DEC-S2010-024-Full Case Report

THE EQUALITY TRIBUNAL

EQUAL STATUS ACTS 2000 - 2008

Decision DEC-S2010-024

PARTIES

Mr. and Mrs. X (on behalf of their son, Mr. Y)
(represented by Hughes & Liddy
Solicitors)

and

A Post-Primary School
(represented by Mason Hayes + Curran
Solicitors)

File Reference: ES/2007/0108
Date of Issue: 14th May, 2010

Keywords
Equal Status Acts, 2000-2008 - Direct discrimination, Section 3(1)(a) - Disability Ground, Section 3(1)(g) - Reasonable Accommodation, Section 4(1) - Access to Education, Section 7(2) - Harassment, Section 11 - Victimisation, Section 3(2)(j)

Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 4th October, 2007 under the Equal Status Acts, 2000 to 2004. On 11th December, 2008, in accordance with her powers under Section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director delegated the complaint to me, Enda Murphy, 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 on 20th January, 2010. Final correspondence with the parties took place on 18th March, 2010.

1. Dispute

1.1 The complainants, Mr. and Mrs. X claim that their son, Mr. Y, was discriminated against by the respondent on the grounds of his disability in terms of sections 3(1), 3(2)(g) and 4(1) of the Equal Status Acts, 2000 to 2008 and contrary to section 7(2) of the Equal Status Acts, 2000 to 2008 in terms of its failure to put appropriate measures in place to accommodate his special educational needs as a student with a disability. The complainants also claim that the respondent subjected their son, Mr. Y, to victimization within the meaning of section 3(2)(j) of the Equal Status Acts and to harassment within the meaning of section 11 of the Equal Status Acts.

2. Summary of the Complainant's Case

2.1 The complainants' son, Mr. Y, has been assessed with specific language and learning difficulties and has special educational needs as a result of his disability. He attended the respondent's secondary school as a student for a three year period from September, 2004 until the end of the academic year in June, 2007, when he completed his Junior Certificate examinations. The complainants stated that they decided to send Mr. Y to the respondent's school because it was a relatively small school and in the belief that it would be able to cater for his special educational requirements and to provide him with the opportunity to participate in sporting activity. The complainants stated that the respondent was made fully aware of their son's special educational requirements prior to his commencement at the school and they claimed that they were given assurances by the Principal, Mr. Z, that provision would be made for his special educational needs until Leaving Certificate.

2.2 Mrs. X stated in evidence that she was relatively satisfied with the manner in which her son's special needs were catered for during his first year at the respondent's school; however, she also stated that she was concerned that the respondent had not made arrangements to have a psychological assessment carried out on her son. Mrs. X stated that despite raising these concerns with the respondent on a number of occasions during his first year at the school the psychological assessment was not carried out until January, 2006. Mrs. X stated that her son experienced difficulties in terms of his education at an early stage in his second year at the respondent's school and it was clear from this juncture onwards that the respondent failed to put the appropriate measures in place to accommodate his special educational requirements.

2.3 Mrs. X claimed that the respondent failed to meet her son's educational needs on all counts and she stated that she encountered resistance on every occasion that she suggested measures or initiatives that the school could put in place to accommodate his needs. The complainants' adduced evidence in relation to a number of different issues that arose during the course of their son's attendance at the respondent's school which they claim amounted to a failure to provide reasonable accommodation to a person with a disability within the meaning of the Equal Status Acts. These issues can be summarised as follows:

- The respondent failed to carry out a psychological assessment on Mr. Y until January, 2006 despite giving assurances that this assessment would be carried out after he commenced at the school in September, 2004. The respondent's failure to have this assessment carried out at an earlier juncture meant that Mr. Y was denied access to important support resources until well into his second year at the school. The complainants claimed that the respondent failed to use its full allocation of resources from the Department of Education & Science with regard to psychological assessments. They claim that the respondent should have used these resources to ensure that their son's psychological assessment was carried out at an earlier juncture.
- The complainants claimed that their son was entitled to avail of the services of a Special Needs Assistant (SNA) from the outset of his attendance at the school but because of the delay in the respondent carrying out the psychological assessment he did not have access to a SNA until into his third year.
- The respondent initially failed to put in place an Individual Education Plan (IEP) for Mr. Y and when one was put in place it did not have the input of all of his teachers (only four of his seven teachers participated in the IEP). The complainants claim that this IEP was not effective in addressing their son's special educational requirements and they were not afforded any opportunity to have an input into it.
- The complainants claim that their son was placed in higher level English and Mathematics classes despite the fact that he should have been following the Foundation level programme in each of these subjects. They claimed that the respondent failed to put appropriate measures in place that would have facilitated him to follow the Foundation level curriculum in these subjects and that his teachers did not provide him with the required levels of tuition and support to accommodate his special needs. The complainants also referred to an incident which occurred following their son's Christmas examination in December, 2005 whereby it is claimed that he received a 0% mark which the Maths teacher called out in front of the entire class.
- The respondent failed to apply to the Department of Education & Science for a technology grant which would have enabled the school to purchase equipment that could have been used to provide learning support to their son.
- Mr. X attended a meeting on 18th May, 2007 which was arranged at the request of the respondent in order to discuss his son's behaviour; however, only one of his teachers (his Head of Year) attended this meeting. Mr. X stated that this meeting was used as a forum to make further complaints about his son's behaviour which had been compiled by teachers who were not present at the meeting. Mr. X also stated that he was informed at this meeting that there would not be a place for his son at the school the following year.

2.4 The complainants also claimed that their son was subjected to harassment by the respondent during the course of his attendance at the school on the basis of his treatment in relation to the following incidents:

- Mrs. X stated that the respondent engaged in excessive recording in relation to their son's behaviour during his attendance at the school and that this had the effect of placing him under undue stress and pressure. Mrs. X made specific reference to an occasion in October, 2006 when she was called to the school by the Principal, Mr. Z, and was informed that her son had been involved in a serious behavioural incident during a school trip to Italy. Mrs. X stated that her son's behaviour was monitored excessively following this incident.
- Mrs. X also gave evidence in relation to an incident involving her son which took place in the Woodwork classroom when he was suspended for two days for the alleged inappropriate use of a hand-tool. She claims that her son's SNA took a photograph of him on her mobile telephone during the course of this incident and she stated that this action was totally unacceptable and inappropriate in the context of the provision of educational services. Mrs. X claims that when her son reported the incident of the photograph to the respondent he was threatened with serious implications for saying something that might not be truthful. She claims that eventhough the respondent subsequently accepted that the photographs should not have been taken that no sanctions were imposed upon his SNA in relation to the incident. Mrs. X claims that her son was subjected to further excessive recording of his behaviour following this incident.

2.5 The complainants also claim that their son was subjected to victimisation by the respondent. Mrs. X gave evidence in relation to an occasion in September, 2007 when her son's class was the only class within the school that was called to a special meeting at the start of the school year. At this meeting the Year Head Teacher made reference to the misbehaviour of seven students within the class during the previous school year and he outlined that this behaviour would not be tolerated in the coming school year. Mrs. X also stated that she felt her son was penalised because of the behavioural issues that arose during a school trip to Italy in October, 2006 and she claimed that he wasn't selected for the school hurling team as a punishment in relation to these issues.

2.6 The complainants stated that their son did not return to the respondent's school following the completion of his Junior Certificate examinations in June, 2007 because of the fact that he had endured such a negative experience whilst attending the school during the previous three years. Mrs. X claims that the structures which should have been in place to meet her son's needs were not provided by the respondent.

3. Summary of the Respondent's Case

3.1 The respondent accepts that it was aware that Mr. Y, had learning difficulties prior to his commencement at the school. The School Principal, Mr. Z, stated that he met with the complainant, Mrs. X, before her son was enrolled at the school in order to discuss his special educational requirements. The respondent stated that Mr. Y underwent an internal assessment prior to enrolment which was designed to establish the nature of his learning difficulties and the level of support that he would require. Based on this assessment, the respondent made available an allocation of learning support teaching to Mr. Y which was in excess of the allocation that had been awarded by the Department of Education & Science on the basis of his most recent psychological report. The respondent stated that it put a number of special measures in place in order to accommodate Mr. Y's special educational requirements and that a huge amount of time and effort was invested in his education. The respondent stated that it initiated numerous meetings and communications with the complainants in relation to their son's progress at the school, including meetings with and communication from the Principal, Year Head and the Learning Support Teacher. The School Principal, Mr. Z, stated that Mr. Y progressed very satisfactorily in his first year at the school; however, his attitude towards learning and his general behaviour deteriorated significantly during his second year at the school.

3.2 The respondent emphatically refuted the complainants' contention that it failed to provide reasonable accommodation to their son, as a person with a disability, within the meaning of the Equal Status Acts. The respondent addressed each of the allegations of discriminatory treatment that were made by the complainants (in para. 2.3 above) and its response to these allegations can be summarised as follows:
- The School Principal, Mr. Z, accepted that when Mr. Y was enrolled at the school it was agreed that he would be psychologically assessed although he did not specify at the time when this assessment would be actually carried out. Mr. Z stated that the respondent did not have access to the National Educational Psychological Service (NEPS) when Mr. Y commenced attendance at the school and he denied that there was any intentional delay, on the part of the respondent, in having this assessment carried. Mr. Z also denied that Mr. Y was denied access to the relevant support in terms of his educational requirements whilst he was awaiting this assessment to be carried out. Mr. Z stated that Mr. Y underwent school assessment prior to attending the school and this assessment was designed to highlight learning difficulties and challenges in students. The respondent made provision for the allocation of 4 hours and 25 minutes learning support for Mr. Y during his first year at the school and that this allocation was in excess of that which was recommended in his most recent psychological assessment. Mr. Z stated that a psychological assessment was carried out on Mr. Y on 13 January, 2006 and that it subsequently implemented the recommendations that were contained in the psychologist's report.
- The respondent stated that the Special Educational Needs Organiser (SENO) was facilitated in a classroom observation of Mr. Y and following which a Special Needs Assistant (SNA) was made available on a half-time basis in May, 2006.
- The respondent stated that the school undertook to draw up an Individual Education Plan (IEP) for Mr. Y, notwithstanding the fact that it was not legally obliged to do so. This IEP was co-ordinated by Ms. A, the Learning Support Teacher, (in conjunction with the SENO, the School Principal and the complainants' parents) and it was agreed that his teachers of Maths, History and Geography would become involved. It was also agreed that Mr. Y would follow a reduced curriculum and he was withdrawn from the subject of Business before Christmas 2006 and he also received significant support in the subjects of English and Maths during his Learning Support classes.
- The respondent stated that it is incorrect to claim that Mr. Y was denied the appropriate level of support at Foundation Level Maths. It was submitted he was afforded considerable support in Maths from the time of his enrolment through additional resource teaching hours, additional one to one tuition from his Maths teacher both in class and in her own spare time. The respondent stated that Mr. Y was the only student studying Foundation Level Maths and it was therefore not possible to form a separate Foundation Level Class for him due to a lack of resources. The respondent denies the allegation that Mr. Y's Maths teacher called out a 0% mark in front of the class following the Christmas examination in December, 2005. The respondent also submitted that Mr. Y was afforded the appropriate levels of support and tuition in the subject of English. Mr. Y obtained a grade C in both Foundation Level Maths and English in his Junior Certificate examinations and the respondent submitted that these grades clearly indicate that the curriculum at Foundation Level in both of these subjects was fully covered. The respondent further submitted that the overall results which Mr. Y achieved in his Junior Certificate examination (i.e. two grade B's and two grade C's in Ordinary Level subjects, two grade C's in Foundation Level subjects and one grade D in a Common Level subject) is evidence of the support and special facilities which it had put in place to accommodate his special educational needs.
- The respondent denies the allegation that it failed to apply for a technology grant to assist Mr. Y. It stated that the school applies for assistive technology on the basis of recommendations in psychological assessments whereas there was no such recommendation in Mr. Y's assessment (which was carried out in January, 2006).
- In relation to the meeting that occurred on 18th May, 2007, the respondent submitted that it is very common for Assistant Principals to arrange meetings with parents in relation to a student's performance, behaviour, welfare or attendance. It submitted that Mr. Y's Year Head, Mr. B, arranged a meeting with the complainants on Friday, 18th May, 2007 for this purpose and it took place at the end of the school day. The respondent stated that there were no other teachers (other than Mr. B) available to meet with the complainants on this occasion as the meeting took place outside of normal school hours. The respondent denied that the complainants were informed at this meeting that their son would not have a place at the school the following year.

3.3 The respondent denied that the complainant was subjected to harassment within the meaning of section 11 of the Equal Status Acts during the course of his attendance at the school. Its response to the allegations of harassment that were made by the complainants (at para. 2.4 above) can be summarised as follows:

- The respondent denied that it engaged in excessive recording in relation to Mr. Y's behaviour and it stated that the manner in which his behaviour was recorded was no different than that of any other student. It submitted that this was consistent with the School's Code of Behaviour to which all families in the school, including the complainants, have formally subscribed. The respondent submitted that it experienced severe difficulties in terms of Mr. Y's behaviour and that it had to take appropriate action to address these difficulties. The respondent also submitted that Mr. Y was afforded praise when it was merited and it referred to different occasions when his teachers made reference to him in a positive manner.
- The respondent stated that it became aware of the issue in relation to the photograph during the course of a meeting which it had called with the complainants in order to discuss a serious incident that had occurred in the Woodwork Room where Mr. Y's misbehaviour had posed a serious risk to the health and safety of both himself and other students in the class. This meeting was attended by the complainant, Mr. X and his son, the School Principal, Mr. Z and Mr. B, Year Head. During the course of the meeting Mr. X was informed that his son, Mr. Y, was being suspended for two days arising from his inappropriate behaviour in relation to this incident. Mr. Y was invited to comment upon the incident as reported and it was at this stage that both the Principal, Mr. Z and Year Head, Mr. B were informed of the incident in which his SNA had taken a photograph of him with her mobile telephone. The Principal, Mr. Z, stated that he found it difficult to accept that the SNA would have done as alleged and he cautioned Mr. Y that it was a very serious allegation to make. Mr. Z advised the complainant, Mr. X, and his son that he would investigate the matter promptly. He subsequently spoke to the SNA and she acknowledged that she had taken a photograph of Mr. Y during the woodwork class. Mr. Z stated that the SNA informed him that Mr. Y had been disruptive on this occasion and she had been unable to get him to apply himself to his work in the Woodwork Room. The SNA had cautioned Mr. Y that she would take a photograph of him to show to the Year Head if he continued to be disruptive and to desist from using the woodworking machinery which he had been requested to put aside. The SNA proceeded to take a photograph of Mr. Y on her mobile phone and the purpose of this action was intended as a means of bringing him to apply himself to his work. The SNA informed the Woodwork teacher what she had done and how it had not succeeded and she instructed Mr. Y to return to his table. Despite this instruction, Mr. Y threw a piece of wood across the table and started using the "F word" whilst later in the class he got hold of a hand held power tool and put it on one of the other student's arm while it was still running. Mr. Z stated that he investigated this matter thoroughly and that he requested the SNA to delete the photograph from her phone and advised her that her action of taking the photograph was improper and contrary to acceptable practice. Mr. Z stated that he contacted the complainants and informed them of his investigation in relation to the matter and acknowledged that the actions of the SNA had been improper and unacceptable. Mr. Z stated that he apologised to the complainants for any offence caused in relation to the matter (the respondent set out in detail what had happened in relation to this incident and formally apologised to the complainants in a letter dated 27th June, 2007).

3.4 The respondent also denied that the complainant was subjected to victimisation within the meaning of section 3(2)(j) of the Equal Status Acts during the course of his attendance at the school. The respondent rejects the allegation that Mr. Y was penalised by virtue of his failure to be selected on the school hurling team because of behavioural issues that arose during a school trip to Italy. It submitted the reason that he was not selected on the school hurling team was due to the fact that his level of performance on the field of play did not merit selection on the team. The respondent accepts that it called a meeting with Mr. Y's Junior Cert class at the start of the school year in September, 2007 in order to address ongoing behavioural issues that had arisen during the previous school year involving seven students (including the complainant) within that class. The respondent denies that its action of calling this meeting was in any way victimisatory against the complainant and it submitted that the basis for calling the meeting was to deal exclusively with the behavioural issues pertaining to the aforementioned seven students in question.

4. Conclusions of the Equality Officer

4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts, 2000 to 2008 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 can rely in asserting that prohibited conduct has occurred in relation to him. 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, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.

Discriminatory Treatment

4.2 The respondent in the present case is an educational institution which, inter alia, provides post-primary education 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:

"7.- (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 expulsion of a student from the establishment or any other sanction against the student"

4.3 It was not disputed between the parties that Mr. Y, has a language and learning disorder and I am therefore satisfied that he is a person with a disability within the meaning of section 2(1) of the Equal Status Acts. As the relevant ground in the present complaint is the disability ground, there are two aspects to the complainant's case which I am obliged to consider. Firstly, I must consider whether the complainants' son, Mr. Y, 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. In considering this issue, I note that it was accepted by both parties that Mr. Y had special educational requirements arising from his disability. Based on the evidence adduced, I am satisfied that the respondent did, in fact, put a number of special measures and facilities in place in order to accommodate these special educational needs. The actual issue that is in conflict between the parties is whether or not these measures were appropriate and/or sufficient to fully accommodate the special educational needs of Mr. Y (and I will address this issue in greater detail in the section of my conclusions that deals with "Reasonable Accommodation").

4.4 Notwithstanding the foregoing, I am satisfied that Mr. Y, was afforded access by the respondent to the educational establishment in question and to the educational services which were provided by this establishment. Furthermore, I am satisfied that I have not been presented with any evidence from which I could reasonably conclude that Mr. Y was treated less favourably than another student would have been, in similar circumstances on the grounds of his disability, in terms of the manner in which his educational requirements were provided for by the respondent. Accordingly, I find that the complainant has failed to establish a prima facie case of direct discrimination on the grounds of his disability contrary to sections 3(1) and 7(2) of the Equal Status Acts.

Reasonable Accommodation

4.5 In the case of disability in considering whether discrimination occurred, consideration must also be made to the issue of the provision of reasonable accommodation to a disabled person in accordance with the provisions of section 4 of the Equal Status Acts. The provisions contained within this section of the Acts require the respondent to do "all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities". In the context of the present complaint, this means that the Acts require the respondent to show that it did everything it could reasonably do to accommodate the special educational needs of Mr. Y, as a person with a disability, by providing special treatment or facilities within the meaning of section 4 of the Equal Status Acts. In the present case, the complainants have submitted that the respondent failed to put adequate measures in place in order to accommodate their son's special educational requirements. The respondent denies that it failed to provide the complainant with reasonable accommodation within the meaning of section 4 of the Acts and it submitted that it put in place an extensive range of special measures and facilities in order to accommodate his special educational requirements.

4.6 In considering this issue, I note that the School Principal, Mr. Z, had discussions with the complainant, Mrs. X, prior to her son's commencement at the school in September, 2004 during the course of which it was identified that he had learning difficulties and therefore would require special facilities in terms of his educational requirements. I also note that prior to his commencement at the school, Mr. Y, underwent an internal school assessment which was designed to highlight the learning difficulties and challenges which he might encounter whilst participating in second level education. As a result of this assessment, the respondent made provision for the allocation of 4 hours and 25 minutes of learning support for Mr. Y upon commencement at the school. I note that this allocation was in excess of the amount of resource teaching which had been sanctioned in Mr. Y's most recent psychological assessment which had been carried out by the Department of Education and Science. I am therefore satisfied that the respondent put a number of special measures and facilities in place in order to accommodate Mr. Y's special educational requirements upon his commencement at the school.

4.7 The complainants contend that the respondent failed to carry out a psychological assessment on their son within a reasonable timeframe and as a result this had an adverse affect on the level of support that was made available to him in terms of his educational requirements. I note the respondent accepts that it agreed with Mrs. X (prior to her son's commencement at the school) that a psychological assessment would be carried out on him although it did not provide her with an undertaking as to when this assessment would be carried out. I accept the evidence of the School Principal, Mr. Z, that the respondent did not have access to the National Educational Psychological Service (NEPS) when the complainant commenced attendance at the school in September, 2004. However, I note that it was accepted by both parties that Mr. Y did not experience any significant difficulties in terms of his educational requirements during his first year at the school. In the circumstances, I am satisfied that I have not been presented with any evidence from which I could reasonably conclude that the level of support provided to Mr. Y in terms of his special educational requirements was in any way compromised as a result of the psychological assessment not being carried out prior to January, 2006.

4.8 Based on the evidence adduced, it is clear that that Mr. Y experienced difficulties both in terms of his participation in the educational curriculum and with his behaviour during the second and third years of his attendance at the respondent's school. I am satisfied that the respondent attempted to put further measures and facilities in place to accommodate him when these difficulties became apparent which included putting arrangements in place to have a psychological assessment carried out in January, 2006. I am satisfied that the respondent did, in fact, take cognisance of the recommendations that were contained within the psychological assessment and that it put further special measures and facilities in place at that juncture such as the implementation of an Individual Education Plan (IEP), the provision of a Special Needs Assistant (SNA), allowing him to follow a reduced curriculum and facilitating an increase in the allocation of resource teaching from 4 hours 25 minutes to five hours per week.

4.9 I also note that the aforementioned psychological assessment stated that Mr. Y was "eligible for Special School placement" and that "here he would be in a small class with subjects which would suit his level of ability". It is therefore clear that the question arose at that juncture as to whether or not a secondary school placement within mainstream education was the most suitable environment to cater for his special educational needs. Notwithstanding the foregoing, Mr. Y continued in mainstream education and it is clear that the complainants were dissatisfied with the totality of the measures which the respondent put in place to accommodate his special educational requirements and as a result there was ongoing communication between the respective parties regarding this issue throughout the duration of his attendance at the school. Having regard to the totality of the evidence adduced, I accept the respondent's evidence that it was operating under certain constraints within the mainstream education sphere in terms of the resources available to it and therefore, it did not have the required resources to accede to all of the complainants wishes in terms of the levels of support that it could provide for their son. Notwithstanding the foregoing, I am satisfied that the respondent did, in fact, put a significant range of special measures and facilities in place in order to accommodate Mr. Y's special educational requirements throughout the duration of his attendance at the respondent's school.

4.10 There is also a clear conflict in the evidence of the parties regarding the level of support and the special facilities which Mr. Y was afforded in the subjects of Mathematics and English during the period of his attendance at the school. Having regard to the evidence adduced, I have found the respondent's evidence to be more compelling in relation to this issue and I accept that it put special measures and facilities in place in order to provide assistance and additional tuition to Mr. Y in these subjects such as one to one tuition and additional support classes. I also accept the respondent's evidence that it was operating under certain constraints within the mainstream education sphere in terms of the resources available to it and therefore, it did not have the required resources to set up separate Foundation Level classes in the subjects of Mathematics and English in order to cater exclusively for Mr. Y. In coming to this conclusion, I have also noted that Mr. Y achieved a Grade C at Foundation Level in both Mathematics and English in his Junior Certificate examinations.

4.11 In considering reasonable accommodation under section 4 of the Acts, I note that, in a Circuit Court appeal from a decision of the Equality Tribunal in the case of Deans v Dublin City Council , Judge Hunt J. considered the concept of reasonableness in the context of that section of the Act. Hunt J. stated:

" ... reasonableness must be judged according to the context of the individual case........ The City Council is entitled to bear in mind all the extensive and considerable social, legal and policy considerations ...... and they are indeed relevant to the decision as to what is reasonable in the particular case.... The Housing Authority is not obliged to submit to every wish expressed by a disabled person in the context of an application for facilities ..... All that it is commanded to do by the equality legislation is to devise a "reasonable" solution to a problem, not to achieve perfection and not to give in to every demand that is made of it ..."

In applying the reasoning of Hunt J. in the abovementioned Deans case, I am satisfied that the special measures and facilities which the respondent put in place in order to accommodate Mr. Y's special educational requirements were reasonable in the circumstances of the present case. Accordingly, I find that the respondent did not fail in its obligations to provide reasonable accommodation to Mr. Y within the meaning of section 4 of the Acts in terms of the manner in which it dealt with his educational requirements.

5. Harassment

5.1 The complainants have also claimed that their son, Mr. Y, was subjected to harassment by the respondent contrary to the provisions of section 11(5) of the Equal Status Acts. The complainants referred to an number of incidents which arose during the course of their son's attendance at the respondent's school which they claim amounted to harassment, namely:

- excessive recording in relation to Mr. Y's behaviour during his attendance at the school.
- an incident where Mr. Y's Special Needs Assistant took a photograph of him with a mobile phone during the course of a Woodwork class.

In considering the first issue identified above, I note that it was not in dispute between the parties that issues arose in relation to Mr. Y's behaviour during the second and third years of his attendance at the respondent's school. The respondent gave evidence that there was a marked deterioration in Mr. Y's behaviour and attitude towards his education in the latter two years of his attendance at the school and as a result it was necessary to take appropriate action to address the difficulties that arose. It submitted that the complainant was subjected to the same Code of Behaviour as all other students who attended the school and it stated that any disciplinary measures that were taken against the complainant were not in any way related to his disability. Having regard to the evidence adduced, I accept the respondent's evidence that it encountered significant difficulties in terms of Mr. Y's behaviour during the course of his attendance at the school and that it was necessary for it to take appropriate action in order to address this behaviour.

5.2 In order to raise an inference of harassment within the meaning of the Equal Status Acts, 2000 to 2008 it is necessary that the unwanted conduct be related to one of the discriminatory grounds i.e. the disability ground in the present case. I am satisfied that I have not been presented with any evidence from which I could reasonably conclude that any actions or measures which were taken by the respondent in response to Mr. Y's behavioural issues (including the monitoring of this behaviour) were in any way connected to his disability. In the circumstances, I find that the complainants have failed to establish a prima facie case of harassment within the meaning of Section 11(5) of the Equal Status Acts in relation to this aspect of their complaint.

5.3 In considering the second incident of alleged harassment mentioned above, I note the respondent accepts that an incident did, in fact, occur involving Mr. Y whereby his Special Needs Assistant (SNA) took a photograph of him with a mobile phone during the course of a Woodwork class. The respondent gave evidence that it investigated this matter thoroughly when it was brought to the attention of the School Principal, Mr. Z. The respondent's evidence was that this investigation established that Mr. Y had been disruptive during the Woodwork class and that his SNA had taken a photograph of him as a means of bringing him to apply himself to the work. Mr. Z stated that the SNA was requested to delete the image from her phone and was advised that the action of taking the photograph was improper and contrary to acceptable practice in the classroom. Mr. Z also gave evidence that he contacted the complainants following the investigation into this incident and acknowledged that the actions of the SNA in taking the photograph had been improper and unacceptable and that an apology was issued for any offence caused in relation to the matter.

5.4 I fully accept that the manner in which the SNA acted in relation to this incident was improper and totally inappropriate in the context of a classroom situation, however I have not been presented with any evidence from which I could conclude that the actions of the SNA in relation to this incident were in any way motivated or connected to Mr. Y's disability but rather it was a reaction to a disciplinary situation that arose during the course of the class in question. I therefore find that the actions of Mr. Y's SNA in taking this photograph does not constitute harassment within the meaning of section 11 of the Equal Status Acts.

6. Victimisation

6.1 The complainants have also claimed that their son, Mr. Y, was subjected to victimisation by the respondent within the meaning of section 3(2)(j) of the Equal Status Acts. The complainants referred to an number of incidents which arose during the course of their son's attendance at the respondent's school which they claim amounted to victimisation, namely:

- Mr. Y's class was the only class that was called to a special meeting at the start of the school year in September, 2007 during the course of which reference was made to the misbehaviour of seven students within that class during the previous year.
- Mrs. X also stated that she felt her son was penalised because of the behavioural issues that arose during a school trip to Italy in October, 2006 and she claimed that he wasn't selected for the school hurling team as a punishment in relation to these issues.

6.2 The term "victimisation" is defined within section 3(2)(j) of the Equal Status Acts as meaning:
"that one --
(i) has in good faith applied for any determination or redress provided for in Part II or III,
(ii) has attended as a witness before the Authority, the Director or a court in connection with any inquiry or proceedings under this Act,
(iii) has given evidence in any criminal proceedings under this Act,
(iv) has opposed by lawful means an act which is unlawful under this Act, or
(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv),
and the other has not (the "victimisation ground")".

It is therefore clear that victimisation within the meaning of the Equal Status Acts takes place when a person is treated adversely because they have tried to enforce rights under equality legislation or to support someone else doing so. In considering these issues, I note that the respondent accepts that it did, in fact, call Mr. Y's Junior Cert class to a special meeting at the start of the school year in September, 2007. I accept the respondent's evidence that this meeting was called to address behavioural issues that had occurred in the previous school year involving seven students (including Mr. Y) within this class. I also accept the respondent's evidence that the reason Mr. Y was not selected on the school hurling team was due to the fact that his level of performance on the field of play did not merit selection on the team. Having regard to the evidence adduced, I am satisfied that I have not been presented with any evidence from which I could reasonably conclude that the alleged treatment of Mr. Y in relation to either of these incidents could be construed as victimisation within the meaning of section 3(2)(j) of the Equal Status Acts. Accordingly, I find that the complainants have failed to establish a prima facie case of victimisation within the meaning of section 3(2)(j) of the Equal Status Acts.

7. Decision

7.1 In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision. I find that the complainants have failed to establish a prima facie case of discrimination on the disability ground in terms of sections 3(1), 3(2)(g) and 4(1) of the Equal Status Acts. I also find that the complainants have failed to establish a prima facie case of victimisation and harassment contrary to sections 3(2)(j) and 11(5) of the Equal Status Acts. Accordingly, I find in favour of the respondent in this case.

Enda Murphy
Equality Officer
14th May, 2010