Equality Tribunal
Decision No: DEC-E/2013/137
Parties
A Complainant
-V-
A University
(Represented by Arthur Cox- Solicitors)
File No: EE/2011/319
Date of issue: 11 November, 2013
Headnotes: Employment Equality Acts 1998- 2008 - sections 6,12 and 16 – vocational training – discriminatory treatment – reasonable accommodation.
1. DISPUTE
This dispute involves a claim by a complainant that she was discriminated against by a University (“the respondent”) on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 12 of those Acts, in relation to the manner in which a course of vocational training was provided to her. The complainant also contends that the respondent failed to provide her with reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998-2008.
2. BACKGROUND
2.1 The complainant, who suffers from bi-polar disorder, commenced a Degree Programme in Radiation Therapy with the respondent in September, 2004. She states that the manner in which the respondent treated her subsequently, in terms of her participation on the course, ultimately resulted in her withdrawing from the course in September, 2010. She submits that the alleged treatment of her amounts to discrimination on grounds of disability contrary to the Acts. The complainant also contends that the respondent failed to afford her reasonable accommodation in terms of section 16 of the Acts. The respondent rejects the complainant's assertions in their entirety.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2008 to the Equality Tribunal on 7 March, 2011. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned, Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaint commenced on 17 May, 2013, the date on which the complaint was delegated to me. Submissions were filed and exchanged and a Hearing on the complaint took place on 6 September, 2013. In accordance with the standard practice of the Tribunal where the personal and sensitive issue of mental health disability is at issue, the identities of the parties have been anonymised. At the Hearing the parties agreed to the identities of the witnesses also being withheld in this Decision.
2.3 At the outset of the Hearing the Equality Officer noted that the extensive documentation submitted by the complainant suggested her allegations of unlawful treatment stretched back to September, 2007. I sought the parties comments on the relevance, if any, of the Labour Court Determination in Hurley v Cork VEC[1] and subsequently in Gulgen v Marks and Spencer (Ireland) Ltd[2] to the instant case insofar as they might impact on the parameters of my investigation. Having considered the submissions made by the parties, I decided to adopt the approach previously taken by the Labour Court in the aforementioned Determinations. I informed the parties that my investigation would focus, in the first instance, on the alleged acts of discrimination which occurred between 8 September, 2010 and 7 March, 2011 – the six months period preceding the date of referral of the complaint, as prescribed at section 77(5)(a) of the Acts. If I considered any of the alleged incidents within this period to amount to unlawful treatment of the complainant contrary to the Acts, I would reconvene the Hearing to hear evidence on the other (earlier) incidents complained of to determine if any of them were sufficiently connected to the incident(s) within the six month period so as to make them part of a continuous act of discrimination. However, should I find the alleged incidents within the six months preceding the referral of the complaint not to be well founded the earlier alleged incidents would be statute barred.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant states that she was diagnosed with bi-polar disorder in 1999 and submits that this amount to a disability in terms of section 2 of the Employment Equality Acts, 1998-2008. She further states that the medication she regularly took for her condition affected her concentration levels and memory recall. She adds that she obtained a place on the respondent’s Degree Programme in Radiation Therapy (as a mature student) and commenced on the Programme in September, 2004. She states that she informed the respondent of her depression in September, 2005 when she sought permission to progress to Year 2 of the Programme whilst carrying a subject she had not passed in Year 1. She further states that in any event the respondent was undoubtedly on notice of her disability because she expressly referred to it in her letter to Ms. A (Head of School) dated 2 October, 2007 wherein she was seeking to be permitted to sit examinations in two Year 2 subjects “off books” – (a concession permitted on a case by case basis which allows a student to sit examinations without having to attend lectures).
3.2 The complainant states that she was in extremely good health and off all medication when she commenced Year 3 of the Programme in September, 2009. She adds however, that she encountered significant barriers to her completing the Programme almost from the outset of the academic year and she withdrew from the Programme in March, 2010. In this regard she refers, in particular, to the manner in which she was assessed (or not assessed as she maintains) following her placement for a period at two particular hospitals on two separate occasions, the requirement that she complete an additional period of placement during that year and being required to complete a question on a simulation examination on a topic not covered at the lectures. The complainant states she intended to seek permission to repeat Year 3 in September, 2010 and in that regard she spoke with her tutor (Ms. B) on 11 August, 2010 to discuss her concerns, to ensure the respondent understood how difficult the period between September, 2009-March, 2010 had been for her in terms of completing the Programme and to ensure certain safeguards would be in place prior to her return. She adds that the issues she raised specifically with Ms. B were, inter alia, -
- Not to be assigned to two particular hospitals (details supplied) to complete mandatory placements required as part of the Programme during the year due to her experience in them previously.
- An assurance she would not have to repeat assignments she had completed and passed the previous year (during the period September, 2009 – March, 2010).
- That there would be a representative from the School dedicated to liaise with her should future issues arise.
3.3 The complainant states that she received an e-mail from Ms. B on 13 August, 2010 advising she had met with Ms. A and providing the following responses to her issues –
- That it would be impossible for the complainant not to be placed in the hospitals mentioned as they were the two biggest hospitals for cancer treatment in the country,
- That resubmission of assignments could be examined as the need to furnish them arose.
- That Ms. A was willing to act as liaison between the complainant and the School.
The complainant adds that in order to progress matters further she agreed (at the suggestion of Ms. B) to meet with Ms. A and this meeting took place on 9 September, 2010.
3.4 The complainant states that she met with Ms. A on 9 September, 2010 and felt from the outset that the meeting was hostile - she mentions specifically that the door to the office remained open. The complainant adds that in the course of the meeting Ms. A questioned her (the complainant’s) suitability and desire to pursue a career as a radiation therapist. She adds Ms. A also stated that placement at the bigger (hospital) centres was stressful and that it was a necessary part of her (the complainant’s) training to learn to cope with these stresses. The complainant further states Ms. A did not confirm (at this meeting) that she was taking on the role of liaison. The complainant adds that at the end of this meeting she believed Ms. A showed a complete lack of understanding about the difficulties she (the complainant) had faced the previous years. She asserts that this amounts to less favourable treatment of her on grounds of disability contrary to the Acts. In the course of the Hearing the complainant was unable to say if another student (without a disability or with a different disability) had been treated differently in similar circumstances. She also stated, when asked (at the Hearing) if she had refused to allow the respondent’s Disability Support Services to disclose details of her disability and its effects/consequences to the School Management, that the Service had done all it could for her and “was there any point in telling the faculty as it was of no benefit to her”.
3.5 The complainant states that after this meeting with Ms. A she (the complainant) met with Ms. B on 17 September, 2010 and advised her what had transpired at the meeting on 9 September, 2010. The complainant further states that at this meeting Ms. B was surprised at the complainant’s account of events, in particular in respect of the liaison arrangements, as that was not what had been agreed between her (Ms. B) and Ms. A. The complainant adds that Ms. B was going on holidays and was not in a position to advance the matter further and she suggested to the complainant that she should proceed to Year 3 and see what transpired. The complainant states that she attended at the respondent University on 27 September, 2010 to commence the first day of term but was unable to go into the lecture due to the lack of assurances that she would not be subjected to the same treatment she alleges she was subjected to the previous year when she was also pursuing Year 3 of the Programme. She states that she decided to withdraw from the Programme altogether and e-mailed Ms. B on 28 September, 2010 confirm her decision in this regard.
3.6 In the course of the Hearing the complainant was asked to elaborate on her arguments as regards the alleged failure by the respondent to provide her with reasonable accommodation but she was unable to point to any such failure in the six months immediately before the date of referral of her complaint to the Tribunal. She added however, that her arguments on this matter centred on the placement periods in late 2009. She added that had there been issues with her performance, which she rejects, the respondent’s Clinical Co-ordinator (Ms. C) should have taken her aside and offered her additional help given her previous mental health history.
4. SUMMARY OF RESPONDENT’S CASE
4.1 The respondent rejects the complainant’s assertions in their entirety. It accepts (Ms. A) that it was aware of the complainant’s depression from October, 2007 and further accepts that the condition is a disability in terms of section 2 of the Acts. It also accepts that the Degree she pursued was a course of vocational training in terms of section of the Acts. The respondent states that from the outset it treated the complainant in a compassionate and extremely favourable manner, permitting her (i) to proceed to Year 2 on the Programme (in September, 2005) carrying a subject from Year 1 which she had failed, (ii) to repeat Year 2 (in September, 2006) after she had failed to pass her examinations during the academic year 2005/2006, (iii) to go “off books” for the academic year 2006/2007 to take examinations in two subjects she had from Year 2, (iv) to complete one of the aforementioned examinations at the Supplemental Examinations in 2008 as she was unable to attend the previous examinations due to illness and (v) to go “off books” for the academic year 2008/2009 (Year 3) for medical reasons and repeat Year 3 commencing in September, 2009 and submits that the aforementioned accommodations, which are discretionary in nature and are unusual occurrences, demonstrates a supportive attitude towards the complainant.
4.2 The respondent rejects the complainant’s assertion that she encountered significant barriers to her completing the Programme (Year 3) almost from the outset of the academic year 2009/2010. It states, as regards the simulation examination, that there was a question on the examination which covered a scenario which students in the complainant’s class had not fully covered previously in the course of lectures, but that the tutor had drawn attention to the anomaly at the beginning of the examination and had taken other steps to ensure students who received that question were not disadvantaged. The respondent further states that half of the students (approximately fifteen) received this scenario and the remainder received a different one. The respondent accepts that the complainant failed the examination, adding that seven other students also failed, and submits that in the circumstances, it did not treat the complaint less favourably on grounds of disability.
4.3 The respondent states that during Year 3 students are placed for a number of weeks at designated hospitals working as part of Radiation Therapy Team. The respondent adds that students are continuously observed and assessed during placements by the local Senior Clinical Staff and rejects the complainant’s assertion that she was not assessed during either of these periods. In this regard it furnished copies of Assessment Forms completed by the relevant Senior Clinical Staff on site which were also signed by the complainant. The respondent accepts the complainant’s assertion that at the end of the placements she was not permitted to perform a “set-up” process on an actual patient. It adds that in both placements the Senior Clinical Staff on site did not consider that she possessed the appropriate level of technical competency to perform this procedure. The respondent (Ms. C), who was the respondent’s Clinical Co-ordinator, states that there were concerns about the complainant’s clinical knowledge at both placement hospitals and such were the concerns at one of them that she (Ms. C) was asked to attend at the hospital to observe the complainant and ultimately spoke at length to her about those concerns. The respondent (Ms. C) states that the complainant was reluctant to take her comments on board and did not mention at any stage that her disability was an issue or that she required any reasonable accommodation.
4.4 The respondent (Ms. C) states that students are required to repeat all Year 3 placements failed before progressing to Year 4 of the Programme. The respondent (Ms. C) accepts that the complainant was advised she had failed her second placement on 24 January, 2010 – she had previously been advised she had failed her first placement. The respondent (Ms. C) states that at this meeting the complainant was informed she would have to repeat (and satisfactorily complete) both these placements as well as satisfactorily completing the third placement, in order to progress to the next Year of the Programme. Ms. C further states that these three placements are mandatory components of the Programme required of all students and it meant that the complainant would have to complete them during the summer break. The respondent (Ms. C) states that the complainant advised she planned to undergo surgery during the summer break and would therefore be unable to complete the placements. Ms. C adds that the matter was not discussed any further and the complainant never mentioned her disability or reasonable accommodation during the meeting. The respondent states that the complainant subsequently withdrew from the Programme in March, 2010.
4.5 The respondent (Ms. A) accepts that she met with the complainant on 9 September, 2010 and that the meeting took place following a discussion between her (Ms. A) and Ms. B. The respondent (Ms. A) states that she has been involved with the respondent’s School of Radiation Therapy for thirty years and her objective as Head of the School is to equip students with the necessary skills and competencies to treat cancer patients safely and well. She adds that she has significant experience handling students during her lengthy period in the School and if a student was struggling she would always ask if a career as a radiation therapist is right for him/her – adding that it is a stressful occupation as the patients are suffering from cancer. Ms. A states that having spoken with Ms. B about the complainant, it was clear to her (Ms. A) that the complainant was regularly failing academically and clinically and was unable to master the technical applications of the Programme. She adds that it was in this context she raised the matter of a career as a radiation therapist with the complainant at the meeting. Ms. A further states that she pointed out to the complainant that it was necessary to have a breadth of experience and it was therefore not possible to exclude large hospitals from a student’s placement experience. In the course of the Hearing Ms. A stated that all students must at some stage of the placement process attend on at least one occasion one of the two hospitals mentioned by the complainant.
4.6 The respondent (Ms. A) rejects the complainant’s assertion that the meeting was hostile – she cannot remember if the door was open but states that if it was it was not an issue as there would not have been many people in the School as the meeting took place before term started. She is unable to say whether or not she mentioned her agreement to act as liaison between the complainant and the School - she was aware Ms. B has indicated this to the complainant previously thus she (Ms. A) assumed it was perfectly clear - and she rejects the assertion that any failure in this regard constitutes discrimination of the complainant. The respondent (Ms. A) accepts that the complainant had advised her of her disability in the letter dated 2 October, 2007 but states that this was not an issue which struck her as relevant in September, 2010. She adds that students can contact the College Disability Service for assistance where necessary and states that (i) the Disability Service never contacted her about the complainant and (ii) the complainant never raised the issue of reasonable accommodation with her in the course of the meeting on 9 September, 2010. Ms. A rejects the complainant’s assertion that she showed a complete lack of understanding about the difficulties she (the complainant) faced and states that over the years the complainant was involved with the School she (Ms. A) supported her on several occasions.
4.7 The respondent accepts that the complainant met with Ms. B on 17 September, 2010 but is unable to comment on the content of that meeting (Ms. B did not attend the Hearing) although Ms. A states she was unaware of that meeting at the time. The respondent submits, in any event, that the meeting could not be construed as amounting to less favourable treatment of the complainant on grounds of disability. The respondent states it is disappointing that the complainant subsequently decided to withdraw fully from the Programme but states that this was a decision made by her and not by the College. It adds that at the time it had agreed to allow the complainant complete Year 3 of the Programme again. It further states that on a clinical course such as Radiation Therapy it is of paramount importance that students demonstrate that they have acquired the requisite level of knowledge and training and submits that it all of the circumstances, its treatment of the complainant cannot amount to less favourable treatment of the complainant on grounds of disability contrary to the Acts.
4.8 The respondent emphatically rejects the complainant’s assertion that it failed to provide her with reasonable accommodation in terms of section 16 of the Acts. It points to the support and concessions it afforded her from the outset of her period of study in 2004 until 2010, when it yet again permitted her to return to Year 3 of the Programme. An official from the respondent’s Disability Service (Mr. D) states that the complainant registered with the Service in July, 2007 and from then until March, 2010 he met with the complainant on 3/4 occasions. The respondent (Mr. D) states that from the outset the complainant chose not to disclose her disability and her contact with the Service to the School of Radiation Therapy and consequently he was bound by that decision. He adds that he was unaware of the complainant’s letter of 2 October, 2007 to Ms. A. He states that he explored options of reasonable accommodation with her at that time and she specifically declined to avail of accommodations for her examinations. Mr. D states that he then referred the complainant to the people involved in an initiative organised by the College (details supplied) to offer support to students with mental health issues but she never engaged with it as far as he was aware. The respondent (Mr. D) states that during the period of his contact with the complainant she maintained her decision not to disclose the issue to the School and not to seek reasonable accommodations at course and placement level. He states therefore that in the circumstances the Disability Service was limited in the assistance it could provide. The respondent (Ms. A and Ms. C) states that the complainant never raised the issue of reasonable accommodation with Management in the School at any time but particularly during the academic year 2009/2010. Moreover, it notes the complainant’s comment that in September, 2009 she was off medication and was “in extremely good health, the best I had ever been”. It submits that it made every effort to assist her and in all of the circumstances it could not be found to have failed to afford her reasonable accommodation.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me are whether or not the respondent (i) discriminated against the complainant on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 12 of those Acts, in relation to the manner in which a course of vocational training was provided to her and (ii) failed to provide her with reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998-2008. In reaching my decision I have taken into consideration all of the submissions, both written and oral, submitted to the Tribunal as well as evidence advanced at the Hearing.
5.2 Section 85A of the Employment Equality Acts 1998-2008 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 she can rely in asserting that she suffered discriminatory treatment on the ground specified. 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. If the complainant does not discharge the initial probative burden required her case cannot succeed.
5.3 The parties are each of the view that (a) the Degree Programme pursued by the complainant is a course of vocational training in terms of section 12 of the Acts and (b) the condition of depression is a disability in terms of section 2 of the Acts and I concur with their opinions in both respects. As stated at paragraph 2.3 above I decided to adopt the approach previously taken by the Labour Court in Hurley v Cork VEC[3] and subsequently in Gulgen v Marks and Spencer (Ireland) Ltd[4] in that my investigation would focus, in the first instance, on the alleged acts of discrimination which occurred between 8 September, 2010 and 7 March, 2011 – the six months period preceding the date of referral of the complaint, as prescribed at section 77(5)(a) of the Acts. Consequently, three incidents of possible unlawful treatment fell within this period – (i) the meeting between the complainant and Ms. A on 9 September, 2010, (ii) the meeting between the complainant and Ms. B on 17 September, 2010 and (iii) the complainant’s withdrawal from the Programme on 28 September, 2010. However, the complainant states that she encountered barriers to her participation on the Programme from the outset of the academic year 2009/2010. She adds that it was in an effort to discuss her concerns in this regard and ensure the respondent understood how difficult the period between September, 2009-March, 2010 had been for her in terms of completing the programme and to ensure certain safeguards would be in place prior to her return in September, 2010, that she arranged a meeting with Ms. B in August, 2010. I am therefore satisfied that I must examine and evaluate the three possible incidents of unlawful treatment mentioned above in the context of “the unfavourable and unjustified discriminatory treatment” the complainant believes she was subjected to during the academic year 2009/2010 and in that regard I must examine the issues which the complainant contends give rise to her concerns.
5.4 Whilst the complainant raised many issues as regards her “unfavourable and unjustified treatment” during the academic year 2009/2010, she placed particular emphasis on (i) the manner in which she was assessed (or not assessed as she maintains) following her placement for a period at two particular hospitals on two separate occasions, (ii) the requirement that she complete an additional period of placement during that year and (iii) being required to complete a question on a simulation examination on a topic not covered at the lectures. I shall examine each of these issues in turn. It is common case that a student on Year 3 of the Programme must successfully complete three separate placements during the academic year. During these placements students operate as part of a Radiation Therapy Team involved in the treatment, on a daily basis, of actual patients. They operate under the close supervision of local Senior Clinical Staff who are also charged with assessing them over the period of the placement. The complainant attended her first period of placement at Hospital A during November, 2009. This was immediately followed by her placement at Hospital B. The complainant contends that she was not assessed on either of these placements because she was not permitted to conduct a “set up” process at both locations. The respondent accepts this latter point – stating that the local Senior Clinical Staff did not consider her to possess the appropriate level of technical competency to perform this procedure. It adds that the complainant was assessed at both locations and furnished the Tribunal with Assessment Forms in support of this position. I have examined this documentation and I am satisfied that the complainant was assessed in respect of each of these placements. Moreover, the comments therein from the local Senior Clinical Staff are consistent with the conclusion they reached - that the complainant’s technical competency to perform the “set up” process - particularly as it involves preparing an actual patient for a dose of radiation treatment, was insufficient to refuse her permission to perform the process.
5.5 The second issue referred to by the complainant concerns an assertion that she would have to complete an additional period of placement during that academic year. The respondent rejects this assertion stating that the complainant was required to repeat (and satisfactorily complete) both these placements as well as satisfactorily complete the third placement in order to progress to the next Year of the Programme – which are mandatory components of the Programme required of all students. I cannot accept that the respondent’s actions in this regard were “unfavourable and unjustified treatment” of the complainant. The complainant was required to satisfy the academic standards of the Programme in the same manner as all other students and the respondent was merely requiring her to achieve those standards. Such a request is treating everyone the same and the employment equality legislation does not eliminate the requirement for a person with a disability to demonstrate they are competent and capable of performing the role s/he is training for. Moreover, the concept of reasonable accommodation is not intended to remove this requirement. Finally, the complainant states that she was required to complete a question on a simulation examination on a topic not covered at the lectures. The respondent accepts this assertion to a large (but not full) degree and states that the tutor had drawn attention to the anomaly at the beginning of the examination and had taken other steps to ensure students who received that question were not disadvantaged. It adds that half of the students (approximately fifteen) received this scenario and the remainder received a different one. Whatever shortcomings this situation had for the complainant, it could not be held to amount to less favourable treatment of her, because any disadvantage she may have experienced also applied to fourteen or so of her fellow students.
5.6 I shall now turn to the alleged incidents of unlawful treatment within the six months immediately prior to the referral of the complaint. The first of these is the meeting between the complainant and Ms. A on 9 September, 2010. The complainant states that this meeting arose after she had previously approached her tutor (Ms. B) in August, 2010 to discuss her concerns, to ensure the respondent understood how difficult the period between September, 2009-March, 2010 had been for her in terms of completing the programme and to ensure certain safeguards would be in place prior to her return. The complainant sought certain assurances about a number of issues, the most important of which appears to have been (i) that she would not be assigned to two particular hospitals to complete mandatory placements required as part of the Programme during the year due to her experience in them previously, (ii) that she would not have to repeat assignments she had completed and passed the previous year (during the period September, 2009 – March, 2010) and (iii) that there would be a representative from the School dedicated to liaise with her should future issues arise. It is common case that Ms. A could not accede to the complainant’s first request. Ms. A states she was unable to accommodate the complainant because students on the Programme should have a breadth of experience on all types of cancer and its treatment and it was therefore not possible to exclude large hospitals from a student’s placement regime. She adds that in order to obtain that breadth of experience all students must at some stage of the placement process attend on at least one occasion one of the two hospitals mentioned by the complainant. This appears to me to be a reasonable approach by Ms. A, who, I note, has thirty years’ experience with the Programme.
5.7 The complainant submits that this decision amounts to less favourable treatment of her on grounds of disability contrary to the Employment Equality Acts, 1998-2008. I cannot accept this proposition. Whilst Ms. A might have been aware of the complainant’s disappointment at failing her placements at these hospitals the previous academic year, she could not have been aware the complainant considered the treatment of her on these placements was connected to her disability. The complainant never raised her disability as an issue at meetings with Ms. C and Ms. A in November, 2009 and January, 2010 to discuss the placement during the previous academic year, at the meeting with Ms. B in August, 2010 or at the meeting with Ms. A on the day (9 September, 2010). Whilst Ms. A was aware of the complainant’s disability (from the letter of 2 October, 2007) she could not be expected to immediately assume the complainant’s concerns were connected to her disability. I am therefore satisfied that Ms. A made her decision to decline the complainant’s request on this issue on factors which had no connection with the complainant’s disability and that she treated the complainant in the same manner as any other student who was seeking, in essence, an exemption from a mandatory component of the Programme. In my view had Ms. A acceded to the complainant’s request she could stand accused of failing in her professional academic obligation of ensuring that students attain the required level of education and knowledge of the Programme.
5.8 The complainant states that she found this meeting hostile from the outset and that the door to Ms. A’s Office remained open throughout. She adds that Ms. A failed to confirm she had agreed to take on the role of liaison between the complainant and the School and submits this is demonstrative of the lack of understanding she (Ms. A) had for her plight. The complainant further states that Ms. A questioned her (the complainant’s) suitability and desire to pursue a career as a radiation therapist. The respondent (Ms. A) rejects the complainant’s assertion that the meeting was hostile – she cannot remember if the door was open but states that if it was it was not an issue as there would not have been many people in the School as the meeting took place before term started. She is unable to say whether or not she mentioned her agreement to act as liaison between the complainant and the School - she was aware Ms. B has indicated this to the complainant previously thus she (Ms. A) assumed it was perfectly clear she had agreed to act in that role. She adds that even if she did fail to mention it, her failure in this regard could not be regarded as discrimination of the complainant on grounds of her disability. Ms. A also accepts that she spoke with the complainant about her choice of career as a radiation therapist. She adds that she did so in her capacity as Head of School in circumstances where she was aware the complainant was struggling academically – adding that it is an approach she had adopted regularly with other students (who had or had not a disability) in the same situation during her thirty years in the School.
5.9 Having carefully considered the evidence adduced by the parties on this issue I have reached the following conclusions. Whilst the meeting might have been tense I am not satisfied, on balance, that Ms. A displayed hostility towards the complainant. It appears to me that Ms. A took her role as Head of School in a most serious fashion and sought to engage the complainant in a frank and thought provoking discussion about her future. The complainant has adduced no evidence to support her assertion that the manner in which Ms. A addressed this matter amounts to less favourable treatment of her on grounds of disability contrary to the Acts. As I have already said at paragraph 5.7 above Ms. A had no basis upon which she could conclude that the complainant’s concerns were connected to her disability. As regards the issue of the door remaining open during the meeting I note the complainant did not take any issue with the explanation afforded by Ms. A at the Hearing. Moreover, had this posed an issue of privacy for the complainant at the time, I am satisfied she would have taken action to rectify it. Even if the door remained open I am not satisfied it could amount to less favourable treatment of the complainant on grounds of disability. Finally, it is quite possible that Ms. A failed to mention her agreement to act as liaison between the complainant and the School. I accept Ms. A’s explanation that had she failed to do so it was in effect an oversight on her part because the matter had been agreed between her and Ms. B, she was aware Ms. B had communicated this decision to the complainant and the matter was therefore settled. Moreover, had the matter been of such urgency and concern to the complainant, it was open to her to raise it on the day. In light of my comments in this and the preceding three paragraphs I find that the complainant has failed to establish a prima facie case that the manner it which Ms. A behaved during the meeting between them on 9 September, 2010 constitutes less favourable treatment of her on grounds of disability contrary to the Acts and this component of her complaint fails.
5.10 Whilst it does not appear to have been specifically addressed at the meeting on 9 September, 2010, the complainant had previously sought an assurance (at her meeting with Ms. B on 11 August, 2010) that she would not be required have to repeat assignments she had completed and passed the previous Academic Year. It is common case the respondent replied that resubmission of assignments could be examined as the need to furnish them arose. I find this to be a perfectly reasonable response to the request for the same reasons as set out in paragraph 5.7 above. Moreover, I consider the complainant’s request seeks to have the respondent afford her more favourable treatment in comparison to her fellow students. It follows therefore that I do not find this aspect of her complaint well founded.
5.11 The second incident within time which could amount to less favourable treatment of the complainant is the meeting between her and Ms. B on 17 September, 2010. The complainant states that at this meeting Ms. B expressed disappointment at her (the complainant’s) account of what occurred at the meeting with Ms. A. She adds that Ms. B went on holiday soon thereafter and was unable to advance the matter further before vacation. The complainant further states that Ms. B suggested the complainant proceed to repeat Year 3 of the Programme and see what happens. Ms. B did not attend the Hearing and the respondent offered no rebuttal evidence in her absence. However, taking the complainant’s evidence alone and at its height, it is insufficient to discharge the initial probative burden required of her – that the facts established permit me to infer that this meeting amounts to discrimination of her on grounds of disability contrary to the Acts and this aspect of her complaint therefore fails.
5.12 The third incident within time is the complainant’s withdrawal from the Programme on 28 September, 2010. The complainant states that she attended College on the first day of term to commence but was unable to go into the lecture due to the lack of assurances that she would not be subjected to the same treatment she alleges she was subjected to the previous year when she was also pursuing Year 3 of the Programme and she wrote to her tutor the following day confirming her withdrawal from the Programme. The respondent states that whilst it was disappointed at the complainant’s decision to withdraw from the Programme, she made this decision of her own volition. The essence of the complainant’s argument is that given her “unfavourable and unjustified treatment” during the academic year 2009/2010, the failure of the respondent to acknowledge this and to take the appropriate action to address her concerns going forward in September, 2010, she had no option but to withdraw from the course. In light of my findings in the preceding paragraphs as regards the alleged discriminatory treatment of her between 8 September, 2010 and 7 March, 2011 and my comments elsewhere in this Decision on the events comprising the alleged “unfavourable and unjustified treatment” of the complainant by the respondent during Academic Year 2009/2010 I cannot accept the complainant’s assertion that she had no option but to withdraw from the Programme. Moreover, I am satisfied that during her period with the College, the School staff, in particular Ms. A, supported her on several occasions with favourable representations to the Academic Authorities in terms of them exercising discretionary powers as regards examination deferral, going “off books”, carrying subjects to the following Year of the Programme without passing same and most recently, in September, 2010, supporting her application to commence Year 3 of the Programme for the third occasion. Consequently, I find that the complainant withdrew from the Programme of her own volition and that the respondent did not discriminate against her on grounds of disability contrary to the Acts in respect of this aspect of her complaint.
5.13 The final element of the complainant’s claim is that the respondent failed to afford her reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998-2008. It is well established that section 16 of the Acts places a positive obligation on the respondent to provide a student with a disability with “appropriate measures” in respect of access to, or participation on, a course of vocational training. However, it is also well established that such an obligation can only arise once a respondent has notice, or can reasonably be considered to have received notice, that the complainant has a disability. Having evaluated the evidence adduced by the parties on this matter I am satisfied that the complainant raised the issue of her disability with the respondent on only two occasions – her letter to Ms. A of 2 October, 2007 and her contact with the respondent’s Disability Service in July of that year. The former situation arose in a specific context - seeking permission to go “off books” for the Academic Year 2007/2008 although it is arguable that the respondent was on notice of the complainant’s disability. The latter arose when the complainant registered with the respondent’s Disability Service. In the course of the Hearing an official from this Service (Mr. D) stated that from the outset the complainant chose not to disclose her disability and her contact with the Service to the School of Radiation Therapy and consequently he was bound by that decision, a position he states she maintained throughout the period he had contact with her. I note the complainant confirmed that in the course of the Hearing when she stated that the Service had done all it could for her and “was there any point in telling the faculty [of her disability] as it was of no benefit to her”. The complainant also confirmed that Mr. D had explored options of reasonable accommodation with her at that time and she specifically declined to avail of accommodations for her examinations. I further note that Mr. D stated he referred the complainant to the personnel involved in an initiative organised by the College to offer support to students with mental health issues but she never engaged with it as far as he was aware. He further states that in the circumstances the Disability Service was limited in the assistance it could provide.
5.14 In the course of the Hearing the complainant stated that her arguments on this matter centred on the placement periods in late 2009. She added that had there been issues with her performance, which she rejects, the respondent’s Clinical Co-ordinator (Ms. C) should have taken her aside and offered her additional help given her previous mental health history. The respondent states that the complainant never raised the issue of reasonable accommodation with Management during the academic year 2009/2010 – direct evidence was given on this by Ms. A, Mr. C and Mr. D at the Hearing and I accept their evidence in this regard. Moreover, the complainant confirmed at the Hearing that in September, 2009 she was off medication and was “in extremely good health, the best I had ever been”. Taking the aforementioned facts into consideration I find that the complainant has failed to establish a prima facie case that the respondent failed in its statutory duty to provide her with reasonable accommodation and this element of her complaint cannot succeed.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2011. I find that -
(i) the complainant has failed to establish a prima facie case that the respondent discriminated against her on grounds of disability, in terms of section 6(2) of the Employment Equality Acts 1998-2008 and contrary to section 12 of those Acts in the manner in which a course of vocational training was provided to her and
(ii) the complainant has failed to establish a prima facie case that the respondent failed to provide her with reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998-2008.
6.2 As the complainant has failed to establish a prima facie case of discrimination in respect of the alleged incidents of discrimination within the six months immediately preceding the date of referral of her complaint, the remainder of the alleged incidents submitted by her in respect of the period prior to that (which is outside of the period prescribed at section 77(5) of the Acts) are statute barred and her complaint fails in its entirety.
_______________________________
Vivian Jackson
Equality Officer
11 November, 2013
Footnotes:
[1] EDA 1124
[2] EDA 1316
[3] EDA 1124
[4] EDA 1316