The Irish Human Rights and Equality Commission (the Commission) today notes the decision of the Supreme Court in the legal proceedings entitled Christian Brothers High School Clonmel v Mary Stokes (on behalf of John Stokes, a minor). The Commission considers that a response is now needed from the State and calls for the awaited admission to schools legislation to address equity of access.
The former Equality Authority (now IHREC) appeared as amicus curiae (or friend of the court) in the case before both the High Court, in 2011 and on appeal to the Supreme Court, in 2013. The Authority’s written and oral submissions focused on drawing the Court’s attention to the appropriate interpretation of the Equal Status Acts when considered in light of relevant European Union Equality Directives. This was the first time that the definition of indirect discrimination under the equality legislation was considered by the Supreme Court, and also the validity of an individual school’s admission policy.
Indirect discrimination arises where an apparently neutral provision puts one person, covered by one of the protected grounds under the equality legislation at a particular disadvantage when compared with another person not covered by that ground. The judgment provides important clarity as to the scope and nature of the protection from indirect discrimination provided under that legislation. The Judgment also affirms that cases concerning the Equal Status Acts may be appealed as far as the Supreme Court, which will impact on other such appeals being taken by the Commission. The case does not, however, address the core issue which is the extent to which schools admission’s policies must ensure equity of access across the grounds covered by the equality legislation. This is an area where the Department of Education has been proposing to legislate for some time.
The case concerned a boy, a member of the Traveller community, who claimed, through his mother, that he was indirectly discriminated against by reason of the admissions policy of a school. In December 2010, Mrs Stokes, on behalf of her son, John Stokes, made a complaint to the Equality Tribunal, in relation to his failure to gain admission to the Christian Brothers High School. The school’s admission policy prioritised applicants on the basis of satisfying three criteria: first, being a Catholic, second, attending a certain named primary school and; third, having a father or sibling who attended the school. Although, John met the first two criteria, he did not meet the third.
In its judgment the Supreme Court found that the application of the particular disadvantage test had been wrongly applied by both the Equality Tribunal and the Circuit Court, and there was ultimately insufficient evidence provided on behalf of the complainant to establish that he had suffered a “particular disadvantage” by reason of the school’s admissions policy.
Emily Logan, Chief Commissioner of the Irish Human Rights and Equality Commission (IHREC) stated: “This is an important case, for a number of reasons. Schools admissions policies have been shown to have an impact not only on members of the Traveller community but also on new migrant communities, those of minority faiths or none, and children with disabilities. This is a matter that was highlighted by the previous Irish Human Rights Commission and other bodies. Many of the calls that the Commission receives to its public information service raises this very issue, and many parents are confused and frustrated when their children cannot gain a place in a local school, but they perceive that there is a lack of accountability in relation to admissions policies. The difficulty of combating such alleged discrimination on an individual basis is evident from the Supreme Court Judgment, and places a heavy burden on schools to self-regulate in the absence of a proper legislative framework. Therefore, it is clear that a response is now needed from the State. It is the responsibility of the Government to ensure that the awaited legislation to regulate school admissions policies addresses equity of access.”
Emily Logan went on to state: The other important aspect of the case is its approach to indirect discrimination. While direct discrimination concerns less favourable treatment that is clear and identifiable, indirect discrimination is more problematic to address as it arises where an apparently neutral provision puts a person, who is covered by one of the nine grounds protected under the equality legislation, at a particular disadvantage compared with others not covered by the ground. Indirect discrimination is more difficult to combat than direct discrimination, because on its face it is neutral and is therefore more difficult to identify, and even if there is a disparity of impact it may be justified if it pursues a legitimate aim. The clarification of the Supreme Court is positive in this regard and clearly draws on the the submissions made by the IHREC in relation to how you identify indirect discrimination and particular disadvantage. Indirect discrimination must be combated as it undermines the type of society that the IHREC strives to promote; where a person’s ability to achieve his or her potential is not limited by prejudice, discrimination, neglect and prohibited conduct.”
The Equality Tribunal, found that members of the Traveller community historically have a very low level of enrolment and participation in post-primary education. This had the resultant effect of placing members of the Traveller community at a particular disadvantage as compared to non-Travellers in terms of admission to the High School, as they were less likely to have an older sibling or father as a former student at the school. As such, the Equality Officer, found that this criterion was indirectly discriminatory against members of the Traveller Community. The Equality Officer found that if the criterion had been removed, the complainant would have had a significantly increased chance of gaining a place in the school.
The Equality Officer went on to consider whether the criterion could be objectively justified. It was noted that although the School’s objective of supporting a family ethos pursued a legitimate aim, the blanket priority accorded to sons of former students was not necessary and appropriate, noting among other factors the disproportionate effect it had on members of the Traveller community.
On appeal the decision of the Equality Tribunal was overturned by the Circuit Court. The subsequent decision was in turn appealed to the High Court which found in favour for the High School.
ENDS/
For further information please contact Fidelma Joyce, IHREC, Mob: 087 783 4939
Notes to editor
- The Equal Status Acts prohibit discrimination in the supply of goods and services and includes educational establishments. The nine grounds protected under the Equal Status Acts are gender, civil status, family status, age, race, religion, disability, sexual orientation and membership of the Traveller community.
- Discrimination that is covered by the Equal Status Acts is set out below in Plain English:
All forms of discrimination that may occur may not be covered by the Equal Status Acts. Discrimination has a specific meaning in the Acts and there are different types of discrimination covered including direct discrimination, indirect discrimination, discrimination by imputation and discrimination by association.
Direct discrimination is defined as the treatment of a person in a less favourable way than another person is, has been or would be treated, in a comparable situation on any of the nine grounds which
– exists;
– existed;
– may exist in the future; or
– is imputed to the person concerned.
Indirect discrimination happens where there is less favourable treatment by impact or effect. It occurs where people are, for example, refused a service not explicitly on account of a discriminatory reason, but because of a provision, practice or requirement which they find hard to satisfy. If the provision, practice or requirement puts people who belong to one of the grounds covered by the Acts, at a particular disadvantage, then the service provider will have indirectly discriminated. If the service provider proves the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, then it may not be indirectly discriminatory.
- The Irish Human Rights and Equality Commission is the designated national equality body for the purpose of the EU Race Directive (Council directive 2000/43/EC) which prohibits discrimination on the grounds of racial and ethnic origin.
- The Minister for Education has issued a Draft General Scheme (Admissions to Schools) Bill 2013, and the full Bill is presently being drafted. The purpose of the proposed legislation, according to the Minister for Education, is to improve the admissions process and to ensure that the way schools decide on applications is structured, fair and transparent.
- The Irish Human Rights and Equality Commission is an independent body, established in law on 1st November 2014.
- The Chief Commissioner, Emily Logan was appointed through open competition; all fourteen members of the Commission were appointed through an independent selection panel.
- The Chief Commissioner and all fourteen members of the Commission were appointed by President Michael D. Higgins on 31st October 2014 and account directly to the Oireachtas for their statutory functions.
- Under Irish Human Rights and Equality Commission Act 2014 (2014 Act), the IHREC has a statutory remit to protect and promote human rights and equality in the State, to promote a culture of respect for human rights, equality and intercultural understanding, and to promote understanding and awareness of the importance of human rights and equality.
- The power of the IHREC to apply and appear as amicus curiae is derived under Section 10 of the Irish Human Rights and Equality Commission sets out the functions of theIHREC. Section 10(2)(e) provides that the IHREC shall have a function:
“to apply to the High Court or the Supreme Court for liberty to appear before the High Court or the Supreme Court, as the case may be, as amicus curiae in proceedings before that Court that involve or are concerned with the human rights or equality rights of any persons and to appear as such an amicus curiae on foot of such liberty being granted (which liberty each of the said courts is hereby empowered to grant in its absolute discretion).”