DEC-S2008-024 - Full Case Report

Equal Status Act 2000

EQUALITY OFFICER’S DECISION NO:  DEC-S2008-024 

Áine Wellard

(Represented by Ms. Mary Kate Halpin

(in a voluntary capacity on behalf of Disability Legal Resource)

v

Killester College

(Represented by Mr. Rossa Fanning, B.L.,  acting

 on instructions from Patrick F. O’Reilly, Solicitors)

Headnotes

Equal Status Act 2000- Direct Discrimination, Section 3(1)(a) -  Disability Ground, Section 3(2)(g) -  Reasonable Accommodation, Section 4  -  Access to education, Section 7 - Prima facie case. 

1.            Dispute

1.1       This dispute concerns a claim by Ms. Áine Wellard that she was treated in a discriminatory manner by the respondent, contrary to Section 7, in terms of Section 3(1) (a), 3(2) (g) and Section 4 of the Equal Status Act 2000.The complainant referred a claim to the Director of Equality Investigations under the Equal Status Act 2000.  In accordance with her powers under section 75 of the Employment Equality Acts 1998 and under the Equal Status Act 2000, the Director then delegated the case to me, Dolores Kavanagh, 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

2.1       The complainant, who is visually impaired, states that she applied in February 2003 to attend a specific course in the respondent college in September 2003. In April 2003 the complainant attended at an “open day” at the college during which she made the college aware of her specific requirements on foot of her disability.   A number of e-mails were subsequently exchanged between the complainant and the College regarding the complainant’s requirements to participate in the course.  When the complainant attended at the commencement day of college on 11 September 2003 the facilities which she required were not in place. The complainant states that this was discriminatory on the disability ground contrary to Section 7 of the Equal Status Act 2000 in terms of Sections 3(1)(a), 3(2)(g) and Section 4 of the Act.

3.            Summary of Respondent's Case

3.1       The respondent states that every effort was made in good faith to provide special facilities for the complainant to enable her to fully participate in the course for which she had enrolled.  These facilities, which comprised, at the complainant’s suggestion, primarily assistive technology for use by the complainant, were paid for out of the College’s own funds as funding is not available in the circumstances from the Department of Education via the Vocational Education Committee until after a student has commenced the course.

The college had expended in excess of 10,000 euro on assistive technology specifically for use by the complainant.   On induction day, 11 September 2003,  there were some teething problems so that material handed out to other students enrolled on the same course were not immediately available to the complainant.  The latter had been assured that they would be made available very quickly.  The complainant had stood up in the lecture room and, in the course of a bad tempered outburst, had used profanities about the officer who was to have the material ready for her.  She then left the lecture room.

4            Summary of Complainant’s Evidence

The complainant states that

¬        She applied to participate in the Veterinary Assistant Course in February, 2003 at the respondent college

¬        She attended at an open day for the College in April 2003 and spoke with a member of staff who asked about the facilities that would be required by the complainant to attend at her chosen course.  The staff member informed the complainant that someone from the college would meet with her prior to commencement of the course to discuss her requirements.

¬        A number of e-mails were exchanged between the complainant and the College between June and September 2003 but a meeting was never scheduled.  The complainant pressed for a meeting which was eventually scheduled for 9 September 2003.

¬        At that meeting the complainant was informed that assistive technology which she required had not yet been installed and was due to be installed on college commencement day. i.e. 11 September 2003.  She was informed that funding from the Department of Education via the VocationalEducation Committee (VEC) came with the condition that assistive technology could not be installed until after the commencement of the course for which it was required.

¬        She was also informed at the meeting that (i) that she would not necessarily be given course material at the same time as other students in her class but that she would definitely receive it within a week, (ii) that as she was the first visually impaired person to enrol in the college she should expect that some mistakes would be made and (iii) that she would not receive the relevant course material at the induction but should expect to receive it some time later.

¬        During the induction on 11 September 2003 course material was distributed to other students and frequent references were made to it.  The complainant did not receive any “readable” documents.  She found this confusing and left, venting her frustration. The complainant was informed that the assistive technology was being installed that day on foot of the VEC requirement that it could not be installed until after the commencement of the course for which it is required.

¬        She received her course timetable four days after the induction day , by e-mail.

¬        On 15 September 2003, i.e. the first day of lectures, when she attended at the College she was approached by a member of staff and asked to attend at a meeting.  The meeting was attended by the complainant, the Principal and the Vice Principal of the college. In the course of that meeting Ms. Wellard was informed that the manner in which she had vented her frustration on 11 September was unacceptable and that she was required to apologise to two members of staff before she would be allowed to continue with the course.

¬        The complainant was also informed that the assistive technology that had been installed to assist her had cost in excess of 10, 000 euro and that delays in the provision of material to her were due to the college never having dealt with a visually impaired student before.

¬        The complainant could not take notes at the meeting because the Braille lite notebook provided by the college for her use had been taken from her prior to the meeting.

¬        Despite assurances to the complainant that doors in the college would be labelled in Braille this was not done. 

¬        At a later date she was informed that she might be unable to attend at the course because Health and Safety legislation prevents the college from allowing her dog on the premises unless he is properly registered.

5          Prima Facie Case

5.1       The key elements required to establish a prima facie case of discrimination on are:

 (i) Whether the complainant is covered by the discriminatory ground. (in this case has the complainant a disability?)

(ii) whether there is evidence that the complainant has been subject to a specific treatment by the respondent?

(iii) whether there is evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by the discriminatory ground or someone with a different disability, would have received in similar circumstances?

 For persons who have a disability discrimination may also arise based on

(iv) whether 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 complainant's needs as a person with a disability, which made it impossible or unduly difficult for her to participate in her chosen course

(v)whether providing for those needs would  have given rise to greater than nominal cost to the respondent?

6          Prima Facie Case – Complainant

Discrimination

The complainant issued a formal statutory notification to the respondent that discrimination on the disability ground arose in relation to her attendance at the induction day on 11 September 2003.  In relation to that specific alleged incident of discrimination the above key elements apply in this case as follows:

(i) The complainant is visually impaired and is therefore covered by the disability ground.

(ii) The complainant states that readable material, including a timetable, was not available to her on the induction day i.e. 11 September 2003.  The complainant states that other students had readable material available to them on the day in question. The exact nature of the readable material provided to the other students has not been established by the complainant.

(iii) The complainant provided no evidence to show whether the other students did not have any disability or whether certain of them had a different disability.  However, the respondent had indicated to the complainant that she was the first visually impaired student to have attended at the college. 

On the basis of the above I am not satisfied that the complainant has established a prima facie case of direct discrimination on the disability ground.   The induction day was a preliminary day providing what appears to be preliminary information to prospective students.  I note that the complainant had been told in advance, by e-mail, that readable material would not be available to her on that particular day. There is no evidence provided that the lack of readable material on that day impacted on the complainant’s access to, or participation in, her chosen course. It is clear from evidence provided that the respondent had not taken any action to prevent the complainant from participating in her chosen course and was, in fact, actively working on providing the complainant with material in a medium that was suitable to her at that point in time.

While I understand that the complainant would experience a level of frustration in those circumstances, she does not appear to have taken any steps to arrange for an alternative induction, e.g. a one on one discussion with the lecturer providing the readable material to the other students. Instead the complainant reacted in a totally unacceptable manner by having an outburst in the course of which she uttered loud profanities about a lecturer who was not, at that time, present and also causing embarrassment to all who were present.

Reasonable Accommodation

(iv) The complainant was not in receipt of readable material on the induction day.  This clearly caused her some frustration. The respondent had arranged for the installation of assistive technology specifically for use by the complainant i.e a brailling machine for the production of material exclusively for use by the complainant and a braille lite notebook etc.  While reading material was not available to the complainant on the induction day there was no evidence to the effect that the material would not be available to the complainant subsequently to enable her to participate in her chosen course.   I note that the class timetable was issued to the complainant by e-mail on 14 September 2003 i.e. the evening before classescommenced.  This was a Sunday which demonstrates that the respondent was dedicating resources to facilitating the complainant on the weekend.

It appears that the complainant was not merely seeking that the respondent would take reasonable measures to ensure that she could participate in her chosen course but was expecting, and indeed demanding, that the measures would be in place from the induction day onward.  I do not find that the complainant’s unreasonable expectation in this regard constitutes reasonable accommodation as envisaged by the legislation, particularly where all indications were that the respondent was going to great lengths and expense to accommodate her needs.  Nor do I find it unreasonable that any education provider, including the respondent, would wait until the person for whom the assistive technology is required had already commenced the course to ensure that they would actually be availing of the technology and to avoid needless expenditure in the event that the prospective student had a change of heart and did not attend at the course.  Ultimately, after a meeting with the Principal and the Vice Principal of the college on 15 September 2003, i.e. the first day of the course, the complainant absented herself from the course.

 Having examined all of the evidence in this matter I am satisfied that the complainant has not established that the respondent had failed or refused to provide reasonable accommodation in this matter.  While it is not therefore necessary to examine the issue of nominal cost in this matter I note further that the respondent had expended in excess of 10,000 euro from the School Services Support Budget (SSSB) [1] i.e. 33.83% of the SSSB, on equipment exclusively for use by the complainant.  There was no guarantee that this money would be reimbursed to the college and this therefore constituted a large commitment from the college to the complainant.  This amount does not include the additional costs of dedicating staff resources to producing material for the complainant or the additional costs of training that would be associated with doing so.  In the context of overall expenditure by the college this is a considerable sum and, I am satisfied, constitutes in excess of nominal cost for the college.

In all of the circumstances as set out above I find that the complainant has failed to establish a prima facie case of discrimination on the basis of the respondent’s failure to provide reasonable accommodation. 

7            Summary of other matters arising

7.1       The complainant has submitted that issues arising subsequent to the 11 September 2003 also constitute discrimination and/or harassment against her by the respondent.  Specifically, the complainant states that :

¬        Following the induction on 11 September 2003 it was agreed between the parties that the complainant would defer her participation in the course in question to September 2004 to allow that all of the facilities she required would be put in place by the following year.

¬        Despite a number of unplanned meetings between the complainant and staff of the college the required facilities were not put in place with the result that the complainant could not fully participate in her chosen course from September 2004.  The complainant contends that the meetings of themselves constitute a form of harassment as she is aware that another person with a disability who was not required to attend any such meetings.

¬        The complainant was informed that she may not be able to participate in the course because her dog might not be allowed in the college on health and safety grounds.

¬        The college failed to assist in arranging for the complainant to take part in the work placement module of her chosen course.  The college failed to provide the complainant with the necessary handouts required for her classes.  This disadvantaged the complainant vis a vis other students.

The respondent submits that

¬        The complainant absented herself from the course from 15 September 2003.  As the college is committed to providing inclusive education[2] it had committed considerable resources to providing facilities specifically for the complainant to enable her to participate in the course.

¬        The college application procedure invites students to declare whether learning supports are required.  Once declared the student is directed to a confidential learning support process which involves collaboration and agreement between the college and the student as to the specific supports required.  The latter might include adjustments to learning materials, teaching methodologies, additional tuition or the purchase of assistive technology.

¬        The college denies that the complainant was ever told that she would receive Braille handouts a week or two after other students had received their handouts and that these would be available to the complainant earlier.  The 2003 timetable was late in being transmitted to the complainant because of technical difficulties initially and because of the late availability of the timetable for all students.

¬        On 11 September the complainant arrived a half hour after the pre class induction meeting had commenced.  Shortly afterward the complainant began to use profane and abusive language about the Director of Inclusive Learning. The Course Co-ordinator who was present lodged a written complaint about the complainant’s behaviour to the Principal.  The latter approached the complainant about this on 15 September i.e. the first opportunity he had to do so as the complainant had left the college on 11 September by the time he received the complaint.

¬        Following the complainant’s decision to defer participating in the course until 2004 the college continued the learning support agreement process with the complainant via the college’s visiting Disability Support Officer (DSO).

¬        The respondent refutes the complainant’s contention that no progress was made at meetings with the DSO and can show from minutes of subsequent meetings that there was considerable follow up on issues discussed at these meetings.

¬        Ultimately the complainant withdrew from the learning support process after three meetings and declined to continue with the discussions.  Despite this the college put a number of supports in place for the complainant in 2004 which, in addition to the assistive technology, included handouts in Braille, retraining of a member of staff to convert documents to Braille, approval from FETAC for an alternative assessment method for the complainant in relation to the Biology, Animal Anatomy & Physiology modules of the course, a contact list for potential work experience employers and access to a visiting DSO as required.  The teaching staff were also converting their teaching materials to electronic format thereby making them accessible to the complainant.  Other supports could have been put in place but this would have required the complainant’s involvement which was not forthcoming.

¬        The college was encouraged when the complainant took up her place on the course in September 2004 and continued to work to put appropriate supports in place for the complainant.  Issues with regard to certain braille diagrams remained outstanding but the college made every effort to resolve same.

¬        The complainant raised reference in her submissions to the quality of the Braille being produced by the college.  The college attended to a number of minor issues arising with regard to the paper margins etc but the quality of the braille was declared by a representative of the National Council for the Blind in Ireland (NCBI) to be of “perfect quality and can easily be read by a blind person”.

¬        The complainant alleges that handouts were not made available to her in braille format.  The college’s attendance records indicate that, for the period in which the complainant attended at the college in 2004, the complainant did not attend over 46% of her scheduled classes for which handouts were available and which were not collected by the complainant.

¬        The complainant was offered, and declined, a disk containing all of the handouts (with the exception of certain diagrams) for the entire Animal Anatomy and Physiology module in 2004.

¬        The college refutes that the complainant was ever told that she could not participate in certain practical classes related to the Biology and Animal Anatomy and Physiology modules.  However, a proposal for an alternative method of assessment in these modules for the complainant was proposed to FETAC, with the complainant’s agreement, and was approved.

¬        The college has no record of receiving a letter of complaint  from the complainant (addressed to the Principal) on 27 October 2004 regarding how she felt she was being treated by staff.  Indeed at that time a disciplinary process had been enacted against the complainant on foot of two written complaints from staff members regarding two separate incidents in which the complainant used offensivelanguage and was abusive towards staff.  Despite several attempts to meet with the complainant to discuss these complaints she did not attend.

¬        Subsequently the complainant refused correspondence which was forwarded to her by the college and has stated that she has blocked the Principal’s e-mail address on her inbox .  Correspondence was ultimately transmitted to the complainant via the Equality Tribunal.

¬        The complainant alleges that the college committed to placing Braille labels on all of the doors in the college.  The college committed to looking into this for the complainant and spent a considerable amount of time trying to source Braille labels.  The college discussed the matter with the NCBI and the latter indicated that a building orientation session was quite common for visually impaired persons. The NCBI indicated to the college that only one door in the NCBI building is labelled in Braille.

¬        With regard to assisting the complainant in obtaining a work experience placement the college provided her with a list, in Braille, of potential employers and their contact details as is done for any student experiencing difficulties in obtaining work placement.  At the same time the Accreditation of Prior Experience and Learning mode was being considered but the complainant declined to meet with the respondent to discuss this further.

 In summary the college utterly rejects the allegations made by the complainant of discrimination, failure to provide reasonable accommodation and harassment on the grounds of disability.

8            Conclusions of the Equality Officer 

8.1       Having fully considered all of the evidence and submissions presented in this matter by both parties I am satisfied that the complainant has failed to show that the actions of the respondent subsequent to 11 September 2003 amount to discrimination, failure to provide reasonable accommodation or harassment on the grounds of disability as:-

(i) The respondent made every effort to provide supports to the complainant that go well beyond what could be envisaged as reasonable accommodation in terms of theEqual Status Act 2000, not simply in terms of monetary expenditure but also in terms of the range and breadth of facilities and assistance proffered to the complainant.

(ii) The complainant behaved toward staff of the college in an unacceptable manner such that the respondent could, I am satisfied, reasonably have imposed disciplinary sanctions on her for such behaviour.

(iii) The complainant seems to confuse the concept of reasonable accommodation as envisaged by the Equal Status Act with what she personally terms reasonable.  The evidence shows that the complainant’s expectations in this regard are unreasonable.

(iv) The complainant used the very existence of measures such as Equality legislation which are designed to protect persons covered by the grounds thereunder from prohibited conduct to inappropriately gain more favourable treatment e.g in the course of a telephone conversation to state that she would be late in submitting an assignment due to difficulties with her computer, the complainant threatened to lodge a complaint of discrimination to the Tribunal against the college if they failed to accept her assignment.

(v) The complainant is not automatically entitled to be accompanied by her dog when attending at the college.  The Tribunal has in the past repeatedly found against respondents who fail to permit a registered guide dog access to premises with their visually impaired owners.  The fact of this instant case is that the complainant’s dog is not a registered guide dog.  The issue of the complainant’s dog was raised with her in the context of the dog jumping up animatedly at a person in the college who was quite taken aback by the experience.  The respondent was entitled to raise the issue in the context of health and safety.  A duty of care is owed to all students and staff members by the respondent and not just  to the complainant.  Notwithstanding that the dog is not a registered guide dog I note that the respondent permitted the dog to accompany the complainant to, and in, the college.

(vi)  It is clear that the complainant could not possibly have participated in the practical experiments required by the Biology and Animal Anatomy & Physiology modules of the course as they required observations by sight e.g. observing of particular phenomena under a microscope or dissecting matter.  Notwithstanding that this could have given rise to legitimate doubts as to whether the course was in fact fundamentally unsuitable for the complainant the respondent made arrangements with FETAC for an alternative method of assessment for the complainant.

(vii) The complainant was in a position to take notes during classes with the aid of the Braille lite notebook with which she had been supplied by the respondent.

(viii) The complainant equates obtaining assistance in achieving a work experience placement with the respondent actually making all of the arrangements for her.  No evidence was provided to show why the complainant could not contact potential employers herself and make the necessary arrangements.

(ix) I note that every effort made by the respondent, while not always perfect, was met with a lack of cooperation and intransigence on the part of the complainant which in my experience is unprecedented.

(x) The complainant cut off all communications with the respondent and ensured that brailled documents issued to her by post, e-mails etc did not reach her.  In the context of her complaint that the respondent failed to provide various documentation to her, the complainant’s actions could be construed as deliberately obstructive, thus ensuring that the respondent could not achieve the very thing that she is complaining about.

(xi) I am satisfied that the sheer level of time and other resources dedicated to attempting to meet the complainant’s demands, combined with the complainant’s unhelpful and at times unacceptable behaviour,  had a detrimental effect on other students and staff morale in general in the respondent college.

There is evidence in this matter indicating that the complainant, whether consciously or otherwise, ensured by her own actions that the respondent could not provide a fluid and meaningful support service to her.  Despite this and the considerable cost in terms of time, money and effort involved the respondent persisted in trying to facilitate the complainant.

8.2       It is of some concern to me that the respondent appears to have indicated to the complainant that she could not be accompanied to meetings of a disciplinary nature e.g. the meeting with the Principal and Vice Principal which took place on 15 September 2003 to discuss her outburst on 11 September 2003.  In convening such a meeting with any member of staff or student at the college the respondent should have regard to the need to ensure fair procedures, including that the staff member or student is entitled to have a representative present.  In the instant case the outcome of the meeting was that the complainant was requested to apologise to two members of staff for her outburst and no disciplinary sanction was imposed on her.

9            Decision

I find that the complainant has failed to establish a prima facie case that she was discriminated against or harassed by the respondent on the disability ground in terms of Section 3(1) (a), 3(2)(g) and 4 and contrary to Sections 7 and 11 of the Equal Status Act 2000. 

__________________________

Dolores Kavanagh

Equality Officer

21 April, 2007