Complainant

Respondent

Parties

Keith Cassidy

Board of Management of Clonkeen College

Representatives

Conor McDonald, Association of Secondary Teachers Ireland

Rosemary Mallon, BL

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Paternity Leave and Benefit Act, 2016

CA-00070574-001

04/04/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00070574-002

04/04/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00070574-003

04/04/2025

Clonkeen College has 630 boys on the roll and employs 45 teachers and 10 ancillary staff.  The complainant is a teacher of geography and business studies.

Following the birth of his son in September 2024, the complainant availed of his entitlement to 10 days’ paternity leave.  He was absent for six days due to illness and for one day on force majeure leave when his child was sick. 

On October 1st 2024, the complainant sent an email to the principal, Mr Melly, to ask for time off to attend a meeting of the ASTI Benevolent Committee on October 10th at 2.30pm.  Three days later, he asked for permission to attend a meeting of the ASTI Safety, Health and Welfare Committee at 11.00am, also on October 10th.  Mr Melly replied on October 7th.  He said that neither he or the Board of Management had any record of the complainant being a candidate for election to the ASTI committees and the Board had not been informed of his appointment.  Secondly, Mr Melly said that the complainant had refused to provide information about his ASTI work and that the notice was too short for the Board to consider a request for time off.  In the sixth paragraph of his email, Mr Melly went on:

“Third, even if the board had all the necessary information to consider your external ASTI work, and each of my questions were satisfactorily answered, I cannot see how you, my ASTI, (sic) the Board of Management and/or I, could, in good consciousness, justify your absence from classes, for ASTI business, particularly in circumstances when you have missed 17 school days this year.”

In breach of s.22 of the Paternity Leave and Benefit Act 2016, the complainant claims that he was penalised when he wasn’t permitted to attend these meetings because he exercised his right to take paternity leave.  Under the heading of the Employment Equality Act 1998, he claims that the failure to give him permission to attend the meetings was discriminatory on the grounds of his gender and his status as a parent.

For the respondent, Ms Mallon submitted that the complainant has not make out a case that he was penalised for taking paternity leave, and that the basic facts do not show that he was discriminated against on the grounds of his gender or his family status.

Opening his submission for the complainant, Mr McDonald of the ASTI referred to what he described as “long running difficult relationships” between the complainant and his employer.  Some of the difficulties are concerned with the complainant’s claim in November 2018, that he was selected by staff as the school safety representative.  The Board of Management concluded that he was not properly selected and this resulted in an investigation of a complaint of penalisation at the WRC.  In September 2023, in his appeal from the decision of the adjudication officer that his complaint was not well founded, the Labour Court held that the complainant was not selected to be the school’s safety representative in accordance with s.25(1) of the Safety, Health and Welfare at Work Act 2005.  That being the case, the Court concluded that there was no basis to his claim that he was penalised.

On September 21st 2023, a few days in advance of the issuing of that Labour Court Determination, the complainant sent an email to the principal, Mr Melly, informing him that he was recently elected to the ASTI Safety, Health and Welfare Committee and that he was seeking time off to attend a meeting on September 26th.  Mr Melly replied and asked the complainant to provide details of his election, the ASTI committee and the impact his membership may have on his teaching duties.  The complainant didn’t reply and, in response to a follow-up email from Mr Melly, on September 26th, he said that he had decided not to attend, “due to the short notice of the committee meeting.”

Mr Melly persisted in seeking clarification from the complainant regarding his election to the ASTI Safety, Health and Welfare Committee.  He also sought details from the complainant regarding his assertion that the ASTI would provide cover for his absence when he attended committee meetings.

Mr McDonald said that the “crux of the issue” for consideration at this hearing is the email from Mr Melly on October 7th 2024.  He argued that an employer cannot use the taking of paternity leave as a lever for unfair treatment.  Considering what was said in the email about the complainant’s absence in September 2024, Mr McDonald submitted that this establishes a “prima facie” case that the complainant was discriminated against.

Asserting the use of a hypothetical comparator, Mr McDonald referred to a decision of the Employment Appeal Tribunal in the United Kingdom, Eagleplace Services v Rudd[1].  For the respondent, Ms Mallon vehemently objected to the use of this case as a precedent, based on the fact that equality law the United Kingdom is not grounded in an EU Directive.  Mr McDonald conceded that it was an error to introduce this precedent, but he said that he cannot name any other teacher in the school who did not take paternity leave and who was treated more favourably compared to the complainant.  It is his position that a hypothetical comparator may be used, and that a woman on maternity leave or a man who did not take paternity leave would not be treated in the same way.

Evidence of the Complainant, Mr Keith Cassidy

The complainant said that his case is that Mr Melly stated that he couldn’t justify his attendance at the ASTI committee meetings when he was absent from work for 17 days in September 2024.  Of these 17 days, 10 were taken as paternity leave.  The complainant said that the effect on him is that he wasn’t permitted to attend the meetings, which would have been beneficial to his personal and professional development.  He said that it also resulted in him being reluctant to take other leave such as parent’s leave.

Using himself as a comparator, the complainant said that, in the previous school year, he applied for a day off to attend training in Microsoft’s head office.  He said that, before the training, he had been absent for nine days, but he was permitted to attend.

Referring to a hypothetical female employee who availed of maternity leave, the complainant said that it is hard to believe that a female employee would have all the days spent on maternity leave counted and not be permitted to take time off for union business.

Under European law, the complainant said that it is not permitted to consider maternity leave as equivalent to other types of absences, and that it is regarded as “protected leave.”  He believes that the same applies to paternity leave.  He said that he feels that he was unfairly treated by the respondent.

Cross-examining of the Complainant

The complainant agreed with Ms Mallon that this is not his first hearing at the WRC, and that he brought a previous complaint that was heard by my colleague adjudicator, Michael McEntee, in September 2021.   On appeal from Mr McEntee’s decision that he was not penalised, the Labour Court concluded that he had not been elected as the school safety representative and that, on that basis, penalisation did not occur.

The complainant accepted that his employer is the Board of Management of Clonkeen College and Ms Mallon asked him why he didn’t seek approval from the Board to attend the ASTI meetings on October 10th 2024.  The complainant replied that he put his request to the principal, Mr Melly.  He said that he didn’t seek approval from the Board to join the committees.

Ms Mallon referred to the request the complainant sent to Mr Melly at 9.58 on September 21st 2023, in which he said that he was “recently elected to the ASTI Safety, Health and Welfare Committee.”  Mr Melly is a member of the ASTI, but he had not heard about the complainant’s election.  The complainant agreed that he didn’t tell the Board of Management about his election.

Ms Mallon referred to Mr Melly’s reply to the complainant at 14.32 on September 21st 2023 and his request to the complainant to provide him with the details about his election, the ASTI committee and his role on the committee and the impact it may have on his teaching duties.  The complainant didn’t reply, and, when Mr Melly followed up on September 25th, the complainant sent him an email and said that he had decided not to attend the meeting on the 26th, due to the short notice.

The complainant agreed with Ms Mallon that he didn’t provide any details to Mr Melly about the frequency of the meetings of the health and safety committee.

Ms Mallon then referred to an email from Mr Melly to the complainant on September 26th 2023 in which he repeated his request for information about the complainant’s election to the ASTI Safety, Health and Welfare Committee and the procedure that the complainant had referred to in relation to the provision of cover for teachers attending union committees.  The complainant replied on November 6th 2023 and said that he was,

“…recently elected to the ASTI Safety, Health and Welfare Committee, however the election took place at ASTI Annual Convention 2023.  I was subsumed onto the committee due to a later change in membership.”

Ms Mallon asked the complainant if he was elected at the ASTI Annual Convention and the complainant replied, “I am unclear.”  He said, “I was elected” and “certain people dropped out.”

In response to Ms Mallon’s assertion that he couldn’t have been elected at the 2023 Convention, the complainant replied, “Okay.”   He said that his name was put forward at the Convention but, other people were elected and he was short-listed.  He said that he is not clear how he was subsumed onto the committee and he can’t say on what date this occurred.  He said that at the time he applied for the leave in 2023, he was on the committee, but he would have to consult his emails or his union representative for the dates.  He said that he believes he has an email from the ASTI confirming his membership of the committee.  He said that he thinks “subsumed,” means that he was elected. 

Referring to his reply to Mr Melly of November 6th 2023, and his reference to the ASTI providing cover for the absence of a teacher attending training as a school steward, the complainant agreed that school steward training is different from attendance at an ASTI committee meeting.

Ms Mallon moved to consider the complainant’s request for time off a year later on October 1st 2024, commencing with the complainant’s email to Mr Melly in which he told him that, at the last meeting of the ASTI Central Executive Council, he was elected to the ASTI Benevolent Committee.  In response to Ms Mallon, the complainant said that the Central Executive Council Meeting was held in May 2024.  He agreed that he didn’t tell Mr Melly until he sent the email of October 1st.  He said that he didn’t notify the Board of Management and that he has no proof that he was elected.  He agreed with Ms Mallon that we only have his word that he was elected.  He said that, as soon as he knew that the meeting of the Benevolent Committee was scheduled, he notified Mr Melly.

So that he could attend the meeting of the Safety, Health and Welfare Committee at 11.00am and the meeting of the Benevolent Committee at 2.30pm, the complainant needed the full day off on October 10th.  He agreed with Ms Mallon that this “wasn’t ideal,” but he said that it’s reasonable for a principal to be able to find cover during the period from October 1st and 10th and that there are plenty of trainee teachers available to provide cover.  He agreed that cover by a trainee teacher is not the same as a regular and rostered teacher being present in a class, but he said that he would have left work for the trainee.

Ms Mallon read the email from Mr Melly of October 7th 2024, described by the complainant and Mr McDonald as “the crux of the issue.”  In the second paragraph, Mr Melly said,

“As you know, teachers must notify the Board of Management before engaging in any external work and as per teachers’ contracts this work must not be such as to interfere with the fulfilling of the appointee’s duties and responsibilities to the school.”

The complainant agreed that he didn’t contact the Board of Management about his election to the committees or about his request for time off.  He accepted that he did not look for approval to run for election to the committees.    

Ms Mallon read from the fifth paragraph of Mr Melly’s letter:

“Second, in circumstances where previously you and my ASTI (sic) refused to answer or acknowledge, my essential questions about your ASTI work, causing me great difficulties / distress, and because the notice period is too short for the board to consider the matter at its next meeting, which is scheduled after 10th October 2024, I cannot make the decision to accede to your requests at this time.”

Ms Mallon suggested to the complainant that Mr Melly could have agreed to him taking time off if he had answered his questions about his election to the committees and the other questions related to how his membership would impact on his teaching and how it was proposed that his classes would be covered.  The complainant made no response to this proposition.

Ms Mallon said that, at paragraph 6, which is identified as “the crux of the matter,” there is no mention of paternity leave and the 17 days’ absence includes other leave.  She reminded the complainant that he had been absent for 17 of the first 25 days of the school year in 2024.  The complainant replied that 10 of the 17 days was allocated to paternity leave and the letter equates paternity leave to other leave.

Ms Mallon submitted that the facts raised by the Complainant are not of sufficient significance to raise an inference of discrimination.  In this regard, she referred to the decision of Labour Court in Southern Health Board v Mitchell[2] where the Court held that,

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates 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 sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”

Referring to the decision of the Labour Court in ArtursValpeters v Melbury Developments Limited[3], Ms Mallon asserted that this is one of the leading authorities on the issue of the burden of proof in equality cases.  Here, the Court held that,

“Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

In a later case, applying the rationale in Valpeters v Melbury Developments, it was held that it is

"…well settled law that mere assertion cannot be elevated to the status of evidence.[4]"

Ms Mallon referred to the decision of the Labour Court in the case of Rescon Limited v Scanlan[5] in which the Court concluded that,

"In this case the Complainant has adduced no evidence to establish a nexus between his gender and the Respondent's failure to offer him the disputed post other than that a woman was appointed and he was not.  In the Court's view a mere difference in gender and a difference in treatment, in the sense that the Comparator was appointed and the Complainant was not, could never in itself provide a sufficient evidential basis upon which to raise a presumption of discrimination."

Ms Mallon submitted that the same is true in this case.  Just because the complainant has a particular gender or family status is not enough to shift the burden of evidential proof to the respondent.  In the decision of the Labour Court in Arturs Valpeters v Melbury Developments, the Court observed that there must be "evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably."

In the decision of the Labour Court in the Rotunda Hospital v. Gleeson[6], prima facie evidence is described as,

"…evidence which in the absence of any contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred."

Ms Mallon submitted that the complainant must not only establish primary facts upon which he will seek to rely but, but he must show that those facts are of sufficient significance to raise an inference of discrimination.

In a final precedent, Ms Mallon referred to the decision of the Labour Court in Cork City Council v McCarthy[7], where the Court held that,

"The type or range of facts which may be relied upon by a complainant may vary significantly from case to case.  The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has 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 appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence.  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."

Ms Mallon submitted that, even if it was held that a prima facie case was raised (which is denied), it is submitted that this can be easily rebutted by the respondent.  The refusal was due to the actions or inactions on the part of the complainant, which is demonstrated by the correspondence between him and the school principal, Mr Melly.

It is the respondent’s case that the complainant was not unfavourably treated and he has failed to raise a prima facie case for the reasons outlined.  The complainant is required to prove that he was treated less favourably than his chosen comparator; if he cannot do this his claim must fail.  As set out in the publication, “Employment Equality Law” by Bolger, Bruton and Kimber[8],

“In general, a complainant must prove less favourable treatment as compared with another person in a similar position to the complainant.  Therefore, without a comparator, the claim will fail, and the choice of the comparator is of significant importance to the success of any claim.”

Evidence of the Principal, Mr Edward Melly

Mr Melly replied, “No,” when Ms Mallon asked him if he sent the email of October 7th 2024 to the complainant because he took paternity leave, or because he is a man, or because he is the father of a child.  Mr Melly said that the Board of Management is the employer and teachers who wish to take leave must request it from the Board.  An exception is made for time off for personal reasons, such as a funeral.

Referring to paragraph 5 of his email of October 7th 2024 in which he spoke about the complainant’s refusal to answer or acknowledge his questions about his election to and participation in the ASTI committees, Mr Melly said that the difficulty for him was that he didn’t know what the ramifications of the complainant’s membership of the committees was.  He didn’t know how many meetings he was required to attend, and he couldn’t say what obligations would be placed on his colleagues to cover his classes.  Mr Melly said that, like the complainant, he is a member of ASTI and his questions were not answered.  He was expected to bring the complainant’s request to a meeting of the Board of Management and to answer questions about the background to his involvement in the committees.

Referring to paragraph 6 of his email, Ms Mallon asked Mr Melly why he referred to the complainant missing 17 days of the school year.  Mr Melly said that he didn’t give any consideration to the reason for the complainant’s absence.  He said that a Whole School Evaluation was being conducted by the Department of Education and Science and the complainant missed this event because of his illness.

Ms Mallon asked Mr Melly how he would have responded to a woman who had taken maternity leave who was not elected to a committee and who gave six days’ notice of a request for time off to attend a meeting.  Mr Melly said that he couldn’t have conceded to such a request.  If a single man with no children had made the same request, Mr Melly said that if the teacher was not elected to a committee and could not provide answers to the questions he put to the complainant, he would not have given him permission to attend a meeting. 

Cross-examining of Mr Melly

Mr Melly agreed with Mr McDonald that he is the secretary to the Board of Management. 

Mr McDonald referred to the email Mr Melly sent to the complainant on September 25th 2023, in which, in the final paragraph, he said,

“I would appreciate it if you and/or ASTI could reply to this email and to my email of Thursday, 21st September 2023, by noon today, with all the information I require, as principal, to approve your absence from school.”

Mr Melly agreed with Mr McDonald that he said in his direct evidence that he gave no consideration to the fact that 10 of the 17 days on which the complainant was absent in September 2024 was allocated to paternity leave.

The Relevant Law

The issue of penalisation of an employee for taking paternity leave is addressed at s.22 of the Paternity Leave and Benefit Act 2016:

(1) An employer shall not penalise, or threaten penalisation of an employee for proposing to exercise or having exercised his or her entitlement to paternity leave.

(2) For the purposes of this section, penalisation of an employee includes -

(a) dismissal, or the threat of dismissal, of the employee,

(b) unfair treatment of the employee, including selection for redundancy, and

(c) an unfavourable change in the terms or conditions of employment of the employee.

(3) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee, as referred to in subsection (2)(a), the employee may institute proceedings under the Act of 1977 in respect of that dismissal.

It is the complainant’s case that, contrary to subsection (2)(b) above, he was treated unfairly when his employer refused to allow him to take time off on October 10th 2024 to attend meetings of two ASTI committees.  He claims that permission was refused because he had been on paternity leave for 10 of the 17 days during which he was absent in September 2024.  The issue I must consider is if the refusal of permission to attend the meetings is encompassed by the meaning of “unfair treatment” at subsection (2)(b) above, and if the complainant was penalised when permission was refused.

Findings

At the hearing of this matter on September 12th 2025, the complainant said that he was “subsumed” on to the Safety, Health and Welfare Committee after the 2023 ASTI Convention.  He was unclear about how precisely this occurred.  He said that he believes he has an email from the ASTI confirming that he is a member of the committee.  Considering the history of this matter, and the dispute between the complainant and his employer about his membership of the Safety, Health and Welfare Committee, it seems to me that most reasonable people in the same circumstances would have brought incontrovertible evidence to the hearing to prove that they were in fact elected as a member of the committee. 

In his email to the complainant on September 26th 2023, Mr Melly asked him to, 

§  Clarify if he was “recently elected,” or if he was elected in April 2023, at the ASTI Convention;

§  Provide details of the election procedure and the advertisement for the vacancy on the committee;

§  Provide a schedule of dates of meetings in the 2023 / 2024 school year;

§  Clarify ASTI’s policy on providing cover for teachers attending committee meetings.

In his response of November 6th 2023, the complainant didn’t provide any clarification, but simply stated that meetings were scheduled on November 19th and December 11th. 

One year later, on October 1st 2024, the complainant wrote to Mr Melly and informed him that he was “elected to the ASTI Benevolent Committee at the last meeting of ASTI Central Executive Council.”  He looked for time off on the afternoon of October 10th.  In his evidence, the complainant said that he was elected to the Benevolent Committee at the meeting of the Central Executive Council in May 2024, although he said that he has no proof of this. 

As there had been considerable conflict between him and the principal regarding his membership of the Safety, Health and Welfare Committee, it seems to me to be rather clueless and entirely unreasonable for the complainant to announce his membership of a second committee five months after the event and nine days in advance of a meeting that would have involved him being absent from work.

Before Mr Melly replied to the October 1st email, the complainant wrote to him again on October 4th and looked for time off in the morning of October 10th, to attend a meeting of the committee on Safety, Health and Welfare.  When Mr Melly replied on October 7th, most of the concerns he set out had been expressed previously in his emails to the complainant on September 25th and 26th 2023 and were along the lines of, “please provide clarification.”  At paragraph 9, Mr Melly made his position clear:

“In the absence of transparent, honest answers to these reasonable and essential questions / information, I cannot make informed decisions or advise the Board of Management about what’s best for Clonkeen College and its students when considering your request(s) for time off school to conduct external ASTI work.”

It is apparent from this that the onus was on the complainant to provide “transparent, honest answers” about his involvement on the ASTI committees before “informed decisions” could be made about his request for time off.  Rather than respond to Mr Melly’s request for answers, the complainant did nothing and, two days before the expiry of the six-month time limit for submitting a complaint to the WRC, he submitted these complaints.  His failure to pursue his request for time off to attend the ASTI committees and his decision instead to return to the WRC to reignite his dispute with the principal is an indication of the complainant’s somewhat skewed priorities.

I note from the correspondence submitted by the complainant in evidence that he was timetabled to teach for around 22 hours each week.  I understand that most secondary schools have classes for a half day on one day during the week and a mid-term break at Halloween.  The complainant could have asked the organisers of the meetings scheduled for October 10th 2024 to schedule them outside his teaching hours.  Considering the history of conflict between him and the principal regarding his involvement with an ASTI committee, it is regrettable that some wise counsel didn’t prevail and that the meetings were arranged outside the complainant’s teaching time.

One of the conditions of the complainant’s contract of employment is that external work “must not be such as to interfere with the fulfilling of the appointee’s duties and responsibilities to the school.”  If it is the policy of the union to hold committee meetings during school hours, it was incumbent on the complainant to submit a request in good time to the Board of Management.  His failure to submit such a request, and to support it with “transparent, honest answers” to the principal’s reasonable and essential questions was the cause of him not being permitted to take time off.  This is abundantly clear from the email from the principal of October 7th 2024.  The email contains 11 paragraphs, 10 of which are concerned with the complainant’s contractual obligations, the procedure for requesting time off, the failure of the complainant to inform the board or the principal about his appointment to the union committees, the short notice of the request for time off, the requirement to prioritise teaching over non-school activities and the complainant’s failure to submit a certificate of completion of certain mandatory training.

Conclusion

Relying on the “but for” argument expounded by the Labour Court in Toni & Guy Blackrock Limited v Paul O’Neill[9], to show that he was penalised, the complainant must demonstrate that if he had not taken paternity leave, he would have been permitted to take the time off.  It is clear from the October 7th email that the reason permission was not granted was because he failed to give adequate notice to the Board of Management of his request to take time off, he didn’t provide the information required by the principal to explain his election to the ASTI committees and he didn’t properly explain how his classes would be covered.  While the principal referred to his absence from school for 17 days, this was clearly prefaced as third in the list of reasons why permission was not being granted.  No mention was made of paternity leave and it seems to me that the complainant has seized on the principal’s reference to him having missed 17 school days to claim a detriment.  I am entirely satisfied that there is no connection between the decision of the principal not to allow the complainant to take time off on October 10th and the fact that he took paternity leave. 

At s.22(2) of the Paternity Leave and Benefit Act, “penalisation” is described as dismissal, the threat of dismissal, unfair treatment including selection for redundancy and unfavourable changes in terms and conditions of employment.  It is my view that the principal’s decision not to give the complainant permission to take time off to attend the ASTI meetings is not in the same category as the serious adverse treatment referred to in the legislation.  I am not satisfied that the complainant was subjected to the degree of unfair treatment intended by subsection (2)(b) and it follows therefore, that he was not penalised.

As I have concluded that the decision not to permit the complainant to take time off on October 10th 2024 was not connected to his absence on paternity leave for 10 days the previous month, I find that his complaint of penalisation is without merit.  I decide therefore, that this complaint is not well founded.

The Legal Framework

The legal framework prohibiting discrimination on nine specific grounds is set out at section 6(1) of the Employment Equality Act 1998 – 2015 (“the EE Act”): 

“…discrimination shall be taken to occur where –

(a) 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 sub-section (2), in this Act, referred to as the ‘discriminatory grounds’…”

The subject matter of this investigation is the complainant’s contention that he was discriminated against on the ground of his gender and his family status.  At subsections (2)(b) and (2)(c) respectively, “the gender ground” and “the family status ground” are listed as two of the nine discriminatory grounds.  At section 2, under the heading, “Interpretation,” family status is given two meanings, one of which is the parent of a person under the age of 18, which properly describes the complainant’s family status. 

The Equality Act 2004 inserts a new section, 85A, into the EE Act:

“85A – (1) Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the responsibility is on the complainant to show that, based on the primary facts, he was treated less favourably compared to a female teacher or a male teacher with no children.

In her submission, Ms Mallon referred to the decision of the Labour Court in Valpeters v Melbury Developments (footnote 3) and the onus which is on a complainant to establish facts from which discrimination may be inferred.  If a complainant can show that the facts are “of sufficient significance” to raise a presumption of discrimination, the burden of proof shifts to the respondent.

The Primary Facts

There is no dispute between the parties concerning the facts on which these complaints are grounded.  The complainant was not permitted to take time off to attend two ASTI committee meetings on October 10th 2024.  The explanation given by the respondent for refusing permission was because,

1.       The complainant failed to notify the Board of Management that he had been elected to the committees, meetings of which would interfere with his attendance at school;

2.       The complainant failed to provide answers to the principal’s questions about his election to the committees and the union’s arrangements for having his classes covered when he was absent at meetings;

3.       The request was not submitted on time to bring it to the attention of the Board of Management which was responsible for approving time off.

As set out by the Labour Court in its decision in Valpeters, to establish that discrimination has occurred, I must find that, in respect of how he was treated when his request for time off was refused, “there was evidence of some weight from which it could be concluded” that the complainant was treated less favourably because he is a man and the parent of a child.

Findings

In his evidence at the hearing, the principal, Mr Melly said that when he wrote to the complainant on October 7th 2024, outlining the reasons why he could not make an informed decision about his request for time off, he gave no consideration to the fact that the complainant had taken paternity leave.  In his email, Mr Melly set out three reasons why he couldn’t make an informed decision:

1.       The complainant’s failure to follow procedures regarding his involvement in an activity that would require time off from class;

2.       His failure to answer questions about his election to the ASTI committees and the short notice of the request for time off;

3.       His absence for 17 days in September.

The reference to the complainant’s absence for 17 days is the third in the list of reasons and, it seems to me, the third in the order of importance to Mr Melly.  I have carefully reviewed the email of October 7th 2024 and I have considered Mr Melly’s evidence on this matter.  When he raised the fact of the complainant’s absence for 17 days in September 2024, he did so in an appeal to the complainant’s good sense.  I am entirely satisfied that he gave no consideration to the fact that 10 of the 17 days were taken up with paternity leave, but that he was exhorting the complainant to act reasonably and fairly and to give priority to his responsibility to be in class.

Critical to a complaint of discrimination, s.6(1) of the EE Act provides that, to establish that discrimination has occurred, the treatment of the person making the complaint must be determined to be less favourable compared to another person who is not in the same protected category.  At the hearing, the complainant said that he couldn’t produce an actual comparator, but that a hypothetical comparator would be a female teacher who had taken maternity leave and a male teacher who is not the parent of a child.  He said also that he himself is a comparator, because he was permitted to take a day’s leave for Microsoft training in 2023, after he had been absent for nine days on sick leave.  The complainant produced no precedent to persuade me that his suggestion of a hypothetical comparator, such as a woman who had taken maternity leave or a man with no children should be considered.  He presented no evidence that any other teacher had benefited from more favourable treatment when it came to a request for time off.  Regarding his use of himself as a comparator, it is a fact that he was not a father in 2023 when he was granted time off; however, to prove this convoluted point, it would be necessary to demonstrate that the principal selected only teachers who were not parents to attend the Microsoft training.

It is not sufficient for the complainant to simply claim that he was refused time off on October 10th 2024 because he is a man and the father of a child.  In his attempt to do so he makes the same error as Mr Valpeters, by presenting a “mere speculation” that, by referring to his absence for 17 days, Mr Melly refused to permit him to take time off to attend the ASTI committee because he had taken paternity leave.  The facts show that the reason he was not granted the time off was for other important reasons which he failed to address before he submitted these complaints to the WRC.

Conclusion

Having examined the primary facts set out by the complainant at the hearing, it is my view that, in line with the various decisions of the Labour Court concerning the burden of proof in equality cases, he has not produced evidence of sufficient significance to show that he was discriminated against because he is a man and the parent of a child.  For this reason, the burden of proving the absence of discrimination does not shift to the respondent.

I have concluded that the complainant has not established the primary facts which show that he was discriminated against on the ground of his gender or family status and I decide therefore, that his complaint is not well founded.

Discrimination, burden of proof, comparator, hypothetical comparator, penalisation, paternity leave, gender, family status