EQUAL STATUS ACTS
DECISION NO. DEC-S2016-069
PARTIES
Complainant
(A parent on behalf of a student)
AND
A National School
(Represented by AJP McDonald Solicitors)
File reference: ES/2013/0107
Date of issue: 25th November 2016
HEADNOTES: Equal Status Acts – Disability – Reasonable Accommodation
1. Dispute
1.1 This dispute concerns a claim by the Complainant (through her mother), a student at the Respondent School that she was discriminated against by National School A on a School Tour on the 31st May 2013 contrary to the terms of Sections 3 & 4 of the Equal Status Acts.
1.2 The Complainant referred her claim against School A to the Director of the Equality Tribunal under the Equal Status Act on the 27th September 2013. On 26 September 2016 in accordance with section 25 of the Equal Status Act 2000, the Director of the Equality Tribunal then delegated the case to me, Michael McEntee, an Adjudication Officer having been an Equality Officer prior to 1st October 2015 for investigation, hearing and decision and for the exercise of other relevant functions of the Director on which date the investigation under Section 25 commenced. Submissions were received from both sides and as part of my investigation I proceeded to a hearing on the 27th September 2016.
1.3 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 83 (3) of the Workplace Relations Act 2015.
2 Summary of Complainant’s submission
The Complainant (daughter of the Representative) attended Respondent NS (National School) A from 2009. On the 31st May 2013, she was a participant in a School Tour with 1st and 2nd Class to the Chocolate Garden and the Rathwood Garden site.
She was not provided with Reasonable Accommodation by the School at either facility and thus was discriminated against on grounds of her disability.
Specific incidents quoted were
Her wheelchair was anchored against the wall at the Chocolate Factory and she was denied interaction and communication with her class colleagues.
At Rathwood Gardens she was segregated from her colleagues and left alone with her SNA (Special Needs Assistant) for a lengthy period. The getting on /off the Rathwood train was inappropriate and undignified for a wheelchair user. She was frightened and scared.
She was effectively abandoned by the rest of the group at Rathwood for a lengthy period.
In summary, she was prevented from partaking fully in the early part of the Tour and excluded from the 2nd part.
Extensive photographic evidence was presented to support the above contentions.
3: Summary of Respondents Submission
3:1 The basic facts were agreed. The tour had taken place on the 31st May 2013.
3:2 The School tour, at the center of the complaint, had originally been arranged for a Dublin city venue. Following representations by the Complainant’s mother regarding suitability for wheel chair access in Dublin the tour was changed by the Respondent to the Chocolate Factory and Rathwood Park.
The School Principal confirmed with both venues that they were suitable for a wheelchair user.
The Respondent hired a special bus from Portlaoise and engaged an extra SNA (Special Needs Assistant) for the day to help the Complainant’s existing SNA with the Complainant’s personal needs.
The first part of the trip to the Chocolate Factory was a great success and all the children, including the Complainant, enjoyed the activities there.
Later the children were all assembled together at Rathwood and all travelled on the Rathwood train.
A detailed time line was given for the Rathwood activities.
At approximately 13:20 the tour group disembarked from the train to go with a Guide on the Woodland trail. This trail was not wheelchair accessible. However, the Complainant, always accompanied by her SNA, remained on the path beside the Woodland and in earshot always of the Guide and the other students.
The Woodland trip concluded at approximately 13.35 and all the children, including the Complainant got back on the train and following a toilet stop reboarded the tour buses and returned to the school.
In relation to the specific complaints regarding the Chocolate Factory the Complainants’ SNA was always in immediate contact and positioned the Complaint’s wheel chair to her best advantage. The Complainant was never “anchored” against the wall. The venue involved the SNA engaging the brake on the Wheelchair as appropriate. The Complainant was never excluded from any of the activities involved.
In relation to the Woodland tour at Rathwood the SNA was in constant attendance and the Respondent strongly refutes any allegations that the Complainant was “left alone”. She was in close line of sight and verbal contact with the rest of the school party.
The transitions on to and off the Rathwood train were handled sensitively and the Complaint was never upset or embarrassed.
In summary, the Respondent made the closing points that
A) The Tour had been altered from Dublin to a different venue to facilitate the Complainant.
B) A Wheelchair suitable bus, at the school’s extra expense, had been sourced to accommodate the Complainant
C) An extra SNA had been engaged, at the school’s expense, for the day to again assist with the Complainant
D) The Complainant’s own personal SNA had been in constant attendance all during he trip and did everything possible to make sure she had an enjoyable day.
4 Relevant Law /Key Questions
4.1 The matter referred for investigation turns upon whether the Complainant was discriminated against contrary to Section 3 3(1)(a) & (g) on the Disability Ground and Section 4(1) on the grounds of failure to provide Reasonable Accommodation of the Equal Status Acts. Section 4(1) is quoted below.
Discrimination on ground of disability.
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.
(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination.
(4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.
(5) This section is without prejudice to the provisions of sections 7(2)(a), 9(a) and 15(2)(g) of the Education Act, 1998, in so far as they relate to functions of the Minister for Education and Science, recognised schools and boards of management in regard to students with a disability.
In reaching my decision I have considered all the submissions, both oral and written, made to me by the parties during my investigation into the complaint.
4.2 The burden of proof is set out in Section 38A of the Equal Status Acts which provides that:
" 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."
Although the instant case is taken under the Equal Status Acts, Section 38A is analogous to Section 85A of the Employment Equality Acts. In this regard, I consider that it is appropriate for me to consider the Labour Courts comments in examining the circumstances in which the probative burden of proof applies in employment equality cases. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, and stated that “… the court should consider the primary facts which are relied upon by the Complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the Respondent …”.
The Labour Court continued
Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
4: 3 The key questions in the case at hand are
(1) Whether acts of discrimination, “prohibited acts” as set out in Sections 3 & 4 of the Equal Status Acts took place? and if so
(2) What Rebuttal Defence is available to the Respondent.
As all cases rest on their own facts I set out below what I took to be the pertinent facts.
5: Pertinent Facts
5:1 In the case in hand there was conflicting oral evidence from the parties and considerable differences in interpreting a large body of photographic evidence,
However, the key facts that were not disputed were that the School had
a) Changed the trip from a Dublin venue to facilitate the Complainant
b) Had sourced a Wheelchair suitable bus
c) Had engaged a second SNA for the trip to assist the Complainant’s SNA
d) The getting on and off the Rathwood Train had been handled without incident or distress to the Complainant.
5:2 On evaluation of the Oral evidence, the key Respondent witness was the Complainant’s own SNA, a Ms. D. She had been the Complainant’s SNA for some time and knew the Complainant well. She maintained that she had a good personal relationship with the Complainant. Ms. D was quite clearly distressed by the necessity to give evidence. I found her evidence compelling and convincing.
Ms. D took the hearing through the day, supported by the photographs, and clearly maintained that nothing untoward had happened. The Complainant has complex special needs and Ms. D. maintained that everything possible had been done to facilitate her both in the Chocolate Factory and at Rathwood. She gave detailed evidence in relation to the placing of the wheelchair in the Chocolate Factory, the initial presence of hot liquids and the fact after the first demonstration was over she moved the wheelchair to a table so that the Complainant could have close social contact with her peers.
Regarding the Rathwood woodland tour incident, she maintained that her colleague, the other SNA, Ms. H, was in clear communication with her at all times while she, Ms. D, remained with the Complainant. The distances involved were very marginal – effectively the width of the hearing room and allowing for low hedge. If a problem had arisen she was confident that Ms. H was in immediate easy reach. Regarding communication, the party and the Guide were audible to the Complainant.
In this context Section 7(4) of the Equal Status Acts is worth reflecting on
(4) Subsection (2) does not apply—
(a) in respect of differences in the treatment of students on the gender, age or disability ground in relation to the provision or organisation of sporting facilities or sporting events, to the extent that the differences are reasonably necessary having regard to the nature of the facilities or events, or
(b) to the extent that compliance with any of its provisions in relation to a student with a disability would, by virtue of the disability, make impossible, or have a seriously detrimental effect on, the provision by an educational establishment of its services to other students.
The woodland trail was inaccessible to a wheelchair but the School adapted to the situation which lasted for only ten to fifteen minutes as best they could in the circumstances and bearing in mind the educational needs of all the other children present.
Additional evidence was given by the Deputy Principal, also present on the Tour who corroborated Ms. D. The School Principal also gave evidence in relation to the arrangements that were made to source the bus and the decisions to change the tour from a Dublin venue on representation from the Complainant’s Mother - her Representative on the day of the hearing.
5:3 The Complainant’s advocate, her mother, in her oral evidence, relied heavily on her interpretation of the extensive photographs taken during the day both by the school and the Complainant’s SNA on the Complainant’s camera.
An issue of the timing / time stamps of various photographs between the Complainant’s camera and the School camera was explored by the Complainant’s Representative. I did not think it was particularly pertinent to the overall case.
While accepting that the Complainant’ representative, her mother, might be in a better position to interpret the many photographs and the facial expressions of her daughter I could not find anything in the photographs of an alarming or a discriminatory nature.
The Representative’s evidence was always circumscribed by the fact that she was not physically present on the day. She had lodged her claim some three months after the tour based on comments she had heard at a junior sporting event during the Summer. No evidence was presented of any immediate ill effects on the Complainant on the day of the tour or in the days after.
The Complainant’s representative (her mother) was afforded and availed of a full opportunity to cross question the witness of the Respondent.
6: Conclusions
Accordingly taking all evidence both oral and written, including extensive photographic evidence, into account I had to find that the Complainant has failed to establish sufficient prima facie grounds to substantiate a claim of Discrimination on the Disability prohibited grounds, as set out in Sections 3 & Section 4 Reasonable Accommodation of the Equal Status Acts.
The Respondent School clearly provided “Reasonable Accommodation” for the Complainant.
Accordingly, no question of a rebuttal Defence arises.
7: Decision
7:1 I. In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision.
A case of discriminatory treatment on the Disability grounds and failure to provide Reasonable Accommodation, supported by the required level of prima facie evidence, has not been established in this instance.
The claim accordingly fails.
______________________
Michael McEntee
Equality Officer /Adjudication Officer
25th November 2016