Key words
Equal Status Act, 2000 - direct discrimination, section 3(1)(a) - Disability, Section 3(2)(g), -scope of definition of disability, Section 2(1) - Traveller community, Section 3(2)(i) - special treatment or facilities, Section 4(1) - nominal cost, Section 4(2) - discrimination by an educational establishment, Section 7 (2) - harassment, Section 11, invitation to Garda to attend parent/teacher meeting - victimisation, Section 3(2)(j)
Dispute
The complainants, a mother Mrs. A and her son M alleged that they were discriminated against by the respondent, a Primary School on the disability and Traveller community ground in terms of Section 3(1)(a) and Section 3(2)(g)and (i) of the Equal Status Act, 2000 and contrary to Section 7(2) of that Act. They also maintain that they were harassed contrary to Section 11 of the Act. They said that they are members of the Traveller community and that they both have a disability.
The complainant, Mrs. A submitted that her son M was bullied and was called names at school, and that management failed to deal with the problems he encountered there. He was constantly blamed for anything that happened and suspended from school. She was regularly called to meetings with the school to discuss Ms behavioural problems. She requested that he be taught by the Resource Teacher for Travellers but he was transferred back to his mainstream class where he was unhappy. Mrs A stated that during one parent/teacher meeting a Garda entered the meeting room with the intention of attending the meeting without her prior knowledge or consent and she left the meeting. It was also submitted that M was refused Confirmation because he had lodged a complaint of discrimination under the Equal Status Act.
The respondent denied that the complainants were discriminated against or harassed on either the Traveller community or disability ground. They submitted that while they knew that the complainants were Travellers they were not aware of their disability. The school welcomed Travellers and had appointed a Resource Teacher for Travellers. They stated that M misbehaved in school and was subject to the normal disciplinary procedures of the school and his parents were consulted about his behaviour. A Garda did attend a meeting scheduled with Mrs A but only to offer friendly advice in relation to Ms behaviour. The respondent stated that M was not confirmed because he was not attending school nor all the preparation classes for the Confirmation.
Conclusions of the Equality Officer
The Equality Officer concluded that Mrs. A's literacy difficulties were not a disability which comes within the definition of disability in Section 2(1)(d) of the Act. She found that Mrs. A was treated less favourably on the Traveller community ground than a non-Traveller would have been treated in similar circumstances, in that it was not the practice of the school to invite a Garda to a parent/teacher meeting. She also concluded that Mrs. A was harassed on the Traveller community ground in relation to this incident in that she was subjected to an unwelcome act which was reasonable for her to have found the situation intimidating and for her to feel humiliated.
In M case the Equality Officer concluded that he failed to establish a prima facie case on the Traveller community ground. She was satisfied that M has a disability in accordance with Section 2(1) of the Act. She concluded that the respondent failed to provide reasonable accommodation for him in that he was not prioritised to see the educational psychologist so that educational supports could be put in place to meet his needs, and without special educational facilities it was unduly difficult for him to avail of education in the school. The Equality Officer also concluded that the complainant was victimised in that he was refused Confirmation because he was pursuing a complaint against the school under the Equal Status Act.
Decision
The Equality Officer found that the respondent unlawfully discriminated against and harassed Mrs. A on the Traveller community ground contrary to Section 7(2) and Section 11 of the Equal Status Act, 2000 and awarded her €850 compensation as redress for the effects of the discrimination. In the case of M, the Equality Officer found that the respondent failed to provide him with reasonable accommodation in accordance with Section 4 of the Act and awarded him €3,000 compensation and that he was victimised in terms of in terms of 3(2)(j) of the Act and awarded him €2,000 compensation as redress for the effects of the discriminatory treatment.
The Equality Officer also ordered the respondent to put in place a system facilitating early identification of students who have disabilities or learning difficulties with the aim of directing these students to the appropriate educational services quickly in order to ensure that they maximise the benefit of their participation in formal education.
Equal Status Acts, 2000 - 2004
Decision DEC-S2006-028
Two Complainants (a mother and her son)
(Represented by Fergus Dunleavy & Co. Solicitors)
V
A Primary School
(represented by Arthur O'Hagan, Solicitors)
Delegation under Equal Status Act, 2000
The complainants referred a claim to the Director of Equality Investigations on 18th April, 2001 under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director then delegated the case to Marian Duffy, 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, 2000.
1. Dispute
1.1 The complainants, a mother Mrs. A and her son M alleged that they were discriminated against by the respondent, a Primary School on the disability and Traveller community grounds in terms of Section 3(1)(a) and Section 3(2)(g)(i) and (j) of the Equal Status Act, 2000 and contrary to Section 7(2) of that Act. They also maintain that they were harassed contrary to Section 11 of the Act. They said that they are members of the Traveller community and that they both have a disability.
2. Summary of the complainants' cases
2.1 M started in 5th class in the respondent's school in March, 2000 having been at school in England up to then. During the new academic school year commencing in September 2000, Mrs. A said that she was called to the school on several occasions concerning her son's behaviour. He was sent home on several occasions as it was alleged that he could not remain still and was disrupting classes. The complainant, Mrs. A submitted that her son was bullied and was called names at school, and that management failed to deal with the problems he encountered there. He was constantly blamed for anything that happened. She said that her son had been suspended from school on two occasions for the alleged bullying, fighting and going walkabout during class and for not returning to class after breaks. She submitted that her son was standing up for himself in the face of being called offensive names such as "knacker" and was taunted by other children because he is a member of the Traveller community. Mrs. A said that no action was taken against the other pupils, who called her son names.
2.2 The parents requested that M be transferred from his Class Teacher and he was transferred to the Resource Teacher for Travellers (RTT) where he was very happy as he got on much better with that teacher. Mrs. A said that she would prefer M to stay in the resource class as he appeared to be getting on better with a male teacher. On 26th October, 2001 Mrs. A. was called to the school to attend a meeting about M being returned to his class teacher. The meeting was attended by the Principal, the Class Teacher, the RTT, and the home school liaison teacher.
2.3 During the course of the meeting a Garda entered and Mrs. A then left as she objected to his presence deeming it a private parent teacher meeting called to discuss M's return to his original class teacher. Mrs. A said that there was no discussion about M's alleged behaviour nor did the Garda mention anything to her about alleged bullying by M. She was shocked to see the Garda enter the meeting and left in a very distressed state. The Garda told her that he was invited to the meeting by the Principal. Following this meeting Mrs. A took M and her other children out of the school for three weeks. She also complained to the Department of Education about a Garda being present at a parent teacher meeting. Subsequently the Principal arrived at her house to apologise. She submitted that this was at the direction of the Department of Education. The apology was subsequently accepted and M and the other children returned to school. Mrs. A consulted her solicitor who took the case up with the school and warned the school they were considering lodging a complaint under the Equal Status Act. She also had a number of meetings with the school authorities and during some of these meetings she submitted that there was a request to withdraw the complaint lodged under the Equal Status Act.
2.4 In November 2001 an incident occurred during P.E class when a stool was knocked over and a child's leg was injured. It was submitted by Mrs. A that M was wrongly blamed about the incident, and that the investigation was not fair in that the other children were asked in a questionnaire whether M was to blame or not. M was not asked to fill in the questionnaire. Mrs. A and her husband submitted that they subsequently learned from the mother of the injured party that their son was not to blame.
2.5 Mrs. A said that at one parent teacher meeting, the Principal told her that M suffered from ADD (Attention Deficit Disorder) and she asked that M be assessed. The Principal told her that would take two years and M would have long since departed the school.
Evidence of Mr. A
2.6 After the Garda had been brought into the meeting Mrs. A no longer dealt with the school and Mr. A had made arrangements with the Principal that he would be contacted in the event of a serious problem arising in connection with his son. Mr. A said that the school telephoned him constantly complaining about M. He said he worked in Malahide and had to leave work on many occasions after being called to the school over trivial breaches of the school rules, i.e., being back late from lunch, moving about in class, talking in class, cycling in the yard and not standing still in queues. He also said that M still complained about being called names, so he raised this with the Principal. On one particular day the school telephoned Mr. A on three occasions. In January 2001 Mr. A said that he was called to the school because M had not returned from lunch and he found him in a distressed state sitting in a park near the school threatening to kill himself. Mr. A complained to the Principal about the pressure that M was being subjected to by the school situation, in particular by one pupil who constantly called him names. Mr. A asked that M and this pupil be separated in class and this did indeed happen briefly but after a while they were put together again. Mr. A said that he attended a meeting with the Principal, the class teacher, and the RTT at which he emphasised he was trying to co-operate with the school in order to get the problem resolved. He believed that the school was working against him in that they had failed to resolve the issue about name calling. Mr. A stated that at the meeting he asked at the meeting what he could do to assist M. He said that it would soon come to a point where he would have to take M out of the school. The Principal replied that might be the best thing to do. The class teacher said that M was driving her crazy as he would not sit down in class. The RTT said that he felt that the school could still deal with the situation. Mr. A said that the school did not offer to get any assistance to deal with M, nor did the school staff suggest to him that he should get M assessed. In February 2001 Mr. A decided after another complaint and in the light of the continuous calls to the school during his work that he would take M out of the school.
2.7 M was due to make his Confirmation in May 2001. He had attended the rehearsals, but one week prior to the Confirmation his mother was informed by the Liaison Teacher for Travellers that M was not on the list for Confirmation. Mrs. A telephoned the local priest Fr. D, who was also a member of the Board of Management of the school. He confirmed that M would not be making his Confirmation. Mr. A then went to see Fr. D who said that M would not be confirmed. Mr. A said that the priest's tone was provocative and when he referred to his wife Fr. D asked "Is that the one with the English accent". Mr. A said that when he asked why M was not on the list for Confirmation, Fr. D said that the family was suing the school, alleging that they were doing this for money. When Mr. A said that he was going to see the bishop about the Confirmation, Fr. D suggested that he should join the Jehovah's Witnesses. Mr. A said that he believes that M was not confirmed simply because the family was taking a case under the Equal Status Act against the school.
Evidence of M
2.8 M said in evidence that the other pupils constantly called him "knacker" or "dirty knacker" particularly in the playground. He said that he had gone to school in England and got on well there, and the school knew he was a Traveller. He didn't like the present school because of the name calling. He had no friends and he did not play sports. He did not like PE as the other children used these occasions to call him names in the school hall. He said that he had fought with children who had called him names because he was upset. He had been suspended for fighting. There was supposed to be an agreement that he would tell the teacher about name calling as it happened. However, when he told the teacher she ignored him. He said that he liked the RTT teacher and he got on well with the four other children in that class.
M went to secondary school in September 2001. The school arranged to have him assessed by a Psychologist who confirmed that he was suffering from ADD.
3. Summary of the Respondent's Case
3.1 The respondent submitted that M was not discriminated against on the Traveller community ground. The Principal stated in evidence that the school enrols a great number of Travellers and the family had a number of children in the school including two children younger than M who got on very well in the school. Because of the number of Travellers enrolled, the school applied to the Department for a Resource Teacher for Travellers. A teacher who was on the staff of the school was appointed as the RTT. The school was also visited by the Department of Education's Home School Liaison Teacher for Travellers, Ms. Anne Byrne who would take classes with Traveller children in order to assess their progress.
Evidence of the Principal
3.2 The respondent stated that M was enrolled in the school at the beginning of the 1999/2000 school year. While he did not present major disciplinary problems, his class teacher noted that he had short attention spans, resulting in disruptive behaviour. Some of the children in his class were afraid of him and this was brought to the attention of his parents. When M transferred into 6th class there was a marked deterioration in his behaviour. Complaints were received about M bullying other pupils in his class, misbehaving in the school yard and slamming a door in a child's face. Parents also complained to the Class Teacher about M's behaviour towards their children. The Principal said that he could not imagine that M was called names as the other children in the class were afraid of him. The Principal said that he constantly asked M to behave and he had put a system in place to reward good behaviour with a chip voucher. The Principal had a meeting with the parents and brought these incidents to their attention. The parents complained about M being called names. The Principal received a complaint about one particular pupil and he investigated the incident and the pupil concerned was sanctioned. He also told M that he should report any name calling to the teacher. He got a report that M kicked over a bench during PE resulting in a child's leg being injured. He investigated the incident by a questionnaire excluding M as it is the policy to exclude the pupil who is accused. This investigation exonerated M. The Principal allowed M home for lunch in order to avoid problems in the school yard. However, the problems continued and M was suspended following a further alleged bullying incident in the school yard.
3.3 The Principal met both parents together with his Class Teacher and the Resource Teacher for Travellers. At the meeting both parents were made aware of the M's behaviour. It was agreed with the parents that one of them would come to the school on a regular basis to see if M was behaving but the parents did not follow through with this agreement. Complaints continued to be brought to the attention of the Principal. He excluded M from PE classes as he considered him a danger to himself and the other pupils.
3.4 M was then transferred to the RTT class for a number of weeks as his Class Teacher could not cope with him. It was not usual for children to be taught full-time in the RTT class, the Traveller children who require assistance with school work are withdrawn from their regular class for one or two classes during the school day. As it was not envisaged that M would be staying full-time in this class, it was decided it was time to transfer him back to his regular class after a few weeks. A meeting was called with Mrs. A to discuss this and also a number of incidents concerning M, which had occurred in the previous days. A meeting took place on 26th October 2000 with Mrs. A, the Principal, the Class Teacher, the RTT, and the home school liaison teacher. While the meeting was in progress a member of the Garda Siochana (Community Garda) arrived at the school to talk to the children about the dangers of Halloween. As one of purposes of meeting Mrs. A included a discussion on M disruptive bullying behaviour, the Principal invited the Garda into the meeting to offer friendly advice as the Garda is regarded as an expert in the area of bullying. The Principal said that he did not warn Mrs. A that he was inviting the Garda to attend. As soon as the Garda entered the meeting Mrs. A objected, leaving the meeting and taking M and her daughter out of school. The Principal said that he subsequently received a telephone call from a Department of Education Inspector seeking to have M returned to school. The Principal went to the family home and apologised for bringing the Garda into the meeting and the children returned to school.
The Principal stated that on one other occasion some years ago he invited a Community Garda to a meeting with a parent. On that occasion a bathroom was flooded in the school and he was having a meeting with the parent and child responsible for the damage. A Community Garda was visiting the school and he invited him to the meeting. The parent and child in question were not members of the Traveller community.
Evidence of the Class Teacher
3.5 The Class Teacher stated that M was in her 6th class. She said that she had an interest in special education, including education for Travellers. She said that she worked to integrate special education classes into mainstream education. She said that the school always welcomed Travellers and pushed hard to have a resource teacher for Travellers appointed by the Department of Education. She said that she also worked closely with the Traveller Liaison Teacher. She said that right from the start she got complaints about M. She had to rearrange the seating arrangements because one parent did not want their child to sit beside M. The complaints mostly related to bullying by M. She attended a number of meetings with the parents of M who suggested that M was called names and bullied. The parents also suggested that they would bring in the Department of Education as they felt that the school had a bullying problem. At one particular meeting it was decided that M would be transferred to the RTT full-time for a period of time.
3.6 The Class Teacher kept a detailed note on M after his father informed her that he was contacting a solicitor about the school. After a number of meetings with the parents an arrangement was put in place for the Class Teacher to telephone his father every Friday afternoon. During one of these conversations with Mr. A the Class Teacher pointed out that M was not bold, but it was her opinion that M was hyperactive. She said that she recognised the symptoms from another child who had ADD and was on medication. She also suggested that it might be caused by an allergic reaction to certain foods and that tests could be carried out by someone qualified in the ADD area. She said that the father said that he did not want M placed on medication and that he would talk to M about his behaviour that evening. She felt the school did its best for M and put all the resources available to it at the disposal of M. However the school had lost teaching posts. A FÁS class room assistant worked with M but had no qualifications in special needs. She said that M liked doing written work and only showed inattentiveness when the class was doing oral work and he had difficulty in communicating orally. She said that the school tended to have children with specific learning needs as other schools in the area tended to refuse admission to these children. She would recognise the symptoms presenting as hyperactive rather than boldness or naughtiness. She said that the school wanted to get to the bottom of M's problem, but had to depend on the psychological services provided by the Department of Education.
3.7 M was assessed by the school's the Learning Support Teacher using a standardised test for M's age group to test his academic level. He scored 10% and the average score is 50%. Subsequently to this he was put on the list to be given to the Department of Education (NEPS) educational psychologist Ms. Mairead Clifford when she visited the school. A list of about 10 pupils was prepared and given to Ms. Clifford. Two pupils were selected for assessment but M was not considered a priority case. If a pupil is assessed the school may be given extra resources to provide extra help to that pupil.
Evidence of the Educational Psychologist (NEPS)
3.8 Ms Clifford said in evidence that she was given a list of 77 pupils including M. Two were selected as a priority by the school to be tested by her for educational support. While she could not recollect a discussion about M with the Learning Support Teacher she was made aware of behavioural problems among the list of 77. She would have advised the school that these pupils needed to see a clinical psychologist and any children exhibiting such behaviour should be referred to a specialised psychological service known as the Lucena Clinic, as they have the psychological services needed. While the parents have ultimate responsibility to have their children assessed Ms. Clifford's practice was to refer the school to this clinic. Some parents have their children assessed privately. At the time she reviewed the list of 77 Ms educational needs were being met by the Resource Teacher for Travellers, other children on the list of 77 did not have this support. The school also had the visiting teacher for Travellers who also provided extra support.
Evidence of the School Liaison Teacher for Travellers
3.9 Ms. Anne Byrne stated that she is the Department of Education School Liaison Teacher for Travellers. Her job is to liaise between the school and the home and would deal with the enrolment of Travellers in schools. If parents require assistance in dealing with the school she would assist. She would also be asked by the school to obtain parents' signatures for forms such as admission forms or health forms. She stated that the school was aware that Mrs. A had literacy problems and she was requested by the school to assist in having forms signed. She said that she was shocked when she heard about a Garda being brought into a parent teacher meeting. She knew from the school that M had behavioural and learning difficulties. She was also aware that M complained about being called names in school.
Evidence of Fr. D
3.10 Fr. D a member of the Board of Management of the school and knew the complainants. He said that the reason M was not confirmed was that he had left the school in February, and was not prepared for Confirmation and this was the rule. The rules and regulations about the Confirmation were put in place by the class teachers. Attendance at the school preparation classes were critical to the decision on whether or not M would be confirmed. He had a telephone call from Mrs. A and he told her that M could not be confirmed. He had a visit from M's father later that day. Mr. A became angry when he was told that M would not be confirmed. Fr. D said that the refusal of the Confirmation had nothing to do with the case lodged against the school. Fr. D accepts that he did mention the case to Mr. A and said that he thought it was strange for him to be suing the school and still want his child confirmed. He also said that the case was discussed by the Board of Management.
4. Conclusions of the Equality Officer
4.1 The matter referred for investigation turns upon whether or not the complainants were discriminated against contrary to Sections 3(1)(a), 3(2)(g) 3(2)(i) and 3(2)(j) of the Equal Status Act and in terms of Section 7 of that Act. In reaching my decision I have taken into account all the submissions, oral and written, made to me by the parties in the course of my investigation into the complaint.
Section 3(1)(a) provides, inter alia, that discrimination shall be deemed to occur where:
"On any of the grounds specified... (in this case the disability and Traveller community and disability grounds ).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(g) provides that: As between any two persons, the discriminatory grounds ... are ...
that one is a person with a disability and the other either is not or is a person with a different disability (the disability ground)."
Section 3(2)(i) provides that: as between any two persons, the discriminatory grounds ... are ...
that one is a member of the Traveller community and the other is not."
Section 7(2) provides:
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, or facility or benefit provided by the establishment,
(c) any other term or condition of participation in the establishment by a student
A person making an allegation of discrimination under the Equal Status Act, 2000 must first demonstrate that a prima facie case of discrimination exists. Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination.
4.2 I have identified the key issues to establish a prima facie case as follows:
(i) Are the complainants covered by the discriminatory grounds? (in this case are the complainants members of the Traveller community and have the complainants a disability in accordance with the Act?)
(ii) Is there evidence that they were subject to a specific treatment by the respondent?
(iii) Is there evidence that the treatment received by the complainants was less favourable than the treatment someone, not covered by the discriminatory grounds (Traveller community and disability) or someone with a different disability, would have received in similar circumstances?
(iv) did the respondent's actions amount to a refusal or failure to provide reasonable accommodation, in accordance with section 4 of the Equal Status Act, 2000 for the complainants' needs as a persons with disabilities, which made it impossible or unduly difficult for them to avail of the service?
(v) would providing for those needs have given rise to greater than nominal cost to the respondent?
While the complainants do not have to satisfy all the tests above they need to satisfy test (i) (that they is covered by the disability and Traveller community ground) plus tests (ii) and (iii), or test (iv).
Conclusions in Respect of Complainant Mrs. A
4.3 I will deal in the first instance with the case of Mrs. A. I am satisfied that she is a Traveller within the meaning of the Act. The next question for consideration is whether Mrs. A has a disability.
Disability is defined in Section 2(1) of the Act as:
"(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person's body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, disease or illness which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour".
The complainant submitted that she had literacy difficulties and dyslexia and she submitted a psychological report in support of her case. The report concluded that the complainant was a person of low average intellectual ability who had severe literacy difficulties. It went on to say that she did not have an illness or impairment or specific learning difficult e.g. dyslexia, but that her literacy difficulties arise from personal and family circumstances rather than a cerebral condition. I am satisfied that the complainant's literacy difficulties are not attributable to "a condition or malfunction which results in a person learning differently from a person without the condition or malfunction" and her deficient literacy skills is not a disability within the definitions of disability in the Act, therefore she is not covered by the ground.
Traveller Community
4.4 As the complainant is covered by the Traveller community ground I have examined test (ii) above and I am satisfied that the complainant was subject to specific treatment in that a member of An Garda Siochana was invited into a parent teacher meeting. I will now examine whether the complainant was subjected to less favourable treatment in the circumstances. The complainant understood that the meeting was called to discuss her son's return to his mainstream class from the RTT, and she was shocked when a Garda joined this meeting. The Principal said there was no ulterior motive for having the Garda present other than to give the complainant some friendly advice about her son. The Principal stated that the Garda offered to attend the meeting when he informed him that there was a meeting in progress with the complainant to discuss her son's bullying.
4.5 I am satisfied that the meeting was a private parent/teacher meeting to discuss the return of M to his mainstream class and that the complainant did not give her permission to invite a Garda to attend this meeting. In my view it would be highly unusual for a Garda to attend a parent/teacher meeting, thus I am satisfied that the complainant has established grounds that she was treated less favourably than a non-Traveller would be treated in similar circumstances. I find therefore that she has established a prima facie case of discriminatory treatment.
4.6 The respondent in rebutting the prima facie case referred to another occasion when he asked a Garda to attend a meeting. He said that a number of years ago, a community Garda who happened to be in the school, was called to a meeting with a parent and child (not Travellers) in relation to an incident about a flooded bathroom. I am satisfied from the nature of the evidence that the context of this meeting was not similar to a parent teacher meeting in relation to class matters. The Garda in that case could have been called to investigate damage to school property. I am therefore satisfied that the respondent has failed to rebut the prima facie case and I find that the complainant was discriminated against on the Traveller community ground in relation to this meeting.
5.0 Harassment
5.1 The complainant submitted that she was harassed contrary to Section 11of the Equal Status Act 2000 which provides inter alia that:
11(2) "A person ("the responsible person") who is responsible for the operation of any place that is an educational establishment ......shall not permit another person who has a right to be present in ... , to suffer ...harassment at that place".
11(5) "Harassment takes place where a person subjects another person ("the victim") to any unwelcome act, request or conduct, including spoken words, gestures or the production, display or circulation of written words, pictures or other material, which in respect of the victim is based on any discriminatory ground and which could reasonably be regarded as offensive, humiliating or intimidating to him or her."
In support of her complaint the complainant submitted a number of instances which she considered harassment under the Act, namely (i) inviting a Garda into the parent teacher meeting, (ii) the refusal of the respondent principal to make a timely apology to her in relation the Garda presence and only did so after a telephone call from the Department of Education, (iii) constantly being called to meetings in the school, (iv) successive allegations of bullying by M and complaints about minor infringements.
5.2 Mr. & Mrs A submitted that they believed that the reason the Garda was invited to the meeting was M was wrongly associated with troublemakers in the area in which they live. Mrs. A said in evidence that she was aware that M was mentioned at a public meeting in connection with alleged bullying. She said that neither her family nor M was involved but that there are a number of Travellers living in the area with the same surname. They have no connection with these people as she and her family live a settled lifestyle in a private house. She believes that simply because they have the same surname they have been associated with any acts bad behaviour by other Travellers.
5.3 The question which I have now to consider is whether the Principal by allowing the Garda to enter the meeting room permitted harassment of the complainant. The Principal said that when he invited the Garda to the meeting he agreed to come because he recognised the name M and had complaints about him. The Garda in a written statement said that he had received unsubstantiated claims of bullying about M and his name had been mentioned at some public meeting. I am satisfied that this was the reason the Garda was invited by the Principal to the meeting i.e. to discuss issues which were clearly not on the agenda. The evidence supports the contention that the complainant was subjected to the unwelcome act of bringing a Garda into a private meeting, which the complainant clearly understood concerned returning her son to his mainstream class. She did not know in advance that a Garda would be present, nor had her permission been sought. The Principal conceded during the course of the hearing that the situation could have been intimidating for the complainant. It is clear from the evidence presented that the complainant felt intimidated and humiliated by the actions of the Principal and it was agreed that she had left the meeting in a distressed state. If a Garda intended to give friendly advice it should have taken place in a venue other than the school.
5.4 I am satisfied that from the complainant's perspective, as a member of the Traveller community that it was reasonable for her to find the presence of a Garda at the parent/teacher meeting to be intimidating and for her to feel humiliated by the experience.
The evidence has been that Mrs. A attended the parent/teacher meeting shortly after the occurrence of a public meeting in the school where comments were made about her son. In these circumstances to have a member of the Garda Siochana join the parent /teacher meeting would, in my view, on balance have been intimidating for her. I am satisfied that this would not have happened if the complainant had not been a Traveller. I am therefore satisfied that the complainant has established that she was treated less favourably than a non-Traveller would have been treated in similar circumstances. For the above reasons, I find that that the complainant was harassed in relation to this parent/teacher meeting within the meaning Section 11 of the Act.
5.5 I find that there was no harassment within the meaning of the Act in relation to the other matters raised by the complainant's representative such as the parents being constantly called over M's behaviour. It is incumbent upon the Principal to bring his concerns to the attention of parents in order to put strategies in place to deal with unacceptable behaviour or disciplinary issues. This is in line with the Department of Education Circular 20/90 "Guidelines Towards a Positive Policy for School Behaviour and Discipline and The Guidelines on Countering Bullying behaviour in Schools" dated September 1993. Also the school's Code of Behaviour provides for sanctions for misbehaviour including contacting the parents. There is an obligation on the school to investigate complaints received and to deal with class disciplinary issues and to put appropriate sanctions in place.
5.6 The next question for consideration is whether the complainant was victimised. While the complainant was asked to withdraw the complaint of discrimination, I am satisfied that the Principal did not pursue the issue any further. In the circumstances, I find no evidence of victimisation in relation to Mrs. A contrary to the Act.
Conclusions of Equality Officer in Respect of Complainant M
6.0 Traveller Community Ground
6.1 I am now going to consider whether the complainant M meets the tests outlined above in order to establish a prima facie case. I am satisfied that he is a Traveller. I am also satisfied that he was subject to specific treatment in that he was called names. He was disciplined for various behaviours including suspended from school and he did not get confirmed that year. I am now going to examine the evidence to see if he meets the third test, and establish that he was treated less favourably than non-Travellers would have been treated in similar circumstances. It is complainant's case that he was constantly accused of bullying and misbehaviour, but that he was being bullied and called names by other children, and his behaviour was a reaction to this treatment. The parents submitted that they investigated the complaints received about M with other parents and found that not all of the incidents complained occurred. The complainant stated that when he complained to the teacher he was ignored. It was also submitted that he was excluded from a questionnaire investigation into an incident in the Gym, from which he was later exonerated and this supports the contention that he was been unfairly picked on because he is a Traveller.
6.2 The respondent denied that the complainant was treated any differently than other children who misbehaved. It was submitted that the school had a policy of admitting Travellers to the school including other members of this family who had got on very well at the school. It also succeeded in getting a RTT (Resource Teacher for Travellers) who provided extra tuition to meet their specific needs (including those of the complainant) in a number of subjects. The school also interacted with the Home School Liaison Teacher for Travellers.
6.3 I am satisfied that the complainant has not established a prima facie case of discriminatory treatment on the Traveller community ground. The complainant was subject to the normal disciplinary procedures of the school when he misbehaved, and his parents were frequently called to the school to be informed of these problems. I note that the school has a code of behaviour policy. I have examined this and also the Department of Education's Primary Branch Circular 20/90 entitled "Guidelines Towards a Positive Policy for School Behaviour and Discipline and a suggested Code of Behaviour and Discipline for National Schools". I am satisfied that the Department's suggested Code was followed by the school in its dealings with the parents and M concerning any misbehaviour. I am also satisfied that any disciplinary measures that the school deemed necessary to apply to a particular situation were applied equally to all children. I am satisfied that the school welcomes Travellers and has supports in place, such as the RTT teacher to help Traveller children integrate into mainstream classes. Consequently I find therefore that the complainant has not established that he was treated less favourably than a non-Traveller who was engaged in similar misbehaviour would have been treated.
6.4 Harassment
The complainant stated that he was harassed in that he was called offensive names and the teacher failed to deal with his complaints. There was one specific complaint of name calling outlined by the complainant at the hearing, and the principal accepted that he had received a complaint from the complainant and this was dealt with by him and the pupil responsible was disciplined. Section 11(2) provides:
"A person ("the responsible person") who is responsible for the operation of any place that is an educational establishment .......shall not permit another person who has a right to be present in or to avail himself or herself of any facilities, goods or services provided at that place, to suffer sexual harassment or harassment at that place".
Section 11 (3) provides "It shall be a defence for the responsible person to prove that he or she took such steps as are reasonably practical to prevent the sexual harassment or harassment, as the case may be, of the other person referred to in subsection (2) or of a category of persons of which that other person is a member".
6.5 While I accept that the complainant may have experienced a level of name calling, the evidence presented in the case does not support the contention that his complaints were ignored. I am satisfied that the respondent dealt with complaints received and sanctioned one pupil. The complainant was also separated from a pupil in class, and he was asked to report further incidents of name calling to the teacher. He was also given permission to go home for lunch so that he was "out of harms way" in the school yard. I am satisfied that the respondent took steps to prevent harassment of the complainant and the defence in accordance with Section 11(3) applies.
6.6 Disability Ground
I will now consider whether the complainant had a disability in accordance with the Section 2(1) of the Equal Status Act 2000. (Paragraph 4.3 above refers) The complainant was assessed in secondary school by an Educational Psychologist of NEPS (National Educational Psychological Service) in November 2002 and it was concluded in the report produced in evidence that he had a "Borderline General Learning Disability". A report was also provided from a clinical psychologist who stated that the complainant met the criteria for Attention Deficit Hyperactivity Disorder / Oppositional Defiant Disorder. Accordingly I am satisfied that the complainant has a disability within the definition of the Act.
6.7 I will now examine test (iv) at paragraph 4.2 above that is the treatment of the complainant in the context of Section 4 of the Act which deals with the provision of special facilities for a person with a disability. Section 4 of the Act states, inter alia:
"(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service".
The question raised is whether the respondent did "all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities". This means that the Act requires the complainant to show that the school did not do everything it could reasonably do to accommodate the needs of a pupil with a disability and that they did not provide him with special facilities to meet those needs. The Act in my view places a demanding standard on the respondent. I will now examine the evidence in the context of the above.
6.8 The complainant's case is that the respondent failed to provide him with a teaching environment suitable to his needs knowing that he had a disability. He was briefly transferred full-time to the RTT class were it was submitted he was happy. It was submitted that the parents said that they requested that he be transferred out of his main class to either the RTT or to another teacher. Instead he was transferred back to the class teacher where he was unhappy. It was also submitted that he should have been referred to the educational psychologist assigned to deal with the school, and that the school failed to treat M in a way which would have made allowances for his disability, or which would have taken his disability into account. Consequently by treating M in such an oppressive manner, by the constant disciplinary measures imposed on him he was put in danger of harming himself. It was also submitted that because of the failure of the respondent to accommodate his needs as a person with a disability and by constantly calling the parents about minor misdemeanours the parents had no choice but to take him out of the school. The parents submitted that they were anxious that their children would be educated as they had missed out on education because they are Travellers.
6.9 The respondent's position is that the school was not aware that the complainant had a disability. His behavioural difficulties were dealt with appropriately at all times and that he was referred to the RTT for extra tuition a facility that was not available to non-Traveller children. He was also put on the list of pupils referred to the educational psychologist, but he was not selected for assessment as he was not a prioritised on the list and in any event he was already in receipt of the extra resources of RTT.
I note that both the Principal and the class teacher recognised the symptoms of ADD and that there was a pupil in the school with it who was provided with special assistance. Both described in their evidence that they discussed ADD with the complainant's parents. I also note that his class teacher said that M was not bold or naughty, but that he had a concentration problem, which meant he could not sit still in class for long periods and this got him into trouble. The complainant's levels of academic progress were also assessed by the Learning Support Teacher and the result of this assessment was considered sufficient to place him on the list for the NEPS educational psychologist, who visited the school. However he was not prioritised and it would appear that neither the class teacher, or the Principal placed sufficient emphasise on his case so that the psychologist would assess him as a priority and measures could be put in place to assist with the problems identified. I find it surprising, given the level of complaints about M, that he was not prioritised. Ms. Clifford in a letter to the complainants stated that she had no record of a request for assessment of M by the school authorities. I note that when he was subsequently assessed by a NEPS educational psychologist in secondary school and was diagnosed with a borderline learning disability and extra supports were put in place for him in that school. It is also relevant that M was subsequently diagnosed by a clinical psychologist with ADHD. I also note from the evidence of Ms Clifford, NEPS Educational Psychologist that she stated that if pupils' behaviour or emotional problems are brought to her attention she will advise the school to have the pupil assessed by a clinical psychologist. She would have told them that such services are available in the Lucena Clinic. I am satisfied that the respondent recognised that M had a disability and his behaviour was connected to this disability. It was therefore incumbent upon them to seek out facilities for him. It is my view that without special educational facilities it was unduly difficult for the complainant to avail of an education in the school.
6.11 Special facilities, in my view, would have included the school prioritising M for assessment with the educational psychologist and requesting educational supports from the Department of Education to meet his needs. A part of this process would be to seek out information on the procedures for sending M forward for an assessment by a clinical psychologist from the Clinic suggested by Ms. Clifford and to provide the parents with the information/particulars as M's mother had literacy problems. It would also be fundamental in such situations to consult with the Home School Liaison Teacher for Travellers whose job is to liaise between the school and the parents to obtain through this channel the necessary consents for the actions proposed to be taken by the school.
6.10 The respondent submitted that it was not the schools responsibility to have the complainant referred to a clinical psychologist. I note that the school had numerous complaints about the complainant's misbehaviour including bullying behaviour and also the complainant's father had informed the Principal that the complainant was talking about self harm. The father submitted that he took the complainant out of the school because he could no longer cope with all the telephone calls he was receiving from the school about M. I note at paragraph 11 of the Circular 20/90 addressed to the Management Authorities and Principals of National Schools which includes a suggested "Code of Behaviour and Discipline for National Schools" states:
"Every effort will be made to have an emotionally disturbed child referred for psychological assessment without delay. Help will be sought, also, from support services within the wider community, eg Community Care services provided by Health Boards".
In a further document from the Department of Education entitled "Guidelines on Countering Bullying Behaviour in Primary and Post-Primary Schools" dated September 1993 the document states at page 15 under Programme for work with victims, bullies and their peers that pupils involved in bullying behaviour need assistance on an ongoing basis and amongst other things states that they may need counselling This would, in my view, indicate that the school was in possession of the appropriate guidance on procedures for dealing with the issues raised by the complainants behaviour and it placed a degree of responsibility on the school Principal to seek out appropriate facilities for M as outlined above.
For the above reasons I find that the respondent failed to do "all that is reasonable to accommodate the needs of a person with a disability" in accordance with Section 4(1) of the Equal Status Act, 2000.
6.11 Nominal Cost
Section 4(2) of the Equal Status Act provides:
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question".
I am satisfied that the cost of seeking out the services required by the complainant to meet his needs as a person with a disability would be no more than a nominal cost for the school.
6.12 Victimisation
I am now going to consider if the complainant were victimised contrary to Section
3(1)(a) and 3(2)(j) of the Equal Status Act, 2000. Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
"On any of the grounds specified... (in this case victimisation ground).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(j) provides that: that one
(i) has in good faith applied for any determination or redress provided for in Part 11 or 111," ......
(iv) has opposed by lawful means an act which is unlawful under this Act, ...
(v) has given notice of an intention to take any of the actions specified in
subparagraphs (i) to (iv).
and the other has not (the victimisation ground)"
As the complainants have not specifically stated in their complaint form that they were claiming victimisation under the Act, I indicated to both parties that I would consider victimisation in my investigation of the case, in that the complainants complained that the respondent asked them to withdraw their complaints, and they further stated that M was subsequently refused Confirmation which they believed was for discriminatory reasons.. The complainant's solicitor notified the respondent under Section 21(2) of the Equal Status Act, 2000 of their complaints of alleged discriminatory treatment. The solicitor then wrote to the school Principal on 13th December 2000 stating that the Principal had contacted the complainants regarding the complaints and had requested the Principal to deal through their solicitor in future. The parents submitted that they were asked by the Principal not to sue the school. The Principal confirmed that he asked the parents to withdraw the complaint.
6.13 The parents have also complained that M was refused Confirmation. They submitted that he was preparing for Confirmation in the school and that they had attended all meetings and preparation classes in connection with it. When they removed him from class they were notified about the preparations for Confirmation and M attended all of them. Shortly before the date of the Confirmation they learned that M's name was not on the school list. When the complainant's mother contacted the priest, Fr. D, who was also member of the School Board of Management, he informed her that M would not be confirmed. Mr. A then called on Fr. D and he stated that he was informed that M would not be confirmed because the parents were suing the school. Fr. D stated in evidence that the complainant was not confirmed because he had not been to school. The class teacher stated that the teachers responsible for preparing the children for Confirmation made a decision at the beginning of the year, and unlike previous years that children who were not attending school would not be confirmed.
6.14 From the evidence presented, I note that there was a certain level of concern at management level in the school that a notice of intention to lodge a complaint had been given to the school under the Equal Status Act by the complainants. Likewise I note from the evidence of Fr. D that he was not pleased that complaints had been lodged under the Equal Status Act. This conclusion was affirmed by the confrontational manner in which Fr. D presented his evidence. I also note that Fr. D failed to inform the complainant's father that M could be confirmed in October (1), with the effect that M was denied any opportunity of Confirmation. I have found above that the school failed to provide reasonable accommodation for M. I am also satisfied that the reason he was not at school during the relevant time of the Confirmation was not because he had left the school but because it was unduly difficult for him to attend school without the provision of such special treatment or facilities as discussed above. M therefore was not in the category of children who could be refused Confirmation for non-attendance at school. M then sought to process his case under the Equal Status Act 2000 by lodging a complaint.
6.15 I believe that the decision to refuse Confirmation was made by Fr. D alone and I am reinforced in this view by the evidence of Fr. J another local priest who is currently on the Board of Management who stated that the decision to refuse Confirmation is not a decision within the remit of individual teachers. Fr. D in his capacity as a member of the Board of Management knew about the case and was clearly unhappy about it. For the above reasons, I have come to the conclusion, on the balance of probabilities that the reason for refusing Confirmation was made by Fr. D in his role as a member of management because M had given notice of his intention to take a complaint under the Equal Status Act 2000. I find therefore that the complainant M was victimised contrary to section 3(2)(j)(v) of the Act.
7. Decision
7.1 I find that Mrs. A has been discriminated against on the Traveller community ground in terms of Section 3(1)(a) and Section 3(2)(i) and contrary to Section 7(2) of the Equal Status Act 2000 and harassed contrary to Section 11 of that Act. Under section 27(1) of the Act, redress may be ordered where a finding of discrimination is in favour of the complainant. Section 27(1) provides that:
"the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination;
or
(b) an order that a person or persons specified in the order take a course of action which is so specified."
7.2 Under the above Section the maximum amount of compensation I can award is €6,349. In considering the amount of compensation which I should award to Mrs A in relation to my finding of discriminatory treatment and harassment, I have taken into account the effect of the discrimination. Mrs. A no longer attended meetings in the school as she felt intimidated. The delay in offering the apology resulted in Mrs. A having her children out of school which added to her distress. I note however that Mrs. A ultimately receive a verbal apology from the Principal and I have taken this into consideration in mitigation of the effects of the discrimination. In the circumstances I order the respondent to pay the complainant €850 as redress for the effects of the discriminatory treatment and harassment.
7.3 In the case of M I find that the respondent discriminated against him in terms of Section 3(1)(a), Section 3(2)(g) and Section 3(2)(j) of the Equal Status Act 2000 and contrary to Section 7(2). In considering an appropriate amount of redress I have taken into account the fact that the complainant was unable to complete his primary education and the effect this had on his academic achievements. I order the respondent to pay him €3,000 as redress for the effects of the discrimination. In relation to the victimisation I have taken into account the effect of missing out on Confirmation had on the complainant and I order the respondent to pay him the sum of €2,000 as redress. Further I order the respondent to pay the above amount of €5,000 to the complainant's mother on behalf of her son M to be used for M's benefit.
7.4 Finally in accordance with Section 27(1)(b) of the Act, I order the respondent school to put in place a system facilitating early identification of students who have disabilities or learning difficulties with the aim of directing these students to the appropriate educational services quickly in order to ensure that they maximise the benefit of their participation in formal education.
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Marian Duffy
Equality Officer
6th April, 2006
notes
(1) A second date for those who missed Confirmation is arranged by the Archbishop and is normally scheduled for October. The school Confirmation was held in May.