school time or to get a piercing in his other ear and wear a stud in each ear in compliance with the Code of Behaviour. The Complainant was unwilling to comply with any of the options open to him to comply with the rule. As a result, he was sanctioned by the school on a number of occasions.

This case is not about justifying the school rule. This case is about whether the Complainant in the operation of the rule has been discriminated against on the grounds of his gender or his sexuality.

He has not been discriminated against. He is being asked to obey a school rule. He has refused to do so. He has been sanctioned as a result. This is not victimisation or harassment. The school has ceased taking any further actions in relation to this matter pending the determination of the withing proceedings.

The Complainant’s gender is completely irrelevant to the operation of this rule.  If a female student was to attend school with just one stud in one ear and not have a stud in her other ear, she would be treated in precisely the same way as the Complainant and given the same three options he was given. There seems to be some attempt to assert that females wish to wear a pair of earrings more than males such as the Complainant. The Respondent is at a loss as to how such an assertion can be made given the number of men in all walks of life from footballers to musicians who wear a stud in both ears.

However, if the Complainant feels unable to wear two studs it is in any event open to him to cover up the stud or indeed take it out during school hours.

 The Complainant also alleges he has been discriminated against on the grounds of his sexuality. It is unclear at the time of writing these submissions what the Complainant’s sexuality is and how he is alleging that he is being treated in a discriminatory fashion in comparison to others of a different sexuality. The Complainant failed to set out on his claim form what his sexuality is. There appears to be a suggestion that the requirement to wear two earrings imputes gender fluidity. This allegation is made with absolutely no evidence whatsoever. Once again reference is made to the many famous men who wear two earrings who are not considered to be gender fluid. Furthermore, the Complainant does not have to wear two earrings during school – he can take the stud out or cover it with a plaster.

 This entire claim is without foundation. It is without evidence. There is no named comparator. The entire claim is based on assumptions and presumptions.

The principal and deputy principal’s evidence was that a proportionate and incremental approach to the issue of discipline was adopted. The grievance was never properly progressed through the school’s procedures. Once the matter was appeal to the Commission the issue of discipline and sanction stopped. The school to ensure that there is consistency applies the rules fairly. Recently a female student who wore one earring was informed that it was not allowed. The school to maintain discipline is objectively justified to discipline when a rule is overtly breached. Reasonable choices were given to the student to cover the earring while at school. The last thing the school wanted was to discipline the student. Certain of the sanction’s referenced relating to school trips have no basis in fact and simply arose due to limited choices and had nothing to do with punishment.

School Rule:

The Rules of the school about dress and appearance state:

“The following are not permitted:

1.       All body piercing except one small stud in each ear.

The Complainant was asked to either remove the stud during school time or place a plaster over his earring during school time and he declined.

The school states that the  rule means a student can only wear an earring in each ear, no more than one in each ear and a student cannot wear one earring.

The rule is applied equally to all students.

The case is about whether the school has engaged in prohibited conduct on the ground of gender and/or sexual orientation, which is denied by the Respondent.

The school stated that in all walks of life many males wear studs or earrings in both ears and is at a loss to understand how the complaint can relate to sexual orientation.

The Respondent states absent of an actual comparator the claim is misconceived, and the claim is absent of any factual evidence where the complaint even at a prima facie level could be established.

Facts and alleged less Favourable Treatment:

The Complainant must in the first instance prove that he has a prima facie case. That means establishing facts that give rise to an inference of discrimination; it is a lower bar to the normal standard where a complainant must prove his case on the balance of probabilities.

On the facts the Complainant states that the apparent neutral provision is not neutral. It is self-evident in our culture that a female is more likely to wear two earrings rather than one. This does not mean all females; however, as a statement of fact more females wear an earring in each ear. As a statement of fact more males wear one earring. It is also the case that some male wear 2 earrings; however, that does not negate the claim of unfavourable treatment. That arises as a male is more likely to be denied his preference to wear one earring as that is more likely to be his preference. This means that females students are more likely to be favourably treated by this rule. This arises as their preference while not in all cases but in most cases to wear an earring in each ear will be accommodated by this rule and the preference of males while not in all cases but in most cases to wear an earring in one ear will not be accommodated.

This tribunal must decide if that proposition is factual correct based on the knowledge and experience of the adjudicator to determine if that statement is factual correct.

I note that in Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022 Indirect Discrimination is defined as follows:

indirect  discrimination

1-39

Direct discrimination occurs where a person with a protected characteristic is treated differently from, or less favourably than, another person without that characteristic. Indirect discrimination, on the other hand, occurs where a requirement or condition which on the face of it applies equally to both men and women, can be seen on closer examination in fact to have a disproportionate adverse impact on members of one sex rather than another. A requirement for an employee to fulfil minimum height or weight requirements would tend to exclude more women than men and more persons of one ethnic background than another from access to that position. In requiring such criteria or provisions to be objectively justifiable, European and Irish law use the tool of indirect discrimination to separate out those criteria which are genuinely necessary and those which in effect are disguised discrimination. In other words:

“Indirect discrimination looks therefore to substantive equality rather than formal. It recognises that treating individuals in the same manner … might create inequality because of differences between individuals exhibiting particular protected characteristics.”

Fact or Speculation:

I note that in Valpeters v Melbury [2010] 21 ELR 64 the Labour Court affirmed the tribunal’s discretion to apply its experience to concluding facts:

It is well established that the Court, as an expert tribunal, is entitled to take account of the knowledge and experience of its members in concluding facts. This was made clear by this Court in Inoue v NBK Designs [2003] E.L.R. 98. That decision echoed a similar approach taken by the Court of Appeal for England and Wales in London Underground v Edwards (No.2) [1998] I.R.L.R. 364 where it was acknowledged that tribunals do not sit in blinkers and are entitled to make use of their own knowledge and experience in the industrial field. Similarly in the Northern Ireland case of Briggs v North Eastern Education and Library Board [1990] I.R.L.R. 181, the Court of Appeal held that tribunals are not debarred from taking account of their own knowledge and experience in formulating decisions.

The following case is one such example where the factual matrix of an apparent neutral practice was determined to be indirectly discriminatory and citied by Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022:

5-125

“The case of O'Donnell v HSE DEC-E2006-023 shows an interesting application by the Equality Tribunal of the concept of indirect discrimination on grounds of family status and whether such discrimination can be objectively justified on the facts. A complaint of  indirect  discrimination on grounds of marital status and family status was brought by a number of nurses who were required to work a roster of seven consecutive days in a row and on occasion 13 out of 16 days which meant that they were away from home for 13-and-a-half-hours per day for continuous periods. The Equality Officer found that the roster indirectly discriminated against the complainants on gender and family status grounds and found that the maintenance of the roster was not objectively justified. She awarded compensation of €5,000 to each of the complainants. Even more significantly, she directed the employer to immediately implement a new roster”.

The Complainant asserts that females are more likely to wear an earring in each ear and as a proposition that is a statement that this tribunal can decide to be the case or not. While it is argued that both men and women wear earrings in both ears, as a fact it is reasonable to conclude that in our culture females are more likely to wear an earring in each ear than a male. In establishing a prima facie case based on fact, the burden is less than the normal civil standard of proof on the balance of probabilities; although, that test once met shifts the burden onto the Respondent to show that the alleged prohibited did not occur or the neutral provision was objectively justified.

At one level the issue before me could be viewed as frivolous; however, what the Complainant claims is an ambivalent rule that could be interpreted as allowing for one earring to be worn, was escalated where he received harsh and disproportionate sanction. In that context the right to wear one earring as an expression of a young person’s male identity, when so harshly punished, it is alleged, must be viewed as an egregious act.

Prima Facie Test

In Mitchell v Southern Health Board, DEEO11 the Labour Court held that a ‘claimant must prove, on the balance of probabilities, the primary facts on which to rely in seeking to raise a presumption of unlawful discrimination.’  And in McCarthy v Cork City Council EDA0821 ‘that at the initial stage the complainant is merely seeking to establish a prima facie case. Hence it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.’

I note that in Murdoch and Hunt 2021 Edition Bloomsbury Prima Facie is defined as:

[Of first appearance]. On the face of it; a first impression. A prima facie case is one in which there is sufficient evidence in support of a party’s charge or allegation to call for an answer from his opponent. If a prima facie case has not been made out, the opponent may, without calling any evidence himself, submit that there is no case to answer, whereupon the case may be dismissed.

The principle in discrimination litigation is that once a Claimant establishes a prima facie case of discrimination the onus shifts to the Respondent, who must prove that no discrimination has occurred.

And the Court of Appeal England and Wales in Igen v Wong EWCA/Civ/2005 stated that the claimant must ‘prove on the balance of probabilities facts from which the tribunal could conclude, [this does not mean must prove on the balance of probabilities] in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant.’

It is also the case that the Labour Court in Melbury Developments Ltd v Valpeters EDA 1728 has held that membership of a protected group and evidence of adverse treatment is not sufficient to shift the burden of proof in a direct discrimination case, there must be a causal link between the ground and treatment. However, a difference in treatment can meet this test, In Brunnhofer, for instance, the CJEU held that where a female worker proves that the pay she receives from her employer is less than that of a male colleague and that they both perform the same work or work of equal value, she is prima facie the victim of discrimination.28 (the European Equality Law Review 2019/2 The Burden of Proof in Anti-Discrimination Proceedings,Judgment of 26 June 2001, Susanna Brunnhofer v Bank der österreichischen Postsparkassse AG, C-381/99, para. 58)

The Complainant has established primary facts that are sufficient to establish a causal link between the ground of gender and the less favourable treatment when compared to female students. He is not allowed to wear an earring which culturally a male student is more likely to prefer. In addition, following on from his claim that this was his right to wear one earring he was sanctioned and disciplined.

On these facts an inference of gender discrimination has been met.   Therefore, what appears to be a neutral provision, may in fact be discriminatory. I determine that the Complainant has made out a Prima Facie case of discrimination.

It is also important to note that once a prima facie case has been established it shifts the burden onto the Respondent to show that discrimination or prohibited conduct has not occurred. I note the force of this presumption as referenced in Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022:

The burden of proof

2-121

In the normal course of events, it is up to the person who is making the case to prove their case, i.e. the burden of proofrests on the claimant. However, in practice it can be very difficult for a victim of discrimination to prove their case and generally claimants have little, if any, direct evidence of discrimination. European law recognises those difficulties in how it deals with the burden of proof, and in particular in recognising that certain matters such as why an employee is being treated in a particular way may be peculiarly within the employer’s own knowledge. Shifting the burden of proof can provide a real and practical tool for many people seeking to challenge practices which they believe to be discriminatory or which they know to have had a discriminatory outcome. By recognising that sometimes the burden of proof should be shifted from employee to employer, employees are protected from having to surmount practically insurmountable evidential hurdles which could render nugatory the effectiveness of European law rules on sex equality.

The Supreme Court in Donnelly v the Minister for Social Protection [2022] refused to allow an appeal that prima facie evidence of discrimination in legislation that shifts the burden of proof that rests on a plaintiff, that legislation was contrary to the Constitutional guarantee of equality pursuant to Article 40.1. The Court acknowledged the difficulties faced by such a plaintiff but considered that to be a consequence of legislation enjoying a presumption of constitutionality. The decision illustrates the huge signification of the legislative shifting of the burden of proof that is a fundamental part of European equality law.

Comparator/Hypothetical Comparator:

In Regan Employment Law 2nd Ed chapter 17, I note the use of a hypothetical comparator is referenced:

‘Less favourable treatment’ is more commonly known as ‘direct discrimination’ although that particular phrase is not used in the Employment Equality Act. In general, a complainant must prove less favourable treatment as compared with another person in a similar position to the complainant. If a complainant is unable to demonstrate that the chosen comparator/s were treated less favourably, if for example all employees were treated equally poorly or unlawfully, the claim of discrimination will fail. The wording of s 6 ‘would be treated’ allows for the use of hypothetical comparators in appropriate circumstances of alleged discriminatory treatment, other than in relation to equal pay where an actual comparator is required

This is a case where it is appropriate to apply a hypothetical comparator which is a female student who is allowed to wear earrings that is more likely to suit her cultural preference to wear one earring in each ear. The prima facie case or inference of discrimination relates to males who are more likely to want to wear one earring and not two which is the more likely cultural preference of females. Therefore, there is no need to name a student as a comparator and a hypothetical comparator suffices.

Objectively Justified:

The school argues that the rule is objectively justified:

The Complainant appears to be arguing that the implementation of the rule is a form of indirect discrimination; it is entirely unclear what group is allegedly being indirectly discriminated against. Apart from a mere assertion there is no evidence of this, and he has provided absolutely no concrete evidence supporting this assertion. In any event the school’s legitimate aim is a objectively justifiable in relation to this rule i.e. the proper running of the school.

Indirect discrimination where established provides a second test which can defeat the inference of discrimination and that is objective justification.

The rule states:

“The following are not permitted: 1. All body piercings except one small stud in each year”

An assertion is not enough to meet the test of objective justification. In note in in Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022 what a Respondent must show to meet the test:

Objective  justification

2-201

Once a complainant coming within a protected group can establish the existence of a provision, practice or criterion which puts them at a particular disadvantage, or that a group made up predominantly of members of one group are treated less favourably than the comparator group, then an employer will have to provide objective  justification as provided for in the Employment Equality Acts “by a legitimate aim and the means of achieving the aim are appropriate and necessary”. Again the wording of the Employment Equality Acts reflects verbatim the wording of the Directives and, in turn, reflects the text for  objective  justification as developed by the European Court of Justice as far back as its decision in Bilka Kaufhaus.367 The Labour Court in its decision of the Department of Justice, Equality & Law Reform v the Civil Service Public & Services Union368 adopted the test for  objective  justification in the UK decision of Barton v Investec Henderson Crosthwaite Securities Ltd369 as follows:

“(1) that there were objective reasons for the difference;

(2) unrelated to sex;

(3) corresponding to a real need on the part of the undertaking;

(4) appropriate to achieving the objective pursued;

(5) it was necessary to that end;

(6) that the difference conformed to the principle of proportionality;

(7) That was the case throughout the period during which the differential existed.”

2-202

Any reasons advanced by an employer which constitute objective justification must be cogent and sufficiently specific to the circumstances of the case. In Inoue v NBK Designs Ltd,370 the Labour Court rejected the objective justification proffered by the respondent which was the improvement of efficiency in the administrative function performed by the two part-time employees as being “non-specific and general”.

I find that the practice of allowing a student to wear an earring in each ear while not allowing a student to wear one earring not to be objectively justified on the evidence presented.

Findings

The Complainant raises the following complaints:

·         Discrimination on the ground of gender, as I have determined that the Complainant has met the standard for establishing an inference of discrimination and it has not been rebutted or objectively justified, I find in favour of the Complainant. I determine that the Respondent has engaged in prohibited conduct as the rule is indirectly discriminatory.

·         Discrimination on the ground of sexual orientation, this case has not been made out where it could be concluded that a prima facie case or inference of discrimination has been established because of the rule and liability to sanction. The Rule prohibits the wearing of one earring, and it cannot be inferred from that rule that it discriminates on the ground of sexual orientation as was the case for gender.

·         Victimisation is defined as receiving less favourable treatment because one has:

Section 3(2) Equal Status Act:

(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 adjudication officer 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”).

It was accepted by the Respondent that he was sanctioned arising from not abiding by the rule:

“He is being asked to obey a school rule. He has refused to do so. He has been sanctioned as a result. This is not victimisation or harassment. The school has ceased taking any further actions in relation to this matter pending the determination of the withing proceedings.”

I have determined that rule while apparently neutral was discriminatory on the ground of gender. As the Complainant most definitely complained about that rule being unfair, it is logical to conclude that sanctions that solely arose because of the student’s objection to an unfair practice amount to victimisation.  The stance of this student gave rise to a heated exchange between his mother, grandmother and the principal. There can be no doubt that he believed, and his mother believed this rule to be discriminatory and unlawful. The sanctions that followed, and they were disproportionate to the alleged rule breached, including left sitting outside the principal’s office, detention and restriction on leaving the school at lunchtime amount to victimisation. This treatment solely arose because the student complained against the rule that I have determined to be discriminatory as it favours females over males.

·         Harassment is defined in the Act at section 11 as:

Sexual and other harassment.

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,

(b) is the proposed or actual recipient from the person of any premises or of any accommodation or services or amenities related to accommodation, or

(c) is a student at, has applied for admission to or avails or seeks to avail himself or herself of any service offered by, any educational establishment (within the meaning of section 7) at which the person is in a position of authority.

(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.

(3) It shall be a defence for the responsible person to prove that he or she took such steps as are reasonably practicable to prevent the sexual harassment or harassment, as the case may be, of the other person referred to in subsection (2) or of a category of persons of which that other person is a member.

(4) A person’s rejection of, or submission to, sexual or other harassment may not be used by any other person as a basis for a decision affecting that person.

(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

The sanctions clearly can also be classed as meeting the threshold as defined in Act and I also find that the student was harassed as he did suffer harassment at the school solely arising from his complaint that not being allowed to wear an earring was discriminatory.

The Act details what redress can be ordered as follows:

Redress which may be ordered.

27.—(1) Subject to this section, the types of redress for which a decision of the Director of the Workplace Relations Commission 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 prohibited conduct concerned]; or

(b) an order that a person or persons specified in the order take a course of action which is so specified.

(2) The maximum amount which may be ordered by the Director of the Workplace Relations Commission] by way of compensation under subsection (1)(a) shall be the maximum amount that could be awarded by the District Court in civil cases in contract.

The maximum amount specified in subsection (2) applies notwithstanding that conduct the subject of the investigation constituted—

(a) discrimination on more than one of the discriminatory grounds (other than the victimisation ground), or

(b) both discrimination on one or more than one of those grounds (other than the victimisation ground) and harassment or sexual harassment.

I order the school to amend the rule so that it facilitates the wearing of 1 or 2 earrings as follows:

“The following are not permitted:

2.       All body piercing except one small stud in each ear or in one ear.

The Act provides for an award for harassment, victimisation and indirect discrimination. The effects on the student at an emotional level have been extremely difficult and stressful. Arising from the fact that the sanctions were disproportionate and also have been determined to amount to victimisation and harassment, I order the Respondent to pay  €9000 in compensation  to the student and to be given to his mother and to be held by her  comparable to a trust until he reaches the age of 18 and prior to that date to be used at the sole discretion of his mother.

The Respondent is correct to state that direct discrimination does not arise as the rule was applied uniformly.

I find that no prohibited conduct occurred regarding the claim on the ground of sexual orientation

The Respondent has not rebutted the inference of discrimination on the ground of gender. Arising from that failure and that I also have determined that the discriminatory rule is not objectively justified, I find that the Respondent has engaged in prohibited conduct. I have also determined arising from the punishment he received and the resulting stress that he was victimised for complaining about a practice that was unlawful arising from the punishment he received, and those acts also meet the test to be classed as harassment. Having regard to the circumstances of this case while each of these acts can attract separate awards, the significance of the case was the resulting punishment that the student received and the effects that had on him.

I order the school to amend the rule so that it facilitates the wearing of 1 or 2 earrings as follows:

“The following are not permitted:

All body piercing except one small stud in each ear or in one ear.”

The Act provides for an award for harassment, victimisation and indirect discrimination. The effects on the student at an emotional level have been extremely difficult and stressful. Arising from the fact that the sanctions were disproportionate and also have been determined to amount to victimisation and harassment, I order the Respondent to pay  €9000 in compensation  to the student and to be given to his mother and to be held by her  comparable to a trust until he reaches the age of 18 and prior to that date to be used for his education as she sees fit.

Indirect Discrimination-Victimisation-Harassment.