THE EQUALITY TRIBUNAL

EQUAL STATUS ACTS 2000 to 2008

Decision No. DEC-S2010-006

 PARTIES

Claire McGrath

-v-

University of Dublin,

Trinity College

(represented by James Doherty, B.L.,

 instructed by Maxwells solicitors)

 File Reference: ES/2007/0007

Key words

Equal Status Acts - Section 3(2)(g), Disability ground – Time limits - Section 42, Vicarious Liability - multiple complaints - complaints going back over time - Section 11, harassment - Section 4, reasonable accommodation - Section 7 - Education  

1.     Delegation under the relevant legislation

1.1.     On 12th January, 2007, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. On the 26th September, 2008, in accordance with her powers under section 75 of the Employment Equality Act, 1998 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, 2000-2004, on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing in Dublin on Tuesday, 17th September, 2009. A further oral hearing was required and this was held in Dublin on Wednesday, 14 October, 2009. Both parties were in attendance at both hearings.

2.     Dispute

2.1.     The dispute concerns a complaint by the complainant that she was discriminated against by the respondent on the disability ground contrary to the Equal Status Acts in terms of Sections 3(1)(a), 3(2)(g), Section 4(1) and Section 11 of the Equal Status Acts, and contrary to Section 7(2) of the Equal Status Acts in that the respondent has treated her less favourably, has failed to provide reasonable accommodation for her in relation to the course she wishes to pursue with the respondent, and has harassed her on the ground of her disability.

3.     Summary of the Complainant’s Case

3.1.     The complainant began her studies with the respondent in 1997 with a four-year degree course, and graduated in 2002. In June 2001, she was diagnosed with M.E./C.F.S. (chronic fatigue syndrome) from which she has suffered with severe and specific symptoms since 1997. She communicated this diagnosis to the respondent in September 2001.

3.2.     The complainant submitted that her case against the respondent was taken following protracted and targeted discrimination, including incidents of bullying, which commenced very shortly after she signed up with the respondent's disability service and continued until the actions of the college made it impossible for her to return to her postgraduate work. She submitted that her diagnosis was the catalyst and rationale for these actions. She also submitted that the respondent failed to provide her with reasonable accommodation.

Allegations of Discrimination/Failure to provide reasonable accommodation

Alleged incidents relating to complainant's interaction with "the Co-ordinator"

Registration with DSS

3.3.     The complainant submitted that when she met with the Co-ordinator ("the Co-Ordinator") of the Disability Support Services (DSS) in September 2001, he, inter alia, told her that he would inform her lecturers of her illness and the impact it might have on her studies. She submits that this did not occur despite the fact that she informed him that this would be the most helpful act he could carry out for her as it would allow those lecturers to extend due leniency on the few occasions it would be called for. She submitted that it was not until the end of the year that she discovered that the Co-ordinator had not informed anyone of her illness. She stated that this led to her suffering a great degree of stress as she considered that her lecturers and supervisor misunderstood, and were annoyed by, the difficulty she occasionally had in keeping up with other students. She submitted that it did not occur to her before April 2002 that they might not be aware of her disability and never thought to ask. She didn't complain about this at that time as her exams were coming up and so she didn't know how to deal with the issue. She finally reported it to the respondent in Summer 2002.

3.4.     As evidence that the DSS provided the service referred to above, the complainant submitted that the Co-ordinator wrote an article in September-October 2002 in a magazine in which he said that "students register with the Student Disability Service, which draws up an individual learning plan, with the approval of lecturers and students. This specifies the student's particular conditions, the special supports needed and how they will be provided, including any special arrangements for exams and assessments. The agreed plan is then circulated to all teachers, support staff and the senior lecturer." She rejected the respondent's submission that her recollection of her meeting with the Co-ordinator was reconstructed based on what she read in that article.

3.5.     The complainant also elaborated on concerns she had about some of the other issues discussed at the meeting in question. In short, she submitted that the Co-ordinator told her he would do certain things which he never did, or did only with reluctance.

Use of Room 2032

3.6.     Students with disabilities who required rest and quiet, including the complainant, were provided with a respite room, Room 2032, by the respondent. The complainant submits that, in December 2001, an e-mail was sent to users of the room to the effect that a meeting needed to be held in response to a Disability Service Committee meeting of the previous November. She said that little was said at this meeting except to reiterate the rules of the room, which had been already outlined in an earlier meeting. She said, however, that the Co-ordinator narrated an anecdote about a girl whose troublemaking in the room forced him to change the locks. She said that in the subsequent months, staff members began to drop into the room whenever she was there, and on occasion accused her of misusing the facilities.

3.7.     On a date between 2 and 6 September, 2002, the complainant submitted that she was in Room 2032 when the Co-ordinator came in with a small number of people and talked of someone "causing trouble" in the room. On 10 September, 2002, the complainant was with her sister in the room. The Co-ordinator came in and told the complainant's sister that she shouldn't be there and that she was using the facilities. The complainant submitted that this was completely incorrect as, according to the guidelines for the use of the room at the time, users of the room were allowed to bring friends from time to time as long as they didn't cause disruption or use the facilities, and that her sister was not doing so. The complainant also submitted that the Co-ordinator asked her in a confrontational manner whether she knew the rules of the room. Her sister presented as a witness at the hearing and confirmed the account of the incident given by the complainant.

3.8.     The complainant submitted that a few days later she found that the lock on the door to Room 2032 had been changed with no prior notice to her. As a result, she could not get access to her belongings (which were in her locker) for several months. When she returned to college as a postgraduate student, the complainant submitted that she was told she was not allowed to use the room and was unable to do so until the president of the Graduate Students' Union finally succeeded in obtaining permission for her to use the room in early 2005. She also submitted that during the summer of 2002, when she was still occasionally using the room, a security guard was stationed outside. She said that she had never seen this happen before and never saw it again while she was at the university.

3.9.     The complainant said she was never aware of any complaints about her use of Room 2032 by other students. She said that she got on very well with other users and never had any problems with them.

Meeting in office of Co-ordinator

3.10. The complainant stated that in October 2003, she received a phone call from a member of the respondent staff to go to the disability office. She went there at 2 p.m. and she decided to bring along her mother. She submitted that she arrived on time but that the person she was supposed to meet was not there. Instead, she was called to the Co-ordinator's office to speak with him about her European Social Fund (ESF) application for a grant for students with disabilities. She submitted that he told her that there were problems her application and he said that it looked like she had "doctored" her consultant's report. She assumed that the Co-ordinator was referring to her having blanked out references to certain personal details that were not relevant to her disability and so pointed out that, even if the consultant's report was invalid due to her having blanked out some personal details, the doctor's letter she had also included should be sufficient. She said that the Co-ordinator replied that there was no such letter. She said that he then repeated that her letter looked as if it had been "doctored" when her mother came in to investigate the delay. The complainant submitted that the Co-ordinator then found the GP's letter after a very short space of time and only after her mother insisted that she would not leave until he produced it. The complainant denied the Co-ordinator's contention that she used the word "doctored" first, and thought the notion that her mother was screaming and shouting, as alleged by the respondent, was nonsensical.

3.11. Her mother corroborated the complainant's evidence in relation to this incident, adding that when she came into the room, she noticed that the complainant was visibly upset. She confirmed that the Co-ordinator said the letter in question had been "doctored" and when she asked him what he meant that it was doctored he "rounded on her" and said "what do you mean by that?". She said that the Co-ordinator jumped up at that point and her mother said she would not leave until the other letter the complainant had sent in had been found, which it was shortly after.

3.12. It is accepted that the complainant asked not to have anything to do with the Co-ordinator in early 2003 and was granted that request.

Alleged incidents relating to complainants interaction with "the Supervisor"

3.13.  The complainant stated that when she returned to college as a postgraduate student in 2003, her condition had worsened. She submitted that she tried to arrange with her thesis supervisor ("the Supervisor") to see whether, inter alia, he could give her a specific project to work on at home for the length of time it would take her to recover. However, she stated that she found it very difficult to meet with him as his schedule was rather erratic. She described several efforts she made to meet with him and/or to receive written rather than face-to-face supervision, mostly without success.

3.14. The complainant submitted that the Supervisor specifically refused to accommodate her illness in any way and provided documentary evidence which she submitted as proof of this. She submitted that, on one occasion when she did manage to meet with him, the Supervisor told her that if her disability made her unable to fulfill her commitments, she should not be doing the course. She submitted that he recommended that she do an MLitt and not a PhD. She said that as time went on he was narrowing her outlines making her work more restricted but that her work was never as incomplete or lacking as he inferred it to be.  She got to a stage, she said, where she did not know what to do, that her thesis was going nowhere and that she had no idea what she should be working on. She became frustrated and approached the Head of the Department ("the Head") about the matter but, while the Head initially suggested that she could get in contact more frequently by telephone with the Supervisor, she came back later to say that wasn't a good idea.

3.15. The complainant said that when she met with the Head in early 2004, she suggested that the complainant take a year off books. The complainant decided to do so as she did not want to appear unreasonable and knew that things with regard to her supervision remained difficult. Her principal concern in relation to this issue in general is that she was told that what she thought was very reasonable accommodation at the start was not an option. She said she didn't have the energy to keep watch at the supervisor's door all the time and was further annoyed at being told she should not be doing a graduate degree.

Additional alleged incidents

Issue of Photocopying Cards

3.16. The complainant also took issue with being told in 2003 that she would not be given photocopying cards. She said that the Department of Education and Science had allocated her a certain amount of money towards photocopying cards over two years. She said that, in 2001, the amount was £150. She said that the DSS set a schedule for her to collect them which she was not permitted to alter, and when she could not meet the schedule, she was refused the full allocation of cards. She asked for the remainder of the cards during the summer of 2002 and was told that she wouldn't need them and therefore couldn't have them, in spite of the fact that she had made it clear that she was planning to return as a research student and would be doing work during the summer. She said that this also occurred in 2005 and that she never received her full allocation of photocopying cards.

Year "off-books" and return

3.17. The complainant submitted that, on 10 August, 2005, she was informed that the year off-books had been granted and was asked if she wanted to accept it given that the readmission would be subject to a "certificate of medical fitness" and that in the case of similar students, "when they feel better to come back to the register", a medical fitness certificate is obtained. She answered that, having a chronic illness, she could not imagine being declared medically fit in a year's time, but would take the year off books if the Graduate Studies office accepted this situation. She said that she received no reply, but was informed that she was deemed off-books. She viewed this as acceptance of her application on personal grounds.

3.18. When she applied for readmission in late May 2006, the complainant submitted that she was told on the phone by a representative of the respondent ("the Administrator") that she would have to produce a certificate of medical fitness before she could be readmitted. In spite of the fact that she could not prove medical fitness, due to the fact of having a long-term illness, the complainant said that she decided to try and compromise and wrote that she would be agreeable to an examination by someone expert in the area of ME. She said that the College Calendar states that the Dean of Graduate Studies may "require a satisfactory certificate from a medical referee nominated by him/her". The complainant submitted that, on July 13, 2006, the complainant received a letter from the office of the Dean of Graduate Studies stating that the nominated referee was the college doctor ("the Doctor") who the complainant understood was not an expert in the area of ME.

3.19. The complainant submitted that she sought her year off-books on personal grounds, not medical grounds, and the medical issues are part of her registered disability. She submitted that to ask her to attempt to prove her medical fitness is to add additional criteria to her attendance at college apart from the entrance criteria she had already fulfilled. She maintained that someone with a different disability would not be asked to prove medical fitness.

Allegation re exclusion from DSS services

3.20. She added that, in November 2004, she was threatened with exclusion from college disability provisions if she refused explicit permission to the Disability Service to contact various college bodies regarding her illness, which was an indication of the more complete exclusion the respondent would later enforce. She submitted that she was sent a letter in November 2004 with a list of people she was to authorise the college to contact on their behalf inc lecturers etc. regarding her disability. She said that she got a letter from the DSS saying that if she did not give the relevant permission she would be excluded from the service.

3.21. There were other incidents mentioned in the complainant's submission but she declined to present oral evidence in relation to them at the oral hearing and were thus withdrawn.

Allegations of harassment (bullying)

3.22. Her claim of harassment related mainly to her interaction with the Co-ordinator, primarily in relation to her alleged treatment by him while using Room 2032 which, she submitted, created a hostile environment for her.

General submissions

General submissions in relation to Reasonable Accommodation

3.23. The complainant submitted that the college did provide reasonable accommodation by way of rest breaks and permission to use the computer. She said that photocopying cards helped, as did the grant from the Department of Education and Science for a library assistant through the college. She said being able to use Room 2032 was also useful. She said she went in not expecting very much and was very grateful for the reasonable accommodation that was provided.

3.24. Her concern was that some of it was made valueless by the behaviour of the respondent. In general, she submitted that she was made to feel she had no right to access the facilities in question. She felt that she was singled out from other students in not being provided with certain forms of reasonable accommodation.For example, she considers that the withholding of her photocopying cards was reasonable accommodation that should have been granted. She also objected to being told she should not be going with her degree if she was not fit. With regard to the requirement to provide a certificate of medical fitness, she did not think it was warranted with regard to someone with a registered disability

Response to respondent's legal submissions

3.25. In response to the respondent's submissions that some of the issues raised by her were out of time (see par. 4.1-4.5 below), the complainant submitted that the relevant Acts were the Equal Status Acts which allow for multiple complaints in relation to an ongoing situation and that in this case the situation was ongoing. She had delayed initially as she thought the circumstances that had arisen up until that time would not recur and was unsure as to what she should do in any event. She said she was not aware of the provisions of the Acts initially and it was only over time that she became aware that the behaviour in question was targeted so that it was only at the time of the final incident that it became clear that the previous incidents had culminated in the final incident (i.e. the requirement to provide a certificate of medical fitness).

3.26. As regards the respondent's submissions in relation to my jurisdiction to consider the harassment claim, the complainant said that harassment was contained in her original submissions provided in January 2007.

General Submissions

3.27. In general, the complainant stated that the respondent discontinued her postgraduate degree because she had a long-term illness, recognised by law as a disability. She submitted that their denial of her re-entry to college was an act of discrimination as evidenced by the ample proof she had provided of the college's many attempts to renege on its recognition of her disability, and even portray her as fraudulently availing of disability provisions. She submitted that if she was "certified fit" to return she would be prevented from availing of disability services in the future. She said that this was an extension of the constantly escalating instances of discrimination that she underwent following her diagnosis of a chronic illness: bullying, refusal of accommodation in the academic setting, and constant attempts to portray her as unfit to avail of disability services, facilities and accommodation.

3.28. The complainant submitted that the results of the bullying and discrimination as described are many. She said that the bullying was intended to affect her health and ability to work, and it had that effect. She said that its effects on her psychological wellbeing were traumatic. She said it is hardly necessary to mention that her exclusion from college has stymied her career. In order to develop a wider interdisciplinary knowledge and keep working, she has undertaken a course in a different area but hopes to finish her PhD in the medium-term. She submitted that, as things stand, she is barred from resuming her academic career in her chosen field.

3.29. The complainant acknowledged the Respondent's statement about returning to college but said that she had already demonstrated a willingness to return but only if someone with a particular expertise in her illness examined her.

4.     Summary of the Respondent’s submission

Jurisdictional Issues

Certain issues out of time

4.1.     The respondent submitted that I did not have jurisdiction to deal with the alleged incidents of prohibited conduct relating to the Co-ordinator as the last such incident was several years before the complaint was made. It submitted that these incidents are therefore statute-barred by virtue of the provisions of Section 21(6) of the Acts as they are entirely distinct from and separate to the incidents arising in relation to the Supervisor and other related incidents, which it accepted were within my jurisdiction to consider. In advancing its arguments in this respect, the respondent cited King -v- Dublin Bus[1] which, it said, was authority for the proposition that there must be a link between the occurrences complained of and there is nothing to suggest that the allegations against the Co-ordinator are linked to the allegations against the Supervisor. The respondent submitted that, as the necessary connection is missing, the earlier incidents are therefore out of time.

4.2.     The respondent also submitted that, on 31 July, 2002, the Complainant made a complaint to the senior tutor in writing including matters relating to those matters currently under investigation. It submitted that, if the complainant felt she was being discriminated against at that time, then she should have made her complaint then. It submitted that it would be an extraordinary result if the two-month notification period could be used as a back door to bring in older complaints.

4.3.     The respondent added that, in any event, a clear prejudice arises in embarking upon an investigation of matters some of which are now in excess of seven years old and it is manifestly unfair to meet a case in respect of events that are that old. It said that if it was accepted that the complainant could go back based on the fact that her argument relates to the entity in control of the discriminatory conduct, then someone in employment with a bank since the 1960's could decide when retiring that there was recent unfairness when they left and could link it to past occurrences. It said that this argument simply can't wash.

4.4.     The respondent also submitted that the complainant had provided no notification of these earlier issues other than the formal notification of in September 2006 and so the earlier complaints were prima facie out of time as the complaint is grounded on the notification. As far as the respondent is concerned, the matters at issue related to the notification only.

4.5.     The respondent cited Kelly -v- Director of the Equality Tribunal[2] as authority for the proposition that, in looking at whether I should allow in the complainant's earlier allegations, I must consider, as the ECHR did in McMullen -v- Ireland[3] ,

                       "1. The circumstances of the case having regard to criteria laid down in the courts case law,

                       2. The complexity of the case

                        3. The conduct of the applicant and of the relevant authorities

                        4. The importance of what is at stake for the applicant in the litigation."

It submitted that, on this criteria, I must refuse jurisdiction in relation to the earlier incidents.

Consideration of claim of harrassment

4.6.     The respondent also stated that I had no jurisdiction to consider harassment as it was not mentioned in the notification and it therefore does not require further consideration as if the issue is not raised in the notification then it is not properly before the Tribunal, given that the jurisdiction of the Tribunal stems from the notification and does not entitle the Tribunal to go beyond what is in the notification.

Late submission of material by complainant

4.7.     The respondent also submitted that it was prejudiced by the submission of material at a late stage by the complainant, which, it alleged, contained new and fresh allegations shortly before the hearing. It said it was very difficult to give a response to some of the material provided by the complainant.

Substantive Issues

Alleged incidents relating to complainant's interaction with "the Co-ordinator"

Registration with DSS

4.8.     The respondent submitted that the Co-ordinator had been appointed to the College Disability Service in 2000, and was still there in 2001. At the time the complainant applied to it, the DSS was only a year old, having been set up in June 2000, as a decision had been made to set up a service to support students with disabilities. It had 60 students on record at the time, which grew to 170. They looked at exam accommodations and provided assistance for applications to the ESF, library supports and general supports.

4.9.     The Co-ordinator submitted that there was no formal system of lecturers being informed about disabilities although he thought he recalled receiving a list of lecturers from her. The respondent submitted that, instead, the complainant's recollection of the meeting with the Co-ordinator was influenced by what she had read about him in the magazine articles already mentioned and that she recalled him having told her he would inform lecturers because he said it in the article the following year and not because he said it directly to her.

4.10. The respondent submitted that the Complainant was informed by the Co-ordinator that there was insufficient evidence to support her registration with Disability Services as the letter she provided was deemed insufficient. The Co-ordinator said he made it clear in their policies that a GP's letter was insufficient evidence and that there needs to be a letter from a specialist, but by October 2001, the complainant had not complied with this requirement. The respondent explained that a specialist is required in all cases to register disabilities. There is temporary registration where no specialist letter is provided, but there is no formal system for deciding what is provided to those temporarily registered.

4.11. In any event, the respondent said that the code of practice in relation to the DSS was not signed until 2002/03 so it was not until then that there was a formal system of assistance. In short, there was no difference between the assistance the complainant actually received and the assistance she would have received if she had provided a suitable letter. She was never told anything about contacting lecturers. There is a letter from the DSS saying that she was registered. However, the respondent said that this was a standard letter used by the service and signed by a casual member of staff and did not indicate that she was, in fact, registered.

Use of Room 2032

4.12. In its submission to the Tribunal, the respondent accepted that there were a number of issues with the complainant's use of Room 2032. However, it withdrew those allegations at the hearing on the basis that they were included in their submission in error.

4.13. In relation to the incidents involving the use of Room 2032, the Co-ordinator stated that he had no recollection of the incident mentioned by the complainant where he allegedly brought a group into the room and made a comment in the presence of the complainant. He did, however, recall the alleged incident involving the complainant's sister. He recalled having some conversation with the complainant about her sister in which he mentioned the rules and may have queried who her sister was. He disagreed, however, that his tone was confrontational.

4.14. The Co-ordinator said there were some changes in February 2002 arising from a users meeting and that guidelines for the use of the room were only finally established in Spring 2002, possibly in the Hilary-Trinity terms. In that regard, an e-mail was sent to all students. In relation to the complainant's allegation that a security guard was put on the door of the room, the respondent suggested that there may be a misunderstanding there to do with the fact that the security guards have a common room next door to Room 2032.

4.15. The Co-ordinator said that the locks were changed in Autumn 2002 as there was an increase in the number of students using the room and there were issues with inappropriate use being made of the room. The respondent added that the complainant would have been facilitated in removing her belongings if she had contacted the DSS, though pointing out that she was not a student in college for that year and so could not avail of the services of the room.

Meeting with Co-ordinator in September 2002

4.16. The Co-ordinator said that by the time the meeting in question took place in September 2002, the complainant was liaising with a different member of the DSS staff who had started working with the service. However, the Co-ordinator confirmed that he did meet with the complainant and her mother on the occasion in question. He said that at that meeting he did express his concerns regarding the consultant's letter to the complainant. He said that part of the letter had been tipp-exed out and he told the complainant that he believed this would not be acceptable to the Department of Education (as the letter was part of an application for moneys from the ESF fund). He said, however, that her application to the ESF fund was therefore simply made on the basis of the GP's letter.

4.17. The Co-ordinator said he never used the word doctored. Instead, he said that when he asked her to clarify her evidence in relation to the ESF application and why part of the letter had been blacked out, she asked him "are you asking did I doctor it?". He said that the complainant's mother was angry and forceful during her intervention. He said that he had never dealt with that before and that she was screaming and shouting. He couldn't recollect exactly but said he imagined he tried to get her out of the office as quickly as possible.

4.18. The respondent added that there was a question as to how this incident could be characterised as discrimination. It said that the complainant had achieved her ESF funding and so it was difficult to see how her treatment was less favourable. 

Alleged incidents relating to complainant's interaction with "the Supervisor"

4.19. The respondent submitted that the Supervisor did not discriminate against the complainant nor did he fail to provide her with reasonable accommodation. It submitted that the standard practice is that postgraduate students and supervisors meet personally on a regular basis but that the Supervisor had undertaken to enter supervision of the complainant on a written basis to address the difficulties that she encountered in travelling to and from the College. It added that the complainant was given an unlimited completion date for her thesis, whereas the normal practice is to have set times for completion of same. Furthermore, the respondent submitted that the Supervisor's suggestion to the complainant that she proceed with an M Litt degree rather than a Ph.D. as there was a greater likelihood that she would proceed with the former was in no way discriminatory but rather the experienced advice of a supervisor to a student.

4.20. The Supervisor said he was sorry at the outcome of the complainant's interaction with him as he said she had the ability to undertake graduate work. He said that she had registered for the M Litt from the start and it was more likely she would do that than the PhD. He said he was aware that the complainant had a disability but was not sure what that disability was and it was not a factor in his approach to dealing with the complainant.

Additional alleged incidents

Photocopying cards

4.21. In relation to the issue of the photocopying cards, the respondent submitted that it was at a loss to understand how she did not obtain her allocation. It said the only evidence in relation to this issue was an e-mail from August 02 but this e-mail did not include any allegation that she was refused photocopy cards. In addition, it pointed out that at that stage she was no longer a student in the college.

Year "off-books"

4.22. The respondent submitted that it did not discriminate against the Complainant by requesting that she take a year off-books before returning to the College. It said that the College has a regulation in relation to all postgraduate students going off-books which state that they may, at the discretion of the Dean of Graduate Studies, have to submit a satisfactory medical certificate prior to being readmitted. It said that the complainant was aware of this regulation before going off-books, the purpose of the Regulation being to ensure that before returning from illness that students will be able to undertake the requirements of their postgraduate studies.

4.23. It submitted that the Complainant asked the college to nominate an appropriate referee to provide the required medical certificate. The college wrote to the Complainant nominating the Director of the College Health Centre but never received a response to that letter even though the Complainant was invited to contact the Administrator "at her earliest convenience".  The respondent stated that its proposal to have the doctor assess her was not the end of the issue. She could have come back and suggested someone else but she didn't.

General Submissions

4.24. The respondent submitted I should take great care in assessing the complainant's evidence as it revolves around her feelings and impressions rather than the facts. It also submitted that the evidence from its witnesses is that the complainant did not bring to their attention the fact that the services being provided were not to her satisfaction. It submitted that as soon as she made the college aware of these concerns, they acted on them. With regard to the use of Room 2032, it submitted that it was difficult to understand why it was impossible or unduly difficult to avail of the services.

4.25. In short, the respondent submitted that it has not been guilty of any prohibited conduct under the Acts. It contends that, at all times, it did all that was reasonable to accommodate the needs of the Complainant and not otherwise. In the alternative, and without prejudice to the foregoing, any failing or perceived failing on its part was not such as to make it impossible or unduly difficult for the complainant to avail herself of the services of the College.

4.26. The respondent added that readmission of the complainant is still very much a possibility though it would still require a medical certificate of fitness to study and the issue of supervision would be a matter for the Complainant and her tutor but that reasonable accommodation would be provided.

5.     Conclusions of the Equality Officer

Jurisdictional Issues

Matters alleged to be out of time

5.1.     The respondent maintains that I do not have jurisdiction to consider some of the matters arising in the complaint, in particular the allegations relating to the Co-ordinator, and has made a number of submissions as to why this is the case. I shall first consider these submissions before I proceed to deal with the substantive matters.

5.2.     In considering whether an Equality Officer has jurisdiction to hear evidence at a hearing of allegations going back over ten years which were not contained in the form EE.1, Judge McGovern in Co.Louth VEC -v- Equality Tribunal[4] said that "under the legislation it is clear that ..complaints which are made within that expanded period of time are not time-barred" but "that is not to say that complaints going back over a lengthy period would have to be considered as an issue of prejudice might arise. But this is something that would fall to be dealt with in the course of the hearing in any particular case."

5.3.     The Acts are quite clear, both in Section 21(2) and in Section 21(11), in allowing an Equality Officer jurisdiction to investigate more than one incident of alleged prohibited conduct. In such circumstances, it is also clear that the last incident is the relevant incident in terms of meeting the time related requirements of the Acts. The essential point of the respondent's submission was that the issues relating to the Co-ordinator and those relating to the Supervisor must be connected in some way and were not.

5.4.     However, the critical factor in the context of this complaint is that the respondent has clearly been identified in the complaint as being the "University of Dublin, Trinity College" and not any individual person within that organisation. Section 42 makes the respondent responsible for the actions of its employees and it is not disputed that the parties to the incidents complained of were employees of the respondent. Furthermore, it is crystal clear that the complainant is alleging that the respondent as an organisation had a policy of not accepting her disability to be a genuine disability and that the individuals who carried out the alleged prohibited conduct were doing so on foot of that policy.  As this has been honestly and consistently followed through by the complainant in relation to all the incidents complained of, I am satisfied that this is the basis of her complaint. On that basis, and in all the circumstances of the present complaint, then, I may consider all allegations made against the respondent or its employees or agents. Therefore, I have jurisdiction under the Acts to consider all complaints alleged.

5.5.     However, I must also consider the question of natural justice and whether prejudice arises in considering matters that occurred over eight years ago. I note that, in Co Louth VEC, some of the incidents complained of also took place eight years prior to the hearing of the matter, and it was not found that it was unreasonable for the Equality Officer to consider those matters. In the present case, the respondent argued that if I was to allow the evidence in question, an employee could take a case against their employer for something that happened forty years earlier. However, there is a significant difference between incidents occurring eight years ago, and those occurring forty years ago. In any event, and as established in Louth VEC, it is a matter for the Equality Officer to deal with in each individual case.

5.6.     I am satisfied that, in all the circumstances of the present complaint, the respondent is not prejudiced by my hearing of the evidence in this matter, once the difficulties associated by all the parties involved in recalling incidents that occurred eight years ago were acknowledged and taken into account at the hearing, which they were, and are taken into account in my decision in the matter, which they have been. I would add that, in any event, the recollection of the Co-ordinator with regard to the events in question was, to my mind, no less clear than that of the complainant or the witnesses she called in that regard. Therefore, I must reject the respondent's submission in relation to my jurisdiction to consider these matters and will therefore make my decision in relation to all incidents complained of.

Harassment complaint

5.7.     The respondent also submitted that the complainant did not tick the harassment box on the notification form and I therefore cannot consider the matter. However, the notification form ES.1 is not a statutory form and, in A Post Leaving Cert Student -v- An Educational Institution[5] it was found that an Equality Officer's jurisdiction to consider matters arising in a complaint "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." In any event, it is clear in the details of the complaint that were attached with the notification that the complainant considered that she was harassed by the co-ordinator and the notification therefore did include a complaint of harassment, even if the box was not ticked. I therefore have jurisdiction to consider this matter also.

5.8.     I would add that I do not accept the respondent's argument that the notification grounds the complaint. The notification is only part of the process that leads to the lodging of a complaint.

5.9.     Finally, I would add that Kelly has no relevance here, nor does McMullen. These cases related to delay in the hearing of matters and are therefore quite distinct from the present complaint.

Late submission of material by complainant

5.10. I explained to the parties to the hearing that, in all the circumstances of the present complaint, I was obliged, in the interests of natural justice, to accept the documentation handed in just over two weeks before the first hearing by the complainant. It is for an Equality Officer in each case to determine the weight that may be given to any evidence and the late submission of the material might be one of the many factors which influence the weight to give to such evidence in question, depending on the circumstances of the case. It is also a matter for the Equality Officer to take such steps as are necessary to ensure that the principles of natural justice are upheld in relation to all parties. I am satisfied that, in all the circumstances of the present complaint, the necessary steps were taken, particularly in light of the fact that the respondent was provided with an opportunity to consider the evidence in question at the hearing, and at the later hearing which was held four weeks after the first hearing. Therefore, I do not consider that the respondent was prejudiced by the extent of the consideration I gave to this material. In any case, none of the material in question was of particular relevance to my investigation or my decision in the matter.

Substantive Issues

5.11. Section 38(A) of the Equal Status Acts 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 my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.

Discrimination

5.12. The complainant maintains that the respondent treated her differently to someone with a different disability and, in so doing, also failed to provide her with reasonable accommodation. She submits that this was caused by a particular perception of her disability by the respondent as a whole and manifested itself in the attitude towards her that was displayed by all the staff of the respondent with whom she engaged in relation to the incidents in question. In particular, the Co-ordinator and the Supervisor, she believes, did not take her disability seriously, and in so doing, discriminated against her. 

5.13. There was a considerable amount of evidence presented by both parties in relation to this case to the extent that two hearings were required to complete the oral evidence. There was an even greater amount of written evidence to consider. In relation to that evidence, I found the complainant's evidence was frequently more compelling than the rebuttal evidence presented by the respondent, which was, generally speaking, and aside from the testimony of the Supervisor and the Administrator, inconsistent and contradictory. Having said that, I am not inclined to accept the complainant's evidence in its entirety and so the facts of the case require some elucidation before I proceed to my decision in the matter.

5.14. The most striking aspect of this complaint has been the serious breakdown in communication between the parties almost from the beginning, which has been central to the development of the approach of both parties to the matters arising in relation to this complaint. It began with the meeting between the complainant and the Co-ordinator in September 2001. It is clear that there was a misunderstanding between the two parties as to the outcome of that meeting, and the complainant left that meeting with a particular understanding of what the Co-ordinator had agreed to do. However, his view on what he had actually agreed to was quite different and it did not occur to the complainant that there might be a problem until April the following year. As a result, she formed a view in relation to what the Co-ordinator did or did not do, and, more importantly, his motivation for his action and/or inaction, with the result that she became suspicious of the motivations of the respondent in general to her disability in that she came to believe that the respondent did not take her disability seriously.

5.15. The very clear breakdown in communications, which continued apace and for which both parties were responsible, was at the heart of the series of events that followed. Essentially, the complainant thereafter experienced what she believed to be unfair treatment and the respondent, and in particular the Co-ordinator, failed to alleviate her concerns in that regard.

5.16. In particular, in relation to the main incidents complained of in terms of the allegations of discrimination on the disability ground, I note that there is in fact no serious conflict of evidence between the complainant and the Supervisor as to what took place between them; the difference is how they perceived events. Again, there were misunderstandings between them, and the complainant took issue with some of the Supervisor's comments, which she felt were discriminatory. I am satisfied that they were not so and were merely his professional opinion on her work and how she could best tackle the problems she was facing. In short, I am satisfied that whatever problems arose between the Supervisor and the complainant, they were unrelated to the complainant's particular disability. They were essentially caused by the breakdown in communications between the parties. It is therefore not for me to comment any further on the Supervisor's views or indeed his approach to dealing with the complainant in general.

5.17. I am satisfied that the questions arising from the use of photocopying cards were also the result of a breakdown in communications between the parties and were unrelated to the nature of the complainant's disability.

5.18. In the end, the complainant believed that the respondent appeared to require her to submit to an examination by a doctor she believed not to have sufficient expertise in the relevant area as a prerequisite to returning to college. Once more there was a breakdown in communications between the parties before the complainant took her year "off-books" with the result that the complainant believed that upon seeking to return to the college, she would not be required to prove her fitness in the terms outlined by the respondent. However, it is clear that, when the complainant did seek to return, the respondent was open to further discussion around the matter and I am satisfied that if the complainant had expressed her concerns, she would have been facilitated. It is unfortunate that she did not. I am also satisfied that someone with a different disability in the same or similar circumstances would have been asked to provide a certificate of medical fitness before returning to college.

5.19. It is clear from these facts, then, that the complainant believed there was an approach taken by the respondent, and its employees in general, that her disability was not a real disability - in a sense, that she was 'faking it'. I have no reason to doubt the veracity of her belief in that assumption. However, while I can understand her frustration and anger at much of the treatment she received, the evidence does not bear out her submission that the treatment she received from the respondent was motivated by her disability. This would be the case even if I were to favour all of the complainant's evidence over that of the respondent and even if I were to accept her submission that the treatment she received was less favourable than another person would have received in the same or similar circumstances.

5.20. The complainant has, therefore, failed to establish any facts that are of sufficient significance to shift the probative burden to the respondent. I am satisfied that this is the case in relation to all incidents complained of, including those to which I have not already referred in this part of this decision, such as the complainant's alleged treatment by the respondent in relation to the use of Room 2032. I therefore do not propose to consider these matters any further in the context of the complaint of direct discrimination on the disability ground.

5.21. However, I will finally, in this part of this decision, refer to the submission of the respondent that the first time it became aware that the complainant considered these matters to be related to her disability was when it received her notification in relation to this complaint and so it was, in a sense, blind sighted when the notification arrived.  It is clear that her decision not to make these concerns known to the respondent at an earlier stage was a key factor in creating the problems that arose in relation to this complaint, though it is accepted that she may not have been aware of the concept of discrimination as outlined in the Acts until later on. By making her concerns known then, it is accepted that she might have provided the respondent with an opportunity to alleviate them. However, she was not under any obligation to do so, and the respondent has not been prejudiced by her decision not to.

5.22. In any event, and as already outlined, I am satisfied that the complainant has failed to establish facts from which it may be presumed that the respondent treated her less favourably because of her disability. Her complaint of direct discrimination on the disability ground therefore fails.

Reasonable Accommodation

5.23. It is clear that, at certain times, the complainant found it difficult to continue with her studies with the respondent and, indeed, at one stage withdrew for a year. The complainant accepted that the respondent did make efforts to provide her with special treatment. I am also satisfied that the complainant could have communicated her needs more effectively and thereby put the respondent in a better position to provide the special treatment she required. At the same time, the delivery of that reasonable accommodation was often slow, laborious and was certainly far from ideal. However, on balance I am satisfied that at no stage was the respondent responsible for making it impossible or unduly difficult for the complainant to continue her studies with it.

5.24. In particular, I note that the complainant did take a break from her studies. While it would appear she did so reluctantly, and it would seem she did so only after she believed she would not be required to prove her fitness on her return (see par. 3.18), I am satisfied nevertheless that if she had wished to continue with her studies, and had communicated her needs more effectively, she would have been facilitated in that. As regards her return to the college, I am satisfied that the requirement to provide a certificate of medical fitness did not make it impossible or unduly difficult for her to continue her studies. It was not a requirement to show she was medically fit per se, just fit enough to go back to her studies. In any event, if the complainant had continued with the process, she may well have been facilitated with little more difficulty and so I do not consider that the process in question made it impossible or unduly difficult for her to return to the college.

Harassment

5.25. The complainant submits that incidents took place which had the effect of violating her dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for her, in relation to her treatment by the Co-ordinator, in particular with regard to an incident or incidents arising while she was using Room 2032. However, whatever treatment she did receive, and whatever her feelings were as a result of that treatment, I am not convinced, having considered all the evidence presented in this complaint, that this treatment was related to her disability.  As this is the ground she has complained of, I therefore must find that she has not established  a prima facie case in regard to the allegation of harassment in question.

6.     Decision

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

6.2.     I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in terms of Sections 3(1)(a) , 3(2)(g) and Section 4(1) of the Equal Status Acts.   

6.3.     I also find that the complainant has failed to establish a prima facie case of harassment on the ground of disability in terms ofSections 11 and3(2)(g) of the Equal Status Acts. 

6.4.     Accordingly, the complainant’s case fails.

_____________

Gary O’Doherty

Equality Officer

26 January 2010