Case Number: DEC-S2012-003- Full Case Report. Equality Tribunal

• Court: Equality Tribunal
• Date: 01 January 2012
• Docket Number: DEC-S2012-003- Full Case Report

The Equality Tribunal
Equal Status Acts 2000 to 2011 Decision Number
DEC-S2012-003 Parties A Complainant
V
A School
(Represented by Mr. Brian Foley B.L. on the instructions of Mason Hayes & Curran) Case ref: ES/2010/0101 Issued: 16 January 2011

DECISION NUMBER DEC-S2012-003 CASE REFERENCE ES/2010/0101

Keywords:
Equal Status Acts 2000 to 2004 - Discrimination - Gender - Civil Status - Provision of Goods and Services - Prima Facie Case

1. Delegation under the Equal Status Acts 2000 to 2011

1.1. A complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 26 October 2010. The respondent was notified of this complaint in accordance with the Acts on 26 June 2010. In accordance with his powers under section 75 of the Employment Equality Act, 1998 and section 25 of the Equal Status Acts, the Director then delegated the case to me, Tara Coogan, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under part III of the Equal Status Acts on 29 July 2011. An oral hearing, as part of the investigation was held in Dublin on 17 November 11. The parties have been anonymised to protect the identities of the children who attend or used to attend the respondent school.

2. Dispute

2.1. The dispute concerns a complaint of unlawful discrimination on the gender and/or civil status ground(s). The complainant submitted that a named national school ("the respondent") discriminated against him by, inter alia, not replying to his queries, allowed his child to be removed from the school contrary to the school's own policy, and by allowing his child to be enrolled in circumstances where his details were omitted from an enrolment form. Further issues concerning policy were also raised.

3. Case for the complainant

3.1. The complainant is a separated, non-custodial father of two children. He claims that the respondent has engaged in acts on-going discrimination against him throughout the entire duration of his children's attendance at the respondent school. The complainant maintains that this less favourable treatment has occurred on the grounds of his gender and civil (marital) status.

3.2. The complainant became aware that his daughter had been absent from school for a number of days in April 2010. As a legal guardian of his children, he believes that he ought to have the right to know more about these absences. While the complainant is not a custodian of his children, he maintains that his rights and responsibilities in relation to the welfare of his children have not been altered. Therefore, he ought to been informed of such matters. The complainant wrote to the respondent requesting copies of his children's attendance records for the entire duration of their stay in the school and for any notes that the children's mother may have submitted in relation to these. As the complainant did not receive a reply within two and a half weeks, the complainant sought assistance of a named solicitor. The complainant was subsequently advised that the respondent had sought advice in relation to data protection legislation and would revert in due course but maintains that the respondent ought to have replied to his letter informing him of this before he engaged a solicitor. The complainant's solicitor wrote to the respondent on 19 May 2010 and having received no response rang the respondent on 27 May 2010. The respondent refused to engage with the complainant's solicitor over the phone and advised the solicitor that he ought to contact the respondent's solicitor. However, having done so, the respondent refused to inform the solicitor who their legal representative was. The complainant submitted that this refusal to provide this information to a person acting on his behalf amounted to discrimination against him. While the complainant received a response from the respondent's solicitors eventually he was not provided with the requested notes. This, the complainant stated, was a further act of discrimination.

3.3. On 25 April 2008 the complainant's children were taken from the school by an unauthorised person contrary to the school's own policy relating to custody/separation policy. The complainant maintains that this breach of the school's own policy is an act of discrimination because, on an earlier occasion, when the complainant had attempted to take out his own daughter in a similar fashion he had been prevented from doing so. The complainant also submitted that the policy of having to have a written note from a separated parent is discriminatory as non separated parents merely have to inform the respondent if there is a change of arrangements.

3.4 The complainant, at the material time, was due to collect his daughter from her home shortly before 3 pm with the aim of making their way to the school to collect his son at 3 pm. On 25 April, 2008 at approximately 11.46 am the complainant received a text message from his wife requesting that the complainant pick up their daughter from school at 2 pm. The complainant replied that due to the short notice he would be unable to do so. He received no further texts from his wife. At approximately 14.18 the complainant sent a text message to his wife enquiring whether he should pick up his daughter from the school or from the house. As he received no reply, he texted his wife indicating that he presumed that he would be picking up his daughter from the school. He received no reply from his wife. However, when he arrived at the school he was informed that his daughter had been picked up somebody. The complainant became concerned and enquired who this person was and where his children were. The respondent refused to answer these questions and the complainant submitted that this was an act of discrimination as a non-separated parent would have been provided such information on their request. The complainant suffered much anxiety and distress as a result of this and it was only when one of his son's friends told him that his son had been picked up by the complainant's wife's partner that he was able to relax. The complainant who had imagined the worst possible outcome for the past 10 minutes - that his children had been abducted - stated that he would not have had to endure such fear if the respondent had simply told him what had happened.

3.5. The complainant denied that he behaved in a threatening manner at this time or that it was this incident that was the reason why the respondent had a security system installed shortly afterwards. The complainant stated that he was not approached by the Garda Siochana in relation to this matter (because if he had been approached he would have had at least had an opportunity to state his case) and that the respondent had not provided any evidence to this investigation to substantiate this claim. The complainant categorically denies that he assaulted or threatened the respondent principal despite his acknowledgement that such a reaction - in the circumstances where he believed his children had been abducted - would have been normal. He also pointed out that there is no mention of this alleged incident in the Board of Management meetings.

3.6. On 3 June 2008, the complainant met with his son's teacher about the fact that the complainant's wife was collecting him early from school on days when the complainant was supposed to pick him up. He told the teacher that he did not consent to his son being removed from the school early. The teacher replied that she could not stop the complainant's wife from picking up her son early. When the complainant asked if he could pick up his son early, the teacher replied that he could not. When the complainant queried why, the teacher replied that the complainant's wife was the primary carer. The complainant, who pointed out that there is no such distinction in law, stated that his opinion should be given the same weight as an equal guardian of his son. The complainant submitted that this distinction was an act of discrimination as any other non- separated parent would be allowed to pick up their child from the school. While the complainant noted that the respondent's reply in relation to this matter indicated that the teacher understood the meeting to be about the complainant's son's educational progress and not about custody and access arrangements, the complainant refutes this and stated that the meeting was about guardianship issues. The complainant also denied that his approach at this meeting was aggressive and that pointed out that the matter was not referred to Gardai.

3.7. The complainant submitted that the respondent's claim that "it is common place to refer to the parent with whom the children primarily reside as being the "Primary Carer" is not placed on any legislative provision and that therefore it cannot be accepted that such use of language is common place or that it only relates to separated parents. The complainant maintains that the use of primary carer in situations such as this allows for a school to make up its own rules and to ignore the law. The use of this word affected his rights as guardian as it prevented the complainant from picking up his son early.

3.8. The complainant maintains that the school allowed this practice to have his son been picked up early to continue. This would not have happened if a non-separated parent had given a similar instruction. The complainant stated that on 13 June...