DEC-S2016-028

EQUAL STATUS ACTS

DECISION NO. DEC-S2016-028

PARTIES

A 3rd year Student

(Represented by Arthur McLean Solicitors)

-v-

A Secondary School

(Represented by Eversheds)

FILE NO: et-157453-es-15

Date of issue: 20th of May, 2016

1. Dispute

This dispute involves a claim by the complainant
that she was discriminated against by the respondent, on grounds of her disability when her application for participation in transition year was not successful. There is also a complaint of failure to provide the complainant with reasonable accommodation for her disability.

2. Background

2.1 The complainant referred a complaint under the Equal Status Acts, 2000-2015 to the Equality Tribunal on the 3rd of July, 2015. The complainant submits that she was unsuccessful in her application to participate in the schools Transition Year course and that the competitive application process took no account of the disability from which the Complainant suffered. In addition she submits that the respondent failed to provide her with reasonable accommodation for her disability during and after the application process.

2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 and under the Equal Status Acts, 2000-2015, the Director delegated the case on the 9th of November, 2015 to me Orla Jones, Equality Officer, for for investigation, hearing and decision and for the exercise of other relevant functions of the Director under III of the Equal Status Acts, 2000-2015. This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 25(1) and as part of my investigation, I proceeded to a Hearing on the 29th of January, 2016. Final correspondence in relation to this matter was received on the 26th of February, 2016.

2.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 84 of the Workplace Relations Act 2015.

3. Summary of complainant’s case

3.1 The complainant submits that

· she applied for and was unsuccessful in her application to take part in the schools Transition year course,

· part of the application process consisted of an interview in which the complainant, due to her disability was unable to score as highly as other candidates,

· she suffers from anxiety and panic attacks and as such found the interview stage of the application process particularly stressful and difficult,

· the complainant’s mother prior to the application process had notified the school that the complainant had suffered from a panic attack in class when asked to read aloud in class and that she was receiving professional help for her anxiety,

· the respondent made no accommodations in the transition year application process or interview to take account of the complainant’s disability

· the respondent following the allocation of the Transition Year places offered to move the complainant to first place on the cancellation list,

· of the 25 places offered, one of the successful candidates did not accept their place in Transition Year but the complainant was not given the place despite being first on the cancellation list,

· the respondent stated that there were only 24 places available in Transition Year and that the 25th letter had been sent in error,

· the respondent has on 2 other occasions granted a 25th Transition Year place to accommodate students with disabilities.

4. Summary of Respondent’s case

4.1 The respondent submits that

the respondent has only 24 places in Transition Year and as demand for places exceeds that number, places are offered based on a competitive application process which is made up of an application form with recommendations from teachers as well as a competitive interview,
the complainant was unsuccessful in her application for Transition Year as her combined score between the application form and Interview was not as high as those who got through,
the respondent was not aware at the time of interview that the complainant had been or was suffering from any disability,
the complainant’s mother had contacted the school in January 2015 before the interview process and expressed concern regarding an incident where the complainant had refused to read aloud in class,
it was agreed that the teacher Ms. M in whose class this had happened would speak to the complainant regarding the incident,
following notification of the results of the TY application process the complainant’s mother contacted the school and advised them that the complainant was very upset at not getting Transition Year and advised Mr. R that the complainant had been suffering from anxiety issues,
Mr. R. following this phonecall approached the Principal, Mr. S and it was agreed that the complainant would be placed first on the TY cancellation list and would be offered a place in Transition Year should one arise,
One of the successful applicants refused a place in TY but it emerged that the school had, in error, sent out 25 letters instead of 24 and so the place which was refused did not exist,
The respondent has on 2 occasions made a 25th place available to accommodate students who had diagnosed disabilities and where technical classes were not required

5. Preliminary Jurisdictional Issue –Notification

5.1 The respondent submits that the complainant in this case failed to notify the respondent in writing within the 2 month timeframe provided by the Equal Status Act, of the nature of the allegation and the complainant’s intention that, if not satisfied with the respondent’s response’ the complainant would seek redress by referring the matter to the Equality Tribunal (now the Workplace Relations Commission), pursuant to the provisions of Section 21 (2) of the Equal Status Act, 2000). Section 21(2) of the Acts provides that:

"Before seeking redress under this section the complainant --
(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, ....notify the respondent in writing of --
(i) the nature of the allegation,
(ii) the complainant's intention, if not satisfied with the respondent's response to the allegation, to seek redress under this Act."

5.2 The first aspect of the complaint relates to the complainant’s failure to secure a place in Transition Year and the allegation that the application of a uniform application procedure which included a competitive interview process, placed the complainant at a disadvantage due to her disability. The complainant was notified by the respondent on the 12th of March, 2015 that she had been unsuccessful in her application for Transition Year (TY). The ES1 Form notifying the respondent was sent to the respondent on the 19th of June, 2015. The complaint form submitted to the Tribunal is dated the 3rd of July, 2015.

5.3 As the complainant was notified on 12th of March, 2015 that she had been unsuccessful in her TY application I am satisfied that this can be taken to be the last date of alleged discrimination in respect of the first allegation i.e. that the complainant did not succeed in her TY application due to her disability and that no accommodation or special measures were provided for, by the respondent, in respect of the complainant’s disability, during the Transition year application process. It is clear from the notification requirements under Section 21 that the last date for serving of notification on the respondent in relation to that incident would have been the 11th of May 2015. The ES1 form was issued to the respondent on the 19th of June, 2015 however it is submitted that the exchange of correspondence and communication between the complainant and respondent in the weeks following the 12th of March, 2015 and up to the 11th of May 2015 amount to notification for the purposes of Section 21.

5.4 The respondent at the hearing stated that the complaint is out of time as the complainant in this case failed to notify the respondent in writing within the 2 month timeframe provided by the Equal Status Act. The complainant refutes this and submits that immediately upon receipt of the notification from the Respondent on the 12th of March 2015 that the complainant had not been offered a placement on the Transition Year course, the complainant’s parents telephoned the respondent (Mr. R) on the 12th of March, 2015, and then met with Mr. S (Principal) on Friday the 13th of March 2015, and together with other telephone calls, emails and letters ( dated 18th of March, 19th of March 2015, 24th of March, 13th of April and the 11th of May 2015)engaged in extensive communications with the respondent in which it is made abundantly clear that the complainant took issue with the process employed by the respondent, for access to the Transition Year Course particularly that part of the process which involved an interview and that the complainant indicated to the respondent that by applying the same process to all applicants, and without any regard to the complainant’s psychological issues, was unfair as was the application of different criteria of disability between that suffered by the complainant from the disabilities suffered by others when accommodating a 25th student on two previous occasions.

5.5 It is further submitted that the complainant, by letter dated 11th May 2015, informed the respondent that, if the Board of Management of the respondent did not decide to meet with the Complainant no later than Wednesday the 13th of May 2015, the Complainant intended bringing a complaint not only to the Office of the Ombudsman for Children but also to the Equality Authority. It is the Complainant’s submission that these written and oral communications satisfied the obligations imposed by Section 21 (2) of the Equal Status Act, 2000 namely that the Respondent was notified and was fully aware of the Complainant’s complaint and her intention, if not satisfied with the Respondent’s response, to seek redress from the Equality Authority. I accept that the complainant in referencing the Equality Authority meant the Equality Tribunal.

5.6 Although the Respondent conceded at the hearing that a written notification to satisfy the provisions of Section 21(2) could have been made at any time up to and including the 11th of May 2015, the Respondent submits that the Complainant’s actual letter of the 11th of May 2015 was not part of the written notification as it referred to a meeting with the Board.

5.7 I am satisfied from the evidence adduced that although the 11th of May letter does not specifically state that the matter to be referred to the Equality Authority is a complaint of discrimination on grounds of disability, references to this had been made in the complainant’s written and oral communications with the respondent dating from 12th of March 2015 to the 11th of May 2015. These communications outlined the details of the complainant’s situation and stated that the complainant had suffered from problems with anxiety and panic attacks as well as ‘psychological issues’ and stated that this had affected her performance during the interview process and claimed that the complainant due to her disability should have been afforded accommodation during the TY selection process. These communications also raised the issue that the respondent had in the past accommodated students with physical challenges by affording them a place in Transition Year and questioned why the complainant who suffers from psychological issues was not being accommodated with a place.

5.8 It is clear from the totality of the communications between the complainant’s parents and the respondent from 12th of March 2015 up to and including the letter of the 11th of May 2015 that the complainant is making an allegation of discrimination on grounds of the complainant’s alleged disability with regard to the Transition Year selection process in which they state their daughters psychological issues should have been taken into account in the selection process. It is also clear that the complainant’s parents, Mr. and Ms. B and are requesting that the complainant be accommodated having regard to this alleged disability by being provided with a place in the Transition Year program given that others with disabilities were accommodated by being given a place on the program on two occasions in previous years. It is also clear that Mr. and Ms. B are seeking some recourse in respect of their daughter’s treatment and they state in the letter of the 11th of May, 2016 they are intending to refer the matter to the Equality Authority. I am satisfied that the reference to the Equality Authority is meant to be a reference to the Equality Tribunal.

5.9 I am thus satisfied from the totality of the evidence adduced that the oral and written communications from Mr. and Ms. B to the respondent up to and including the letter of the 11th of May 2015 satisfies the notification requirements of the Acts in that it sets out the nature of the allegation being made against the respondent as well as the complainant’s intention, if not satisfied with the respondent's response to the allegation, to seek redress by referring the matter to the Equality Tribunal .

6. Conclusions of the Equality Officer

6.1 The issue for decision by me now is, whether or not the respondent discriminated against the complainant on grounds of disability in terms of sections 3(2)(g) of the Equal Status Acts, 2000-2015 and whether the respondent failed to provide the complainant with reasonable accommodation for that disability pursuant to Section 4 of those Acts. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.

6.2 Section 3(1) provides, inter alia, that discrimination shall be taken to occur where:

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘‘discriminatory grounds)’’

Section 3(2)(g) provides that: as between any two persons, the discriminatory ground of disability is,

(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),

6.3 The complainant is required to establish facts upon which she can rely in asserting that prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination. I am satisfied that the respondent is providing a service within the meaning of the Equal Status Acts.

6.4 Section 38A (1) provides that the burden of proof is: " Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary." It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that the prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.

6.5 It is submitted that the complainant is a person with a disability for the purposes of the Act. Section 2 of the Equal Status Act, 2000 defines “disability”, inter alia, as meaning “a condition, disease or illness, which affects a person’s thought processes, perception of reality, emotions, or judgement or which results in disturbed behaviour….”.

6.6 The respondent at the hearing disputed that the complainant is a person with a disability for the purpose of the Act and argued that no specific written diagnosis of a disability has ever been provided to the respondent in respect of the complainant’s condition. The complainant’s mother, Ms. B advised the hearing that the Complainant had attended her General Practitioner during 2012, as a consequence of fainting episodes and high temperatures. Ms. B also advised the hearing that the complainant had suffered panic attacks which included, shortness of breath, palpitations, a hot and clammy feeling and a belief that she was going to faint, which led her to isolate herself from her peers.

6.7 The complainant’s mother, Ms. B advised the hearing that she and the complainant’s father had attended Dr. C, Clinical Psychologist, on the 30th of January 2015 (to whom they had been referred by the Complainant’s General Practitioner) at which consultation Dr. C diagnosed the Complainant’s complaints as “classic anxiety symptoms”. The hearing was also advised that the Complainant’s parents thereafter attended a course to assist them in assisting the Complainant to cope with her anxiety and that the Complainant herself attended Dr. C on the 20th of February and the 19th of March 2015 at which she was provided with mechanisms to assist her in coping with her anxiety.

6.8 It is submitted that the diagnosis of anxiety made by Dr. C was confirmed in writing to the Respondent by letters dated the 20th of March and the 25th of May 2015 and in a further letter to the Complainant’s mother, dated the 25th of May 2015. I am satisfied from the totality of the evidence adduced that the complainant is a person with a disability for the purpose of the Acts.

7. Notification of disability

7.1 The complainant’s mother, Ms. B, advised the hearing that she had been advised in January 2015, that her daughter Ms. A had been involved in an incident in class where a teacher had asked Ms. A to read aloud in class and Ms. A had refused. The complainant’s mother advised the hearing that she had been told by another parent that the complainant had refused to read stating “I can’t “ in response to the teacher. It is submitted by the complainant’s mother that Ms. A had suffered a panic attack when asked to read aloud in class and was unable to read aloud when asked.

7.2. Ms. M, the teacher in whose class the incident occurred in gave evidence at the hearing and stated that the complainant, when asked to read aloud in class had replied “I can’t”, the teacher in question, Ms. M, stated that this was not an unusual occurrence in a 14 year old girl and stated that it was an age at which many felt self conscious at being asked to read aloud. Ms. M advised the hearing that she did not consider this to be a ‘panic attack’ and stated that she had at the time merely moved on to the next student and asked them to read instead, she added that she had made light of the fact that the complainant had refused to read so as to not embarrass her. The complainant’s mother did not take issue with the way in which the incident was handled by Ms. M. Ms. M also advised the hearing that she had spoken with the complainant informally on occasions after that about subject choices and other matters that there was never a mention of anxiety. Ms. M also stated that she had held a parent teacher meeting with the complainant’s mother, Ms. B, in December 2015 to discuss the complainant’s progress and stated that Ms. B had not during this meeting mentioned or raised any issue in respect of any anxiety issues or any unhappiness in respect of the complainant.

7.3 The complainant’s mother, Ms. B advised the hearing that she had heard about the reading incident from another parent whose daughter had been in the complainant’s class at the time. Ms. B advised the hearing that upon hearing of the incident, she had phoned the school. Ms. B advised the hearing that she had phoned the school on the 27th of January 2015 and had spoken with the Principal, Mr. S. Ms. B advised the hearing that she had raised the issue about the reading incident with Mr. S and had advised him that her daughter Ms. A had been suffering from anxiety and stated that she told Mr. S that she and her husband had arranged to meet with a psychologist later that month to discuss their daughter’s anxiety. Ms. B stated that she had told Mr. S that she was concerned about the incident in class and stated that it was agreed that he would ask the teacher involved Ms. M to speak to the complainant as she had a good relationship with that teacher.

7.4 Ms. B stated that she understood from this conversation with Mr. S that the complainant would be ‘looked after’ and that other teachers would be notified that she was suffering from anxiety.

7.5 Witness for the respondent, Mr. S advised the hearing that the phonecall did take place and that Ms. B in this phonecall had advised him of the incident in Ms. M’s class where the complainant had refused to read aloud. Mr. S stated that Ms. B has also advised him that the complainant, Ms. A was feeling a bit anxious at the time and that Ms. B was concerned about this. Mr. S stated that he offered Ms. B that a guidance counsellor could speak to the complainant or that she could talk to a teacher about this. Mr. S stated that it was agreed that Mr. S would ask Ms. M to speak to the complainant.

7.6 Mr. S stated that he had not been advised by Ms. B to tell any other teachers and that Ms. B had in fact told him that the complainant was unaware that she was contacting him. Mr. S stated that he had, as agreed with Ms. B, raised the issue of the conversation with Ms. M and asked her to have a word with the complainant. Ms. M at the hearing stated that this had happened and advised the hearing that she had had a quiet word with the complainant. Ms. M advised the hearing that she did not, in her conversation with the complainant, refer specifically to the reading incident as she felt there was no need to bring it up and risk embarrassing Ms. A, she stated that she had a general chat with the complainant to see that she was okay.

7.7 Ms. B submits that the respondent, following this phone call was on notice that the complainant was suffering from a disability and submits that the respondent was under an obligation to provide reasonable accommodation for the complainant for this disability during the Transition Year application process which took place in March of that year. Ms. B submits that the respondent was also obliged following this phone call to notify other teachers about the complainant’s anxiety. The respondent disputes this and states that it does not consider that this phone call from Ms. B amounts to notification of a disability and that there was never a mention of, or any diagnosis of a disability during or following this phone call. Ms. B in advancing this argument advised the hearing that she had during this phone call referred to the reading incident in class as a ‘panic attack’ which she stated occurred due to the complainant’s anxiety. Mr. S at the hearing acknowledged that the complainant’s mother had referred to the fact that her daughter was feeling anxious and that Ms. B had referred to the reading incident as a ‘panic attack’. Mr. S advised the hearing that Ms. B had told him that she did not want her daughter Ms. A to know that she had contacted the school about the incident and that Ms. A was unaware that she was doing so. Mr. S advised the hearing that Ms. B did not make any mention of a psychologist’s appointment during this conversation. Mr. S stated that the course of action agreed between Mr. S and Ms. B was that Ms. M would be asked to speak to the complainant. Mr. S stated that the agreed course of action was taken but that no further action was requested and that no further action was taken. Ms. B at the hearing agreed that this was the course of action agreed upon during her conversation with Mr. S. Mr. S advised the hearing that Ms. B did not contact the school again in relation to any concerns about her daughter, Ms. A, until after the results of the TY application process on the 12th of March, 2015.

7.8 I am satisfied from the totality of the evidence adduced in relation to this matter and in particular in relation to the phone conversation between Ms. B and Mr. S that the respondent, based on this phone call alone, could not be considered to be on notice that the complainant was suffering from a disability and therefore was not under any obligation to provide Ms. A with reasonable accommodation for a disability during the TY application process in March 2015. In addition, all parties agree that there was no further contact between Ms. B and the respondent in relation to the complainant’s anxiety issues until after the complainant received the results of the TY selection process on the 12th of March, 2015. I am thus satisfied that respondent at the time of the TY selection process was not on notice that the complainant was suffering from a disability and therefore was not under any obligation to provide her with reasonable accommodation for a disability in this regard.

8 The 25th place-Notification of a disability

8.1 The second aspect of the complaint relates to the failure by the respondent to offer the complainant the 25th place in the Transition year program. I must also decide whether and to what extent the respondent was on notice of a disability at this point in time and if so whether and to what extent the respondent was obliged to provide the complainant with the specific reasonable accommodation of offering her a place in the Transition Year cycle.

8.2 It is agreed by both parties that the complainant, Ms. A received notification that she was not successful in her TY application on 12th of March, 2015. The hearing was advised that following notification of this refusal, the complainant’s mother Ms. B phoned the school and spoke to Mr. R who had been on the TY selection committee, and advised him that the complainant was extremely upset and distressed that she had not been successful in her application to participate in TY. Ms. B advised the hearing that she had during this phone call explained to Mr. R that the complainant was suffering from anxiety and panic attacks and that they had been attending a psychologist in a bid to manage this anxiety. Witness for the respondent Mr. R advised the hearing that he was very concerned having received this phone call given that the complainant’s mother was very upset on the phone and given her account of her daughter’s distress at not getting TY. Mr. R advised the hearing that Ms. B had advised him during this phonecall that the complainant had been receiving counselling for her anxiety issues.

8.3 Mr. R, advised the hearing that, immediately following this phone call he went to discuss the matter with the Principal, Mr. S to see if anything could be done to help the complainant. Mr. R advised the hearing that the outcome of this discussion was that he and Mr. S agreed that the complainant was to be placed first on the cancellation list for TY.

8.4 I am satisfied that the evidence adduced in relation to this aspect of the complaint indicates that the respondent, following the conversation between Mr. R and the complainant’s mother which took place on the 12th of March, 2015, was on notice that the complainant was suffering from anxiety and was very distressed that she had not received a place in TY. What I must now decide is whether and to what extent the respondent was obliged to provide the complainant with reasonable accommodation for such disability by making an extra place available to her in the TY program.

9. Discrimination on grounds of disability and failure to provide reasonable accommodation.

9.1 The complainant’s mother, Ms. B advised the hearing that she was on the 13th of March, 2015 advised by the respondent that the complainant had been placed at the top of the TY cancellation list and that she would be offered a place if one were to become available. Both parties agree that this was the case. Ms. B advised the hearing that she had become aware shortly after this on the 19th of March, 2016 that an individual had refused their place on the TY program and thus they had assumed that the complainant would be granted this place given that she was now first on the cancellation list. The respondent advised the hearing that, it had emerged following the refusal of a TY place by student W, that an extra TY place had been offered in error and that 25 places had been offered even though there were only 24 places available. The respondent acknowledges that this was a mistake on their part and Mr. S was quoted as having said he “dodged a bullet” in respect of the 25th offeree refusing the offer of a place. The respondent advised the hearing that TY resources only cater for 24 students referring specifically to 24 spaces in the technical class, and stated that the 25th place had been offered in error.

9.2 The complainant’s mother, Ms. B advised the hearing that even though there are only 24 places in the TY program, the respondent has on 2 occasions in the past made a 25th place available. Ms. B stated that she knew of 2 students who had in the past been offered a 25th place due to exceptional circumstances relating to disabilities. Witness for the respondent, Mr. S advised the hearing that this was the case and stated that the students in question had each been diagnosed with a disability, one a physical one and the other a psychological one and that the school had been approached to accommodate them by allowing them to participate in the TY program. The respondent stated that the first student had a physical disability which meant that he could not participate in the practical classes and therefore did not require an extra place for lab work. Mr. S added that the lab can only accommodate 24 students for practical classes. The respondent stated that the other student had suffered from a diagnosed psychological disability and that an exception had been made to provide him with the reasonable accommodation of making an additional place available to him on the TY program.

9.3 The respondent advised the hearing that the exception had been made for these students given the individual circumstances of each of their particular situations and disabilities.

9.4 The respondent in this case disputes that it was on notice of a disability in the complainant’s case and/or that it was consequently obliged to provide the complainant with reasonable accommodation under the act in this regard. However I have found at pgh 8.4 above that the respondent was on notice of a disability in respect of the complainant and so the question then arises as to whether the granting of an additional TY place was required as reasonable accommodation for the complainant’s disability and whether the respondent was obliged, to make an exception in the circumstances and make an additional TY place available to the complainant as reasonable accommodation for her disability.

9.5 The complainant at the hearing raised the issue that the respondent had in the past made an exception for student x who suffered from a particular diagnosed psychological disability and stated that the respondent had offered a 25th place to student x as reasonable accommodation. The question then arises as to whether the respondent having made an exception for student x who suffered from a particular diagnosed psychological disability was then obliged to grant the same accommodation to the complainant in this case.

9.6 In considering this matter I note that there was no evidence adduced at the hearing to suggest that the complainant suffered from the same psychological disability as student x or to suggest that the complainant required the same reasonable accommodation as student x. I am thus satisfied that the respondent was not obliged to automatically offer the same reasonable accommodation to the complainant in this case as that it had afforded to student x.

9.7 The respondent advised the hearing that it was following the phonecall of the 12th of March, 2015, from the complainant’s mother, made aware that the complainant was very distressed upon receiving the news that she had not been successful in her TY application and so in an attempt to offer her something, in the circumstances, they agreed to move her to first place on the cancellation list in order that she would receive the next available place in the event of a place being refused. It is clear, from the evidence adduced, that due to an administrative error on the respondent’s part that an extra place was offered in error and that the refusal of such a place did not in fact result in the offer of that place to the complainant who was next on the cancellation list or to anyone else for that matter. It is also clear from the evidence adduced that the respondent does not in general offer more than 24 places in TY but that it has in specific circumstances made an exception on 2 occasions for students with diagnosed disabilities and as reasonable accommodation for those students provided a 25th place.

9.8 What is at issue here is not whether or not the respondent was obliged to offer the complainant the same reasonable accommodation as student x and student y but whether the respondent was obliged to make a place available in the TY cycle to the complainant given her particular circumstances.

9.9 It is submitted that the complainant in this case suffers from a disability for the purpose of the act and that the respondent was on notice of such disability. The complainant submits that the respondent, following notification of such disability was obliged to make an exception and offer her a 25th place in the TY program (which normally caters for 24 students), as reasonable accommodation for her disability.

9.10 The complainant’s mother, Ms. B, in advancing this aspect of the claim submits that she phoned Mr. R on the 12th of March 2015 and advised him that the complainant was very distressed at not getting in to the TY program it is agreed that she advised Mr. R that the complainant was suffering from anxiety and that they had been attending a psychologist in this regard. Ms. B advised the hearing that following this, a letter issued from Dr. C, Consultant Clinical Psychologist, to the respondent on the 20th of March, 2015, indicating that Dr. C had been asked by Ms. B to contact the respondent and explain that she (Dr. C) ‘had worked with (the complainant) to help her understand and to cope with her anxiety’. This letter also stated that the complainant would ‘very definitely benefit from TY’.

9.11 A further letter issued from Dr. C to the respondent on the 25th of May, 2015 stating that Dr. C had contacted Ms. B to discuss her (Dr. C’s) concerns with her regarding the complainant’s “mental health and well being”. This letter again stated that the complainant would benefit from TY and stated that “TY would will provide her with many opportunities to continue to build up her coping skills and resilience and to develop her self confidence”. It goes on to state that the complainant “is younger than many of her classmates and my sense is that the extra year in the Secondary school system will also help her emotional and social development”.

9.12 In making my decision I must consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. 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. In making my decision, I have taken into account all of the evidence, written and oral, made to me by the parties to the case.

9.13 The relevant sections of the Equal Status Acts are sections 4 (1) and 4 (2):

4.—(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.

(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.

9.14 In examining whether or not the respondent once notified of the complainant’s anxiety was obliged to provide her with an extra place on the TY course. I must look at whether the provision of a place on the TY course amounts to special treatment or facilities, which without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

9.15 While I note that the letters from Dr. C indicate that she has worked with the complainant “to help her understand and to cope with her anxiety”, I also note that these letters do not refer to any special measures or reasonable accommodation being required to facilitate such condition. The initial letter dated 20th of March, 2016 from Dr. C states that the complainant would ‘very definitely benefit from TY’. The next letter from Dr. C dated 25th of May, 2015 again states that the complainant would benefit from TY and states that “TY would will provide her with many opportunities to continue to build up her coping skills and resilience and to develop her self confidence”. It goes on to state that the complainant “is younger than many of her classmates and my sense is that the extra year in the Secondary school system will also help her emotional and social development”.

9.16 The correspondence from Dr. C does not state that the complainant would find it

“impossible or unduly difficult” to continue her schooling in the respondent school if she were not awarded a place on the TY program.

9.17 In her evidence at the hearing, the complainant’s mother placed a strong emphasis on the fact that the complainant’s three closest friends had got through to the TY course and that the complainant due to her anxiety was very reliant on these friends and did not want to be separated from them. In examining this argument as a reason for making a TY place available to the complainant I must consider that the offer of a TY place would not meet the complainant’s requirements if it was the case that her three friends did not get through to the TY program. In addition, even if the complainant were to be granted the TY place it is possible that a problem would again arise at the end of the TY program if the complainant were to find herself separated from her friends in fifth year due to differing subject choices.

9.18 The respondent advised the hearing that it had following the phonecall of 12th of March, from the complainant’s mother moved the complainant to first place on the TY cancellation list. The respondent advised the hearing that it also offered the complainant the option of transferring to its applied leaving cert program for 1 year in order that she could following that year, enter mainstream fifth year with her friends who had completed the TY program. The respondent stated that this would meet the complainant’s concerns about being too young to progress to the mainstream Leaving cert cycle and would give the complainant an additional year before sitting the Leaving Cert. The complainant declined this offer.

9.19 It emerged at the hearing that the complainant in this case following the failure to be offered a place on the TY program progressed to fifth year and no evidence was given to suggest that this had an adverse or negative effect on the complainant or that she was unable to continue her education in the respondent school. I am satisfied from the totality of the evidence adduced in relation to these matters that the complainant was not discriminated against by the respondent on grounds of disability in relation to these matters. I am also satisfied that the complainant was not discriminated against by the respondent on grounds of disability in respect of a refusal or failureto 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.

10. Decision

10.1 In reaching my decision I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, 2000 to 2015, I conclude this investigation and issue the following decision.

(i) the complainant was not discriminated against by the respondent on grounds of disability contrary to section 3(2)(g) of the Equal Status Acts, 2000-2015, and

(ii) the complainant was not discriminated against by the respondent on grounds of disability pursuant to section 4 of the of the Equal Status Acts, 2000-2015, in respect of a refusal or failure 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.

___________________

Orla Jones

Adjudication Officer/Equality Officer

20th of May 2016