DEC-S2009-043 - Full Case Report

THE EQUALITY TRIBUNAL

EQUAL STATUS ACTS 2000 to 2008

Decision No. DEC-S2009- 043

PARTIES

A Post-Leaving Certificate Student

-v-

An Educational Institution

File Reference: ES/2007/003

Date of Issue: 30 June 2009

A Post-Leaving Certificate Student

-v-

An Educational Institution

Key words

Equal Status Acts 2000-2004 - Section 3(2)(g), disability ground – Section 3(2)(j), Victimisation Ground - Section 7(2) –discrimination – reasonable accommodation  - access to education – Asberger’s Syndrome – removal from course – disruptive behaviour – Dramatherapy – removal from class – Section 7(4)(a) – Section 4(4) -  victimisation – grievance and disciplinary procedures – jurisdiction to consider victimisation – duty of care – post-leaving certificate students – Section 25(1A) – Section 27(1)(b)

1.     Delegation under the relevant legislation

1.1.     On 5^th January, 2007, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. In accordance with her powers under section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the case to me, Gary O’Doherty, 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 Acts. This delegation took place on 26^th September, 2008, on which day I commenced my investigation.

1.2.     As required by Section 25(1) of the Equal Status Acts, and as part of my investigation, I held an oral hearing of the complaint in Dublin on Tuesday, 10^th February, 2009. Further information was requested from and provided by both parties and final correspondence was received on 30^th April, 2009.

2.     Dispute

2.1.     The dispute concerns a complaint by the complainant that he was discriminated against by the respondent on the Disability ground contrary to the Equal Status Acts (hereinafter referred to as “the Acts”) in terms of Sections 3(1)(a), 3(2)(g) and Section 4(1) of the Acts and contrary to Section 7(2) of the Acts, in that the respondent discriminated against him generally and, in particular, by removing him from the course he was following with the respondent. The complainant also made an allegation that the respondent victimised him in terms of Section 3(2)(j) of the Acts.

3.     Case for the Complainant

3.1.     The complainant stated that he has a mild form of Asberger’s Syndrome, as a result of which he has certain difficulties with his social skills. He applied, and was accepted for, the respondent’s course in Performing Arts, which he began in September 2005. The complainant said he told the respondent of his disability at that time and told it that he did not have any special needs, though stating that he may have needed a little bit of help. He said that he told the respondent that if it had any questions about his condition, it should contact Ms A, who was co-ordinator for a local autism society. The complainant alleges that he has been prevented from fully participating in a course which, by right, he should be allowed to attend on a full time basis. The basis of this allegation is that, in September 2006, he states that he was unlawfully removed from the course in question by Ms B, the co-ordinator of the course, when she informed him he could not continue to participate in it. He said he was shocked by this as, while he acknowledges that he “wasn’t an angel”, he felt that he had done nothing to warrant being thrown off the course. He said that, when he asked Ms B why he was being thrown off the course, she replied that it was because of his Asberger’s and she said that, if they had known about his disability in the beginning, he would not have been allowed on the course. Even though Ms B told him that he would eventually be reintegrated into the class, he said that, from then on, he received only two hours a week tuition with a Dramatherapy teacher, although he was allowed back into stage management class two months later.

3.2.     The complainant said he did not know anything about the problems his behaviour was causing prior to September 2006 as it was not mentioned to him previously, either verbally or in written form. He said he wasn’t aggressive and the respondent was exaggerating his behaviour in that regard. He said that, while he had arguments with certain teachers, he would never harm anyone and categorically denied that he had ever threatened, assaulted or been abusive to any teacher. He had been removed from Mr C’s class prior to September 2005, as a result of a dispute he had with him, but claimed that Mr C had refused to let him participate in class, partly because of his disability. He said that the reason he was not allowed to return to Mr. C’s class was because he had made a complaint against this behaviour on the part of Mr C and denied that he did any of the actions mentioned by Mr C (see par. 4.3 below).

3.3.     The complainant did not wish to make any comment on the respondent’s allegations that he had a  violent history or that past medical complaints might be relevant to my investigation, except to say that he was prescribed medication for depression since March 06, and was taking it since then. He said that it was clear his disability was the issue and that he was being discriminated against on the basis of his disability by being arbitrarily dismissed. He said this was demonstrated by the fact that, if his behaviour was the issue and not his disability, he would have received a written warning in line with the normal disciplinary procedure applied by the respondent.  He said that if he had assaulted someone, he would have been treated more fairly, adding that none of the students had a problem with him. He denied that he ever said to the respondent that he was just looking for money, though he considered that it would be appropriate for me to award redress in order to provide him with justice at this stage. He said that he did not receive any assistance or any form of reasonable accommodation from the respondent, as it alleged, and denied that Ms B had done her best to facilitate him.

Allegation of Victimisation

3.4.     The complainant said that he had originally made a complaint to the Tribunal in December 2006, but withdrew that complaint under pressure from the respondent, who, he submitted, told him, inter alia, that if he did not withdraw the complaint, he would be removed from the course. He submitted that it also presented him with an ultimatum to that effect. The complainant said he then wrote to the Tribunal in January 2007, enclosing a new complaint form, and also wrote to the Tribunal in July 2007.

4.     Case for the Respondent           

4.1.     The respondent confirmed that the complainant had begun the course in question with it in September 2005. However, Ms B, who was present at the hearing, said that she had no knowledge of the complainant’s disability prior to receiving a phone call from Ms A in October 2005. Ms B said she did not receive any written complaints about his behaviour at that time and said that, because she was in contact with Ms A, she was erring on the side of taking a sympathetic approach to the complainant’s situation. She said, however, that she subsequently received a number of reports of concern about his behaviour, particularly from teachers, some of whom became unable to cope with it.

4.2.     Mr Q, the head of the institution, described the behaviour in question, saying that the complainant had been abusive towards Ms B, that teachers had spoken of intimidation from the complainant and that he had used abusive language towards staff. Ms B said that she personally witnessed aspects of this behaviour, although she said that the complainant was not aggressive towards her. The respondent also presented in evidence a series of letters written by teachers in November/December 2008 which describe the behaviour in question. It said that one particular teacher, Ms Y, had, in February 2006, made an allegation that she felt afraid of the complainant, although she did not feel physically threatened by him. The complainant described this as a complaint of physical intimidation. Ms Y also said that she felt there had been inappropriate conduct by the complainant when discussing anatomical issues. However, the respondent said that these allegations were not communicated to the complainant at the time.

4.3.     The respondent also had as a witness Mr. C, whose evidence sought to reiterate the contents of his letter which was undated, but which he thought was written sometime in Autumn 2008. The letter makes a number of allegations regarding the complainant’s behaviour, including that he walked out of the room for no appropriate reason, laughed uncontrollably during sensitive teaching times, and banged his head against a wall. Mr C also said that he did not know that the complainant had a disability. Ms B believed that the complainant’s continuing difficulties with Mr. C were the result of a misunderstanding about his method of teaching but she took action by removing the complainant from Mr C’s class when she learned of the serious nature of those difficulties. However, Mr Z, who had recently joined the staff as a dramatherapy and acting teacher, thereafter worked directly with the complainant on a one-to-one curriculum that was essentially the same as that of Mr C.

4.4.     Ms B said she was in continual contact with Ms A in an effort to work on the complainant’s inappropriate behaviour. However, she said that the complainant did not understand the impact that behaviour was having on the class and she felt progressively concerned about the other students, and said that she communicated with the complainant directly each time there was an incident. The respondent said that it did not record or write down the complaints made about the complainant by the students and did not remember who had complained. It said that those complaints were informal and were handled by Ms B but no student asked for any specific action to be taken. Nonetheless, Ms B said that, by the end of that academic year, there had been a lot of complaints about the complainant’s behaviour and that his tutors could not continue to take abuse from him.

4.5.     Ms B explained that the course the complainant was attending was a three-year programme, but had two separate elements to it. Ms B said that the complainant had a good academic standard but the difficulty was his behaviour and his acting ability and so he had not successfully completed the necessary modules to qualify for the more advanced element of the programme in his second year. However, at the time in question, second year also involved courses in the basic elements and so the complainant was welcomed back to complete those. Ms B said she explained this to the complainant when she spoke with him in summer 2006 and that she then spoke with him in September 2006, though she denied making the allegedly discriminatory statements referred to in par.3.2. Instead, she said she told the complainant that none of his teachers were able to cope with his behaviour, and that he then met with Mr Z in September 2006, with whom he agreed to develop a dramatherapy programme for the year. Ms B said she hoped to reintegrate him into the class through this programme, in which another student also participated on a voluntary basis in order to assist the complainant. She said that the complainant’s behaviour improved as a result of this programme to the extent that he was reintegrated into two mainstream classes. However, she said he still couldn’t understand the effect he was having on the class and so was not fully reintegrated by November 2006.

4.6.     Ms B said that, on 24 November 2006, the complainant requested a meeting with her. A series of meetings followed at which the issue of the proposed mediation, and the proposed withdrawal of the complainant’s complaint to the Tribunal, were raised (the complainant issued the notification letter, required by Section 21(2) of the Acts, on 29 November, 2006). Ms B outlined the tone of those meetings, describing the complainant’s behaviour in them as aggressive and that she had to withdraw from one of those meetings because of that behaviour, and Mr Q added that the complainant used abusive language to his secretarial staff. The outcome of these meetings was that the complainant was presented with an agreement that he abide by certain conditions if he wanted to continue on the course. Ms B said that this was intended as a speedy intervention to keep him in the college as Mr Q said he would have to leave the college if he did not sign up to the agreement. A copy of the agreement was provided to the Tribunal at my request. It stated that the complainant could continue on the course provided he adhered to the regulations of the respondent and that he accepted certain conditions including:

-         That he accepted the special tuition plan put in place by Ms B;

-         That he undertook to withdraw his complaint;

-         That he accepted the right of Ms B to alter or change the programme as she feels necessary for his good and the good of his other classmates.

Other conditions related to specific behaviours, such as that he remains calm and refrains from angry tantrums. The complainant signed the agreement on 14 December, 2006, but on the 8 January following, Ms B received a letter from him informing her that he would be proceeding with his complaint to the Tribunal and, as the complainant did not come into the college himself after that, his participation in the programme ceased.

4.7.           The respondent submitted that it did not prevent the complainant from participating on the course. Rather, it had taken action to facilitate his continuation on it given his level of difficulties by putting an alternative programme in place for him to continue with his studies, a programme that was devised with expert help and supervision, in particular from Ms A and the autism society she represented, as well as the local VEC, and appropriate third level institutions. It submitted that, even were I to find that there was less favourable treatment of the complainant, it was seeking to avail of the exemption provided under s.7(4) of the Acts which states that Section 7(2) does not apply “…… to the extent that compliance with any of its provisions in relation to a student with a disability would, by virtue of the disability, make impossible, or have a seriously detrimental effect on, the provision by an educational establishment of its services to other students.”. It claimed that it had a duty of care to its staff and students and, as the complainant displayed progressively more hostile behaviour, it had to remove him because of this behaviour. It added that it had sought advice from Ms A about removing him from the class and that she had agreed with the proposal.

4.8.     The respondent also outlined its procedure for disciplinary action, saying that it involved two written warnings being given, followed by an appearance before the Academic Council. It said that the reason that it had taken so long to tell the complainant there was a problem was because the Academic Council did not want to take the issue of his disability into account, but sought to achieve consensus and agreement with the complainant. However, it also said that the complainant was meeting with Ms A and so was aware of the problems. Later, in its post-hearing correspondence, it said that the student disciplinary procedure outlined by the complainant was not in place at the time and that even today it would not always be appropriate for dealing with students who have behavioural difficulties. The respondent also submitted that it did not treat the complainant as if he had a disability as, because it was never told directly by the complainant of his disability, it respected his right to be dealt with irrespective of it.  It said that, in general, it always treated the complainant with respect and did its best to support him. 

4.9.     At the oral hearing, the respondent added that Ms A had told it that the complainant had a violent history, although she said he was no longer violent. It said it also had some concerns about his medical history and that the complainant himself had admitted that his disruptive behaviour was due to severe depression. Mr Q also alleged that the complainant had made a “pre-emptive move for compensation” by saying that “if I only had some money, these problems would be solved”. It also said that the complainant had a problem getting a job because of his disability.

Reasonable Accommodation

4.10. The respondent submitted that it had attempted to provide reasonable accommodation for the complainant, including by availing of the services of a therapist, providing additional tuition, and obtaining a laptop. It also provided him with the assistance of Mr Z who had started to work with him on a one-to-one basis, even prior to September 2006. Ms B also added a character to the play “The Plough and the Stars”, held in February 2006, to allow the complainant to participate in the play.

Victimisation

4.11. In relation to the issue of victimisation, the respondent submitted that I did not have jurisdiction to consider the issue of victimisation as the complainant did not specifically raise the issue in his original complaint form and did not tick the relevant box. It also submitted that it was unaware prior to the oral hearing of any issue of victimisation, and is consequently prejudiced by my consideration of the matter. In any event, it denied the claim and said that the meetings in December 2006 and the agreement that emerged from those meetings were intended to assist the complainant in returning to the mainstream class, rather than to victimise him.

5.     Conclusions of the Equality Officer

5.1.     Section 38(A) of the Equal Status Acts, 2000 to 2004 sets out the burden of proof which applies in a claim of discrimination.  It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her.  In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant.  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.  In making this decision, I have taken cognisance of all the oral and written submissions made by the parties.

5.2.           The respondent is an educational institution which, inter alia, provides post-leaving certificate courses to students and, as such, it is an educational institution within the meaning of Section 7(1) of the Acts and is therefore subject to Section 7(2) of the Equal Status Acts, 2000 to 2008 which states that

“(2) An educational establishment shall not discriminate in relation to –

(a) the admission or the terms or conditions of admission of a person as a student to the establishment

(b) the access of a student to any course, facility or benefit provided by the establishment.

(c) any other term or condition of participation in the establishment by a student

(d) the explusion of a student from the establishment or any other sanction against the student”

As the relevant ground in the present complaint is the disability ground, there are two aspects to the complainant’s case which I must consider. Firstly, whether the complainant has been discriminated against because of his disability, in this case as defined by Section 3(1)(a) and 3(2)(g) of the Acts and within the meaning of Section 7(2) as already described. Secondly, I must look, in accordance with Section 4(1), at whether the respondent did “all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities”, and whether “ifwithout such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.” If necessary, I must then consider Section 4(2) and whether the respondent has not failed to provide reasonable accommodation if to do so would “give rise to a cost, other than a nominal cost”.

5.3.           There are a number of elements to the complainants case which I will consider in turn with a view to establishing whether he has established a prima facie case of discrimination in relation to each element:

i.                   that the complainant was discriminated against generally by the respondent, in particular in that he was treated in a discriminatory manner directly by Ms B and Mr C;

ii.                 that the complainant was, within the meaning of the Acts, unlawfully removed from at least parts of the course in September 2004, and was unlawfully denied access to the course he had registered for, contrary to the Acts;

iii.               that the respondent failed to provide the complainant with reasonable accommodation as required by the Acts;

iv.               that the complainant was victimised by the respondent in December 2006 by being told he had to withdraw his complaint or face removal from the course so that, partly as a consequence of this victimisation, the complainant was forced to withdraw from the course (and was thereby effectively expelled from it) in January 2007.

General discrimination

5.4.           The complainant made a number of allegations that he was treated in a discriminatory manner generally by the respondent. In particular, he alleged that Mr C treated him less favourably because of his disability and that Ms B allegedly made discriminatory statements in the course of the complainant’s meeting with her in September 2006. In relation to Mr C, I find that there is no substance to the complainant’s allegation. In relation to the allegedly discriminatory statements made by Ms B, I find her evidence to be more compelling than the complainant’s in this regard and I therefore do not believe that she made any discriminatory statement in the course of the meeting in question.

Allegations regarding unlawful removal from course

5.5.           The other allegations made by the complainant, aside from the issue of victimisation, which I will deal with separately, ultimately relate to his removal from the bulk of the course in question, and will therefore be dealt with under this heading, as will the issue of whether he was provided with reasonable accommodation. The respondent submitted that it could not have discriminated as it never treated the complainant as someone with a disability, as he had never told them directly that he had a disability and so it assumed he did not wish to be considered as having one. However, this was clearly not the case as not only did the respondent make efforts to provide the complainant with special treatment or facilities (as described in par. 4.10), it also liaised with Ms A in general in relation to its treatment of the complainant. I am satisfied, therefore, that, in general, the respondent did treat the complainant as someone with a disability by treating him differently to other students. Equally, while the complainant may not have told the respondent directly that he had a disability, he was aware that it knew he had one and raised no objections to being treated on that basis.

5.6.           It is clear, then, that Ms B took what was, as she described, a sympathetic approach to the situation. I can see that she faced a difficult dilemma: she had a duty of care to her staff and students, but she had to balance that against the particular needs of the complainant. In that context, I am not in any doubt that the complainant was disruptive and I believe that, prior to September 2006, the respondent, and in particular Ms B, went out of its way to facilitate him. Indeed, in my view, it did more than it was obliged to do under the Acts up to that point and did all that was reasonable to accommodate him by providing special treatment and facilities.

5.7.           However, I believe that the treatment it provided to the complainant became less favourable after September 2006. It is clear that the complainant had not made sufficient progress in some of the courses in his previous year to allow progression in some of the relevant modules. However, it is also clear that he was denied access to certain courses by being placed on the individualised programme that was arranged by the respondent in that month. He was therefore treated less favourably as he was put at a disadvantage vis-à-vis all the other students on the course, particularly given that the tuition he was to receive on the individualised programme was only two hours per week in duration. This decision was clearly influenced by the complainant’s disability, as I am satisfied that, if he did not have a disability, or had a different disability, he would have been given access to whatever disciplinary procedures (or grievance, appeal or other relevant procedures) were available to other students. This is particularly true in light of the serious consequence the respondent’s actions had on the complainant. The dispute as to what disciplinary procedures were in place at the time is irrelevant; the important point is that it was clear that he was not afforded access to any of these procedures.  

5.8.           The respondent argued that the inclusion of the complainant in the programme in question was voluntary and he could have returned to the class at any time. I accept that the complainant did initially agree to the dramatherapy programme, but he did so only because he felt he had no choice in the matter. In any event, his removal from the mainstream class was clearly not voluntary as, when he stated his desire to return to the class unconditionally, this request was refused. I do not accept either that the matter was purely a disciplinary one. It is clear to me that when Ms B met with the complainant in September 2006, he had no idea that the respondent had any intention of taking disciplinary action, as, by its own admission, it had not taken any up to that point. In those circumstances, I do not believe that any other student whose discipline was at issue would have been immediately and arbitrarily removed from the class. In taking this view, I note that Ms B had spoken with the complainant at certain times about certain aspects of his behaviour, and the complainant had been removed from Mr C’s class. However, I am satisfied that neither of those actions were intended as disciplinary measures.

5.9.           There is, therefore, a clear and indisputable nexus between the complainant’s disability and his removal to a separate individual programme that denied him the same access to other modules that persons without a disability, or with different disabilities, had and would have had in the same or similar circumstances. As it is well established in this Tribunal and elsewhere that discrimination includes the application of different rules to comparable situations[1] (or the same rule to different situations), and as it is clear that the complainant was treated less favourably by the respondent on the basis of his disability, he was discriminated against on that basis.

Respondent’s defence

Section 7(4)(b)

5.10.       The respondent argued that it did not discriminate, but that even if it did it was entitled to do so under Section 7(4)(b) of the Acts. As instruments of social legislation, the Equal Status Acts must be interpreted in a purposive way. That is to say that, in the current context, any exemptions must be construed narrowly in light of the purposes of the Acts, whose primary purpose is the prevention of discrimination. In order to avail of the exemption provided in Section 7(4)(b), then, in all the circumstances of the present case, the onus is on the respondent to show that the complainant’s disability had such a detrimental impact on the ability of the institution to provide educational services to the students affected that it was left with no choice but to treat the complainant less favourably by removing him at least temporarily from the mainstream class.

5.11.       The respondent’s argument in favour of applying this exemption is that the complainant’s teachers could not continue to teach him. Its principal evidence in that regard was:

a)     its statement that Ms Y felt physically intimidated by the complainant;

b)     a series of letters from teachers outlining the nature of the complainant’s behaviour;

c)     the direct evidence of Mr C with regard to the complainant’s alleged behaviour;

d)    a report by Mr Z of the circumstances and issues at stake in relation to the complainant’s behaviour;

e)     the evidence of Ms B.

In relation to the allegations made by Ms Y, not only did the respondent take no action at the time, it did not even inform the complainant about those allegations. In those circumstances, I find it difficult to believe that Ms Y was so physically intimidated by the complainant as the respondent said she was. The letters from the teachers that were presented in evidence to the Tribunal were all written after the complaint was made. In the absence of the direct evidence of those teachers (with the exception of Mr. C), these letters are of limited value, particularly given the level of seriousness which the respondent seeks to attach to the complainant’s behaviour. Mr C’s letter was also not contemporaneous with the allegations he made regarding the complainant’s behaviour as it was written almost a year after the complaint was made. In oral evidence, he was unable to provide any further detail in relation to his allegations regarding the complainant’s behaviour, despite being afforded every opportunity to do so. His evidence was thereby, and otherwise, unconvincing. I therefore find the complainant’s evidence, in relation to the specific allegations of Mr C regarding his behaviour, to be more compelling. The report of Mr Z provided no direct evidence of any incidents, only reports he received from Ms B and other teachers, and he was not present at the hearing either. While I found Ms B to be a very credible witness, most of her evidence in relation to the behaviour of the complainant was indirect and the behaviour that she did witness directly could not, by any stretch of the imagination, be interpreted as being of sufficient seriousness to warrant the complainant’s removal from the class in the circumstances already outlined.

5.12.       The respondent has therefore been unable to provide any convincing evidence that the complainant’s behaviour was so serious and was having such a detrimental impact on the education of other students that it was obliged to take the discriminatory action that it did in the context of this complaint. In addition, I note that no student made a formal complaint against the complainant, and any informal comments that were made to Ms B were not taken any further. In that context, I also note that the students in question were post-leaving certificate students, who no doubt could have taken appropriate action if they considered their education to be so seriously affected by the complainant as the respondent made out. As the onus is on the respondent to show that it was left with no choice but to avail of the provisions of Section 7(4)(b), it has therefore failed in that regard.

Section 4(4)

5.13.       In relation to the disability ground, Section 4(4) of the Acts provides that “… where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.”  While it did not refer specifically to this provision, the respondent submitted that this issue also arises. In that context, the onus is on the respondent to show that i) it had reasonably formed the opinion that the complainant could cause harm to himself or others; ii) the cause of the prospect of such harm was the complainant’s disability; iii) the actions it took to prevent such harm were reasonable and necessary. The only evidence it presented that might have sufficient significance in relation to i) was Mr Q’s allegation that the complainant banged his head against the wall, evidence which, as already stated, was unconvincing. In any event, the delay between this incident and the removal of the complainant from the mainstream class would indicate that the respondent did not consider there to be any significant danger of harm being caused to anyone. Otherwise, any reasonable person would have acted immediately. I am therefore not convinced that there was a sufficient risk of harm being caused that, in terms of Section 4(4), justified any different treatment, and do not need to consider the matter any further.

Allegation of victimisation

Issue of jurisdiction

5.14.       The respondent submitted that I did not have jurisdiction to consider the issue of victimisation as the complainant did not specifically raise the issue in his original complaint form and did not tick the relevant box.In all the circumstances of the present complaint, I am satisfied that it is lawful under the Acts for me to address any issue, including that of victimisation, which appears to me on the facts to fall within the scope of the Acts. The Equal Status Acts are acts “…to prohibit types of discrimination….and…to provide for investigating and remedying certain discrimination and other unlawful activities”[2] and Section 25 of the Acts requires me to investigate the complaint. In so doing,  my jurisdiction is not limited by the same rules and procedures as the District, Circuit or Superior Courts. It is wider than that, particularly where a party is unrepresented, and cannot be restricted by the complainant’s failure to tick a box on a non-statutory form. As Clarke, J stated in the recent case of Calor Teoranta –v Michael McCarthy[3], an investigative body, such as the Tribunal, “must be afforded a significant degree of autonomy as to the manner in which it conducts its proceedings.” Furthermore, I note that in Byrne –v Association of Irish Racecourses,[4] the Equality Officer found that he had a right to consider cases before him under provisions of the relevant legislation once it appears from the evidence that those provisions should be applied to the case at hand.

5.15.       The rights of the respondent in relation to answering the case that has been put before it by this complaint, then, are protected by the principles of natural justice. In that regard the respondent also alleged that it was, in any event, unaware prior to the oral hearing of any issue of victimisation, and is consequently prejudiced by my consideration of the matter. However, I am satisfied that the respondent was aware of the victimisation allegation well in advance of the oral hearing. Indeed, the complainant stated in his letter accompanying the complaint form and addressed to the respondent, that “over the course of the Christmas holidays I have had the opportunity to re-evaluate the way that I have been treated by you”. It is clear to me that the complainant was referring in this letter to the issues that arose in December 2006 which gave rise to his claim of victimisation and I am satisfied that the respondent well knew that this was the case, particularly given that it did not deny those issues arose, submitting, rather, that there was no victimisation involved. In any event, the precise details of the incidents surrounding the allegation were set out in a letter to the Tribunal of 18 July 2007, which was copied to the respondent on 16 August 2007. I am satisfied that it was abundantly clear in that letter that the complainant was complaining of victimisation. I am therefore satisfied that the respondent had more than adequate notice of the allegation.

5.16.       At the oral hearing of the matter, I flagged the issue of, and asked detailed questions of both sides about, the specific allegation of victimisation. Both parties were provided with opportunities to make oral submissions in this regard. The respondent was also given a period of time subsequent to the hearing to make any further written submissions, including specifically in relation to this allegation. I am therefore also satisfied that both parties were provided with sufficient time and opportunity to address the allegation of victimisation against the respondent. I will now consider the issue in the following paragraphs.

Substantive Issue

5.17.       Section 3 states, in relation to the definition of the victimisation ground, that discrimination includes, as between any two persons,

(j) that one –

            (i) has in good faith applied for any determination or redress (under the Acts)

            ………

            (v) has given notice of an intention to take any of the actions specified…

and the other has not (the “victimisation ground”)

The complainant submitted that he was victimised by the respondent in December 2006 following his submission of a complaint to the Tribunal. He had issued the notification of his complaint on 29 November, 2006. It is clear that this was the catalyst for a series of meetings between the complainant and the respondent that culminated in it presenting to him what he described as an ultimatum for his continued participation on the course. He submitted that this was victimisation. The respondent, however, argued that it did not victimise him and was only acting in the best interests of all parties.

5.18.       I find, however, that, in all the circumstances of the present complaint, the evidence very clearly shows that the respondent did treat the complainant less favourably than it would have if he had not given notice of his intention to take a complaint on the disability ground. It therefore victimised him. I do not accept the respondent’s submissions or its bona fides in this regard.  Indeed, I believe that, in the case of Mr Q at least, this treatment was both conscious and deliberate.  In particular, I note that the respondent said that the complainant was “not asked to withdraw any complaint addressed to the Equality Tribunal” whereas the term of the agreement in question states quite clearly that “the complainant undertakes to withdraw his letter, which claims discrimination and refers to possible intervention by the Equality Agency (sic.).”  The inclusion of such a term as a prerequisite for the complainant’s continuation on the course is, in itself, an act of victimisation and had absolutely no place in the agreement in question.

5.19.       Furthermore, and contrary to the respondents assertions in this regard, it is clear to me that the attitudes and behaviours expressed by the respondent in general, and Mr Q in particular, clearly indicate that it did not act in the best interests of the complainant. Mr Q had, by his own admission, formed the view that, in making his complaint to the Tribunal, the complainant was merely making a “pre-emptive move for compensation”. It is clear that he therefore proceeded to put pressure on the complainant to withdraw his complaint, in particular by threatening that he would be removed from the course entirely if he did not. In fact, the force of Mr Q’s actions were such that he was successful in getting the complainant to withdraw his complaint in the first instance. However, the complainant then changed his mind and made the present complaint in terms which met the requirements of the Acts.

Further comments by the respondent

5.20.       In the latter stages of the oral hearing, the respondent made a number of allegations concerning the personal circumstances of the complainant, including allegations of past violent behaviour. These allegations are outlined at paragraph 4.9 and do not need to be repeated here. However, I cannot see how, in all the circumstances of the present complaint, any of these arguments are relevant to the present case and I therefore do not propose to consider them any further.

Final Comments

5.21.       The less favourable treatment in this case was not that the complainant was provided with a separate individualised programme, but that he was denied access to other elements of the course, ultimately against his will, and without recourse to the same appeal and/or grievance and disciplinary procedures that any other student would have had access to. I do not doubt that the complainant’s behaviour was disruptive, but the respondent should not have dealt with it in a way that resulted in less favourable treatment as I am not satisfied that the disruption was of such a serious nature as to warrant the invoking of Section 7(4)(a). The result was that the complainant was denied access to education. While this is a serious matter, in awarding redress in relation to the discrimination on the disability ground I have also taken into account the following mitigating factors:

-         Prior to September 2006, the respondent, and in particular Ms B, went out of its way to facilitate the complainant, who was undoubtedly disruptive;

-         It was reasonable for the respondent to conclude it needed to take some sort of action in September 2006 to deal with that disruption;

-         The complainant had already failed to qualify for much of the course, and so the portion of the course he missed out on was not huge, and it seems likely that he could have caught up on it with relative ease;

-         I believe that the act of discrimination was not what led to his effective dismissal from the course; it was the victimisation that had this result.  If the victimisation had not occurred, and a different approach had been taken by the respondent to the events of December 2006, the effect of the complainant’s temporary removal from the class might have been considerably lessened.

5.22.       Section 25(1A) of the Acts provides that where there is discrimination on the victimisation ground, it must be the subject of a separate decision and award. In that context, I consider that the more serious matter was the victimisation. Even while the complainant was in the separate programme, and the discrimination on the disability ground had taken place, it is clear that the respondent displayed a genuine concern for the interests of the complainant, even if it had acted unlawfully in doing so. However, once the respondent became aware of the complainant’s intention to refer the matter to the Tribunal, there followed a complete “volte face” in its approach, and the respondent tried to force the complainant to withdraw his complaint to the Tribunal. The respondent sought to justify this behaviour by saying that the complainant was aggressive and abusive and sought only to obtain compensation. Even if true, neither are sufficient grounds for justifying victimisation, the result of which was that the complainant was effectively dismissed from the course by the respondent. In all the circumstances of this complaint, then, I have taken a very serious view of this matter and consider that my award in this case must be dissuasive. The redress I am awarding in relation to the victimisation is reflective of this.

6.     Decision

6.1.     In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2004, I conclude this investigation and issue the following decision: 

6.2.     The complainant has established a prima facie case of less favourable treatment on the disability ground, in terms of sections 3(1), 3(2)(g) and 7(2) of the Acts, and I find that the respondent has failed to rebut this prima facie case. 

6.3.     The complainant has established a prima facie case of less favourable treatment on the victimisation ground, in terms of sections 3(1), 3(2)(j) and 7(2) of the Acts, and I find that the respondent has failed to rebut this prima facie case.

6.4.     In accordance with Section 27(a) of the Equal Status Acts, I order the respondent to pay to the complainant the sum of €1,000 as redress for the discrimination on the ground of disability.

6.5.     In accordance with Sections 27(a) and Section 25(1A) of the Equal Status Acts, I order the respondent to pay to the complainant the sum of €3,000 as redress for the discrimination on the ground of victimisation and for the hurt, upset and humiliation caused to the complainant as a result.

6.6.     In accordance with Section 27(1)(b) of the Equal Status Acts, I also make the following order: that, in consultation with an appropriate person or organisation expert in the area of the protection of the rights and entitlements of persons with disabilities, the respondent carry out a review of its grievance and disciplinary procedures to ensure that students with disabilities are provided with suitable and appropriate access to those procedures. This review must result in the publication of a written document in that regard (which, at the respondent’s discretion, may or may not also relate to students without disabilities) to be made available to all staff and students of the respondent within twelve months of the date of this decision.

_____________

Gary O’Doherty

Equality Officer

30 June 2009