THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision DEC-S2010-027
PARTIES
A Complainant
(represented by the Equality Authority)
and
An Irish Language College
(represented by Philpott, Creedon
File Reference: ES/2007/074
Date of Issue: 26th May, 2010
Keywords
Equal Status Acts 2000-2008 - Direct discrimination, Section 3(1)(a) - Disability Ground, Section 3(2)(g) - Reasonable Accommodation, Section 4(1)
Delegation under the Equal Status Acts, 2000-2008
This complaint was referred to the Director of the Equality Tribunal on 18th July, 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 Acts, 1998 to 2008 and under the Equal Status Acts 2000 to 2008, 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 to 2008 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 9th September, 2009 and 26th March, 2010.
1. Dispute
1.1 This dispute concerns a claim by the complainant that she was discriminated against by the respondent on the grounds of her disability in terms of Sections 3(1)(a) and 3(2)(g) of the Equal Status Acts, 2000 to 2008 and contrary to Section 5(1) of those Acts in terms of the respondent's refusal to accept her application for a place on an Irish language course at its college.
2. Summary of the Complainant's Case
2.1 The complainant has dyslexia and was afforded reasonable accommodation in certain subjects in her Junior Certificate examination in June 2005 in the form of a reader and a marking modification in respect of spelling and grammar. When she received her Junior Certificate, it had annotations attached to the subjects for which she had received an accommodation. The complainant received a grade A in higher level Irish in this examination. In January 2007, the complainant applied for a place on an Irish language course at the respondent's college. She submitted that the entry requirements for this course as outlined on the application form were that "Standard A, B, and C grades are eligible". The complainant forwarded her application to the respondent in the belief that she had exceeded the academic entry requirements with the grade A she had been awarded in higher level Irish examination.
2.2 On or around 23rd January, 2007, the complainant's mother received a telephone call from Ms. A, who identified herself as being from the respondent's college, asking her to explain the annotations on her daughter's Junior Certificate results which had been sent with the application form for the course. The complainant's mother asked if she could speak to the course director, Ms. B, but was informed that she was away and that she didn't take "those students" and would not want to speak to her. The complainant's mother stated that there was no discussion whatsoever during the course of this telephone conversation of any special arrangements or accommodations which the complainant might or might not require in order to participate in the course. The complainant's mother subsequently received an undated memorandum signed by Ms. B stating that her daughter "would suffer a sense of failure, humiliation and lack of self esteem" if she attended the course. The complainant claims that the respondent treated her less favourably on the grounds of disability by refusing to accept her onto the course, despite her having achieved a grade A in higher level Irish in her Junior Certificate examination when the stipulated minimum was a higher level grade C.
2.3 The complainant submitted that other students, including her friends, who received lower grades, but without an annotation on their Junior Certificates, were treated more favourably by being accepted for the course. The complainant claims that the "standard grade" requirement of the college constitutes a bar on students with specific learning disabilities from attending the course in question and is discriminatory under the Equal Status Acts. The complainant submitted that she was unable to attend the Irish course of her choice due to her disability and feels that she may have been disadvantaged as regards her performance in Irish in her Leaving Certificate which in turn could have a detrimental effect on her career.
2.4 The complainant submitted that there was correspondence between both her representative and the respondent's legal representative regarding this matter following the respondent's refusal to accept her onto the course. The complainant submitted that in a letter dated 27th February, 2007, the respondent's representative stated that the reason the complainant was refused admission to the course was on account of the respondent's inability to provide her with the necessary facilities to enable her to partake meaningfully in the course and it relied upon the nominal cost exemption in section 4(2) of the Acts stating that the college would have to employ additional staff with resultant additional costs. The complainant submitted that the respondent failed to provide any rationale or explanation of the basis of these costs in the context of the complainant's dyslexia. The complainant submitted that she did not request nor require any special facilities from the respondent in order to participate in the course and that she received no additional assistance in her three years of preparation for the subject of Irish for her Junior Certificate. The complainant claims that the respondent's reference to the "facilities she received during both her education for and sitting of the Junior Certificate" is incorrect. The complainant submitted that the only facilities she received during her Junior Certificate were in the form of a reader whilst sitting the Irish examination and a marking modification in respect of spelling and grammar in relation to the examination of her paper.
2.5 The complainant submitted that in further correspondence the respondent's representative stated that attending such a course would put the complainant at a complete disadvantage with other pupils attending and it repeated that based on the respondent's experience that the complainant would experience a sense of failure, humiliation and lack of self esteem in a highly charged and highly academic course such as the one which its client provided. In a further letter dated 15th March, 2007 the respondent's representative indicated that the respondent was "prepared to consider offering her a place" on condition that she gave certain assurances such as confirming that no special facilities would be required and that she would agree to fully participate in all aspects of the course. The complainant submitted that she objected to the requests made by the respondent that she give undertakings and guarantees which other students were not asked to give before the college would consider whether or not to give her a place on the course. The complainant submitted that she was in this regard being treated less favourably than other students because of her disability and being asked to contract out of the provisions of the Equal Status Acts.
2.6 The complainant submitted that although she really wanted to attend the course, it was clear to her that in these circumstances she could not realistically take up the offer that was being considered by the college as she felt that she would be under constant scrutiny and subject to unreasonable expectations. The complainant's representative conveyed this response to the respondent's representative by letter dated 20th April, 2007. The complainant submitted that she had encouraged her friends to go to the Irish college with her but then had to explain to them why she could not attend which she found upsetting and embarrassing as some of her friends were not aware that she was dyslexic. The complainant submitted that she went instead to a different Irish college in another part of the country with her brother where she was able to complete the Irish course without any difficulties. The complainant submitted that her treatment by the respondent in relation to this matter amounts to direct discrimination on the grounds of her disability.
3. Summary of the Respondent's Case
3.1 The respondent has been in existence since 1985 and it provides revision courses to both Junior and Leaving Certificate students in the subject of Irish during the summer months each year. The respondent submitted that the Irish courses which it provides are very intensive and demanding on students and these courses are aimed at high achievers in the subject. As a result of the demanding nature of the course the entry requirements are very strict and in order to be accepted onto the Leaving Certificate course it is necessary for a student to have obtained a standard A, B or C grade at higher level in the Junior Certificate.
3.2 The respondent submitted that it received an application from the complainant in January, 2007 to participate in the Irish Leaving Certificate course which was scheduled to take place in August of that year. Ms. A, who is a teacher/administrator at the college, stated that she received a telephone call from the complainant's mother prior to the receipt of this application during which she sought information and details regarding the nature of the course which was being provided by the respondent. Ms. A stated that she clearly outlined the entry requirements to the complainant's mother and left her in no doubt regarding the demanding and intensive nature of the course during this telephone conversation. When the respondent received the complainant's application form and supporting documentation for the course it was clear that there were annotations attached to the language subjects on the accompanying Junior Certificate. Ms. A telephoned the complainant's mother in February, 2007 to enquire about these annotations and it became clear from this telephone conversation that the complainant was dyslexic and had received accommodations (including a reader) in the subject of Irish during her Junior Certificate examinations.
3.3 The respondent submitted that upon learning of this it immediately understood the implications for a student such as the complainant in terms of her participation in its Irish course. The respondent submitted that the course is very intensive and is broken down into one and a half hours of grammar, essay reading, writing and comprehension in addition to poetry and prose reading. The respondent stated that it was fully aware of the disadvantages of dyslexia for students and it was for this reason that it outlined the concerns which it had for the complainant attending a course such as that which it provided on the basis that it would put her at a complete disadvantage with other students attending the course. It was pointed out to the complainant's mother that based on the respondent's experience the complainant would experience a sense of failure, humiliation and lack of self esteem in a highly charged and a highly academic course such as the one which it provided. The respondent came to the conclusion that given the complainant's disability she would not have been able to participate in such a course without the special facilities that she received in both her education and sitting of the Junior Certificate.
3.4 The respondent submitted that it informed the complainant (in a letter dated 27th February, 2007 from its representative to the complainant's representative) that the reason she was being refused admission to the course was on account of its inability to provide her with the necessary facilities to enable her to partake meaningfully in the course. The respondent submitted that the cost of accommodating the complainant with the necessary facilities to participate in the course would have been prohibitive (estimated at €4,450) and therefore would have amounted to more than a nominal cost within the meaning of section 4 of the Equal Status Acts. The respondent also acknowledged in this letter that the complainant had indicated that she did not require any special facilities in order to participate in the course. The respondent informed the complainant that it was prepared to consider offering her a place on the course but in doing so she would have to acknowledge that no additional special facilities could be made available and on the basis of her acceptance to participate in every aspect of the course, to complete and submit for correction all exercises given and to attend all classes and study sessions. The respondent submitted that it sought the complainant's agreement to these conditions on the basis that it did not want to be put in a situation whereby, having agreed to accept her onto the course, the complainant could subsequently make a further complaint that she suffered because of the absence of special facilities. The respondent submitted that the complainant refused to accept this offer of a place on the course (despite the fact that the offer was re-stated in a further letter from the respondent's representative on 8th May, 2007).
3.5 The respondent submitted that it was acknowledged by the complainant that she was dyslexic and that she had annotations on her Junior Certificate reflecting the support she received while sitting the examination. It was submitted that, in those circumstances, the complainant because of her disability, would have been at a disadvantage when compared to other students who did not have this learning disability and therefore, special facilities would have been required for her to overcome this disability which could have only been provided at considerable and uneconomic cost. The respondent submitted that when it was pointed out that the cost was uneconomic and that she could attend on the course in the full knowledge that the special facilities could not be made available she still would not take up the offer of the course but insisted on not waiving her legal rights. The respondent submitted that the complainant seemed to want to attend the course on the same terms as everybody else and when she was offered a place on the course on the same terms as everybody else, and for the avoidance of doubt, in the full knowledge that special facilities could not be made available, she would not take up the place on those terms. The respondent submitted that the complainant therefore excluded herself from the course and she was not excluded by the respondent. Accordingly, it was submitted by the respondent that there was no discrimination against the complainant in the present case.
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 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 she can rely in asserting that prohibited conduct has occurred in relation to her. 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 In the present case, the complainant has dyslexia and I am therefore satisfied that she is a person with a disability within the meaning of section 2(1) of the Equal Status Acts. The complainant has claimed that she was subjected to discrimination on the grounds of her disability on the basis that the respondent refused to afford her admission to its Irish course which took place in August, 2007 on the same terms and conditions as other students. The respondent denies that it discriminated against the complainant on the grounds of her disability and it claims that because of her dyslexia she would have required special facilities in order to participate in the course on the same terms as the other students. It claims that the provision of the required special facilities could only have been provided to the complainant at a considerable and uneconomic cost. It further claims that when it was brought to the attention of the complainant that the cost was uneconomic and an offer was put forward that she could attend the course on the basis that the special facilities could not be made available she still would not take up the offer of the course but insisted on not waiving her legal rights.
4.3 In considering this issue, I note that the stated entry requirements for admission to the Irish course which the complainant sought to gain admission were "standard A, B and C grades" at higher level in the Junior Certificate examinations. It was not disputed between the parties that the complainant had achieved a higher level grade A in her Junior Certificate Irish examination and she was therefore of the belief that she had exceeded the academic entry requirements when submitting her application to the respondent. It was accepted by both parties that the complainant's Junior Certificate had annotations attached to the language subjects which signified that she had received an accommodation in those subjects. The respondent gave evidence that Ms. A, Teacher/Administrator, contacted the complainant's mother by telephone following the receipt of her application in January, 2007 in order to enquire about the significance of the annotations on her Junior Certificate. It was accepted by both parties that complainant's mother informed Ms. A during the course of this telephone conversation that the complainant was dyslexic and as a result had received certain accommodations in the course of sitting her Junior Certificate Irish examination.
4.4 It was also accepted by the parties that the respondent returned the complainant's application to her shortly after this telephone conversation together with a handwritten note which stated that "Student does not meet the entry requirements for course Standard Grade A, B and C only". Having regard to the evidence adduced, it is clear that the respondent took the view that a grade A which was achieved by a person such as the complainant who had been afforded special accommodations in relation to that examination, on the grounds of disability, was not a "standard grade". I am satisfied that following the telephone conversation between Ms. A and the complainant's mother in January, 2007, the respondent took the view that the complainant, as a person with dyslexia, did not meet the entry requirements for admission to the course on the basis of the accommodations she had been afforded in her Junior Certificate Irish examination. It is clear that the respondent concluded at that juncture the complainant would not be capable of participating in the course on the same terms as a person who did not have this disability and it therefore decided to refuse her admission to the course. I am therefore satisfied that the complainant was refused admission to the respondent's Irish course on the basis of her disability i.e. her dyslexia, in circumstances where other students without dyslexia were afforded access to the course. Accordingly, I find that the complainant has succeeded in raising an inference of discrimination on the grounds of her disability. In such circumstances, the burden of proof shifts and the onus rests with the respondent to rebut the allegation of discrimination if its defence is to succeed.
Respondent's Rebuttal
4.5 The respondent gave evidence that the Irish course which it offered was very intensive and demanding upon students and based on its past experience of students with dyslexia it was of the view that the complainant would not have been able to participate in the course without the special facilities that she was afforded both during her education for and sitting of the Junior Certificate. The respondent argued that the reason the complainant was refused admission to the course was on the basis that the cost of providing these facilities would have been prohibitive and uneconomic. The complainant accepted that she had, in fact, received certain accommodations in the form of a reader and a marking modification in respect of spelling and grammar for her Junior Certificate Irish examination. However, she also gave evidence that, notwithstanding the accommodations she received in her Junior Certificate, she neither requested nor required any special facilities or accommodations from the respondent in order to participate in its Irish course. The complainant argued that her dyslexia did not adversely affect her ability to study the Irish language and she submitted that the respondent was entirely mistaken in its view that she would have required any special accommodations or facilities whatsoever in order to participate in the course.
4.6 In considering this issue, I note that it was accepted by both parties that the complainant's mother informed Ms. A when discussing the issue of the annotations on her Junior Certificate, in a telephone conversation in late January, 2007, that the complainant was dyslexic. I also note that it was accepted by Ms. A in her evidence that the complainant's mother informed her during the course of this conversation that the complainant had a mild form of dyslexia and that she would not require any special facilities or accommodations whatsoever in order to participate in the course. I accept the complainant's mother's evidence that Ms. A neither sought to obtain any information during this telephone conversation regarding the severity or otherwise of the complainant's dyslexia nor did she make any enquiries as to how her dyslexia impacted upon her ability to study the subject of Irish. Furthermore, I am satisfied that Ms. A did not make any enquiries during this telephone conversation as to whether or not the complainant would require any special facilities or accommodations in order to participate in the course.
4.7 Having regard to the evidence adduced, I am satisfied that the respondent did not take any of the aforementioned factors into account when assessing the complainant's application but rather it arbitrarily decided following this telephone conversation that she would not be capable of participating in the Irish course purely on the basis that she was dyslexic and based on the unsubstantiated assumption that she would require special facilities in order to participate in the course. I am satisfied that the respondent's decision to refuse the complainant's application for admission to the course was communicated to her in writing in February, 2007 when it returned her application together with the undated note which stated: "Student does not meet the entry requirements for course STANDARD Grades A, B, C only. This is in your child's own interest as we know from experience that your child would suffer a sense of failure, humiliation and lack of self-esteem as a highly charged academic course such as this". The respondent has not adduced any evidence to suggest that it could have reasonably concluded at that juncture that the complainant, because of her disability, would have found it impossible or unduly difficult to participate in the Irish course in the absence of special facilities. In the circumstances, I find that this decision by the respondent amounted to discriminatory treatment against the complainant on the grounds of her disability contrary to the provisions of section 5 of the Equal Status Acts.
Ongoing correspondence between the legal representatives of both parties
4.8 It is clear that there was ongoing correspondence between the representatives of both parties following the respondent's communication of its refusal to afford the complainant admission to the Irish course in February, 2007. It was during the course of this correspondence that the respondent advanced the argument that the complainant would require special facilities in order to participate in the course whereas the complainant reaffirmed her position in this correspondence that she had neither requested nor did she require any such accommodations to facilitate her participation. The respondent also raised the issue during the course of this correspondence that the cost of putting these special facilities in place would have amounted to more than a nominal cost and it relied upon the defence available in section 4(3) of the Equal Status Acts in support of its contention in this regard.
4.9 In considering this issue, I am satisfied that the complainant's mother had clearly informed the respondent during the course of her telephone conversation with Ms. A in January, 2007 that the complainant would not require any special measures or accommodations in order to facilitate her participation in the course. In doing so, I am satisfied that it was unequivocally communicated to the respondent at that juncture that the complainant, as a person with a disability, did not require any special treatment or facilities within the meaning of section 4 of the Acts. As I have already stated, the respondent has not adduced any evidence to suggest that it could have reasonably concluded at that juncture that the complainant, because of her disability, would have found it impossible or unduly difficult to participate in the Irish course in the absence of special facilities. Having regard to the foregoing, I am satisfied that any issues raised by the respondent in terms of the provision of special facilities, in accordance with the provisions of section 4 of the Acts, were irrelevant after that juncture given that the complainant had already been effectively refused admission to the course in February, 2007. Accordingly, I am of the view that there is no obligation upon me, in the circumstances of the present case, to consider this matter any further in the context of the obligations that are placed upon a service provider within the meaning of section 4 of the Acts.
Offer of a place on the course subject to certain conditions
4.10 The respondent also put forward the argument that it informed the complainant during the course of correspondence between the parties that it was prepared to consider offering her a place on the course subject to her agreement to certain conditions (as outlined in para. 3.4 above) and in acknowledgement of the fact that it could not provide any special facilities to facilitate her participation in the course (this offer was communicated to the complainant's representative on 15th March, 2007 and subsequently re-stated in a further letter on 8th May, 2007). The respondent argued that the complainant seemed to want to attend the course on the same terms and conditions as everybody else and when she was offered a place on the course on the same terms as everyone else, and for the avoidance of doubt, in the full knowledge that special facilities could not be provided, she refused to take up a place on those terms. The respondent submitted that the complainant, by virtue of her refusal to accept this offer, excluded herself from the course.
4.11 I cannot accept the respondent's contention that the complainant effectively excluded herself from the course by virtue of her refusal to accept the abovementioned offer on the terms put forward by the respondent. Neither can I accept that the terms which were advanced by the respondent to the complainant constituted an offer to her to participate on the course on the same terms as everyone else. The respondent has not adduced any evidence to suggest that any of the other students who sought admission to the course (i.e. the students without dyslexia) were treated in a similar manner in terms of a request to agree to such conditions in order to secure admission to the course. I am of the view that the terms of participation that were offered to the complainant, in effect, amounted to an offer to participate on less favourable terms than students without dyslexia. In any event, I am satisfied that the complainant had already been effectively refused admission to the course on the grounds of her disability prior to the communication of this offer when the respondent returned her application to her in February, 2007 and informed her that she did not meet the entry requirements.
4.12 Having regard to the totality of the evidence adduced, I find that the reason the complainant was refused admission to the Irish course provided by the respondent was directly attributable to her disability i.e. her dyslexia. Accordingly, I find that the complainant has succeeded in establishing a prima facie case of discrimination on the disability ground and that the respondent has failed to rebut the inference of discrimination.
Other Issues
4.13 During the course of submissions at the hearing the respondent referred to the complainant's participation, as a witness, in the Cahill case where she gave evidence regarding the circumstances surrounding the respondent's refusal to afford her admission to its Irish course. In the Cahill case Hunt J. found that the system of annotations on the examination certificate of two students who had received accommodations on the grounds of disability in relation to these examinations did not amount to discriminatory treatment within the meaning of the Equal Status Acts (it should be noted that this decision is currently the subject of an appeal to the High Court). The respondent submitted that the complainant had a vested interest in pursuing the present complaint against the respondent. It contended that the reason the complainant would not accept the respondent's offer to participate in the course (which it proffered during correspondence between the parties' representatives) was because of her involvement in the Cahill case and her intention to challenge the legitimacy of the annotation system on State examination certificates.
4.14 Having considered this submission, I cannot accept the respondent's argument in relation to this issue and I am of the view that any involvement which the complainant had in the Cahill case is an entirely independent and separate matter from the issues that have come within my jurisdiction under the Equal Status Acts in the present case.
5. Decision
5.1 In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision. I find that the complainant has established a prima facie case of discrimination on the disability ground in terms of Sections 3(1) and 3(2)(g) of the Equal Status Acts and contrary to section 5(1) of those Acts and that the respondent has failed to rebut the inference of discrimination. In accordance with section 27(1)(a) of the Acts, I award the complainant the sum of €3,500 as redress for the effects of the discrimination.
5.2 I also order, in accordance with Section 27(1)(b) of the Acts, that the respondent review the procedures and policies that it has in place in terms of the admission of applicants to its courses with a view to ensuring that these procedures are fully compliant with its obligations under the Equal Status Acts.
Enda Murphy
Equality Officer
26th May, 2010