THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
DECISION DEC-S2011-038
Parties
Ms. Laura-Ann Payne
-V-
City of Dublin VEC, incorporating Pearse College
And
Trinity College Dublin
(represented by Legal Department, TCD)
File Ref: ES/2008/0084
Date of Issue: 31st August, 2011
Equality Officer Decision DEC-S2011-038
Keywords
Equal Status Acts 2000-2008 - Section 3(1) - Direct discrimination, Section 3(1)(a) - Age Ground, Section 3(2)(f), - Disability Ground, Section 3(2)(g) - Race Ground, Section 3(2)(h) - Educational Establishment, Section 7(2) - Harassment, Section 11.
1. Delegation under the Equal Status Acts, 2000 to 2008
1.1 This complaint was referred to the Director of the Equality Tribunal on 13th June 2008 under the Equal Status Acts, 2000 to 2008. On 1st April 2010 in accordance with her powers under Section 75 of the Employment Equality Acts 1998 to 2008 and under the Equal Status Acts, the Director delegated the complaint to me, James Kelly, 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. The hearing of the case took place on 14th April 2011.
2. Dispute
2.1 This dispute concerns a complaint by Ms. Laura-Ann Payne that she was discriminated against by the respondents City of Dublin VEC, incorporating Pearse College, and Trinity College Dublin on the Age, Disability and Race grounds. The complainant maintains that she was discriminated against on these grounds in terms of Sections 3(1), 3(2)(f), 3(2)(g) and 3(2)(h) of the Equal Status Acts, 2000 to 2008 in not being provided with a service which is generally available to the public contrary to Section 7(2) of the Equal Status Acts. She also claims that the actions of the respondents amounts to harassment within the meaning of Section 11 of the Acts.
3. Summary of the Complainant's case
3.1 The complainant is an Irish national in her early 50's and has Generalised Dystonia which she claims affects her co-ordination, concentration, memory and her speech patterns. She claims that in early 2007 she decided to further her education and sought access into Trinity College Dublin (TCD) as a mature student for the 2007/2008 academic year. She claims that she met with the Trinity Mature Students Officer and discussed the options available to her including the Trinity Access Programme (TAP). She claims that she waited a number of months after applying for the TAP option but was told that she was accepted into the University Access Programme (UAP) in Pearse College, which similarly to TAP would provide her with an opportunity to get into TCD as a mature student.
3.2 The complainant raised many issues which she claims are discriminatory on the three aforesaid grounds against the respondents from her time at Pearse College. She furnished the Equality Tribunal with substantial submissions in relation to same. I have summarised these issues in what I have determined as the main points of the complaints against the respondents in the following paragraphs.
Pearse College
3.3 She claims that the CAO process is discriminatory against her on the race ground as compared to non EU-students. The complainant claims that a non EU student, whose name Ms. Payne could not remember, attending Pearse College on the UAP only had to confirm that she was willing to pay her 3rd level course fees to get into a 3rd level College. She claims that this student did not have to go through the same procedures as her, or the other mature students did. She claims that such students received offers into 3rd level Colleges without undergoing an interview and did not have to attend class at Pearse College, as Ms. Payne had to. She claims that this non-EU student did not attend class regularly, and relied on an "excuse of her being pregnant" and was allowed to send in medical certificates to cover her absence. She claims that this student was given an opportunity to attend an interview and she was offered a place in the 3rd level College course of her choice following that interview without having passed her final exams in Pearse College.
3.4 The complainant claims that the mature student application process is a compulsory part of the CAO process and non-EU students are allowed to side step this requirement and this is a discriminatory provision against her. She claims that this student did not have to adhere to the same standard of English as she had to. She did not have to prove attendance or show her educational standard or completion of a particular course.
3.5 The complainant claims that when she discovered that a number of students were not attending classes regularly; had never handed in assignments on time and were facilitated with offers into the 3rd level courses without having to pass their final exams she decided to "start looking for answers [she] came under a barrage of BULLYING and THREATS both physical and verbal on a daily basis (sic)". Ms. Payne claims that when she challenged Pearse College over these issues and reported the instances of bullying, she found that she was isolated from both the students and staff of the College.
3.6 Ms. Payne claims that after she started questioning the relationship between the Pearse College and TCD she was subjected to verbal abuse by fellow students in the College. She claims that she decided to make a complaint to the College Principal, Ms. A, but she said she got no assistance from her. She claims that nothing was ever done about her complaint.
Trinity College Dublin
3.7 Ms. Payne claims that it became clear to her that when an unnamed younger student in her mid-twenties on the UAP in Pearse College applied for a course and received a place after interview with little work/social background experience in the particular field. Ms. Payne claims that this student was allowed to be accommodated in handing in assignments and changing exams because of her non-attendance. She also claims that this student was asked different questions at the interview compared to the questions that she was asked.
3.8 Ms. Payne claims that there was a certain tone of ageism from TCD. She claims that she was told by an officer at the TAP office "in a particular tone of voice" that she should consider another (named) 3rd level College "as that college was more accepting of older students".
3.9 The complainant claims that she was discriminated against and harassed on the disability ground by the way her TCD interview was conducted by the interview panel. She claims that she was invited to an interview with TCD for a position in the Law Facility on the 26th March 2008 as part of the UAP. She claims that she was "groomed at workshops in TAP/Trinity for interviews in Faculties in Trinity (sic)", and was given mock interviews. She said she was appalled at the interview she had to go through. She claims that, Ms. B, the chair of the interview panel, went into personal areas of her disability which she maintains "she had to explain her condition, something she constantly has to explain her past". She claims that her condition, Generalised Dystonia, is a rare condition and "it is very difficult to explain in detail as is all genetics unless you have a background in science/medicine".
3.10 She claims that Ms. B was in "a defensive position", which she claims she could determine from her voice and body language. She claims Ms. B made her feel uncomfortable asking personal questions about her disability and told her to "go and write a book". She claims that the other members of the interview panel tried to intervene but the line of questioning persisted from Ms. B. She claims that the interview time was "wasted on discussing her disability", and therefore, none of the real issues were discussed such as, the law course, her other study or the information she took with her to the interview as testament of her previous experiences.
3.11 Ms. Payne also had difficulty in attempting to get feedback after the interview. She claims that she was left waiting at Ms. B's office and was then told that Ms. B was unable to make the appointment. She claims that she has had to work hard to hide her condition and that it makes her very defensive especially when "ignorant comments" are made in relation to genetics. She claims that "she has been discriminated in the past, in school since childhood, medically and in employment and has to battle every day to change it".
3.12 At the end of the hearing Ms. Payne made a further claim against TCD where she said that Ms. B called her "a bit of a Jew".
Summary of Respondents Case - City of Dublin VEC/Pearse Colleges case
4.1 The respondent in this instance is the City of Dublin VEC. Pearse College is a constituent college of the City of Dublin VEC and is governed by all its policies and procedures. Pearse College offers a University Access Programme (UAP), a FETAC level 5 accredited programme to mature students over 23 years of age. This programme was developed in partnership with Trinity College Dublin (TCD) to include a 3rd level dimension to the course. The respondent claims that in normal circumstances mature students who apply to TCD are short-listed for interview, whereas all students who complete the UAP course are eligible to compete for entry to degree courses in 3rd level Colleges and therefore by-pass the normal short-listing process and are guaranteed an interview for a 3rd level course.
4.2 The respondent claims that the complainant applied for, was interviewed, and offered a place on the UAP in September 2007. It claims that in March 2008 students who had applied for courses in TCD and had interviews with it received their results. It does not dispute that Ms. Payne was not offered a place. The respondent claims that she questioned why she was refused a place in TCD when as other students that she deemed less suitable than her were offered places. It claims that certain issues were raised about regulations and it decided to seek clarity on this with TCD, namely that the wording used in the letters from TCD to the successful students suggested that they were accepted into degree courses without the condition of them having to successfully complete the full year in Pearse College. The respondent contacted TCD who in turn re-issued all the letters of offer to the students in question, clarifying that the offer was conditional on completion of the UAP in Pearse College.
4.3 The respondent provided statistical evidence of the number of students who had completed the UAP and had progressed to 3rd level Colleges from the years 2002 to 2008 and outlined that these statistics bore out the fact that not everyone who completed the course was guaranteed a place in 3rd level. It claims that this was told to all students at the start of the College year.
4.4 The respondent claims that it is not responsible for the CAO process that Ms. Payne complained about and therefore has no case to answer on this aspect of the claim on the grounds of Race as alleged. It claims that The Central Applications Office would be the correct respondent in relation to any claim of discrimination on this matter, and not the City of Dublin VEC or indeed Pearse College.
4.5 It claims that it has responsibility for applicants who wish to access the UAP and all applicants irrespective of race, gender or age have to follow the same application process.
4.6 In relation to the claim of harassment alleged against it, the respondent claims that there was a reported incident where Ms. Payne and at least two other students were involved. The respondent went into background detail of the arguments between the two sets of students. It provided a Chronological report in how the circumstances unfolded including the dates of events and its actions. The Principal at Pearse College, Ms. A, highlighted that the incident arose a short time before final exams. Ms. A claims that the incident was being dealt with when it received the notification of the complaint under the Equal Status Acts. The respondent claims that procedures were in place to try to resolve the students' problems and ensure that they did not reoccur.
4.7 Ms. A outlined that she interviewed the student that Ms. Payne had difficulties with, and she sought and received assurances from her that there would be no more problems. She met with the College Guidance Counsellor/Course Tutor to discuss the best way to deal with the situation and in turn visited the class to sample the classroom atmosphere. She claims that there were very few students around as it was coming up to exam time and many were on study leave in preparation for exams. The respondent claims that in just over a week from meeting with Ms. Payne and hearing about the behaviour of another student it had received a formal complaint against the College about how it dealt with the incident. The respondent immediately instigated its own internal investigation as per its own complaints procedure.
Summary of Respondents Case - Trinity College Dublin
4.8 The respondent, Trinity College Dublin (TCD), was adamant that it has not discriminated against the complainant in any way. The respondent presented Ms. B, Chair of the interview panel, as a witness and another member of the interview panel that interviewed Ms. Payne for a position in the Law facility as a mature student with the College.
4.9 TCD stated that both the Trinity Access Programme (TAP) and the University Access Programme (UAP) were aimed at students to gain access to 3rd level education other than the traditional method through the CAO system. Ms. Payne had enquired about TAP but was told that the deadline had passed so she was directed to the UAP option to help facilitate her. It disputes that there were any discriminatory comments ever made to Ms. Payne at this stage.
4.10 In relation to the interview, Ms. B claims that she has been interviewing for the respondent for 20 years and has never had such allegations levelled against her in all that time. She outlined the interview procedure and that its sole objective was to ascertain whether the applicants have the capacity to pursue a demanding law degree course. Ms. B claims that at the outset of the interview Ms. Payne seemed nervous and she started to explain that because of her rare genetic condition she might come across as drunk, because she slurred her words, but she made it clear that she was not drunk. Ms. B claims that Ms. Payne then proceeded to give an interesting account of her historical genetic background and how she had inherited the condition from a Jewish ancestor from the Baltics who had moved to Ireland. Ms. B claims that she told Ms. Payne that it was a very interesting story and that she should consider writing about her process of discovering her genetic past.
4.11 Ms. B claims that Ms. Payne did not show that she had the capabilities to undertake the Law degree course and after the interview in consultation with the other members of the interview board deemed her unsuitable for the course. She presented contemporaneous notes from each of the interview panel's impressions of the complainant's capabilities of succeeding in the Law degree, and none of them held the view that she would have the capability to advance in the Law degree.
4.12 Ms. B advised on how all interviews are structured and how all the interviewers are given the same amount of time with the interviewee and they all have their own specific area to concentrate on. She claimed that this was no different for Ms. Payne.
4.13 Ms. B claims that she never made any reference to her about "being a bit of a Jew" and was aghast at the claim made at the end of the hearing.
4.14 The respondent's other witness who also was a member of Ms. Payne interview panel, gave his account of events and discussions that took place on the day, which were wholly consistent with Ms. B. He claims that Ms Payne told a story about her genetics history and when she had finished everyone remarked that it was very interesting and she should consider writing about it. He claims that he was present for the entire interview and did not recall anything improper from the chair, and in particular any comment about her race.
4.15 The respondent claims that there are different numbers involved in TAP each year. Students are advised that just because they are on the course does not automatically guarantee a place on a course in TCD. In fact it claims that only 8 TAP students entered the law degree as mature students in the 10 years up to and including 2007 and no student was offered a place in the Law degree in 2008.
5. Conclusions of the Equality Officer in relation to the substantive issue
5.1 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, written and oral, made to me by the parties to the case.
5.2 Having regard to the circumstances of this case, I have to consider a number of key questions in relation to this case which I must address in considering whether a prima facie case of discrimination and harassment has been established by the complainant in whether she was treated less favourably than another person in a comparable situation because of her age and/or disability. The issues for consideration for me in this part of the claim, then, is whether or not the respondents discriminated against the complainant on the grounds of her Age, Race and Disability in terms of section 3(1), 3(2)(f), 3(2)(g), and 3(2)(h) of the Acts and contrary to Section 7(2) of those Acts.
Pearse College - Discriminatory Treatment -Race and Age
5.3 The first aspect of the case here that I have to consider is in respect to the CAO process, which includes access to the CAO and its rules per se for "Non-European Students". I note that the respondent claims that it is not responsible for the CAO process and therefore has no case to answer on this aspect of the claim on the grounds of Race. I am satisfied that none of the respondents named are responsible for the CAO process and therefore as the complainant has failed to identify the correct respondent in relation to this aspect of the claim the case against the respondents here falls.
5.4 The next matter for consideration is whether the complainant was treated less favourably during her time in Pearse College as compared to a younger foreign national student who was allowed to complete the year, and was offered an opportunity to access interviews in 3rd Level Colleges, which proved eventually successful. I have noted the evidence that all entrants into Peasre College on to the UAP were told that they were not guaranteed a place in the 3rd level College in the course of their choice. I note that they were told that would be offered access to interviews into different Colleges. I note Ms. Payne's evidence where she claims that certain students were given additional assistance as they were absent during the year, that they missed time limits for assessments, and that she determined that these students did not have the correct attributes for places in the 3rd level courses, including language skills or necessary background in the specific areas.
5.5 I have taken the evidence of the parties and I am satisfied that Ms. Payne feels somewhat disenchanted from her experience at Pearse College. I am satisfied that she felt she worked hard in there and had her heart set on going to TCD and she made sure to abide by the rules to reach her goal. The respondent has made it clear that Ms Payne was attending a FETAC Level 5 in Liberal Arts as part of her UAP in Pearse College. The rules for attendance and in relation to assignments are set by FETAC. I have noted that in the evidence provided that all this information is listed in an information handbook for the year 2007 to 2008. Ms. Payne claims that one student was out on leave because of illness during her pregnancy and that she sent in medical certificates to cover that. She also claims that students were accommodated in the late acceptance of assignments. I note FETAC rules listed in the information booklet state that there is a minimum attendance requirement for the year, however, it states "absence for reasons covered by a medical certificate fall outside minimum attendance requirements". It also states that "No assignments will be taken after the relevant deadline, except for extenuating circumstances". Finally, I note there is an FETAC Appeals Procedure for all students.
5.6 I have heard from the respondent that all the rules applied to all students. Ms. Payne claims that she was discriminated against because certain students failed to attend regularly and/or failed to meet deadlines for assignments. However, she has not presented evidence or demonstrated that she was treated less favourably by the respondent because of her Race and/or her Age in relation to this aspect of the case. It is clear that the respondent has to apply the rules as set out by FETAC in this course and it is clear the comparator that Ms. Payne has complaints about seems to have availed of "extenuating circumstances" namely, that she was pregnant and ill and has produced medical certification to support that. Notwithstanding, I note that Ms. Payne has failed to identify the less favourable treatment that she broadly claims that she was subjected to. I note that she did not request additional time to send in her assignments nor had any issue with the College in relation to her meeting the minimal attendance requirement. The issue that Ms. Payne seems to have is that she had to abide by the rules whereas others, in her view, did not and she does not accept their "excuses". Moreover these students happened to get a place in the 3rd level College of their choice and Ms. Payne did not.
5.7 I am not satisfied that this, in anyway, amounts to less favourable treatment and I have not been presented with any evidence to connect these events to the alleged grounds of discrimination. I note the decision of the Labour Court in Anthony v Margetts, in particular where it states: "The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred."
Ms. Payne has suggested that she was treated less favourably than another person would be treated in a comparable situation because of her age and race. On the balance of probabilities, I am not satisfied that the evidence adduced is sufficient on which I can infer less favourable treatment, not to mind less favourable treatment on the grounds submitted as discriminatory.
Pearse College - Harassment
5.8 The matter for consideration here is whether the complainant was harassed by the respondent within the meaning of Section 11 of the Equal Status Acts. The appropriate provisions of the Acts are set out below.
11. -- (1) A person shall not sexually harass or harass (within the meaning of subsection (4) or (5)) another person (''the victim'') where the victim --
(a) avails or seeks to avail himself or herself of any service provided by the person or purchases or seeks to purchase any goods being disposed of by the person,
(2) A person (''the responsible person'') who is responsible for the operation of any place that is an educational establishment or at which goods, services or accommodation facilities are offered to the public shall not permit another person who has a right to be present in or to avail himself or herself of any facilities, goods or services provided at that place, to suffer sexual harassment or harassment at that place.
(3) It shall be a defence for the responsible person to prove that he or she took such steps as are reasonably practicable to prevent the ...harassment.. of the other person referred to in subsection (2) or of a category of person of which that other person is a member.
(4) A person's rejection of, or submission to, sexual or other harassment may not be used by any other person as a basis for a decision affecting that person.
(5) (a) In this section --
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or
effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material. [My emphases added]
5.9 The complainant claimed that she was subjected to harassment by another student towards the end of the academic year. It is clear that the respondent does not deny that there was at least one incident of verbal abuse by one of the students towards Ms. Payne and another named student. Ms. Payne outlined that there was daily harassment from this point onward up to her exams, which is contrary to the provisions of Section 11(5) of the Equal Status Acts. In response the respondent has set out how the College Principal tried to deal with the matter and tried to get a suitable outcome for all students.
5.10 For the complainant to make a successful complaint under Section 11of the Acts, the complainant has to show that the harassment is in someway linked to one of the prohibited grounds. I note that Ms. Payne has referred her complaint against three respondents and listed three grounds, namely, age, disability and race. However, she had not identified on what ground(s) that this aspect of the case falls under. Therefore, I have had to carefully review all of the evidence presented to me in relation to this aspect of the case to try and determine which ground(s) underpins this aspect of her case.
5.11 I am satisfied that there was a difficulty between some students including Ms. Payne and that the perpetrator, Ms. X, caused Ms. Payne and another student intimidation and stress by unsavoury verbal language. However, there is no evidence that this harassment is in any way linked to any of the discriminatory grounds under the Equal Status Acts, not to mind any (or all) of the three grounds cited in her complaint before me for consideration.
5.12 I note the evidence of the respondent and the clear chronology of events presented, details the time frame from once the complainant reported that she was verbally attacked until it received notice of the Equality complaint. Section 11(2) and 11(3) of the Acts -quoted in paragraph 5.8 above- outlines the obligations on the respondent as the "responsible person" and the possible defence for the respondent. I note that Ms. Payne has stated that Ms. X verbally attacked her and the respondent failed to address the situation. Whereas Ms. A, the College Principal explained what she did do at the time, which included meeting with Ms. X on the day that the issue was brought to her attention (Monday 14th April) and again on the following day; where she sought and received assurances from Ms. X that there would be no more trouble from her. I note that Ms. A visited the classroom to assess how the class was getting on (Thursday 17th April) and Ms. X was not in attendance. I note that the following Wednesday (23rd April) the College received notification of the complaint under the Equal Status Acts. I note that the respondent immediately started its own internal investigation under its own complaints procedure.
5.13 The complainant has established that she was verbally abused by a fellow student and that she reported that to the respondent and I note that the respondent accepts that. Notwithstanding, the chronology of events demonstrates that the respondent dealt with Ms. Payne's complainant immediately and it cannot be said that the College Principal "did nothing". I am satisfied that Ms. A acted promptly, appropriately and in a professional manner in the circumstances. I am also satisfied in this instance that had the respondent required to use the defence as provided by Section 11(3), it could have good reason to rely on this defence in the circumstances of this case. In considering this issue, I have found the evidence of Ms. A to be very credible in terms of the manner in which she dealt with the complainant. I am satisfied that the respondent was presented with a challenging set of circumstances and attempted to get a solution quickly. Having regard to the foregoing, I find that the complainant has failed to establish a prima facie case of harassment within the meaning of Section 11(5) of the Equal Status Acts, 2000 to 2008.
Trinity College Dublin - Discriminatory Treatment - Disability
5.14 I will now consider whether the complainant was discriminated against by the respondent because of her disability in terms of Section 3(1)(a), Section 3(2)(g) and Section 11. The complainant's submission is with respect to this part of the complaint related primarily to the interview she undertook to gain access into Law in TCD. She claims that the Chair of the interview panel acted in a discriminatory fashion in terms of the line of questions asked and the procedure followed.
5.15 It is a established practice through case-law that the Equality Tribunal or the Labour Court is clear in their role when examining situations such as the one before me, where interview candidates are being assessed for a Job, promotion or some other placement that the role is limited to examine if the selection process is tainted by discrimination on a prohibited ground. It is not the role of the Tribunal to delve into the debates of who is the most suitable candidate for the job, promotion or placement. This was referred to in Client Logic t/a UCAL -v- Kulwant Gill (ADE/08/4) where the Labour Court said that "[...] it is not the function of the Court to substitute its views on the relative merits of candidates for those of the designated decision makers. Rather, its role is to ensure that the selection process is not tainted by unlawful discrimination. Consequently, the Court will not normally look behind a decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result". Although the case is from employment law the principle is identical when considering similar situations under the Equal Status Legislation.
5.16 Firstly, I am satisfied that the complainant was afforded the opportunity to attend an interview for a place with the respondent. I note that the complainant had indicated that she had a disability on the documents furnished to the respondent. I have understood from the respondent that it did not take notice of that fact and set about proceeding in the normal interviewing fashion. I have carefully noted the evidence here, where it is clear that Ms. Payne introduced the topic of her disability at the interview and started to explain the historical genetic background to the interview panel.
5.17 It is clear that Ms. Payne feels somewhat compelled to explain her condition. She has stated that both in her written submissions to the Tribunal and in her oral evidence. I have noted that there is a repetition of her openly discussing her disability and the effects of it on her life. This, I am satisfied, has caused her a burden in her life and is obviously of great concern to her. I note that she said her disability often causes her to get stressed and uptight. The respondent's witnesses both confirmed that Ms. Payne appeared nervous on the day of the interview. I am satisfied that both of the respondent's witness's account of events is consistent and they independently collaborate each others evidence. I have found the respondent's witnesses to be very credible.
5.18 The respondent has indicated that the interview panel's job is to make an assessment of the candidates for a demanding Law degree course. I am satisfied that each candidate must show that they demonstrate the aptitude for the rigors of the course. I am satisfied that Ms. Payne was told and understood that she was not guaranteed a place in 3rd level College after the UAP in Pearse College. I am satisfied that Ms Payne was afforded an opportunity at the interview to persuade the interview panel of her credentials for the course. However, from the notes recorded by the members of the interview panel it is clear that she did not demonstrate that she had the required credentials at that time. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in this aspect of the claim in terms of Section 3(1)(a) and Section 3(2)(g) of the Equal Status Acts.
Harassment
5.19 As I noted above, I am satisfied that it was Ms. Payne that raised the issue about her disability at the interview. I am satisfied that she offered to explain her genetic historical background without request or encouragement from the interview panel. The evidence is clear here and has been substantiated by the respondents' witnesses and much of the evidence presented by the complainant supports that position. At the beginning of this decision I stated that Ms. Payne furnished substantial submissions in account of her trials against the different respondents. However, I note that the issue raised at the closing stage of the hearing where she claimed that Ms. B called her "a bit of Jew" was only introduced late in the day of the hearing. It was not raised prior to this and was totally refuted by both witnesses who were in attendance at the interview separately and independently. I am satisfied that such a late introduction is out of kilter with the rest of Ms. Payne's evidence as all her other claims were raised and referred to a number of times when she was asked to provide submissions to the Tribunal prior to the hearing. Accordingly, I prefer the version of the events from the respondents, whom I have already said I found to be reliable witnesses and who's account of events are clear and consistent. Therefore, I am satisfied that no evidence was presented to establish that the complainant was subjected to any prohibited conducted as defined by the Acts in contravention of Section 11 of the Acts. Accordingly, I find that the complainant has failed to establish a prima facie case of harassment in this aspect of the claim against Trinity College Dublin.
Reasonable Accommodation
5.20 In the case of disability in considering whether discrimination occurred, consideration must be also made to the issue of the provision of reasonable accommodation to a disabled person. Section 4 of the Equal Status Acts states as follows:
"4.- (1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question".
5.21 The Acts require the complainant to show, in the circumstances of this case, that the respondent did not do everything it reasonably could do to accommodate her needs as a person with a disability in terms of facilitating her access to avail of its service. I am satisfied in this case that there is no question to consider under the Section 4 of the Acts.
6. Decision
6.1 In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision.
6.2 On the basis of the foregoing I find that the complainant has failed to establish a prima facie case of discrimination on the Race, Disability and/or Age grounds in terms of Sections 3(1), 3(2)(f), 3(2)(g), 3(2)(h) and 4(1) of the Equal Status Acts, and accordingly, I find in favour of the respondents.
6.3 I find that the complainant has failed to establish a prima facie case of harassment on the Race, Disability and/or Age grounds in terms of Section 11(5) of the Equal Status Acts. Accordingly, I find in favour of the respondent in this matter.
______________________
James Kelly
Equality Officer
31st August 2011