The Equality Tribunal
Equal Status Acts 2000 to 2011
Decision Number
DEC-S2012-030
Parties
A Student
(Represented by Ms Anne Marie Phelan BL on the instructions B.J. O'Beirne and Company Solicitors)
V
A Third Level Institution
(Represented by Arthur Cox Solicitors)
Case ref: ES/2011/0071
Issued: 7 August 2012
Keywords:
Equal Status Acts 2000 to 2004 - Discrimination - Disability - Failure to provide reasonable accommodation - Educational establishments - Prima Facie Case
1. Delegation under the Equal Status Acts 2000 to 2011
1.1. A Student referred a claim (hereafter "the complainant) to the Director of the Equality Tribunal under the Equal Status Acts on 19 April 2011. The Director dispensed with the requirement to notify the respondent of the alleged discrimination in accordance with the Acts on 23 June 2011. In accordance with his powers under section 75 of the Employment Equality Act, 1998 and section 25 of the Equal Status Acts, the Director then delegated the case to me, Tara Coogan, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under part III of the Equal Status Acts on 2 February 2012. An oral hearing, as part of the investigation was held in Dublin on 1 June 2012. A previous hearing had been adjourned on parties consent to allow the complainant to familiarise herself with the respondent's submission. The parties have agreed that the names are to be redacted.
2. Dispute
2.1. The dispute concerns a complaint of unlawful discrimination and a failure to provide reasonable accommodation. The complainant submitted that a named third level institution school ("the respondent") discriminated against her by, inter alia, not accommodating her mental health difficulties and by drawing attention to her visual disability.
3. Case for the complainant
3.1. The complainant is a female with a visual disability and mental health issues. The complainant had enrolled in a degree course leading to a professional qualification in social care in the respondent college. In her first year the complainant had been assigned with a number of aids to accommodate her visual disability. She submitted that her first year passed without incident and she was anticipating that the second year would proceed in a similar manner.
3.2. The complainant took a year out of college due to, inter alia, her mental health difficulties. She returned to her second year of study in September 2010.
3.3. However, on her return to college in the autumn on 2010 the complainant encountered a number of difficulties:
1. On 20 September a lecturer asked if the class minded if a student used a recording device. The class did not mind and the complainant used her recording device.
2. On 21 September a lecturer told the complainant that she could not use the recorder. The complainant told the lecturer that she had a disability in front of the whole class but despite this the lecturer told her not to use it that particular day.
3. The week beginning 27 September the complainant stayed away from college as she felt like a 'pariah' and more disabled than ever. The complainant spoke to her class tutor and informed her that her mental state was being impacted by her disability being highlighted in front of the entire class
4. On 4 October the complainant's note taker was not allowed to stay for the complainant's drama class. The lecturer cited confidentiality issues as a reason. The complainant stated that she informed the lecturer that she found such notes to be invaluable but the lecturer still refused the note-taker. Furthermore, the lecturer then drew even more attention to the complainant's visual disability by requesting that the class be mindful of it when throwing balls around the class. This made the complainant feel even more separate from the group.
5. On 6 October the complainant was 4 minutes late for her class. The reason for this was due to commuting issues. Upon arriving at her class the complainant discovered that the note-taker was outside and had to leave to fetch her. The complainant and her note-taker then returned to class where the lecturer said she would speak to the complainant and her note-taker after class. The complainant left the class without speaking with the lecturer as she was angry at the manner in which the she and the note-taker had been treated. The complainant then spoke with the disability liaison officer about these issues who provided the complainant with a letter stating that the complainant required a Dictaphone and a note-taker. The complainant did not agree with this approach as she felt uncomfortable with it.
6. The complainant submitted that she discovered by accident upon speaking to another student that there had been a change to her tutorial schedule. The tutorial list had been on a notice board only and the complainant had not been on notice to look for it.
7. The complainant met with her tutor who suggested that the complainant may be too sensitive about these issues and suggested that it may be a good idea to ask the note-taker to wait outside the classroom and only enter the class in the company of the complainant. The complainant also ought to attempt to be on time. It was also suggested to the complainant that as she aspired to work in social care she should be self-monitoring.
8. The complainant asked a lecturer to read out the text in a Powerpoint presentation. The lecturer lifted the complainant's Dictaphone and talked into it. The complainant acknowledged that the lecturer was being playful and took it in the spirit in which it was meant. Nevertheless, the complainant found the matter to be embarrassing as the lecturer drew attention to her disability.
9. The complainant was ill for a couple of days in October and her note-taker attended classes in her absence.
10. On 20 of October the complainant received messages from her note-taker to call her. A lecturer had indicated to the note-taker that it was highly inappropriate for the note-taker to attend when the complainant was not there. The note-taker had responded that it was her remit to take notes whether the student was there or not. The lecturer declared this to be unacceptable and asked the note-taker to follow her out of the class (in front of the whole class). The lecturer brought the note-taker to the named head of the department.
3.4. It is the complainant's case that the respondent discriminated against her in relation to her access to the respondent's course and facilities and in relation to the terms and conditions of participation of the respondent establishment in accordance with section 7 of the Acts. The complainant relied on Kwiotek V National University of Ireland (DEC-S2004-176) in setting down the correct test for a complainant to establish a prima facie case.
3.5. The complainant submitted that felt that the complainant's disabilities were used against her and that she was being made feel very disabled by the college. It is the complainant's position that it is not her responsibility to communicate with individual lecturers about her disabilities and the reasonable accommodations that she had been provided with.
3.6. The complainant was not provided with a written policy concerning note-takers and submitted that such a policy was never discussed at her meetings with the disability service. Nor was the complainant aware of the policy concerning Dictaphone use.
3.7. It is the complainant's position that her educational needs assessment was not effectively communicated to the respondent staff in accordance with the Dawn Handbook: Teaching Students with Disabilities: Guidelines for Academic Staff.
3.8. The complainant lives a good distance away from the respondent college and submitted that two bus routes had been cut in that academic year. It was a challenge for the complainant to discover the best route to the respondent college particularly as the complainant has a visual disability.
3.9. The complainant submitted that the incidents left her feeling more disabled than ever and as a result she was compelled to leave the respondent establishment. These events have had a devastating effect upon the health and impact of the complainant.
4. Case for the respondent
4.1. The respondent is a third level institution offering a range of undergraduate, postgraduate and part-time degree programmes, training and apprenticeships. The programme that the complainant was involved in includes a range of learning and teaching approaches. The respondent adopts student centred methodologies in all aspects of their work and seeks to have active student involvement in all classes. In the interests of all students and their professional development the high level of confidentiality that is required cannot be infringed. The respondent has therefore adopted a policy whereby some classes cannot be recorded and in other cases the class in accordance with the respondent policy will be asked if they agree to the lecture being recorded.
4.2. The respondent refutes the complainant's claim that she treated less favourably on the grounds of disability. The respondent's teaching and treatment of the complainant was in accordance with its statutory obligations at all times. The respondent's employees made numerous efforts to effectively resolve the complainant's difficulties and to facilitate the complainant's learning needs. These efforts included positive measures which were bona fide intended to accommodate the complainant. The complainant was at all times treated with respect and dignity. It was submitted that the respondent has the largest number of people with disabilities of any third level institution and the retention rates speak for themselves in indicating the level of care that is provided to students.
4.3. While the respondent endeavours to promote the educational needs of students with disabilities, it must be cognisant of the other students within the class and the possible impact of the use of a recording device in a class environment. Thus, it was submitted that it was reasonable for a lecturer who was new to the complainant's class to enquire about the use of the recording device. The aim was to promote an open learning environment and was not intended to humiliate or embarrass the complainant.
4.4. It is accepted that once, during an interactive class, the complainant was refused the use of a recording device. The reason for this was the fact that the lecturer was encouraging the class to share their knowledge and experience of mental health difficulties that often involves student's describing the personal circumstances of family members, friends and clients with whom students have worked in the past or with whom they are working in the present.
4.5. It is accepted that the complainant's note-taker was not entitled to remain in the lecture. It was submitted that the lecturer explained to the complainant and the note-taker the sensitive nature of the class. The complainant was facilitated throughout these classes in either partner work or in small groups. It is accepted that the lecturer did closely facilitate and monitor the complainant and that this evidences the respondent's attempts to accommodate the complainant in accordance with section 14(1) of the Acts. Such bona fide intentions to cater for the special needs of the complainant were not intended to single out the complainant from other students or to emphasise the complainant's disabilities.
4.6. The note-taker was requested to leave on foot of the respondent's note-taker policy that is based on Disability Advisors Working Network's issued national guidelines. The policy is clearly published on the respondent's website. It was submitted that the lecturer acted in accordance with the guidelines. The note-taker policy is to assist students with note-taking. Its aim is not to substitute attendance.
4.7. The respondent's learning support officer (LSO) met with the complainant on 6 October 2010. Difficulties that the complainant was experiencing were discussed and the LSO brought these matters to the attention of the Disability Service. The complainant was also provided with a letter explaining her need for academic accommodations and supports that she could hand out to her lecturers. The complainant chose not furnish this letter to her teachers. It was submitted that the respondent had taken reasonable steps to attempt to accommodate the complainant's difficulties as soon as it became aware of these difficulties. The complainant did not express her dissatisfaction with the proposal to the respondent.
4.8. It is submitted that the complainant's claim that a tutorial list was posted on a notice board is factually incorrect. All students were distributed with individual information, including tutorial arrangements, on the requirements for their 2nd year with the respondent. This information was provided in both written and verbal format. It was submitted that the complainant was informed of the tutorial arrangements at the beginning of the academic year.
4.9. The respondent denied that the complainant was told that she ought to be self-monitoring by her tutor. It was submitted that the tutor had informed the complainant that mandatory attendance was required by certain modules and that if the complainant was sick, she ought to inform her tutor and provide medical certificates in order for the tutor to be able to provide support and act as an advocate on her behalf with the lecturers of the modules she had missed. In addition, details of College Counselling Service were also provided to the complainant as a further support.
4.10. The incident involving a Dictaphone was an attempt to facilitate the complainant by reading out the text on a Powerpoint presentation and speaking clearly into the Dictaphone so as to aid the subsequent transcription by its user. There was no intention to draw undue attention to the complainant's disability or to cause unnecessary embarrassment in front of other students.
4.11. The complainant's class tutor made numerous attempts to contact the complainant to provide her with support. The respondent did all that was reasonable to accommodate the needs of the complainant and never sought to impede the complainant's access to services or prevent the complainant being afforded appropriate or reasonable accommodations. An attempt was made to meet with the complainant in November 2010 to ensure that she was satisfied with the accommodations but the meeting never went ahead as the complainant had indicated her intention to defer. The complainant has refused to engage with the respondent since.
4.12. It is the respondent's position that the complainant has failed to establish a prima facie case of less favourable treatment on the grounds of disability. The complainant was not treated in a less favourable manner than it treated any other student without a disability or another student with a disability. Consequently, there are no facts supporting a finding of less favourable treatment or indeed discriminatory treatment. Every reasonable effort was made to accommodate the complainant.
5. Conclusion of the equality officer
5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination.
5.2. The Acts impose an onus on an educational institution to provide reasonable accommodation to people with disabilities in circumstances where such a need exists. Special treatment of such nature refers to a situation where because of a disability a student would find it impossible or unduly difficult to avail of the educational service being offered. Clearly, not all people with disabilities need special assistance, facilities or services. Accordingly, in the first instance an educational establishment must be on notice of a disability. Provided that a provider of education is on such notice, then it has a legal duty to include the person with a disability in a consultation process in order to ascertain what the disabilities are and how they can best be accommodated. If a provider of education is not on notice of a disability it cannot be expected to carry out such enquiries. Thus, a student wishing to make a claim of a failure to provide reasonable accommodation must be able to show that they have disclosed all relevant disabilities and material facts to the respondent. I am satisfied that the complainant is a person with disabilities in accordance with the Act.
5.3. It is the complainant's case that the respondent's disability service was on notice of her visual disability and mental health issues. The respondent accepts that it was on notice in relation to the complainant's visual impairment and had acted accordingly. Much debate took place in relation to whether the complainant had notified the respondent of her mental health issues. I note that she notified the Examination Board of the fact that she suffers from depression and anxiety (with an accompanying medical note) on 13 May 2009 and submitted that the respondent was on fixed notice of her mental health disability from that date. Furthermore, the complainant had deferred her studies for a year in 2009 and in support of this application had, on 24 August 2009, submitted details of her mental health difficulties. It is clear that the complainant also did gradually discuss these issues with support staff in the autumn of 2010. I note that it is the complainant's position that having informed the examination board of her mental health issues the respondent was on notice of same in accordance with their own policies.
5.4. The facts of this case make it very clear that the complainant was provided with reasonable accommodation in relation to her visual disability and/or memory retention issues. These included the use of Dictaphone and a note-taker who would accompany the complainant to classes. These assessments were provided to the complainant on foot of a needs assessment. It is clear that the complainant informed the examination board and the respondent about her mental health difficulties and sought special treatment in relation to the examinations and her need to defer a year. The facts support a finding that these requests were adhered to by the respondent.
5.5. It is clear that the complainant's mental health issues really became a matter of concern in relation to academic participation at the beginning of her second year. It is clear that efforts were made by her class tutor and others to address some of the issues that the complainant notified the respondent of. Reasonable accommodation can be an on-going process and both parties have a duty to engage with this process. It is not a failure to provide reasonable accommodation on behalf of the respondent when a service user chooses not to avail of the special treatment on offer. If such a special treatment is insufficient to make a service accessible - and a nexus with the disability is shown - then a respondent may have a duty to explore the availability of other options (subject to nominal cost). I am satisfied that the respondent did attempt to overcome the issue of the complainant feeling uncomfortable about the need to explain why she needed a Dictaphone and/or note-taker. It is also clear on the complainant's own evidence that the she rejected these efforts without trying them.
5.6. It is the complainant's case that she ought to be able to avail of all of the educational support at all times and in a manner that does not draw attention to her disability. I do not accept that a lecturer inquiring from a class whether they object to a Dictaphone being used is an attempt to draw attention to the complainant's disability. The complainant was receiving special treatment at the time and it is perfectly legitimate for a lecturer to alert other individuals to this fact especially in circumstances where this special treatment could mean that their comments, questions etc are being recorded. I find that it is proper that a class is informed of the fact that it is being recorded. Such actions do not constitute less favourable treatment on the disability ground.
5.7. It was suggested that it is a failure to provide the complainant with reasonable accommodation in circumstances that allow individual lecturers to determine whether a Dictaphone is used or whether a note-taker is required. Reasonable accommodation is about enabling a person with a disability to overcome a situation where that person because of a disability would find it impossible or unduly difficult to avail of a service. The issue here is whether an individual lecturer breached the complainant's entitlement to special treatment after the disability services had deemed such services relevant. I am perfectly satisfied that the respondent has policies around the use of such special treatments and I accept that such policies are necessary to ensure the independent nature of the quality of the education being provided. Thus, in certain circumstances, certain special treatments may not be necessary or appropriate. While I accept that the complainant found the use of a Dictaphone to be comforting (and therefore it may have alleviated her anxiety) I am not convinced that it was impossible or unduly difficult for her to participate in an interactive class. The nature of such a class is not the same as a standard 'lecture' and participants are not expected to take notes or record (in writing or on tape) such discussions. I note that the complainant's difficulty with this matter was that in her view it drew attention onto her disability, not that she found participation in the class impossible or unduly difficult.
5.8. The issue of note-takers attending a class when the student has been granted special treatment but the student him/herself does not attend. Thus, in circumstances where a student is absent because of the disability, the provision of such a service may be appropriate provided that the actual attendance on reasonable grounds is not a specific requirement for the qualification being obtained. That is, it is equally possible that an absence can or cannot be reasonably accommodated depending on the circumstances of the case. However, it is not reasonable accommodation to provide such assistance when it is not necessitated by a disability. In circumstances where a person with a disability is late or otherwise indisposed as was the case here, the provision of a note-taker to such a person constitutes more favourable treatment and could give raise to an argument of a person with a disability being more favourably treated than a person without a disability or a person with a different disability (who does not avail of a similar special treatment) would be treated in similar circumstances. It was argued that the complainant was not notified of this issue. However, I find that a person availing of third level education ought to reasonably appreciate the purpose and nature of the special treatment granted to him and her. It is not reasonable to assume that a person who does not attend classes is entitled to benefit from his/her absenteeism (unless where it would be reasonable in exceptional circumstances arising from the person's disability only). Reasonable accommodation is this case is about ensuring the equal participation of the person with a disability.
5.9. I find, having heard all the facts, that the complainant merely assumed she had missed a lecture based on a conversation she had with a third party. The facts do not support a finding that a tutorial change took place at all.
5.10. Reasonableness, as Judge Hunt stated in Deans and Dublin City Council1, must be judged in accordance with the individual case. Reasonable accommodation is not about meeting an individual wish list, all that the legislation envisages is that the service provider ensures a 'reasonable' solution to an obstacle arising from a disability. I am satisfied that the respondent has endeavoured to accommodate the complainant and has responded each time that a difficulty has arisen and it has been on notice of same. Such accommodation is not perfection and, due to its very specific nature, is absolutely about accommodating a disability only.
5.11. I note that the complainant submitted that the fact that individual lecturers on a few occasions regulated or referred to the complainant's use of special treatment actually made her feel more disabled than she was; that her disabilities were used against her; and that she was being signalled out as a person with a disability. This is regrettable. I find that the present case is a difficult double disadvantage situation where two very different disabilities give rise to very different and in a way, competing needs. On the one hand, there is no getting away from the reality that the complainant is a person with a visual disability who needs special facilities and treatment and on the other hand, the complainant is a person who suffers from depression and anxiety. It is clear that at the material time she found her educational environment very challenging in that she perceived the issues surrounding these special needs as emphasising her disability challenging. It is regrettable that the fact that it was necessary at times for the respondent to interact with others about these special treatments also had a negative effect on the complainant's mental health. I note that the complainant felt that she was compelled to defer and she has not returned to the respondent college. This means that any further process involving questions around reasonable accommodation for the complainant could not be explored.
5.12. I am compelled to say that I find this to be a tragic case resulting from the challenging environment where mental health issues complicate a situation where another disability necessitates different treatment. It is clear that the complainant is an intelligent and capable woman who engaged to a point with the respondent about the difficulties she was experiencing. She presented herself as a very honest witness and often recognised that the situations that she found so challenging were genuinely meant to be of assistance to her or that such actions were made in jest. Nevertheless, she did clearly find these 'supports' to be embarrassing and upsetting. I note that the complainant stated a number of times during the hearing that she herself did not know what she needed in order to be able to remain on the degree course. The reality is that reasonable accommodation can only achieve so much. I am entirely satisfied that the respondent did all that is reasonable in this case.
6. Decision
6.1. In accordance with section 25(4) I conclude my investigation and issue the following decision:
6.2. The complainant has not established a prima facie case of direct discrimination on the disability ground.
6.3. The complainant has established a prima facie case for reasonable accommodation arising from her disabilities. The respondent has successfully rebutted this inference.
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Tara Coogan
Equality Officer
August 2012
1 Approved judgment of Hunt J. Dublin Circuit Court 15 April 2008.