DECISION NUMBER DEC-S2010-038 - CASE REFERENCE ES/2008/0083
Keywords:
Equal Status Acts 2000 to 2004 - Discrimination - Failure to provide reasonable accommodation - Disability - Educational Establishments
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. A pupil referred a claim through his parents to the Director of the Equality Tribunal under the Equal Status Acts on 18 June 2008. In accordance with her powers under section 75 of the Employment Equality Act, 1998 and section 25 of the Equal Status Acts, the Director then delegated the case to me, Tara Coogan, 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. An investigation, in accordance with section 25(1) of the Acts, commenced on 18 January 2010. An oral hearing, as part of the investigation was held in Dublin on 14 April 2010. A second hearing was held 5 May 2010. This decision has been anonymised to protect the identity of the complainant (a minor).
2. Dispute
2.1. The dispute concerns a complaint of unlawful discrimination on the disability ground. A pupil through his mother ("the complainant") maintains that a named primary school ("the respondent") treated him unlawfully during the course of the academic year 2006/2007. It was submitted that the unlawful treatment only came to light on 27 March 2008 and subsequent days. The respondent was notified on 16 May 2008.
3. Preliminary issue - notification
3.1. On the issue of time and the right to seek redress. It was submitted that the complaint was out of time or that the investigation could only go backwards from the date the complaint was lodged with the Tribunal. While it is clear that the respondent was notified of the complaint 16 May 2008, it is equally clear that section 21(2)(a) of the acts envisages the time limit of two months, in circumstances where the prohibited conduct is on-going, to run from the last date of such incident. Furthermore, section 21(11) of the acts states:
For the purposes of this section prohibited conduct occurs --
(a) if the act constituting it extends over a period, at the end of the period,
(b) if it arises by virtue of a provision which operates over a period, throughout the period.
3.2. I note that the complainant submitted that the respondent operates under an anti-disability policy which is on-going. Furthermore, the acts do provide for extension of time in relation to misrepresentation and it was submitted that this was the reason for the delay in referring the complaint. The complainant's mother had raised the matter that her son was very unhappy in the school in 2007 and expressed her concern that the complainant might be bullied. It was submitted that the respondent merely waived the issue away and stated that the complainant was not being bullied and that bullying would not be tolerated by the respondent. It was submitted that this misrepresentation only came to light when a complaint was made to the Garda Siochana which included references to the complainant. The alleged misrepresentation here refers to the fact that it was submitted that the respondent did tolerate bullying and discrimination because of its knowledge and approval of the discriminatory practices of a named teacher.
3.3. I do not accept, having heard the full facts of this case, that there is any evidence to support misrepresentation by the respondent. Nevertheless, I am mindful of the very specific circumstances of this particular case. The complainant was a five year old boy with verbal dyspraxia at the time of the alleged incidents. I am satisfied that due to his age and disability he may not have been able to communicate certain matters to his parents. The witness for the complainant only came forward in March 2008 and I am satisfied that it has been her testimony that has given the complainant's mother the impetus to seek redress under these acts. I am satisfied that this witness statement has provided the complainant with facts that she could not have been aware of until March 2008. I find that in such specific circumstances it would be wholly unjust to deny the complainant the right to a hearing particularly as I am satisfied that the respondent is in a position to reply to these allegations.
3.4. This means that the complaint about an incident prior to academic year 2006/2007 is out of time. I am satisfied that the alleged incident is not material to the substantive case argued before the Tribunal and that the complainant had legal advise at the time. There is no justification for the delay in bringing those facts to this Tribunal.
4. Case for the complainant
4.1. The complainant, who has Down's Syndrome and verbal dyspraxia, is a pupil in a primary school. The complainant's parent became aware in conversation with other named parents that a statement had been made by a named Special Needs Assistant (SNA) to the Garda Siochana on 27 March 2008. The statement made allegedly referred to mistreatment of the complainant by his then named class teacher. The complainant's parent submitted that she approached the Gardai on 29 March 2008 and was told the outline of the allegations made by the SNA.
4.2. The complainant's parent then approached the SNA and spoke to her in person. The SNA told the parent that the complainant had not been treated well by his teacher during the course of the previous academic year. The SMA told the parent that the complainant was regularly humiliated by his teacher during the morning's 'news time'. It was submitted that the teacher would dismiss the complainant by stating 'oh, I do not know what he is saying' and that, in circumstances where the complainant was using his talker, the teacher would dismiss the complainant abruptly if the complainant did not press the buttons quickly enough. Furthermore, the SNA submitted that the complainant was not complimented or positively encouraged in a way that she believed other children, without disabilities, were. It was submitted that the teacher never complimented the complainant on any of his achievements but that she was very quick to give him critical feedback.
4.3. The SNA, who worked with the complainant from 5 March to 29 June 2007, submitted that in her opinion the child was disciplined in a very harsh and impatient manner. She stated that the teacher had even admitted to her that she had little patience for him and that the teacher believed that the complainant had no ability to learn and could not understand why the complainant was in the school. It was submitted that the teacher would not make any allowances for the complainant's disability. Furthermore, the SNA submitted that in her opinion the complainant was not treated like other children in that he was not invited to write on the board and was often excluded from answering questions. It was submitted that in the opinion of the SNA the complainant would be humiliated when his work would not receive a 'good work' stamp. The SNA stated the teacher always ignored the complainant except when an external team from a named disability group visited the school and the complainant.
4.4. The SNA submitted that the complainant was slower than other children when eating and tidying up his lunch. It was submitted that the children who ate at the same table as the complainant had to stay back and that while the complainant was well liked by his classmates, the classmates started to resent the fact that they always had to wait. It was stated that the classmates became impatient with the complainant as a result. The SNA submitted that she started to help the complainant so that he would be quicker finishing his lunch. It was submitted that the complainant could not live up to the teacher's standards to react and act quickly. The teacher had failed to accept that exceptions should be made for the complainant and did not make any allowances for the complainant's disability. She frequently shouted at the complainant and thumped his table. The complainant's witness submitted that once, when she happened to be there assisting with lunch, the teacher became very impatient with the complainant and slammed him against the table. It was submitted that the complainant who had had heart surgery was left stunned and silent by the teacher's actions. It was submitted that only when a named voluntary organisation visited the school to observe the complainant's progress, the teacher praised the complainant and gave him adequate time to answer questions.
4.5. It was submitted that the complainant received extra tuition for approximately 20 minutes with the SNA to revise his knowledge of the alphabet. It was submitted that the SNA was instructed to take two chairs and the complainant into an adjacent cloakroom for this activity. The SNA stated that in her opinion the cloakroom was quite dark and claustrophobic, so she moved the chairs into the corridor. She stated that the school principal would pass by at times and that he seemed to accept the arrangement.
4.6. The SNA further submitted that in her opinion the complainant would become more relaxed in her company, away from the classroom. The SNA stated that this was because the complainant was afraid of his teacher and the regular humiliation he would experience in her presence.
4.7. It was submitted that the statutory investigation had not considered the treatment of the complainant from a disability point of view. It was suggested that the respondent had influenced the outcome of the investigation.
5. Case for the respondent
5.1. It was submitted, strictly without prejudice, that there is no evidence of discrimination or less favourable treatment of the complainant. It was submitted that this had been established by an internal investigation carried out by the respondent as well as a by an independent statutory investigation. It was submitted that the complainant's disability was considered in its referral of the matter to the relevant statutory body. It was submitted that the totality of the allegation was such that the respondent was obliged to refer to the statutory body (in accordance with child protection policies).
5.2. The respondent denies that the complainant was treated less favourably or humiliated in the class room. It was submitted that the respondent engaged the complainant in all activities and that the teacher had obtained special aids to assist the complainant in the classroom. It was submitted that the complainant was included in the Christmas performance and that despite the complainant having initial difficulties with keeping up with the curriculum, the groundwork done in 2006/2007 and subsequently meant that the complainant was able to engage and participate in a mainstream school.
5.3. It was denied that the respondent does not want pupils with disabilities in its school. The allegation that there were only two children with disabilities in the school was refuted. It was denied that the complainant had not received reasonable accommodation in circumstances where he required it. It was submitted that the cloakroom was used as a quiet space with all children because the school has limited space. It was submitted that the respondent has an open door policy and that the respondent Principal visits every classroom within the first 20 minutes of each school day. It was accepted that the Principal had seen the complainant and the SNA in the corridor. It was refuted that this meant that the respondent colluded with discrimination.
5.4. A number of SNAs and a Resource Teacher gave evidence at the hearings. Each denied that they had ever witnessed the teacher treat the complainant in a discriminatory or disrespectful manner.
5.5. The named teacher submitted that she had not suggested that the complainant be better off in a special school. It was submitted that it was the parent who had referred to the special school and commented that it would be easier for the complainant's mother as the school provided transport, etc. The teacher submitted that she had never worked with a child with the complainant's disability but that she had consulted with the resource teacher and visited with the named voluntary organisation to find out more. She submitted that the complainant would regularly still come in to her classroom to visit her.
5.6. The teacher refuted that she ever used language such as "would be better off with his own kind". The Principal refuted that he was unapproachable and that he would not investigate claims of inappropriate conduct by his staff.
6. Conclusion of the Equality Officer
6.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
6.2. Having heard the full facts of this case I am satisfied that the Tribunal has jurisdiction to hear the claim as far disability discrimination, including reasonable accommodation, is concerned. However, it has to be stated that this Tribunal has been unimpressed with the manner and nature of some of the 'evidence' brought before it by the complainant. Without labouring the point, it has to be pointed out that some appalling statements have been made about the respondent and its agents and that there has not been a scintilla of evidence to support such arguments. These arguments have been given the legal and evidential burden that they deserve.
6.3. It was submitted that the complainant was denied reasonable accommodation in that he received extra tuition in a cloakroom, away from the mainstream class. It is important to note that such extra tuition itself may constitute reasonable accommodation. The fact that the tuition took place in a cloakroom cannot be defined as a failure to provide reasonable accommodation to the complainant. It is clear that the cloakroom space was used as a quiet space where pupils, regardless of whether they had a disability or not, were taken by SNAs to get extra tuition in their school work. It is clear that the space was used for short periods of time (10-15 minutes), the door was open to the classroom, and that the SNA and the pupil in question would sit in small chairs while completing whatever assignment the child required extra time with. It is also clear that the space was used simply because the respondent school, like many schools in this State, operates in cramped conditions. I note that it was also submitted that the SNA decided that the corridor would be more suitable for the complainant and that they were often observed by the Principal of the school. It was submitted that this indicated that the school was compliant with the teacher's discriminatory practices because it failed to take any action in relation to the matter. No evidence has been provided to support an argument that it was unduly difficult or impossible for the complainant to receive the extra tuition. The issue of reasonable accommodation under the Equal Status Acts only rises in circumstances where it can be shown that without special assistance, facilities and/or treatment it would be unduly difficult or impossible for person with a disability to avail of the educational service. Reasonable accommodation is not about presuming that a person with a disability should not be treated in the same way as a person without a disability would be treated in circumstances where they do not require special assistance, facilities or treatment. I am satisfied that the complainant, for most of the time, was treated the a similar manner to the rest of the children in his class were treated. I am also satisfied that the complainant was provided with special assistance when there was a genuine need to do so.
6.4. The SNA submitted that the complainant was forced to kneel on the floor. The complainant's mother submitted that she had noticed bruises on the complainant's knees on occasion but had not realised, until after she had spoken with the SNA, the reason for such bruises. On the balance of probabilities, I do not accept that the teacher forced the complainant to kneel as such an interpretation would be inconsistent with the witness statement that she worked with the child during this time while the teacher attended to the rest of the class. I find it more likely that at times the complainant wanted to use his chair as a table (there was none available in the cloakroom) and may have on his own volition kneeled on the floor. I have been presented with no evidence to support an argument that any bruising on the child's knees could be linked, on the balance of probabilities, to the child being forced to kneel.
6.5. I find that the witness evidence of the SNA is not consistent or compelling. On the one hand it was submitted that there was something humiliating about the complainant using the cloakroom for extra time and on the other, she stated that - in her company - the complainant would shine and excel. It is quite clear that the SNA has her own views of how she believes the complainant ought to be treated and that she believes that by encouraging the complainant to do things for himself the teacher was not accommodating the child's disability in the way that she believes he ought to be accommodated. Such treatment, she submitted, inconvenienced the other children who were impatient because the complainant was slower than the other children. No evidence has been presented to support an argument that the same treatment provided to the complainant made it unduly difficult or impossible to avail of the education on offer. It is also important to point out that the 10 months passed before the witness reported an incident that a reasonable person, in this Tribunal's view, would have reported immediately. I do not accept the complainant's submission that other persons working with the respondent are remaining silent because they are concerned about their jobs and are therefore colluding with the respondent to mislead this Tribunal. I am also mindful that the witness revealed that she has her on-going personal issues with the respondent.
6.6. Furthermore, it most be borne in mind most of the evidence submitted by the SNA was about her perception of what she thought other children and indeed the complainant were thinking and feeling. It was submitted that no other child in the complainant's class, to the knowledge of the parties, ever made any complainants/comments about the manner in which the complainant was allegedly being treated by his teacher. While I note that it was submitted that the complainant lacked the ability to communicate such matters to his parents I do not accept this is the case for other children in his class. Furthermore, it is clear that the complainant was given stamps for his work. It was submitted that there may have been days when the complainant had not applied himself to his work and, as a result, he would not have been given them everyday. No evidence was provided to support an argument that other children received stamps everyday.
6.7. The complainant's mother had stated that the complainant had been reluctant to attend school since early December 2006. She submitted that having subsequently found out from the witness SNA what had happened in the school she was able to attribute the complainant's behaviour to it. It is important to note that the witness SNA only came into contact with the complainant in March 2007, 4 months after the complainant's difficult behaviour had been noticed by his parent. The Tribunal heard direct evidence from other SNAs who had worked with the complainant before and after the witness SNA had. It is worth noting that they had all worked with the complainant for much longer periods than the witness SNA. Everyone of them denied ever having seen the teacher mistreat the complainant or humiliate him. It was submitted that the complainant was given every opportunity to give his news at 'news time' and was included in all activities. In reply to the suggestion that they were still working with the respondent, the witnesses vehemently rejected any suggestion that they were making such statements to protect their jobs with the respondent. I find their accounts to be credible and do not accept, without compelling evidence to the contrary, that an adult working with children would not report the type of treatment alleged by the complainant's witness. I also do not find it credible that the teacher only lost her patience with the complainant in front of the witness SNA and was able to behave herself in front of everybody else. I am satisfied that the teacher kept her classroom door open and was, most of the time, in the company of another adult when teaching the complainant. It is also very clear, having heard the teacher's direct evidence, that she is very proud of the complainant's achievements. She had proactively sought ways to assist the complainant's development by visiting a named voluntary organisation and had taught herself more about the complainant's disability and the ways in which she could support his development in a mainstream setting. Such action is not consistent with an anti-discrimination approach.
6.8. The complainant's other witness submitted that she 'knew' that the teacher had attacked her child. This statement, which came about when the witness was giving evidence about another entirely unrelated matter, does not even qualify as hearsay and characterises much of the evidence presented to this Tribunal. This Tribunal has no jurisdiction to investigate a general claim of potential child abuse. In order for the Equal Status Acts to have any relevance to such a claim it must be shown that any less favourable treatment took place because there was a nexus with the treatment and the protected ground. From the 'evidence' presented to this Tribunal it is clear that the complainant's party believes that the teacher in question mistreats children regardless of whether they have a disability or not. I do not believe that there is any evidence to suggest that the teacher mistreats children and take exception to the fact that the more informal procedures of this Tribunal have been used to make such serious statements without supporting facts and/or evidence.
6.9. I find that the evidence given by the complainant's resource teacher was compelling. The teacher, who has worked with the complainant over an extended period, submitted that in her professional opinion the complainant has blossomed over the last years and that this was partly due, recognising the input from the complainant's parents and other supports, to the ground work done by the teacher in 2006/2007. She acknowledged that the year had been challenging for the complainant but stated that the complainant was adjusting to the school environment.
6.10. In relation to the alleged covert anti-discrimination policy. Incidents such as, inter alia, parking regulations outside the school, were mentioned as some supporting facts that the respondent did not want children with disabilities in the school. The issue of special needs school was also explored at the hearing. I find that it is irrelevant for the purposes of this hearing to explore who specifically mentioned the possibility that the complainant may benefit from a special school. I find it perfectly normal that a school and a child's parents would consider that the welfare of the child would be of paramount importance and that accordingly, the most suitable options would be explored in the best interest of the child. There is nothing discriminatory per se about special schools or the fact that such an option would be mentioned. Such schools exist for a reason and, in certain circumstances, mainstream schools may not be able to offer the best possible opportunities to a person with a disability. In this case, the complainant stayed with the respondent and is making educational progress. I have been presented with no evidence that the school would prefer to exclude children with disabilities.
6.11. On the whole, I find this complaint to be entirely without merit. There is no evidence to support an argument that the complainant has been less favourably treated or humiliated because of his disability. Nor is there any evidence to support an argument that the respondent operates an exclusionary policy against children with disabilities. I find it remarkable that the complainant's parent continues to make such an argument considering that she has submitted that her son is currently flourishing in the respondent school and that she, as a person with ample choice in the matter, continues to keep her son and other children in a school that she submits she genuinely believes discriminated, humiliated and mistreated her son. While it was submitted that this claim was made because it was felt that the complainant's disability had not been considered by the statutory body that carried out the independent investigation, no evidence was provided to support such an argument nor how the respondent could be held liable for such failure even if it could be proven that such a failure had occurred. It became patently clear during the hearing that there is an ulterior motive at play here, particularly with the persons 'supporting' the complainant's mother. This Tribunal has been left with the strong impression that this claim was not merely about the vindication of the complainant's rights.
6. Decision
6.1. In accordance with section 25(4) I have concluded my investigation and issue the following decision:
6.2. The complainant has failed to establish a prima facie case of less favourable treatment contrary to sections 3(1), 4(1) and 7(1) on the ground of disability. Therefore, the complaint fails.
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Tara Coogan
Equality Officer
30 July 2010