Nora Faulkner
(represented by the Kerry Traveller Development Project)
V
St Ita's & St Joseph's School, Tralee
(represented by Thomas J. O'Halloran, Solicitor)
Key words
Equal Status Act 2000 - Direct discrimination, section 3(1)(a) - Traveller community ground, section 3(2)(i) - Supply of goods and services, section 5(1) - Admission of child to a Special Needs School
Delegation under the Equal Status Act, 2000
This complaint was referred to the Director of Equality Investigations 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 has delegated the complaint to myself, Brian O'Byrne, 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.
Dispute
This dispute concerns a complaint by Nora Faulkner that she was discriminated against, contrary to the Equal Status Act 2000, by the then Principal of St Ita's & St Joseph's School, Tralee on the Traveller community ground in the manner in which she was dealt with when she contacted him to discuss the admission of her child to his school in November 2002.
The complainant maintains that she was discriminated against in terms of sections 3(1) and 3(2)(i) of the Equal Status Act 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act.
Summary of the Complainant's Case
At the Hearing on 8 March 2006, the complainant explained that her son, who is now 16, had been experiencing learning difficulties ever since he first started attending school. Over the years, Ms Faulkner had spoken to both the Sisters and Brothers who had taught her son and all had agreed that he needed to attend a "special needs" school.
fter primary school, the son attended Tralee Community College where it was suggested to Mrs Faulkner that she should consider having her son psychologically assessed with a view to having him enrolled in a special school like St Ita's & St Joseph's School in Tralee.
On 4 November 2002, Mrs Faulkner had her son assessed by Mr Brendan Connolly, Psychologist with the National Education Psychological Service who found that the son needed to be educated in a Special School. Mr Connolly told her he would send a letter of recommendation to the Principal of St Ita's & St Joseph's School asking that he arrange to meet her and her son.
Having heard nothing from the school in the ensuing weeks, Mrs Faulkner decided to contact the School Principal, Mr Oliver O'Connor, herself. She says that she phoned him on 20 November 2002 and explained to him that she was a Traveller whose son had been psychologically assessed and that a report to this effect had already been sent to the school recommending him for admission to St Ita's & St Joseph's School. In response, she says that Mr O'Connor started "roaring" down the phone at her stating that he would not be taking her son in. She says that the verbal abuse she received from Mr O'Connor was such that she was too upset to pursue the matter further with him at the time. Some months later, at the request of her son, she says that she tried to contact Mr O'Connor again but was told that he was not available to talk to her.
Towards the end of 2003, she raised the matter with the Deputy Principal, Mr T. J. Barry, who said that he could not take the son in at the time but that he would contact her again when he took over as Principal in January 2004. She said that she never heard from him again.
Mrs Faulkner said at the Hearing that her son has been out of school since 2002 on account of his failure to gain admission to St Ita's & St Joseph's School.
Summary of Respondent's Case
At the Hearing, the former Principal, Mr Oliver O'Connor, said that the school had catered for many Traveller children over the years and that all parents were treated equally. He also said that he had a record in his diary for 21 November 2002 of a phone call from Mrs Faulkner regarding having her son admitted to the school. He states that his recollection is that Mrs Faulkner referred in the telephone conversation to having obtained a "GP's letter" and not a psychologist's assessment. In support of this, he pointed to the fact that the ODEI 5 notification form from Mrs Faulkner mentions a letter from her GP. (In response, Mrs Faulkner denied that she had mentioned a "GP's letter" in their conversation and explained that the reference in the ODEI 5 form to a GP's letter was a mistake by the Traveller's representative who filled in the form for her).
Mr O'Connor said that he then went on to explain the full procedures to Mrs Faulkner with regard to the need to have her son psychologically assessed before a decision was taken as to his admission. He said that he was not sure from their conversation, however, if she fully understood what was involved. He described their conversation as "polite" and said that Mrs Faulkner gave no indication that she was upset. Mr O'Connor said that he was aware at the time that Mrs Faulkner was a Traveller from the address she was residing at. He said that he had no recollection of having seen the son's psychological assessment in 2002.
he current Principal, Mr T.J. Barry, also gave evidence at the Hearing. He recalls having an "amiable conversation" with Ms Faulkner towards the end of 2003 in relation to her son. His recollection is that she was to get a psychologist's report and come back to him after Christmas which she never did. He has no recollection of her saying that a report had already been submitted. He did not make any notes of their conversation at the time.
At the Hearing, the respondents indicated that they had only become aware of Mr Connolly's assessment when a copy was supplied to them by the Tribunal in 2005. Mr Barry explained that when psychological assessments are received for prospective students, they are put on a special file until an application for admission is received. Mr Barry undertook to check this file on his return to the school after the Hearing to establish whether their was any record of receipt of the psychological assessment for Mrs Faulkner's son
Note
Subsequent to the Hearing, correspondence was received from Mr T.J. Barry stating that the report from Mr Connolly had been located on another school file. This correspondence included a copy of Mr Connolly's assessment of Mrs Faulkner's son dated 5 November 2002 and was attached to a covering letter from Mr Connolly to Mr O'Connor also dated 5 November 2002. The covering letter, which was personally addressed ("Dear Oliver") to Mr O'Connor referred to the assessment of Mrs Faulkner's son and said:
"I am recommending that you give him a place in St Ita's and St Joseph's. I believe that the environment that you provide is the best possible one for him.
I ask that you contact his mother, Mrs Nora Faulkner, 28 Mitchell's Crescent, Tralee and arrange to meet her".
Conclusions of the Equality Officer
At the Hearing, Mrs Faulkner came across as a very intelligent and caring parent who had the best interests of her child at heart. She also impressed me as someone who had a full understanding of her son's special needs and who also fully appreciated the procedures involved in getting her son admitted to a special school, including the requirement for a psychological assessment. This is supported in evidence by the fact that she did follow the required procedures and obtained the psychological assessment two weeks before she contacted the school.
I, therefore, find it very difficult to accept Mr O'Connor's account of the "polite" conversation he had with Mrs Faulkner in which he claims that he had a discussion with her in relation to the difference between a GP's note and a psychological assessment.
Another aspect of the case which, in my opinion, calls into question Mr O'Connor's commitment to Ms Faulkner's cause at the time, is the recent discovery of the 2002 psychological assessment on one of the schools files. The covering letter attached to the assessment indicates that the assessment was sent for the specific attention of Mr O'Connor and, indeed, asked him to personally contact Mrs Faulkner to discuss her son's admission to the school. While Mr O'Connor says that he does not recall seeing the assessment in 2002, I must presume, based on the correspondence referred to above, that Mr O'Connor did, on the balance of probability, receive the assessment but chose to ignore the request that he contact Mrs Faulkner.
In considering why Mr O'Connor would have ignored Mr Connolly's request, I am drawn to Mr O'Connor's statement at the Hearing that he would have known Mrs Faulkner to be a member of the Traveller community from her address in Mitchell's Terrace. Having fully considered the evidence before me and in the absence of any other credible reason, I consider that it was probably Mrs Faulkner's Traveller identity that prompted Mr O'Connor not to make contact with Mrs Faulkner, contrary to the psychologist's recommendation.
As a consequence of Mr O'Connor not acceding to Mr Connolly's request, it was Mrs Faulkner who contacted Mr O'Connor two weeks later and it is that telephone conversation that is the subject of the complaint before me.
In considering Mr O'Connor's account of the conversation, I find that I have difficulty in accepting it for the following reason. If, in her conversation with Mr O'Connor, Mrs Faulkner had genuinely confused the psychological assessment with a GP's letter, and had accepted his word that her son still needed to see a psychologist, I believe that her natural reaction would have been to revisit the psychologist, Mr Connolly, to establish what still needed to be done. On learning at that point that the psychological assessment required had already been submitted, I consider that the next obvious step for Mrs Faulkner would have been to revert back to Mr O'Connor with this information. As this clearly did not happen, I find that I have a serious difficulty in accepting Mr O'Connor's account of what he says he told Mrs Faulkner to do.
In contrast, I find that I have little difficulty in accepting Mrs Faulkner's account of what transpired during the telephone conversation, as I found her to be a very credible witness. Accordingly, I am not prepared to accept that, in her conversation with Mr O'Connor, Mrs Faulkner got confused between a GP's note and the psychological assessment that was carried out on her son two weeks earlier.
I have, therefore, formed the opinion that Mrs Faulkner did refer on the telephone to the psychological assessment submitted in respect of her son and that Mr O'Connor, for the same reason that I consider he did not contact Mrs Faulkner two weeks earlier, chose to dismiss Mrs Faulkner rather than deal with her request to have her son admitted to the school.
Accordingly, I find, on the balance of probability, that Mr O'Connor did discriminate against Mrs Faulkner in his dealings with her in November 2002 and that this discrimination arose from the fact that he knew her to be a member of the Traveller community.
I, therefore, find that the complainant has established a prima facie case of discrimination on the Traveller community ground and that the respondent has failed to rebut the allegation..
Decision
I find that a prima facie case of discrimination has been established by the complainant on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Acts 2000-2004.
n considering the circumstances of this case, I believe that Mrs Faulkner and her son have suffered a serious injustice at the hands of St Ita's & St Joseph's School, Tralee and that a major opportunity to cater for her son's special educational needs has been lost.
In the circumstances, I consider that it is appropriate to award sizable compensation in this case and I order that the respondents pay the sum of €4000 to the complainant for the suffering and hardship experienced.
Brian O'Byrne
Equality Officer
24 May 2006