Equal Status Acts 2000 to 2011
Decision DEC-S2012-028
PARTIES
A Pupil
(Through his next friend and father)
V
A School
(Represented by Mason Hayes & Curran Solicitors)
Case ref: ES/2011/0102
Issued: 16 July 2012
Keywords:
Equal Status Acts 2000 to 2004 - Discrimination - Disability - Failure to provide reasonable accommodation - Harassment - Victimisation - Educational establishments - Prima Facie Case
1. Delegation under the Equal Status Acts 2000 to 2011
1.1. A pupil referred a claim through his next friend and father (hereafter "the complainant) to the Director of the Equality Tribunal under the Equal Status Acts on 14 July 2011. The respondent was notified of this complaint in accordance with the Acts on 1 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 27 March 2012. An oral hearing, as part of the investigation was held in Dublin on 18 June 2012. The parties have been redacted to protect the identity of the minor.
2. Dispute
2.1. The dispute concerns a complaint of unlawful discrimination, harassment and a failure to provide reasonable accommodation. A claim of victimisation was also made. The complainant submitted that a named school ("the respondent") discriminated against him by, inter alia, intimidating him in front of the class; dismissing the complainant when he attempted to explain matters to his teachers; not compensating him from stolen property; not providing him with a free rugby jersey; leaving him outside the vice-principal's office for hours and omitting to inform the complainant's parents when the complainant left the school without permission.
3. Case for the complainant
3.1. The complainant, a teenager, suffers from anxiety and depression. He has never been diagnosed with a specific disorder but it was submitted that once when he was a child a doctor had to give him medication to calm him down. It was submitted that the complainant could not cope well with confrontation and would withdraw into himself. Numerous letters from the complainant's doctor were forwarded to the school in relation to this issue.
3.2. The complainant submitted that a litany of unfairness had occurred against the complainant in the couple of years that he was a pupil in the school. The complainant submitted that he had been subjected to:
1. An unfair disciplinary process by the school principal. The principal is married to another teacher of the school and the complainant was called to a disciplinary meeting concerning this teacher. It was the complainant's case that he was denied fair procedures because the principal could not be impartial in such situations;
2. Being dismissed by his teachers when he attempted to explain matters to them despite him having a disability and this was frustrating for the complainant;
3. The complainant's new clothes were stolen and the school refused to investigate the matter;
4. The complainant was left standing outside the gymnasium for a period of 2.5 hours and the school had failed to notify his parents about the fact that the complainant left the school premises unauthorised;
5. The complainant had been ridiculed for not having a calculator with him in his mathematics class despite the fact that the teacher was informed that the complainant's calculator was stolen. The complainant's parents maintained that they could not afford to buy the complainant a new one (they had already bought two) yet the teacher kept at the complainant to obtain a new one. The complainant was also challenged for not having a journal;
6. The complainant's parent also submitted that at a parent meeting one of the teachers entering the room commented that it would be 'an inquisition'. The complainant's parent submitted that when he replied the 'Spanish' the teacher merely stared at him. During the meeting the teachers were 'skitting' and disrespecting the complainant's parents;
7. It was submitted that the principal of the school addressed the pupils of the respondent school informing them that education was a key and that pupil's should aim for college and that those who did not do so would become 'scumbags' and like the '[name of a local Traveller family]'.
3.3. The complainant felt he had no other option but to leave the school because of the harassment and less favourable treatment that the he received as a person with a disability. It is the complainant's case that the school has very draconian rules and that the treatment the complainant received was akin to removing a ramp from a wheelchair user. If the complainant had Turrets syndrome he would not have been punished for using inappropriate language but in the case of the complainant, the school took no reasonable steps to accommodate the complainant's disability. It was submitted that this failure to accommodate the complainant and the harassment caused the complainant's parents and the complainant untold stress and anxiety and added to their existing depression and anxiety.
3. Case for the respondent.
3.1. The respondent rejected that it had any knowledge of the complainant's disability. It was submitted that when the complainant was enrolled in the school no mention was made of a disability. No psychological assessment was provided or referred to the school. The respondent has never received any application for reasonable accommodation in advance of the Junior Certificate. It was accepted that the Principal, who meets the parents of all new entrants, was informed by the complainant's parent that he was sensitive, over anxious and did not like confrontation. It was also accepted that the complainant's mother had mentioned that the complainant had been bullied in the past. The primary school report defined the complainant as well behaved, easy to deal with and middle of the class in terms of academic achievement.
3.2. The respondent rejected any claim that the complainant was treated differently from any other student. Anytime the complainant wished to explain or clarify something he was listened to in the same manner as any other pupil.
3.3. It was never categorically established whether the complainant's jacket was stolen in school, stolen elsewhere or mislaid. The respondent searched and carried out an investigation as it would have in any case. The jacket was not found and the complainant was informed of this. It was submitted that incidents of this nature occur from time to time. No school can guarantee to recover such items and such an incident is not an indication of less favourable treatment or lack of sympathy by the school.
3.4. The complainant was asked to sit outside the gymnasium for disciplinary reasons. It was submitted that this standard procedure when pupils are asked to wait for an investigation pending by a Deputy-Principal. It was submitted that the longest any pupil has been there has been for 40 minutes as the Deputy-Principal returns to his office after every 40 minute class. The Deputy Principal stated giving evidence that he had understood the matter to have been sorted and that the complainant had removed the offending t-shirt as requested and returned to class.
3.5. It was rejected that the teachers made a joke of the complainant or his father. It was submitted that the reason why so many teachers joined the meeting was because the school considered the issues to be a serious matter. The parents had been asked if it was ok for the teachers to participate and they had not objected. The fact that the complainant's father had somehow understood that the meeting was viewed as a 'notorious religious court' by the respondent was baffling to the respondent and certainly regrettable. It was denied that any such suggestion had ever been made by the respondent.
3.6. It was rejected that the principal carried out an investigation into the matter concerning the complainant and his wife. It was submitted that such an approach would have been inappropriate. It was submitted that the vice-principal, who gave evidence on this matter at the hearing, who dealt with the issue.
3.7. The complainant's maths teacher also gave evidence about the calculator incident. She submitted that normally when a pupil had omitted to bring their calculators in they would have made some efforts to borrow one from someone else. It was her evidence that the complainant was not particularly interested in maths and that it was her duty as a maths teacher to ensure that the complainant received a maths education. It was not the first time he did not have his calculator with him. It was submitted that the vice-principal had a number of calculators in his office and the complainant would only had to ask for one.
3.8. It was submitted that the complainant never showed any sign of anxiety. The respondent accepted that the complainant's father had submitted that his son could get anxious and stressed in confrontational situations and that he should be handled with care and consideration. The respondent stated that the complainant only showed challenging behaviour when his own unacceptable behaviour was challenged. The complainant could be quite disrespectful in such circumstances. Otherwise, the complainant presented himself like most other pupils.
3.9. The respondent rejected any claim that it victimised or forced the complainant out of the school. It was not accepted that the complainant had notified the school of any intention to seek redress from the Equality Tribunal. It was accepted that the complainant's father had referred to a higher authority but that the school had understood this reference to mean the Department of Education. The respondent respects any parent's entitlement to refer their grievances to relevant authorities.
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. Having heard the evidence I find that there is simply no evidence to establish that the complainant is a person with a disability within the meaning of the Acts. I note that the complainant has never been diagnosed with anything more than anxiety symptoms and that once in his childhood he required medication to calm him down. I note that the complainant's general practitioner's letter makes it clear that he certainly does not believe that the complainant could not be treated to the same disciplinary processes as anyone else. In circumstances where a challenge to a complainant's disability is made at the hearing and the matter relates to an 'invisible' disability I find that a diagnosis of a recognised medical condition, illness or malfunction by a medical professional may be a minimum requirement before this Tribunal can be satisfied that a complainant is a person with a disability. I circumstances where I am satisfied that the complainant has no actual diagnosis I am satisfied that he is not a person with a disability in accordance with the Acts. I find that his claims of discrimination, harassment and failure to provide reasonable accommodation must fail.
5.3. Victimisation is clearly defined by the Acts. It refers to a situation where a person has asserted his or her equality rights under these Acts who is then in turn treated adversely by the respondent. Even if I accepted the complainant's father's evidence at its highest - that is that he informed the principal that he intended to seek redress under these Acts - I have found no evidence of adverse treatment within the meaning of the Acts. The complainant elected to leave the respondent school and transfer elsewhere.
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 that he is protected by the disability ground. The complaint is outside this Tribunal's jurisdiction.
6.3. The complainant's case for victimisation also fails.
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Tara Coogan
Equality Officer
16 July 2012