The Supreme Court dismissed John Stokes’s appeal in a dispute over Clonmel High School’s admissions policy, finding that the evidence before the Equality Tribunal and Circuit Court was insufficient to establish whether the policy put Traveller applicants at a particular disadvantage.
The judgment, delivered by Mr Justice Clarke on 24 February 2015, concerned an application made on John’s behalf by his mother, Mary Stokes. The school’s policy gave priority to applicants with a sibling who attended or had attended the school, a parent who was a past pupil, or close family ties to the school. Applicants who did not qualify for priority places entered a lottery for the remaining places.
John, the eldest child in his family, did not qualify under the parental rule because his father had not attended secondary school. He was refused a place in January 2010 and placed fourth on the waiting list. His family’s subsequent appeals were unsuccessful.
The Equality Tribunal found that the parental rule placed John at a particular disadvantage as a member of the Travelling Community and ordered the school to offer him a place and review its admissions policy. The Circuit Court allowed the school’s appeal and set that decision aside, finding the rule justified. The High Court dismissed John’s appeal on a point of law, reasoning that the disadvantage was shared by other applicants without priority.
The Supreme Court rejected the High Court’s reasoning about the meaning of “particular disadvantage”: the fact that other applicants might also be disadvantaged did not, by itself, rule out indirect discrimination against a protected group. But the Court said the proper analysis had to assess the combined effect of the alternative sibling, parental and close-connection criteria on Traveller and non-Traveller applicants. It also required an adequate statistical basis to compare their chances of obtaining a place, including the effect of the lottery for applicants without priority.
That analysis had not been done. In particular, the evidence about John as the sole Traveller applicant identified for the relevant year could not establish the effect on Traveller applicants as a group. The Court said this did not mean that such a rule could never cause particular disadvantage; the evidence in this case simply did not support a sustainable finding that it did.
The Court also held that the school could not raise the time limit for the Equality Tribunal complaint for the first time at the Circuit Court stage. Because the school had not raised the issue before the Tribunal, John had been deprived of the opportunity to seek an extension. The Supreme Court therefore did not decide when time began to run.
The Court left the question of whether the admissions rule was objectively justified undecided. It dismissed the appeal, agreeing with the High Court’s result for different reasons. The judgment addressed the Supreme Court’s jurisdiction and the legal approach to the claim; it did not find that the policy had been proven discriminatory.