THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
DECISION DEC-S2011-055
Parties
A Student
and
An Institute of Technology
(Represented by Rosemary Mallon B.L. instructed by Arthur Cox, Solicitors)
File Ref: ES/2009/014
Date of Issue: 23rd November, 2011
Equality Officer Decision DEC-S2011- 055
Keywords
Equal Status Acts 2000-2008 - Section 3(1) - Direct discrimination, Section 3(1)(a) - Disability Ground, Section 3(2)(g) - Educational Establishment, Section 7(2) - victimisation, Section 3(2)(j) - preliminary issue - statutory time limits, Section 21
1. Delegation under the Equal Status Acts, 2000 to 2008
1.1 This complaint was referred to the Director of the Equality Tribunal on 6th February 2009 under the Equal Status Acts, 2000 to 2008. On 28th February 2011 in accordance with his powers under Section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, 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 29th June 2011 and the final correspondence in relation to the case was received on 3rd August 2011.
2. Dispute
2.1 This dispute concerns a complaint by a student, Ms. A, that she was discriminated against by the respondent, An Institute of Technology, on the disability ground. The complainant maintains that she was discriminated against on the grounds of her disability in terms of Sections 3(1), 3(2)(g) 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. Ms. A claims that she is not alleging that discrimination occurred with respect to Section 4(1), that the respondent failed to provide her with reasonable accommodation. Ms. A also claims that she was victimised on foot of a solicitor's letter that was sent on her behalf to the respondent in August 2006.
3. Background to the case
3.1 The complainant, Ms. A, suffers from depression and anxiety which she claims was diagnosed in 2003. She transferred to the respondent from another college into 2nd year of a BA in Visual Communication in the 2005/2006 academic year. Ms. A has never formally registered her disability with the college. She failed certain parts of her 2nd year exams and was in dispute with the college over her progress in the course into the 3rd year. There was a difference of opinion on how that could be achieved and Ms. A engaged the services of a solicitor to write on her behalf to the college to ask it to allow her progress into 3rd year and repeat the part of the course she had failed in parallel with her 3rd year studies. She was facilitated by the respondent.
3.2 In November 2006 Ms. A was contacted by senior staff at the college and a meeting was arranged to discuss some issues arising from letters received from college staff and fellow students of Ms. A in relation to her behaviour. Ms. A claims that she was reprimanded by the respondent over the claims appearing in these letters. The respondent claims that there was no sanction on Ms. A and that the meeting with her was out of concern for her wellbeing and to ensure that she had the appropriate supports to assist her.
3.3 The complainant did not successfully complete any further modules in the course. She failed to sit the exams in May 2007 or the repeat exams in October 2007 and she did not attend again in May 2008 having registered for the course for the year.
3.4 The complainant sought to get details of the letters that were written about her and her behaviour from the respondent. She wrote to the Head of School on many occasions. However, the college did not provide her with access to the letters. She claims that she finally got access to these letters following a Freedom of Information request in July 2007 and was utterly shocked at their content. Ms. A claims that the letters were very damaging to her as they suggested that she may have a tendency to violence which she claims is a complete misrepresentation of her and that she deplores violence.
Summary of the Complainant's Case
3.5 The complainant claims that she was discriminated against and victimised on the grounds of her disability. She claims that there was a lack of communication from the College about her repeat examinations in autumn 2007 and for the academic year 2007/2008 and a lack of "satisfactory" responses to her appeals of examination results and requests for subject exemptions. She claims that all of this had a major impact on her ability to engage with the course.
3.6 The complainant claims that the discrimination and victimisation dates back to 27th July 2007, which she claims is the "date of her knowledge" following the Freedom of Information request. She claims that this had a huge effect on her life. She said that this whole process was a result of what appeared in the letters. She claims that the respondent's attitude towards mental health issues was poor and that it had no regard for her good name.
3.7 She claims that there were breaches of confidentially by the Disability Officer/Coordinator in the sharing of her medical information with other staff members in December 2006, which she discovered following a Freedom of Information request in June 2008. She also claims that the discrimination and victimisation is ongoing.
3.8 In response to the respondent's claim that the case before the Equality Tribunal is out of time, Ms. A said that I should consider her disability and the stress she was suffering at the time to be factors when determining on this matter.
4. Summary of the Respondent's Case
4.1 The respondent rejects that it discriminated against or victimised the complainant in any way not least on the grounds of her disability. It claims that it has never been made aware of her disability. It claims that Ms. A did meet with the Access Officer/Coordinator and she was advised among other things on how to go about registering her disability so the college could assist her and support her during her time there. It claims that she never registered her disability during her time at the college. It claims that it was unaware that she suffered from depression until the Equality Officer sought clarification of her disability prior to the hearing.
4.2 The respondent claims that letters were received from fellow students and staff associated with Ms. A. It claims that having received these letters it sought to meet with the complainant so as to get an understanding of the facts from her viewpoint and to highlight that there were concerns regarding her wellbeing. It claims that she was not reprimanded or sanctioned in any way, and the writers of the letters were not seeking to initiate formal proceedings against her.
4.3 The respondent claims that it did not breach Ms. A's confidentiality at any time, and that she was treated in the same manner as all the other students irrespective of her undisclosed disability. It claims that every attempt was made to engage with her and assist her in the college with her studies notwithstanding that she was unwilling to register the details of her disability.
4.4 The respondent states that Ms. A was not victimised by the college following her solicitor's letter of August 2006. It claims that it continued to engage with the complainant up to and including the summer of 2008. It claims that Ms. A was given ample support and opportunity to complete her studies and it claims that it was her who chose not to complete the course.
4.5 The respondent claims that the complaint is out of time. It claims that notification of the complaint was served on it by the complainant's solicitor on the 25th August 2008. The respondent responded to this on the 22nd September 2008 and the complaint was then referred to the Equality Tribunal on the 6th February 2009. The respondent claims that the complainant has indicated that the first alleged act of discrimination was 27th July 2007 (date of knowledge) and the last date of discrimination was listed as September 2008 (date of the respondent's reply to the complainant's notification of Equal Status complaint) and is ongoing. It claims that the complainant was a student with it since September 2005; her last examination was in May 2008, which she deferred. It claims that she paid for repeat examination in October 2007 but failed to sit them and did not complete any further examinations with the college after this date. It claims that there is no record of any further alleged incidents of discrimination or victimisation after May 2008 and therefore, even if one relies on the dates of discrimination alleged by the complainant, the complaint is out of time.
5. Conclusions of the Equality Officer in relation to the Issue of Jurisdiction - time limits
5.1 I will first consider the jurisdictional issue raised by the respondent because, if I find in favour of the respondent on this issue, I am therefore precluded from considering the substantive complaint made by the complainant. In making my decision, I have taken into account all of the evidence, written and oral, made to me by the parties.
5.2 I must first determine whether I have jurisdiction to consider the claim before me. The respondent has submitted that even based on the complainant's own evidence that the "date of knowledge" of the first alleged act of discrimination and victimisation occurred was on the 27th July 2007 and the last act was in September 2008 (and ongoing). However, it claims that September 2008 was the date that it replied to the ES1 notification received from the complainant. It claims that there is no record of any alleged incident of possible acts of discrimination or indeed victimisation after May 2008 and by those dates alone the complainant has failed to notify the respondent within the prescribed period as set out in the Acts. It claims that the notification of this complaint was received on the 25th August 2008 and that this is outside the statutory time limit for bringing such a complaint under the Acts. It also states that the complainant has not applied to extend the time limits as is so provided for in Section 21(3).
Scope of the Complaint
5.3 Having made inquiries from the complainant regarding the details of her claim and having considered the evidence adduced, I am satisfied that the issues of alleged discrimination and victimisation before me for consideration relates to how the respondent allegedly dealt with the complainant following the letters from college staff and fellow students in and around November 2006. This included the complainant's subsequent request for information and clarification about her results, completion of the course and information regarding repeats for the academic year 2006/2007 and 2007/2008. Ms. A claims that the extent of the discrimination and victimisation did not come to her attention until her Freedom of Information requests and subsequent release of documents on the 27th July 2007. I have read all of the evidence including all communications that were presented to me including all the letters, notes and emails between the parties and between the key staff within the respondent in relation to Ms. A and I am satisfied that there has been an open exchange of communications between the complainant and the respondent from their meeting in November 2006 through to June 2007. I note that Ms. A raised an issue that she felt she was being discriminated against by the respondent in how it dealt with her application on the 18th May 2007 over examinations taken and her appeal of examination results of the 14th June 2007.
5.4 The Equal Status Act sets out the procedure for a person who claims that prohibited conduct has been directed against him/her. Section 21(2)(a) makes provision for the time limits to which a complainant is obliged to adhere to before a complaint can be deemed admissible and this subsection also includes that the complainant shall notify the respondent of the nature of the allegation. I note that the reference to discrimination and less favourable treatment on the grounds of disability was contained in the notification form, Form ES1, which was sent by the complainant to the respondent to notify it of her complaint. I note that the notification was sent on the 22nd August 2008.
5.5 The respondent claims that the complainant failed to sit any further examinations from May 2007 notwithstanding that she registered and examination and course work was specifically prepared for her. In that respect it has asked me to consider two decisions of this Tribunal when determining whether the case is admissible or not. It claims that in the Decision of Wood -v- Aer Lingus the Equality Officer found that,
"3.5 [the notification date] is outside the time limits set out in the [Equal Status Acts]. I find that I cannot consider any subsequent date for any alleged unlawful conduct, as it is clear that by this time, the legal relationship between the complainant and the respondent had ceased to exist. The complainant does not have any right to seek redress for a policy that no longer applied to her as she had on her own volition ceased to be a service user under these acts.
3.6 Therefore, based on the facts of the case, I am satisfied that the complainant did not notify the respondent within the required time limit set out in section 21. I am mindful that the complainant had the benefit of legal advice. In addition I was presented with no reasonable cause as to why the time limits had not been complied with and am satisfied that the Director has not been approached nor granted any extension of time under section 21(3)(a).
[...]
4.2 The complainant has failed to comply with the statutory time limits set out in section 21(2). Therefore, I have no jurisdiction to proceed."
The other decision the respondent refers to which is states it relevant to consider was in the case of Lennon -v- HSE where the Equality Officer found that,
3.4. I appreciate that the complainant believes that because he engaged in an appeal process - which I am satisfied is carried out by an independent body with no vicarious liability issues arising concerning this respondent - he is entitled to claim that the second refusal to grant him a Primary Medical Certificate was second incident of alleged discrimination and therefore, his time limit should have only started on 17 August 2007. The law, however, is clear in this matter. In Minister for Finance v. CPSU (2006) IEHC 145, Laffoy J. stated in her conclusions that:
"Although not directly in point here, the established jurisprudence in this jurisdiction is that knowledge or discoverability of a material fact is not the trigger which sets a statutory limitation period running, unless the legislature expressly so provides. This is clearly illustrated by the decision of the Supreme Court in a medical negligence case, Hegarty v. O'Loughran 1 I.R. 148, which is referred to in the judgment of Morris J. in McDonald v. McBane"
While I note that the above judgement concerned the 6 month statutory time limit to lodge a complaint under the Employment Equality Act, it is, in my opinion equally applicable in the instant case. The time limits for notification are set out in section 21 of the Equal Status Acts 2000 to 2008 and the acts are clear in relation to the requirements.
[...]
4.2. The complainant has failed to comply with the statutory notification limits as set out in section 21 of the acts. Therefore, I find I have no jurisdiction to investigate this complaint.
5.6 I am satisfied that Ms. A's complaint is in relation to events that occurred in her interactions with the respondent prior to and including her seeking access to information in 2007 and in particular to her applications to the respondent in May and June of 2007, which she deems are cumulative acts of discrimination and victimisation on the disability ground that she only became aware of in July 2007. I note Ms. A had engaged the services of a Solicitor since as far back as August 2006 and was engaged in an appeals process and a Freedom of Information process with the respondent up to and including September 2008. However, I note Ms. A did not refer her complaint to the Equality Tribunal until the 6th February 2009. I note that Ms. A is attempting to rely on the date of the 22nd September 2008 as the most recent date of the occurrence of discrimination and victimisation - i.e. the date the respondent replied to the notification of her complaint. I have considered the two decisions raised by the respondent and am satisfied that there are aspects of these cases which are similar to the case here, namely, that Ms. A had the benefit of Legal Advice in her interactions with the respondent (Wood -v- Aer Lingus) and the date of knowledge of the most recent information via the respondent's reply to her notification of the complaint cannot be seen "as the trigger what sets a statutory limitation period running" (Lennon -v- HSE). I am satisfied from Ms. A's own evidence that her date of knowledge of the alleged discriminatory acts was 27th July 2007.
5.7 Section 21(6)(a) of the Acts is clear where it requires a complaint to be referred, in the first instance, within six months of the most recent occurrence of the alleged discrimination. That period can be extended by the Director to an absolute maximum of twelve months in certain circumstances (Section 21(6)(b)). The complainant alleges discrimination from a period from November 2006 to July 2007, and then sent a solicitor's letter in April 2008 and sought access to information by way of her most recent Freedom of Information request in June 2008. I note the respondent claims that even by relying on Ms. A's own dates and bearing in mind that she was legally represented through her time in the college, she failed to meet the notification time limits set out in the Acts.
5.8 I note the decision in this matter of the Supreme Court in The State (Aer Lingus Teo) v. Labour Court (No. 1) [1987 ILRM 373], where it was held that Section 19(5) of the Employment Equality Act of 1977, being the equivalent provision to Section 77(5) of the Employment Equality Acts 1998 to 2008 and identical in nature to Section 21(6) of the Equal Status Acts 2000 to 2008, obliged the courts to interpret the time limit strictly where reasonable cause for extension had not been shown. I further note the finding of the High Court in The Minister for Finance v. The Civil and Public Service Union and others [2006 IEHC 145], which upheld, inter alia, a finding by the Labour Court that the onus is on the party wishing to avail of an extension of time pursuant to the provisions of Section 19(5) or Section 77(5), respectively, to make an application to this end to the court or judicial body. I am satisfied that I have to interpret the time limits as set out in Section 21(6) accordingly.
5.9 From the facts put before me, I am satisfied that the case for consideration is how the complainant perceived the action of the respondent dealings with her, which she claims she became aware of in 27th July 2007. I note Ms. A did not refer this claim to the Equality Tribunal until 6th February 2009 albeit she had sought additional information through Freedom of Information after that date. However, I do not accept that this constitutes ongoing discrimination and consequently extends the statutory time limits as set out in Section 21. Accordingly, I therefore find that the complainant's case has been referred to the Tribunal outside the time limits prescribed by Section 21 of the Acts, and that no application for an extension of the time limits has been made prior to the hearing of the complaint (and notwithstanding that the claim would still fall foul of the statutory time limits). Accordingly, I find that the case was not referred within the statutory time limit prescribed at Section 21 of the Acts and is not therefore validly before the Tribunal.
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 The complainant has failed to comply with the statutory time limits as set out in Section 21 of the Acts. Therefore, I find I have no jurisdiction to investigate this complaint.
______________________
James Kelly
Equality Officer
23rd November 2011