EMPLOYMENT EQUALITY ACTS 1998 - 2008
EQUALITY OFFICER’S DECISION DEC-E2008-062
PARTIES
Mr X
- V -
A Third Level Educational Establishment
File reference: EE/2005/409
Date of issue: 19 November 2008
1. DISPUTE
1.1 This dispute concerns a claim by Mr X that he was discriminated against by the A Third Level Educational Establishment in relation to the provision of training under Section 12; was subjected to harassment as outlined in Section 14A; and that the respondent failed to provide reasonable accommodation as provided for in Section 16 of the Employment Equality Acts 1998 – 2007 on the grounds of disability in terms of section 6(2) and contrary to section 8 of those Acts.
1.2 The complainant referred his claim of discrimination to the Director of the Equality Tribunal on 22 December 2005 under the Employment Equality Acts 1998 - 2007. On 19 March, 2008, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to the undersigned Conor Stokes - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts 1998-2008 on which date my investigation commenced. Submissions were sought and received from the parties, and as required by Section 79(1) and as part of my investigation, I proceeded to hearing on 18 September 2008.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that he was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) when he was seven years of age. He received accommodations throughout his educational career in the form of extra time and a quiet room apart to sit examinations. In October 1999 he commenced training as a medical doctor with the respondent.
2.2 The complainant submitted that he revealed his disability to the respondent in Autumn 2002, when he requested reasonable accommodation for written examinations. The complainant stated that he was referred for independent assessment at the behest of the respondent and that his request for accommodation was supported by the nominated doctor.
2.3 The complainant submitted that since his disclosure of his disability, he has been engaged in a long and difficult campaign with the respondent authorities to secure reasonable accommodation to complete his examinations. The complainant submitted that the respondent failed to provide appropriate reasonable accommodation to enable him to complete his examinations.
2.4 The complainant further submitted that he was subjected to incidents of harassment and has met with hostility and resistance from members of the respondent administration and faculty in his efforts to secure reasonable accommodation.
2.5 The complainant submitted that he was prevented from qualifying as a doctor and securing an internship within the usual timescale and that he has been disadvantaged in his career on that account.
2.6 The complainant submitted that the fact that he failed his examinations in the summer of 2005 was as a consequence of a cumulative disadvantage as a result of the discrimination against him on the part of the respondent.
2.7 The complainant identified the following instances of discriminatory treatment:
· When the complainant revealed his disability in 2002, the Dean suggested that his failure to disclose his disability prior to enrolment was grounds for dismissal and constituted dishonesty
· The college had no disability policy with the result that the treatment meted out to him was ad hoc and in the absence of clear guidelines, he was prey to the discretion on the administrative staff who were unsympathetic and prejudiced against him
· Accommodations were offered and then withdrawn
· The respondent had no Access Officer
· There were no procedures in place governing applications for reasonable accommodation
· Requests for meetings to discuss accommodations were ignored
· No reasons were given for refusals to grant reasonable accommodation
· When a disability policy was introduced, it was not applied in the complainant’s case
· Repeat examinations were scheduled during course work causing the complainant to miss tuition
· Adequate tuition was not provided to enable to complainant to make up tuition missed
· Such reasonable accommodation as was provided was provided on an ad hoc basis and late
· Agreed reasonable accommodation was not granted in respect of the Data OSCE portion of the Medicine and Surgery Final Professional Examination although this was an examination which required written responses
· Despite having an agreement with the respondent, the complainant was required to negotiate reasonable accommodation on an ongoing basis
· It was suggested to the complainant by the administrative staff that the complainant was unfit to practise medicine because of his disability.
2.8 The complainant submitted that when reasonable accommodation was made available, the complainant passed examinations, but that when they were withdrawn, he failed.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent submitted that it accepted that the complainant has a disability which comes within the scope of the Employment Equality Acts. The respondent further accepted that the complainant comes within the provisions of Section 12 of the Acts and that the course of study which the complainant pursued constituted vocational training within the meaning of Section 12 of the Acts. The respondent submitted that in those circumstances that it also accepted that the provisions of Section 16 of the Act and the obligation on the respondent to take appropriate measures.
3.2 The respondent denied that it had been guilty of any discrimination on grounds of disability as alleged or at all and denied that it has been guilty of harassment. The respondent submitted that at all times it has endeavored to discharge the various duties it owes to the complainant, to the wider student body and to the public at large to ensure its graduates are fully trained, qualified and confident to discharge their medical duties in all circumstances with which they may be presented in practice.
3.3 The respondent submitted that it has introduced a detailed disability policy and a specific policy on reasonable accommodation. In submitting this the respondent noted that these policies were not in place during the complainant’s time with the respondent and further noted that the lessons learnt from its dealings with the complainant provided considerable assistance to it in putting these policies in place.
3.4 In its submissions, the respondent acknowledged that it did make mistakes in how it dealt with the complainant and further acknowledged that greater efforts could have been made by them to facilitate the complainant and to ease what it stated was ‘clearly a difficult situation for him’.
3.5 The respondent submitted that at all times it had acted in good faith in dealing with a situation they had not encountered previously and in attempting to ensure it’s duties to all parties were discharged.
3.6 The respondent submitted that the OSCE is part of a final examination for all of the respondent students including the complainant. The examination is designed to closely replicate clinical conditions in the practice of medicine as is possible in an examination setting. The respondent further submitted that at all times it has considered this to be a clinical examination rather than a written examination. The respondent submitted that the distinction is significant as the reasonable accommodation that was provided to the complainant by was of provision of a quiet room and extra time for completion of his examinations was limited to written examinations only. The respondent noted that at all other times the complainant completed clinical examinations in circumstances similar to those of his colleagues and did so without any apparent difficulties.
3.7 The respondent submitted that when the complainant sat the OSCE examination in May 2005, a decision was made to split the examination into two parts in order to accommodate the large number of students. Even though the data component of the examination was undertaken separately, the respondent still viewed the examination as an element of a clinical examination and not a written examination. Therefore the complainant was not provided with different facilities and/or accommodation for the exam.
3.8 The respondent submitted that the OSCE exam scheduled for October 2005 followed an identical format to the examination that the complainant had passed in 2004. The respondent submitted that it was in those circumstances that it made the decision not to provide the complainant with the accommodation sought by him for this particular exam.
3.9 The respondent submitted that it was aware of the difficulties that the complainant might experience as a result of graduating in November rather than June and in those circumstances the respondent funded an intern place for the complainant in a major Dublin hospital.
3.10 The respondent submitted that is does not dispute much of what the complainant alleges took place in terms of statements made to him by the respondent, its servants or agents. However the respondent submitted that there was never any intention on the part of the respondent to discriminate against the complainant or to cause him distress.
3.11 The respondent submitted that the Tribunal’s jurisdiction is limited by the provisions of Section 82(4) of the Act, and that the value of the claim is limited to €12,697.38.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent discriminated against Mr. X on grounds of disability, in terms of section 6 of the Employment Equality Acts, 1998-2007 and contrary to section 8 of those Acts, whether it harassed him in terms of Section 14 and whether it failed to provide appropriate measures in accordance with Section 16 of those Acts.
4.2 I note from the written submissions made by the respondent prior to the hearing that it accepts that the complainant has a disability, that it further accepts that the course pursued by the complainant constitutes vocational training within the meaning of Section 12 of the Acts, and that the respondent also accepts that the provisions of Section 16 of those Acts places an obligation on the it to take appropriate measures.
4.3 Section 85A of the Employment Equality Acts 1998 to 2008 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting the he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.4 The complainant has outlined a history of seeking appropriate measures to enable him to complete vocational training in his chosen field. This claim was substantiated by the submissions of the respondent. In 2004, the respondent granted the request and retrospectively granted reasonable accommodation to the complainant for written exams.
4.5 From the submissions made at the oral hearing, the main issue to be resolved centres around the OSCE examinations. This examination consists of two components: the Data OSCE - a predominantly written based component, and the Clinical OSCE - a more practical based component. These components are usually held together and parts of each are interspersed. For marking purposes, the components are marked as one examination. Therefore the entirety of the exam does not amount to a written exam. In 2004 and in the repeat examinations in October 2005 this arrangement remained in place for the holding of this exam. However, in May 2005 the data component and the clinical component were examined separately in order to accommodate the larger numbers sitting the exam. The components were examined on two separate days. Accordingly, the written element was not interspersed with the practical clinical OSCE element. In those circumstances, I find that the data component of the OCSE examination in May 2005, in the format as administered on that occasion, constituted a written examination and that appropriate measures were not provided to the complainant. Accordingly, I find that a prima facie case has been established by the claimant and that the onus has shifted to the respondent to rebut the inference of discrimination raised.
4.6 The respondent relied on its insistence that the data element of the OSCE examination was not a written examination and further submitted that it is obliged to test candidates in a manner that approximates a real world scenario. Having regard to my finding concerning the data component of the OSCE examination, I am satisfied that the refusal to provide appropriate measures in the May 2005 exam amounts to discriminatory treatment.
4.7 The complainant sought appropriate measures for all written examinations, i.e. a quiet room and extra time, including for the October exams. The OSCE examination in October 2005 reverted to the previous format, thereby removing the necessity to provide appropriate measures to the complainant. The complainant was not informed about the format of the OSCE exam until he sat the repeat exam and accordingly I consider the failure to provide appropriate measures continued up to the commencement of the October 2005 round of exams.
4.8 Although the complainant submitted that he was subject to harassment in the manner in which he was treated generally, including the delay in providing appropriate measures to him when he first sought them, I do not find that the this treatment amounts to the definition of harassment as outlined in the Section 14A of the Acts.
4.9 In response to queries regarding the internship, the respondent submitted that it funded the internship in light of the difficulties the complainant would face in obtaining a suitable internship following a November graduation. It was submitted that this was an exceptional measure which would not happen every year. It was agreed by both sides that the funding for this measure amounted to €40 - €50,000.
4.10 The complainant submitted that as the respondent funded his internship, he should be considered an employee of the respondent for the duration of the internship and that under Section 82(4) of the Acts, the maximum amount of redress is equal to 104 times his weekly salary. The respondent in response submitted that although it funded the internship, the employer was the hospital where the internship was served. Details were given that the complainant worked overtime and was paid more than the funding provided by the respondent. Having considered the submissions from both parties on the application of Section 82(4) of the Acts, I find that the complainant was not an employee of the respondent during his internship and accordingly the limit of €12,697.38 provided for in Section 82(4) applies in this matter.
4.11 I note from the respondent’s submissions that it appointed an Access Officer in October 2005 and that it introduced, inter alia, written policies covering disability and the right to the provision of appropriate measures.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that the respondent discriminated against Mr. X on grounds of disability, in terms of section 6 of the Employment Equality Acts, 1998-2007 and contrary to section 8 of those Acts and that it failed to provide reasonable measures as provided for in Section 16 of the Acts.
5.2 Having regard to the foregoing, I award the complainant €1,000 by way of compensation for the discrimination suffered.
_________________
Conor Stokes
Equality Officer
19 November 2008