EQUAL STATUS ACTS
DECISION NO. DEC-S2016-067
PARTIES
A student
Complainant
AND
A third level education provider
Respondent
File reference: ES/2013/0166
Date of issue: 1st November 2016
Introduction:
1.1 The complaint is made pursuant to the Equal Status Acts on the grounds of disability and was referred by the complainant to the Equality Tribunal on the 13th November 2013. The respondent is a private third level college.
1.2 In accordance with his powers under section 25 of the Equal Status Acts, the Director General of the Workplace Relations Commission delegated the case to me, Kevin Baneham, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under section 25 of the Acts, on which date my investigation commenced. In accordance with section 25(1) and as part of my investigation I proceeded to a hearing on the 4th August 2015. The complainant attended in person. Two witnesses attended for the respondent.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.
2. Summary of the submission and evidence of the complainant:
2.1 In October 2013, the complainant accepted a place with the respondent, a third level institute. The course was a Certificate in Financial Services for information technology professionals. The course was offered through the Springboard initiative. The complainant explained that it had taken him four years to get to this point and that he had obtained reasonable accommodation in previous courses, giving the example of an accountancy course at an Institute of Technology.
2.2 The complainant said that his disability relates a hearing impairment. On signing up for the course with the respondent, he requested that he be provided with support for the examinations related to the course. He met with a named employee of the respondent on the 3rd October 2013. He provided medical documentation regarding his disability and information of reasonable accommodation he had been provided with by other educational bodies. The named employee stated that she thought that there might be an issue regarding the use of a dictionary during examinations. This employee emailed the complainant on Friday, 4th October to say that only international students were permitted the use of a dictionary. The email indicates that other supports would be made available. The complainant replied that he would not be able to partake in the course if the dictionary support was not available. Also on the 4th October 2013, the complainant and another member of staff of the respondent were in email communication, after the complainant had been sent an email about the forthcoming course. The complainant indicated that he could not pursue the course because of college policy regarding his disability. The complainant outlined that he was annoyed at this point about not being able to do the course and the response of the respondent to his disability. He would have accepted an apology from the respondent at this point and pursued the course.
2.3 On the 7th October 2013, the complainant referred the ES.3 form to the respondent, to notify it of this pending claim. The complainant outlined that in response to his notification, the respondent contacted him. On the 9th October 2013, the complainant received further communication from the respondent. This outlines that the matter raised by the complainant had been referred to the respondent’s Registrar. On the same date, the Registrar emailed the complainant to say the accommodations sought, including the dictionary, would be provided. It states that the complainant’s needs had not been referred to the examinations office. The email refers to the Registrar apologising for this.
2.4 In closing comments, the complainant outlined that the manner in which he was treated led him to think that he was finished with the respondent. The door had been closed completely because of his disability. It was only because of a chance encounter that he had pursued the Equal Status claim and received the further communication from the respondent. It had backtracked on receipt of the form. The complainant pointed to supports that should be provided to students with hearing difficulties, referring to the CAO handbook. The complainant outlined that he did not study in the 2013/14 academic year and nor could he find work.
3. Summary of the submission and evidence of the respondent:
3.1 The respondent outlined that it is a private third level college and does not have access to a named source of statutory funding for disability assistance. The respondent stated that it also emphasised the need to provide disability supports to students. Its general policy was not to allow students have dictionaries during examinations. The respondent accepted that in this case, it should have looked in detail at the complainant’s requirements. It had not previously come across dictionary support in cases of hearing impairment. The paperwork submitted, including those of the supports provided for the accounting technician course, do not refer to a dictionary. The needs provided for students who are deaf or hard of hearing by the Association of Higher Education Access and Disability does not reference dictionaries.
3.2 The respondent outlined that the complainant’s situation had been escalated internally to the Registrar and the email of the 9th October had been sent issued to him. This should have occurred quicker and it acknowledged that the complainant was already unhappy. At the hearing, the representatives of the respondent tendered an apology to the complainant, stating that it had no intention of creating obstacles for him. It acknowledged that the complainant’s case should have been escalated sooner and referred to the supports provided to the complainant.
4. Findings and reasoning:
4.1 The complainant outlined that he has struggled and also attained a great deal in education in spite of his disability. It is against this background that the events of October 2013 took place. On the 3rd October 2013, the complainant registered for a Certificate course with the respondent. He immediately signalled the need for support for the examinations. On the 4th October, he received an email from the respondent to say that he would not be permitted the use of a dictionary in the examinations. The complainant immediately indicated his withdrawal from the course and notified the respondent of this pending equality claim.
4.2 There was a conflict in evidence between the parties over what prompted the escalation of the complaint and the offer of the dictionary on the 9th October. I am satisfied that this occurred on receipt by the respondent of the notification of the pending Equal Status claim. I reach this finding on the basis of the documentation submitted by the parties. It was evident from the email communication between the complainant and two employees of the respondent that the complainant was not progressing with the course because of its response to the request for a dictionary and the wider disability support issues. This was a busy time of year for the respondent with a great many students about to commence various courses with the respondent. Without any other communication sent by or on behalf of the complainant (other than the ES1 form), the respondent revisited the complainant’s supports and the offer of the 9th October was made to him. I infer from this course of events that the escalation within the respondent was prompted on it receiving the complainant’s ES1 form.
4.3 Part III of the Equal Status Acts address enforcement. Section 21 provides that a complainant, before seeking redress under the Acts, notify the respondent in writing of the nature of the allegation and the complainant’s intention to seek redress under the Act if not satisfied with the respondent’s response to the allegation. In this case, the complainant sent the notification to the respondent on the 7th October 2013. The response was issued to the complainant on the 25th October 2013. The complaint was then made on the 13th November 2013.
4.4 I appreciate the complainant’s response and frustration at first being denied the full supports he had sought and latterly offered by the respondent. I appreciate that the events of this period came after many years of difficulty he had encountered in advancing his education. I, however, must judge the case on the events that took place in October 2013. They are that the complainant asked for specific requirements arising from his disability, a hearing impairment. He was entirely correct in doing so and this was belatedly acknowledged by the respondent in offering the sought-for accommodations. I must account for the fact that the accommodations related to examinations at the end of the course. This is a case where the notification of discrimination succeeded. It put the respondent on notice of a discriminatory act and one, in this case, that would impact on the complainant when he was due to sit the examinations at the end of the course. I must have regard to the fact that on the 9th October 2013 the respondent offered to the complainant the examination resources he requested. This is six days after the date of registration. While the complainant was not satisfied with the contents of the later response of the respondent (i.e. of the 25th October 2013), this is a case where the respondent, correctly, desisted from a discriminatory act and did so in time for the complainant to pursue the course and eventually sit the examinations. Given these findings, and in particular that the complaint relates to accommodations to be provided for examinations at the end of the course and the respondent’s response of the 9th October 2013, I conclude that the respondent did not discriminate against the complainant at time of the complaint. The complaint, therefore, does not succeed.
5. Decision:
5.1 In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and I find that complaint does not succeed.
___________________
Kevin Baneham
Equality Officer / Adjudication Officer
1st November 2016