Mr. Patrick Kelly V University of Dublin, (Trinity College) (Represented by Senan Allen, SC, on instruction from Maxwells Solicitors)
Mr. Kelly referred a claim to the Director of Equality Investigations under the Equal Status Act 2000, claiming he had been victimised by three named individuals working for respondent. In accordance with her powers under section 75 of the Employment Equality Act, the Director then delegated the case to me, Bernadette Treanor, 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 Act.
2. Summary of the Complainant's case
The complainant applied to participate in a post-graduate course, (Master's degree in Social Work), Trinity College, Dublin (TCD) early in 2002, which began in September of that year. Mr. Kelly stated that Dr. Walsh, TCD, Course Director singled him out for less favourable treatment, including harrassment. He identified a number of situations which he believes demonstrates this treatment. Mr. Kelly believes that his treatment by Dr. Walsh was based on her knowledge that he had lodged a complaint based on the gender ground against another educational institution. In respect of Professor Gilligan, Mr. Kelly stated that the Professor's refusal to allow him make a presentation to the course committee in respect of the issue of his references constituted victimisation.
In respect of Dr. Heary, Mr. Kelly stated that her report of a meeting, which took place on 16/1/2003, was overly focused on him and overly critical of him, and that this also constituted victimisation. Mr. Kelly lodged his claim against Dr. Walsh on 19/12/2002. He believed that he was treated less favourably by Professor Gilligan and Dr. Heary because of their knowledge that he had lodged that complaint against Dr. Walsh. Mr. Kelly accepted that some of his behavior may have been negative but states that this was because of difficulties in his private life at the time.
3. Summary of the Respondent's Case
Dr. Walsh stated that from the outset Mr. Kelly was anxious to contribute though quite strong in his presentation. She received unsolicited reports from other lecturers of unacceptable conduct in class on Mr. Kelly's part and, as she also took some classes, was aware of it herself. Dr. Walsh described the conduct as including overly challenging and aggressive interjections in class and disrespectful remarks. Approximately six weeks into the course Dr. Walsh contacted Mr. Kelly to arrange to meet him and this contact provoked a disproportionate reaction from him such as she had never before seen. The meeting went ahead and Dr. Walsh felt they parted on friendly terms. It was one of Mr. Kelly's referees who informed Dr. Walsh that he had referred a claim against another institution. Dr. Walsh stated that by the time she became aware of the claim, it was irrelevant as Mr. Kelly was already presenting difficulties. Professor Gilligan stated that Mr. Kelly was refused permission to attend the course committee meeting that would be considering the matter of references. This was, he felt a minor matter, did not require the student's attendance, and by this time the result could be anticipated. Professor Gilligan accepted that the references were checked late but this was because of the late start of the course. In twenty years of his experience, Professor Gilligan had never had any experience of a student seeking or being granted permission to make a presentation on his own behalf. Mr. Kelly's references were ultimately accepted by the Committee.
With respect to the claim referred in respect of Dr. Heary, Trinity College, through its representative, stated that the claim was groundless and was frivolous or vexatious in nature.
4. Background
4.1. Complainant's Perspective
Mr. Kelly detailed, in a substantial number of submissions, the various interactions between himself and the respondents which he considered to amount to less favourable treatment. With reference to Dr. Walsh he referred to a meeting between them on 31/10/2002, her refusal to allow him to conduct an interview with the Director of Equality
Investigations, her introduction of a course handbook, her letter of 8/1/03 indicating difficulties with one of his initial references, and her referral for disciplinary action against Mr. Kelly. Mr. Kelly also asserted that Dr. Walsh's acceptance of alleged plagiarism and
assignments longer than the appropriate word-count from other students put him at a disadvantage in comparison with those students. With regard to the alleged plagiarism, Mr. Kelly asserted that since the other students divided the topics among them and each wrote an answer which was circulated, their passes in the examination should be withdrawn and in addition, because they indulged in plagiarism and he did not, his fail mark for that particular written examination should be set aside and he be given a pass. Mr. Kelly was required to work for two months in the field as part of the course and his placement was with a health board. His placement was terminated at the end of the first month and he was given an F2 fail for the placement. Mr. Kelly believes that this and the afore-mentioned situations were orchestrated by Dr. Walsh. He also indicated that he felt his appeals against the marks allocated to him were not dealt with appropriately.
4.2. Respondent's Perspective
The respondent stated that the postgraduate course, Master's degree in Social Work, for which Mr. Kelly applied, was a new course in 2002 following the allocation of funds. It was introduced quickly, in a short space of time, so that some aspects were incomplete at the beginning of the academic year, such as the verification of references submitted by students, the introduction of a new course handbook, and the processing of the application for student accreditation as social workers. Dr. Walsh was the course director.
As part of the course the students were set an equality assignment looking at gay/lesbian issues and while Dr. Walsh indicated that written texts were to be the primary source of information Mr. Kelly arranged to interview the Director of Equality Investigations. E-mails passed between Dr. Walsh and Mr. Kelly on the matter with Dr. Walsh ultimately agreeing to Mr. Kelly interviewing the Director, so long as it did not mean that Mr. Kelly would miss a lecture. As he had free periods in his weekly schedule, Dr. Walsh asked him to re-schedule the interview. The interview did not take place. Dr. Walsh stated that the references of four students, including Mr. Kelly's, required attention. With respect to the plagiarism and essay word-count, these were issues that were vehemently pursued by Mr. Kelly who asserted that Dr. Walsh's ignoring these issues amounted to less favourable treatment of him. When Dr. Walsh held a meeting with students to address the word-count issue there was considerable upset and worry on the part of other students who thought that they would lose the marks given for assignments already submitted. At the meeting Mr. Kelly gave no indication that he had raised the issue and acted as spokesman for the students against the course director, arguing that they should be allowed to keep their marks. He required her to apologise in public for, as he saw it, letting the class down. Two class representatives (students) tried to discuss Mr. Kelly at a course committee meeting and Dr. Walsh responded that it was inappropriate to discuss particular students. The representatives asked for supervision in their roles which Dr. Walsh considered very unusual. In the Equal Status Act, 2000 'service' means a service or facility of any nature which is available to the public generally or a section of the public.
4.3. Service Provider
A service provider is defined in Section 4.6 of the Equal Status Act, 2000 as follows: "(6) In this section- "provider of a service" means- ...... (e) an educational establishment within the meaning of subsection(1) of section 7 in relation to any of the matters referred to in subsection (2) of that section......" Educational establishments, and how they shall not discriminate, are defined in Section 7 of the Equal Status Act, 2000, as follows: 7. -- (1) In this section "educational establishment" means a preschool service within the meaning of Part VII of the Child Care Act, 1991, a primary or postprimary school, an institution providing adult, continuing or further education, or a university or any other third-level or higher-level institution, whether or not supported by public funds. (2) 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. I am satisfied that TCD is a service provider in terms of the Equal Status Act, 2000 and Section 7(2) (c) and (d) in particular in this case.
5. Prima Facie Case
5.1. Requirements
At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. The criteria to be satisfied in order to establish a prima facie case of victimisation under the Equal Status Act, 2000 were set out in Equality Officer's decision DEC-S2003-071, Collins v Campion's Public House1, as follows: "The following elements must be established to show that a prima facie case exists. The complainant must show:
a) that she applied in good faith for redress under the Act, indicated an intention to do so or otherwise satisfied section 3(2)(j).
b) that she was subjected to specific acts of treatment by the respondent after she did so.
c) that this treatment was less favourable than would have been afforded to a person in similar circumstances who had not taken the action at a) above." I am happy to endorse these criteria in respect of this case. If and when those elements are established, the complainant has established a prima facie case and the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not.
1 See also Legal Review 2003, The Equality Tribunal, page 75
5.2.
The complainant had applied for a determination or redress against another educational establishment in accordance with S3(2)(j)(i) and no evidence was presented to suggest that this application was not made in good faith. This satisfies S5.1.(a) above. It is agreed that there was specific treatment of the complainant by the respondents as a result of the postgraduate course, although the nature of this treatment is in dispute. This satisfies S5.1.(b) above. With respect to S5.1.(c) it is necessary to consider the situations relating to the individual respondents separately. In order for Mr. Kelly's claims to succeed he must establish on the balance of probabilities, not only that the respondents knew he had lodged the relevant claims, but that their treatment of him resulted from his lodging those claims.
5.3. Prima facie case - Dr. Walsh
Dr. Walsh indicated at the hearing that she was made aware that Mr. Kelly had lodged a claim when she spoke to one of Mr. Kelly's referees. It was also referred to by Mr. Kelly in his Section 21 notification to Dr. Walsh which he sent on 1/12/2002, and in many other emails which he circulated. Dr. Walsh stated at the Hearing that she decided to contact his referees since his behavior was cause for concern and was at odds with his references. It was also while speaking to the referee that Dr. Walsh became aware that one of the references provided was not from the appropriate line manager. This irregularity presented Dr. Walsh with a dilemma in respect of that reference and she raised the matter with the course committee, who decided on 17/12/2002 to pursue the matter with Mr. Kelly. In this case an inference of discrimination can only arise where there is adequate evidence to show that the treatment Mr. Kelly received was a result of his previous claim, or where there is an absence of any alternative credible explanation. Mr. Kelly asserted in his notification form (1/12/2002) that, with regard to his working relationship with Dr. Walsh, that he "noted throughout a marked insensitivity and insensibility toward me, hypercriticism, constant deprecation, the imposition against File Ref: ES/2002/993, 993A, 993B DEC-S2004-163 me of a supererogatory standard of behavior, and exclusively unaccommodating uncommunicative and unfriendly attitude toward me, an orchestrated effort to isolate me from my student colleagues, clear partiality, vulgar attempts at intimidation, unwarranted threats of suspension and expulsion and an obvious underlying animosity; the afore mentioned list should not be construed as exhaustive." E-mail correspondence between Mr. Kelly and Dr. Walsh relating to the arrangement of a meeting which took place on 31/10/2002 was submitted to the Tribunal and it is useful to look at that incident. The meeting was requested by Dr. Walsh to address
the reports she had received relating to, and her own personal experience of, Mr. Kelly's behavior. Mr. Kelly responded to Dr. Walsh in an e-mail dated 29/10/02 and rather than asking for an indication of the purpose of the meeting, he described the difficulties he had with not knowing the purpose of the meeting
- her concealment of the purpose preventing him from preparing for the meeting
- his inability to adequately respond at the meeting
- if the purpose was contentious, the need for a witness
- if the purpose was innocuous, he would be happy to meet her
- if contentious he would insist on an adjournment of the meeting.
Mr. Kelly finishes his response (29/10/02) by saying "...I have absolutely no tolerence for people wishing to compromise my rights under law or to otherwise act against me in defiance of strict procedural fairness." Dr. Walsh's response is to say that she did not "mean to alarm" him and that she wanted to meet informally to discuss his approach in class. Clearly, at this point 30/10/02, his conduct in class had already given cause for concern. In his response Mr. Kelly stated that his "approach in class does need to be addressed. There has, I accept, been a 'spill over' of emotions from my private life negatively influencing my behaviour in class. I would appreciate the opportunity to discuss possible solutions to this difficulty. I, more than anyone, recognise that this is a potential problem. In turn I would ask you to understand that there are mitigating factors involved." Mr. Kelly, in the two following sentences, goes on to detail difficulties in his private life and then continues: "Trying to contain and resolve these feelings [earlier described as latent feelings from his childhood] within me requires tremendous effort on my part, and sometimes I misdirect my anger or channel it in the wrong ways. Furthermore, when I feel I am being unjustly attacked or victimised I tend to see red; undoubtedly a reaction to my childhood, but something I think you should perhaps be wary of. When we feel vulnerable and insecure we act uncharacteristically. I am a very reasonable person really, even if I don't always come across as such. " Clearly Mr. Kelly accepted at that point, about six weeks into the course, that there was an issue surrounding his own behavior and his interaction with others involved with the course. Dr. Walsh found the suggestion that he sometimes misdirects his anger, or channels it in wrong ways, and that she should be wary of this, to be threatening to her personally. However, she felt the meeting itself went well, that Mr. Kelly accepted the points which she raised and suggestions which she made for sources of help and support in the University, and that they parted on friendly terms. Mr. Kelly was subsequently unhappy with Dr. Walsh's written report of the meeting. Given that the course being pursued carried with it accreditation as a social worker and the attendant authority this imbues, a profession where practitioners have direct dealings, inter alia with disadvantaged members of society, Trinity College has a duty to ensure the suitability of candidates. I am satisfied that Mr. Kelly's behavior had given rise to concern, to the point where it required action to be taken. This arose before Dr. Walsh became aware of his claim against another institution. In fact, Dr. Walsh only became aware of the existing claim as a direct result of taking action on foot of the complainant's behavior. Dr. Walsh becoming aware of the other claim, this did not remove her responsibilities with regard to the accreditation of students. I am also satisfied that another student behaving similarly to the complainant, who has not lodged an equality claim would have been treated in the same manner. Subsequently the interactions between the two parties became more and more difficult and this is evidenced in the substantial number of documents submitted to
the Tribunal by Mr. Kelly. As Dr. Walsh has presented a reasonable explanation for her approach to the complainant, I am satisfied that the complainant has failed to show that her approach was because she took exception to his lodgment of a claim against another organisation. He has therefore failed to satisfy the requirement described in 4.1.(c) above. I find that Mr. Kelly has failed to establish a prima facie case of discrimination on the victimisation ground against Dr. Walsh. I am also satisfied that Mr. Kelly has failed to substantiate any of the allegations he made against Dr. Walsh in his notification dated 1/12/2002.
5.4. Prima Facie case - Professor Gilligan
In this case, Mr. Kelly was refused permission to attend the Course Committee meeting that would finally decide whether or not the references he had submitted were acceptable. There was a substantial number of e-mails from Mr. Kelly on the matter demanding permission to attend and quoting caselaw to support his case. He had furnished a new reference when it was indicated to him that he had not submitted a reference from the appropriate line manager. Professor Gilligan stated at the Hearing that in his experience of 20 years no other student had ever requested permission to make such a presentation nor had such permission been granted. Since, in this case, Mr. Kelly's treatment was not less favourable in comparison to other students, he has failed to satisfy the requirement described in 4.1.(c) above. I find that Mr. Kelly has failed to establish a prima facie case of discrimination on the victimisation ground against Professor Gilligan.
5.5. Prima Facie case - Dr. Heary
On 16/1/03 Dr. Heary attended a meeting with the students undertaking the Masters in Social Work course with Dr. Walsh to discuss the essay word-count issue. She wrote after the meeting that "This student [Mr. Kelly] appeared intent to attribute the blame for this issue entirely to the Department of Social Studies. On several occasions, this student returned to the issue of responsibility for this 'mess' and places such responsibility on course personnel and the Department involved. The student spoke about what he saw as the failure of the Department to apply its own rules, as laid out in the course handbook. No other student appeared to row in with the issues raised by this individual. In my opinion, the student appeared less concerned about solving the issue and more concerned about attributing blame to the Department." Mr. Kelly indicated at the hearing that the entire issue surrounding essay length arose because Dr. Walsh had failed to apply the rules laid down and penalise those who submitted essays beyond the permitted length. He raised the issue and brought it to the point where Dr. Walsh held a meeting with students, some of whom were very distressed by the issue. At the meeting Mr. Kelly did not indicate to his fellow students that it was he who had raised the matter. He indicated at the hearing that he
had agreed to speak on behalf of the students at their request. I find it odd that the students would ask him since there were class representatives in place, and that he agreed to do it even though he was having difficulties with members of the Course Committee. At the meeting he argued for the students who had gone over the word-count limit to be able to retain their marks. Since there is nothing in the note of the meeting written by Dr. Heary that conflicts with the complainant's own evidence presented at the
hearing it would appear to be a reasonable description of Mr. Kelly's role in the meeting. I am satisfied therefore that this note does not constitute less favourable treatment of the complainant by Dr. Heary and that he has failed to satisfy the requirement described in 4.1.(c) above. I find that Mr. Kelly has failed to establish a prima facie case of discrimination on the victimisation ground against Dr. Heary. Ultimately, based on the complainant's own oral evidence I am satisfied that this claim is without substance. I would be disposed to ask the Director of Equality Investigations to exercise her powers under section 22 of the Equal Status Act, 2000 to dismiss the complaint as frivolous and vexations. However, this would prolong the closure of the case by some further weeks and at this point I consider an early closure to be in both parties' interests. Accordingly, since I have completed my investigation I am proceeding with the issue of my decision.
6. Comment
While I am satisfied that Mr. Kelly has failed to establish a prima facie case against the named individual respondents, I am concerned with regard to certain procedures operating within Trinity College. These matters do not relate directly to the claim at hand but to subsidiary matters subsequently arising, including:
- Those personsmaking allegations of breaches of discipline having any part, however small, in the decision-making process.
- Failure to indicate the detailed accusations to a person accused of a breach of
discipline, in a timely manner. - The interviewing of only one of the persons involved in relation to a report (such
as a report from a placement officer) which includes the nature of interaction
between the two people and an assessment of one person by the other person
I am satisfied that any such unfavourable treatment of the complainant in this case was not based on any ground protected by the Equal Status Act, 2000. I recommend that the respondent introduce procedures detailing how students, in respect of whom issues surrounding suitability arise, should be treated. However this tecommendation is nonbinding.
7. Decision DEC-S2004-163
I find that Dr. Walsh, Professor Gilligan and Dr. Heary did not discriminate against Mr. Kelly on the victimisation ground during the period of his studies at Trinity College, year 2002-2003.
Bernadette Treanor
Equality Officer
5th November 2004