The Equal Status Act – Service Discrimination

Introduction – Discrimination as to Service

A recent decision of the Workplace Relations Commission (WRC) reaffirms a generally accepted provision, that in order to be discriminated against on the grounds of one's non receipt or delivery of service, one must be in a position, or qualified to avail of that service.

In the present case, the complainant, a father of two children attending a Primary School (the Father), submitted that the alleged behaviour of the school in failing to provide him with information relating to his children’s attendance, amounted to discrimination on the grounds of gender. 

The respondent (the School) refuted the complaint and submitted a prima facia case of discriminatory treatment did not exist.

Discrimination under the Equal Status Act

The matter referred for adjudication was whether or not the Father was discriminated against pursuant to Section 3(1)(a) and 3(2)(a) of the Equal Status Act (the Act) and in terms of Section 7 (2) of that Act. 

The details of the circumstances regarding the children which were raised during the hearing are not recounted in this article, save to say that the WRC noted that the appropriate agencies had been involved in the situation. It was recognised that the circumstances were difficult for the Father, and where the Father does not believe the School treated him fairly in how it responded to his concerns. The WRC did empathise with all the parties involved and acknowledge the issue was a matter of distress for the Father. The evidence submitted supported the proposition that the School did in fact respond to the Father’s issues and met with him on a number of occasions, despite some of the evidence being disputed between the parties.

Proving Discrimination under the Equal Status Act

With respect to a complaint under the Equal Status Acts, a person making an allegation of discrimination must first establish a prima facie case of discriminatory treatment. Once a prima facie case of discrimination could be established by the Father, the burden of proof would then shift to the School to rebut the presumption of discrimination.

Defining “Service” under the Equal Status Act

Section 2 of the Equal Status Acts defines “service” as a service or facility of any nature which is available to the public generally or a section of the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes access to and use of any place. 

Application of Equal Status Act 

The School is an Educational establishment, and therefore section 7 of the Act applies.  

Section 7(2) of the Act states that an educational establishment shall not discriminate in relation to— (a) the admission or the terms or conditions of admission of a person as a student to the establishment; (b) the access of a student to any course, facility or benefit provided by the establishment, (c) any other term or condition of participation in the establishment by a student, or (d) the expulsion of a student from the establishment or any other sanction against the student.

The Father was not a pupil of the School or a person that could legitimately avail of the services provided by the School as set out in Section 7(1) of the Act.  On that basis the nature of the Father’s case does not apply to section 7 of the Act. 

The WRC therefore did not find a prima facie case of discriminatory treatment existed in this instance.