Equal Status Acts 2000-2011
Decision No: DEC-S2012-046
A Student
(represented by Ms. Elizabeth Maguire B.L. instructed by Thomas J. Walsh Solicitor)
v.
A Third Level College
(represented by Arthur Cox Solicitors)
File Reference: ES/2011/117
Date of Issue: 28 December 2012
Key words
Equal Status Act, 2000 - 2011, direct discrimination, Section 3(1) - less favourable treatment, Section 7(2) discrimination in relation to an educational establishment, Disability, special treatment or facilities to accommodate the needs of a person with a disability - Section 4(1), Section 27(1) - redress for the effect of discrimination.
Delegation under Equal Status Acts, 2000-2011
The complainant referred claims to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2011 on the 8th of September 2011. On the 29th of May 2012, in accordance with his powers under section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the case to me, Marian Duffy, 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 which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the 5th of December 2012.
1. Dispute
1.1 The dispute concerns a claim by the complainant that he was discriminated on the disability ground. The complainant alleges that the respondent discriminated against him in terms of Sections 3(1)(a) and 3(2)(g) of the Equal Status Acts and contrary to Section 4 and Section 7 of the Acts by failing to provide him with reasonable accommodation in respect of his final examinations.
2. Summary of Complainant's case
2.1 The complainant was diagnosed with dyslexia when he was 7 years old. He has severe difficulties with reading and spelling and he was provided with special assistance throughout his primary and secondary education. For his Leaving Certificate examination he was granted the use of a laptop with Microsoft Word to write up his examination scripts. In September 2008 he entered college to study for a Bachelor of Commerce degree and he registered with the Disability Support Services. He provided the relevant medical assessment reports on his condition. Following an assessment of his needs the complainant was granted classroom supports and in relation to his examinations he was granted a spelling and grammar waiver, a reader and the use of a computer. For the first and second year examinations the complainant used a laptop computer with MS Word processing package which was supplied by the college. He said that has a spelling and grammar checker and because of his severe difficulties with spelling he found this tool very helpful in writing his scripts and ensuring the content made sense. On the 5th of November 2010 and shortly before his final degree examinations he received an email from DSS to say that it was the policy of the college to provide Notepad on the laptops used by students in examinations and this policy was being implemented for the upcoming examinations in December 2010. This software package has no spelling and grammar facility. The complainant said that he was very upset at this because he has severe dyslexia and he said that he needed the spelling and grammar checker in line with what he had for his examinations up to this.
2.2 The complainant appealed the decision and a series of emails ensued between him and the DSS but the decision was not changed. The complainant was informed that the laptop provided was for the sole purpose of assisting students with writing difficulties and that he would receive a learning disability awareness sticker which he could attach to his exam scripts to alert the person correcting it that he had a spelling and grammar waiver. The complainant wrote to several different people within the college but he was unable to overturn the decision. He had to do his examinations using the Notepad package and without the spelling and grammar checker. He believed that this impacted on the outcome of his final examinations and he failed to achieve the necessary grade to do a masters degree. He was of the opinion that his exam scripts could not be understood by the examiner and was unreadable because his spelling is so bad. He said that he relied on MS Word to correct the mistakes in grammar and spelling and his confidence in doing the examinations was completely lowered due to the decision of the college to deprive him of this tool. He also said that he had to spend a lot of time pleading his case with the college authorities coming up to his examinations and this impacted on his study time.
3 Respondent's Case
3.1 The respondent denied that the complainant was discriminated against on the disability ground. Ms. A the manager of the access centre said that her unit supplies support to students with disabilities. Students with disabilities on entering college complete a needs assessment and then have a one to one meeting with a member of the DSS. The purpose is to decide what accommodation the student needs for the particular disability. An agreement between the student and the college is entered into and signed by both parties. The student support plan was signed by the complainant and a member of the DSS on the 12th of September 2008. He was granted a spelling and grammar waiver, a reader and the use of a computer in the examinations. Ms. A accepts that the complainant used MS Word in his 2008 and 2009 examinations. She said that in 2010 it was brought to her attention by the examination unit that the word processing package made available to students for examination was inconsistently applied and was not in line with the College policy. A policy on supports for students with disabilities was drawn up by the Disability Advisors Working Network (DAWN) (it is an organisation of Disability Officers in higher education) some time in 2008. DAWN recommended that Notepad word processing be provided to students who use laptops for examinations. On the 6th of June 2008 College took a decision to implement it and it was decided that all students would be notified at the time of registering that this was the policy in relation to examinations. However the policy was not implemented consistently and some students had access to MS Word. Ms. A was not in charge of the DSS at the time so she does not know if the complainant was informed of the policy.
3.2 In October 2010 at a meeting with the examination office Ms. A said that a decision was taken to implement the policy and to ensure that only Notepad was provided on laptops used for examinations. On the 5th of November 2010 DSS notified all the students doing their examination on the computer that Notepad would be used for the examinations. The students were offered training on Notepad. The complainant emailed DSS and appealed the decision. A series of emails ensued between the complainant and DSS but the respondent refused to change the decision. Ms. A said that the use of a laptop is only given to students who have difficulty with handwriting and it is not an accommodation for student with spelling and grammar difficulties. Students who have a waiver for spelling and grammar difficulties are provided with a label which is attached to the examination script to alert the examiner of the difficulty. Examiners should only mark the student on the content of the answer and should not take spelling or grammar into consideration. She said that by allowing the complainant to continue to use MS Word for his examinations he had a double advantage given that he also used a sticker to alert the examiner to his difficulties.
4. Conclusion of Equality Officer
4.1 The matter referred for investigation turns on whether or not the complainant was discriminated against contrary to Sections 4 and 7 of the Equal Status Acts. The complainant alleges that the respondent failed to provide reasonable accommodation to him for his final examinations contrary to Section 4(1) of the Act. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
4.2 I am now going to consider the evidence to see if the complainant, who has severe dyslexia, was provided with reasonable accommodation under section 4 of the Equal Status Acts. A person making an allegation of discrimination under the Equal Status Acts must first establish a prima facie case of discriminatory treatment. Once a prima facie case of discrimination has been established by the complainant the burden of proof shifts to the respondent to rebut the presumption of discrimination established by the complainant.
There are three tests which the complainant must satisfy to establish a prima facie case
(i) Is the complainant covered by the discriminatory ground? (in this case has the complainant a disability?)
(ii) is there evidence that he has been subject to a specific treatment by the respondent?
(iii) did the respondent's actions amount to a refusal or failure to provide reasonable accommodation, in accordance with section 4 of the Equal Status Acts for the complainant's needs as a person with a disability, which made it impossible or unduly difficult for him to do his final examinations?
It is accepted that the complainant has dyslexia. In relation to (ii) above it is also accepted that the use of MS Word processing package was no longer available to the complainant for his examinations. It was also accepted that he required special facilities including classroom supports and examination supports.
Section 4 of the Equal Status Act provides that, inter alia:
"(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.
4.3 The complainant had the use of MS Word for two years of examinations and this facility was withdrawn for his final examinations in December 2010. The complainant's case is that he was assessed when he entered the college in 2008 and again in 2009 and granted reasonable accommodation including reasonable accommodation to do his examinations. This included a reader for his examinations and the use of MS Word on a laptop computer. He said that he had an expectation that this facility would continue for his final examinations and the withdrawal of the facility of MS Word a few weeks prior to his examination disrupted his preparation for the examination. The respondent's case is that reasonable accommodation was provided to the complainant including a reader and other examination supports and it was simply implementing a policy to ensure that all students with disabilities are treated equally. I note that the student support plan signed by the complainant and DSS stipulated that the complainant would have the use of a computer in examinations but the plan did not specify the software package on the computer. I also note that he was not advised that it was the University policy to provide Notepad. Likewise I note the complainant was provided with MS Word for all his examinations up to 2010. Therefore he had a reasonable expectation that this software package would be provided for his final examinations. It is clear from the evidence that the complainant relied on the spelling and grammar functions of MS Word to assist him with his severe spelling difficulties. It is clear from the psychological assessment reports made available to the respondent that the complainant had repeated assessments which showed he had severe dyslexia which affected his reading and spelling in particular. I am satisfied therefore that the withdrawal of the software package which provided the complainant with a spelling and grammar function constituted the withdrawal of a reasonable accommodation. I accept that the complainant had a sticker which indicated to the examiner that he should not be examined on the spelling and grammar and only examined on the content of his answers. In considering reasonable accommodation, I note that section 4 of the Act requires the respondent to do "all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities". This means that the Act requires the respondent to show that it did all that it could reasonably do to accommodate the needs of the complainant.
In considering reasonable accommodation under Section 4 of the Act, I note that, in a Circuit Court appeal from a decision of the Equality Tribunal in the case of Deans v Dublin City Council, Judge Hunt considered the concept of reasonableness in the context of that Section of the Act. Hunt J. stated: " ...reasonableness must be judged according to the context of the individual case........ The City Council is entitled to bear in mind all the extensive and considerable social, legal and policy considerations ...... and they are indeed relevant to the decision as to what is reasonable in the particular case.... The Housing authority is not obliged to submit to every wish expressed by a disabled person in the context of an application for facilities..... All that it is commanded to do by the equality legislation is to devise a "reasonable" solution to a problem, not to achieve perfection and not to give in to every demand that is made of it,"
4.4 The respondent submitted that the College has a duty to maintain the integrity of the examinations and the withdrawal of MS Word and replacing it with Notepad ensured a level playing field for all students taking examinations on a laptop. The respondent accepts that the policy of the College as regards software packages was applied inconsistently. Some student who had hand writing difficulties but did not require a spelling and grammar waiver had access to MS Word and this gave them an advantage over student who had to hand write their examinations. It was also submitted that if the complainant was allowed to continue to use MS Word for his examinations he had an advantage over other students with a disability and who did not have the use of a laptop for examinations. I was referred to the High Court Judgment of Cahill and the Minister for Education and Science [2010] IEHC 227. This was a case under the Equal Status Acts concerning the annotation of the Leaving Certificate for students who were given special accommodation to do their examination. Mr. Justice de Valera stated:
"Nowhere in that case law is there any suggestion to the effect that equality rights must be absolutely guaranteed without limitation in the name of reasonableness even in cases where the requirements of reason and common sense require the taking of some action which may not be to the complete satisfaction of the person asserting them, in this matter the plaintiff. It appears to me to be a question of balance and that the contention advanced on the part of the appellant invites the court to embrace an unreasonable definition of "reasonable accommodation" which tips the balance too far in favour of the appellant to the detriment of other parties with a legitimate interest in the fair and equitable administration of the Leaving Certificate examination."
The respondent submitted that they were entirely satisfied that the solution to the problem of the inconsistencies which arose in relation to the software provided to students for examinations was reasonable and appropriate. It was further submitted that it was not contrary to the ES Acts not to resolve the problem to the complete satisfaction of the student seeking the reasonable accommodation.
4.5 The facts of the Cahill case differ from the case in hand in that the appellant in that case was seeking to prevent the annotation of her Leaving Certificate. In the case herein the complainant has submitted that it was unreasonable to withdraw a reasonable accommodation facility already granted to him. I note from the evidence that the facilities that the complainant required to overcome his dyslexia so that he could study for his degree and do his examinations were agreed with him and signed up by both parties. It is an implied term of that agreement that MS Word would be available to him for his final examinations given the fact that he was supplied with MS Word for his examinations for the first 2 years. In my view it was the duty of the respondent to ensure that the complainant continued to have the reasonable accommodation to which both parties signed up to. In applying the jurisprudence of the above mentioned Deans Judgment to the case in hand, and in considering whether the facilities put in place to accommodate the complainant's disability, so that he could perform to the optimum in his examination were reasonable, I am not satisfied that the respondent, by withdrawing the facility of MS Word from all the students who used a laptop in their examinations, devised "a reasonable solution to a problem". In my opinion the respondent could have resolved the inconsistencies by withdrawing MS Word from those students who used laptops for examinations due to handwriting difficulties only and they could have continued to provide MS Word to students such as the complainant who have severe dyslexia. I am satisfied that this solution would not have compromised the integrity of the examinations. In the above mentioned Deans case, Hunt J. stated that reasonable accommodation must be considered in the context of the individual case. The respondent by withdrawing the facility in this specific context from the complainant failed to consider the complainant's individual needs as a person with severe dyslexia.
4.6 For all of the above reasons, I find that the complainant has established a prima facie case of discrimination. I find that the respondent, by withdrawing the MS Word facility for the purposes of the examination failed to provide reasonable accommodation in accordance with Section 4(1) of the Act and therefore has failed to rebut the prima facie case of discrimination on the disability ground raised by the complainant. In the interest of clarity I should say that it is not my role to make any determination on the results of the complainant's examination, this is a matter solely for the examining authorities of the University.
5. Decision
5.1 I find that the complainant was discriminated against in terms of section 4 and 7 of the Equal Status Acts.
Under section 27(1) of that Act redress may be ordered where a
finding is in favour of the complainant. Section 27(1) provides that:
"the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination;
or
(b) an order that a person or persons specified in the order take a course of action which is so specified."
5.2 Under Section 27 the maximum amount of compensation I can award is €6,349. In considering the amount of compensation that I should award I have taken into account the effect the discrimination had on the complainant and the fact that MS. Word was withdrawn so close to his final examination disrupted his studies and caused him considerable distress and anxiety as evidenced by the meetings he had with the college and amount of correspondence entered into by him with the college authorities. In the circumstances I order the respondent, to pay to the complainant the sum of €3,000 to compensate him for the distress and anxiety caused to him.
___________________
Marian Duffy
Equality Officer
28th December 2012