DEC-S2017-021

EQUAL STATUS ACTS, 2000 to 2015

DECISION NO. DEC-S2017-021

PARTIES

A Student

-v-

A University

(represented by McCann Fitzgerald Solicitors)

File reference: et-152327-es-15

Date of issue: 26th June, 2017

Keywords: Equal Status Acts 2000-2008 – Jurisdictional Issue – Notification Requirements – Section 21 - Disability Ground, Section 3(2)(g) - Reasonable Accommodation, Section 4(1) - Access to Education, Section 7(2) – Victimization, Section 3(2)(j) – Harassment, Section 11

Background to the Claim

1.1 The Complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2015 on the 12th January, 2015. On the 19th December, 2016, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 the Director General delegated the case to me, Enda Murphy, an Equality Officer/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part III of the Equal Status Act, 2000 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 29th March, 2017. Final correspondence was received from the parties on 4th April, 2017.

1.2 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(3) of the Workplace Relations Act, 2015.

2. Dispute

2.1 The dispute concerns a claim by the Complainant that she was discriminated against by the Respondent on the disability ground in terms of Section 3(2)(g) and 4(1) contrary to Section 7(2) of those Acts in relation to the provision of special facilities to accommodate her participation in a third level course of education. The Complainant claims that she was subjected to harassment contrary to Section 11 of the Acts. The Complainant also claims that she was subjected to victimisation contrary to Section 3(2)(j) of the Acts.

3. Summary of the Complainant's

3.1 The Complainant, who is dyslexic, enrolled in the degree of Master of Legal Studies (Professional) with the Respondent for the academic year 2013/14. The Complainant notified the Respondent about her learning disability on application for a place on the course prior to enrollment. She also informed the Access Department within the University about her disability and the accommodations she would require to fully participate in the course upon commencement in September, 2013. However, following assessment, the Complainant was notified that some of the accommodations she had requested including the enablement of the spell check during examinations would not be provided by the Respondent.

3.2 The Complainant submits that the accommodations she had requested mirrored the accommodations provided in a course she had previously undertaken at another university and she submits that she requested nothing above or beyond those provisions. As before, the Complainant requested the Respondent to provide her with facilities that required some financial funding, such as proof reading and photocopying cards and those which required no funding whatsoever, such as extended library loans and computer with spell check enabled for examinations. The use of spell check during examinations was essential to enable her to undertake her examinations and to provide her with an equal chance of success in those examinations. Without this facility the Complainant’s ability to write is severely restricted whereby the technique of writing overrides her ability to focus on the structure and content of the examination paper. Further, the Complainant submits that she would be exposed to considerable humiliation by submitting such a poorly drafted paper to the academic examiners given that examination papers are not anonymously marked as is the practice with other third level institutions.

3.3 The Complainant submits that she had numerous meetings with the Access Department, the Law Department and the Registrar (Professor B) in an effort to explain why she required the accommodations sought and why these were “reasonable” given the specifics of her learning disability. The Complainant had two meetings with the Law Department and she submits that both the Head of the Law Department and the Head of Year expressly confirmed that they had no issues with her request for the spell check to be enabled on her computer during examinations and they did not consider such an accommodation would give her an advantage over other students taking the same examination.

3.4 The Complainant submits that she also had numerous meetings with the Access Department including with the Head of the Access Department (Ms. A) all of which she found very frustrating and humiliating. The Complainant contends that she felt like she had to convince the Access Department of her disability despite the recommendations from an educational psychologist that she required accommodations. She further submits that the Access Department gave conflicting information which changed at their discretion such as their position in relation to the provision of photocopy cards. The Complainant submits that she also met with the Respondent’s Vice-President and Registrar (Professor B) who insisted that a common policy in relation to the use of spell check for examinations had to be applied despite the diversity of difficulties that people with dyslexia experience. The Complainant submits that Professor B undertook to initiate a review of the Respondent’s policy in relation to the use of spell check for examinations but indicated that the existing policy would apply for the academic year 2013/14. The Complainant submits that the Respondent refused to consider the specifics and needs of her disability from an individual perspective.

3.5 The Complainant submits that the issue in relation to the use of the spell check facility was not resolved and as a result she was unable to complete the end of year course examinations in May, 2014. The Complainant was subsequently informed by Professor B on 4th July, 2014 that the Respondent’s Academic Council had completed its review in relation to the use of spell check and had decided to retain the existing policy. The Complainant submits that as a result of the Respondent’s failure to change its policy she was also unable to take the repeat examinations in August, 2014 and was therefore effectively “expelled” from the course. The Complainant submits that she had to make a decision by 20th September, 2014 whether or not she would continue to pursue the course provided by the Respondent or if she would enrol on another course provided by a different educational institution. She decided to pursue the course with the other institution in light of the difficulties that she had encountered during her period of study with the Respondent.

3.6 The Complainant claims that the Respondent caused her a significant degree of stress, humiliation and harassment during her time at the university. The Complainant contends that this harassment was imminent throughout the process and that she was forced to repeatedly present her case to both administrative and academic staff in efforts to overcome the problem. Further, she claims that some members of the academic team were insufficiently aware of such a disability which caused considerable humiliation and one lecturer informed her that “proofing was a form of plagiarism”. The Complainant claims that the treatment afforded to her by the Respondent in terms of the manner in which her requests for reasonable accommodation were dealt with amounts to harassment contrary to Section 11 of the Acts.

3.7 The Complainant also claims that she was subjected to victimization by the Respondent contrary to Section 3(2)(j) of the Acts. The Complainant submits that the Respondent fabricated a complaint against her, claiming that she had been abusive towards the Disability Advisor in the Access Office (Ms. C). The Complainant contends that this complaint was entirely untrue and that it was fabricated to intimidate her out of the university because she had raised grievances about the nature of the supports and accommodations which the Respondent had provided her in terms of accessing the course.

4. Summary of the Respondent's Case.

4.1 The Respondent is a third level educational institution and has a dedicated Access Office which seeks to encourage under-represented groups, including persons with disabilities, to enter third level education and to coordinate the provision of academic, personal and financial support for students during their time in the University. The Disability Advisors within the Access Office complete Needs Assessments with all students with disabilities who wish to access support at the University.

4.2 The Complainant enrolled in the degree of Master of Legal Studies (Professional) with the Respondent for the academic year 2013/14. She informed the Respondent that she had a disability in reading and writing in circumstances where she had dyslexia and she sought accommodations in relation to her disability. The accommodations sought by the Complainant were proof reading, free printing or an allowance towards printing and the use of a computer with the spelling and grammar checker enabled during examinations. The Complainant met with the Respondent’s Disability Advisor and reported that she had been provided with these accommodations when she was a student in another Higher Education Institution.

4.3 The Respondent’s Access Office arranged a Needs Assessment for the Complainant which was completed on 11th October, 2013. On the basis of this assessment, a wide range of supports and accommodations were provided to the Complainant including relevant information in relation to the Complainant’s dyslexia was made available to her academic department; an individual assistive technology assessment was completed with the Respondent’s Educational Technology Officer; literacy support software was installed on the Complainant’s laptop and training was provided; the Complainant was advised that she could register for Technology Plus, a module delivered through the Disability Office that works with students to integrate technology into their learning; an extension on library loans was approved; a range of examination accommodations were approved including Marking Guidelines for examiners when marking scripts from students with a disability who have a reading, writing or spelling difficulty were made available to the Complainant’s examiners, providing a framework for marking the examination script of a student with dyslexia.

4.4 The Respondent submits that the Complainant expressed dissatisfaction with the supports offered to her and requested the Disability Officer to carry out a full review in relation to the matter. The Disability Officer considered the supports that had been offered to the Complainant were adequate and appropriate and he recommended that she attend training on educational technologies, which would assist her in identifying and correcting errors in spelling. The Disability Officer also recommended that three hours of individual learning support be provided to the Complainant to assist in her planning, structuring and reviewing her own work.

4.5 The Complainant subsequently contacted the Respondent’s Registrar, Professor B, in relation to her issues, and in circumstances where there had been a suggestion that the Complainant was considering not sitting her examinations, Professor B invited her to a meeting. During this meeting, which took place on 10th January, 2014, the Complainant informed Professor B about her concerns that the spelling and grammar check facility would be disabled for the examinations. She indicated that the absence of the spelling and grammar check would make it difficult for her to write, as the focus on her writing would be on her spelling and on avoidance of difficulty words, rather than the content. She also stated that this would make her disability visible to the marker of her work, which she indicated was humiliating.

4.6 The Respondent submits that Professor B informed the Complainant that disabling the spelling and grammar check function on computers during examinations was a University policy, which applied to all students in her position. The principle behind this policy is that the University will provide support to enable the student to write, but does not provide automatic checking which could mask spelling and grammar difficulties. He also informed the Complainant that it would not be fair or reasonable for the University to make an exception to this policy for one person and explained that the only way to change the policy would be to go through the normal procedure of review by the Academic Council. He also explained to the Complainant that such a review would take a considerable period of time and would not be likely to result in a change of policy for the current academic year.

4.7 The Respondent submits that the University’s policy on the provision of examination accommodations for students with disabilities is based on a nationally agreed policy developed by the Disability Advisors Working Network (DAWN) which provides guidance on a wide range of examination accommodations. The Respondent submits that it is important to note that the working group that developed the policy did not reach consensus on whether the spelling and grammar check facility should be enabled or disabled during examinations, so it was decided that each institution would decide on this issue locally. Of the seven universities that are part of the DAWN group, four have taken the decision to disable the spelling and grammar check (including the Respondent) and three currently leave it enabled.

4.8 The Complainant indicated to Professor B that she was considering not sitting her exams and Professor B advised her strongly that she should sit them. Professor B asked the Complainant to formally write to him (which she did) setting out her case in relation to the University’s current policy so that he could take the appropriate advice and if appropriate, bring proposals for change to the relevant University committees. The Access Office prepared a briefing paper explaining the reason for the existing policy and considerations for changing it. This briefing paper was brought to the attention of the relevant University Committees by Professor B and it was ultimately decided in May, 2014 that the existing policy should not be changed. On 4th July, 2014, Professor B updated the Complainant on the review that had been conducted and informed her that as the University had decided not to change its policy, she would not be provided with a spelling and grammar checker for the Autumn examinations in August, 2014. The Respondent submits that Professor B advised the Complainant that the best option for her would be to sit the examinations and allow for the discretionary accommodation during exam marking to take its course.

4.9 The Respondent entirely rejects the complaint of harassment made by the Complainant in terms of the manner in which her requests for reasonable accommodation were dealt with by the University. The Respondent submits that the relevant information relating to the Complainant’s disability category, disability advisor, library accommodation and information on the academic impact of dyslexia and guidelines on inclusive teaching practices, was made available to her academic department by the Access Office in October, 2013. The Respondent also rejects the claim that the Complainant’s interactions with staff from the Access Office were “frustrating and humiliating”. The Respondent submits that staff members in the Access Office are extremely experienced in dealing with people with disabilities and that they were respectful and supportive of the Complainant in all their interactions with her.

4.10 The Respondent also rejects the claim that the Complainant was subjected to victimization within the meaning of Section 3(2)(j) of the Acts. The Respondent submits that during the course of a meeting with her Disability Advisor on 26th November, 2013, the Complainant made a number of comments in relation to the Disability Advisor and the Access Office, which ultimately resulted in the Disability Advisor making a formal complaint in relation to the matter. The Respondent submits that the Disability Advisor alleged that the Complainant was intimidating and aggressive towards her during the course of this meeting and that her behavior amounted to harassment. The Respondent informed the Complainant about the complaint on 5th December, 2013 and advised her to meet with the Disability Advisor to discuss the matter informally, if possible. However, the Disability Advisor informed the Respondent on 28th February, 2014 that the Complainant had not made contact with her and requested that the complaint be progressed. On the 14th April, 2014, Professor B wrote to the Complainant and requested that she respond to the Disability Advisor’s complaint in writing. The Respondent submits that the Complainant failed to respond to Professor B and the matter remained unresolved. The Respondent emphatically denies the Complainant’s assertion that this complaint was somehow fabricated to intimidate her out of the university.

5. Issue of Jurisdiction

5.1 The Respondent submits that the Equality Officer/Adjudication Officer does not have jurisdiction to investigate the present complaint on the basis that the Complainant has failed to comply with the notification provisions of Section 21(2) of the Acts. This provision requires that a person seeking redress under the Acts must notify the service provider in question of the nature of the alleged discrimination within two months after the prohibited conduct is alleged to have occurred or where more than one incident of prohibited conduct is alleged to have occurred, within two months of the last such occurrence.

5.2 The Respondent submits that it received notification from the Complainant on 3rd November, 2014 of her intention to seek redress under the Acts. The Respondent submits, in the first instance, that the last date on which the alleged conduct took place was in January, 2014, being the date on which her examinations took place, then the notification was sent outside of the two month time limit. In the alternative, and without prejudice to the foregoing, the Respondent submits that if the Equality Officer/Adjudication Officer decides that the alleged prohibited conduct took place on 4th July, 2014, being the date the Academic Council had decided not to amend its policy in relation to the examination accommodations, then the Complainant’s notification was still sent outside the two month time limit. In the alternative and without prejudice to the foregoing, the Respondent submits that if the Equality Officer/Adjudication Officer takes the view that the last date on which the prohibited conduct took place was 31st August, 2014, being the latest date on which the Complainant could have been a registered student in the University, the notification was still sent outside of the two month time limit. The Respondent further submits that the Complainant has not demonstrated reasonable cause for extending the time limit in accordance with the provisions of Section 21(3)(a)(i) of the Acts or that there are exceptional circumstances to justify a decision to dispense with the requirement for notification in accordance with the provisions of Section 21(3)(a)(ii) of the Acts.

5.3 The Complainant disputes the Respondent’s contention that the notification was not sent within the two month time limit provided for in Section 21(2) of the Acts. The Complainant submits that the discriminatory treatment in the present case i.e. the Respondent’s policy in relation to the spell check facility for examinations was still ongoing on the date she sent the notification to the Respondent. The Complainant submits that she is entitled to avail of a period of seven years within which to complete the examinations relating to the course she undertook at the Respondent’s University and therefore, the notification which she sent on 3rd November, 2014 was within the required time limits given that the alleged discriminatory policy was still ongoing at that juncture. Without prejudice to the foregoing, the Complainant also submits that she had to make a decision by 20th September, 2014 whether or not she would continue to pursue the course provided by the Respondent or if she would enrol on another course provided by a different educational institution. She decided to pursue the course with the other institution in light of the difficulties that she had encountered during her period of study with the Respondent. The Complainant submits that this date was the most recent occurrence of the alleged discrimination and therefore, the notification which was sent to the Respondent on 3rd November, 2014 was within the required two month time limit.

5.4 In considering this issue further, I have taken cognisance of Section 21(11) of the Acts (which was inserted by the Equality Act, 2004) and which provides:

“For the purposes of this section prohibited conduct occurs –

if the act constituting it extends over a period, at the end of the period,

if it arises by virtue of a provision which operates over a period, throughout the period.”

I am of the view that the inclusion of these provisions in the Equal Status Acts have provided for greater clarity regarding the manner in which the date of discrimination should be interpreted in the case of a policy or provision which continued in force over a period of time (as is claimed by the Complainant the situation in the present case).

5.5 Having regard to the provisions of Section 21(11), I am satisfied that the Respondent’s policy in relation to the accommodations for examinations (i.e. in relation to the spell check facility) constitutes a provision or policy which was in operation over a period of time and which had ongoing implications or effects for the Complainant both in terms of her participation in the course during the academic year 2013/14 and the subsequent academic year in the event that she decided to continue with her studies. I would point out, however, that I am purely addressing the jurisdictional question at this juncture and I am not making any findings on the issue of whether or not the application of this policy in the context of the present case amounted to a failure to provide reasonable accommodation contrary to Section 4 of the Acts. The Complainant adduced evidence that she took the decision to discontinue her studies with the Respondent on 20th September, 2014 when she elected to pursue a course with a different educational institution. I take the view that the potential effects of this policy were still ongoing for the Complainant up to this date. Therefore, I am satisfied that the notification which was sent to the Respondent on 3rd November, 2014 was within the two month time limit provided for in Section 21(2) of the Acts in the circumstances of the present case. Accordingly, I find that I have jurisdiction to investigate the substantive complaint of discrimination in the present case.

6. Conclusions of the Equality Officer/Adjudication Officer in relation to the substantive complaint

The Equality Officer/Adjudication Officer must first 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 she can rely in asserting that prohibited conduct has occurred in relation to 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, both written and oral, made to me by the parties to the case.

6.2 It was not disputed between the parties that the Complainant has dyslexia and I am therefore satisfied that she is a person with a disability within the meaning of section 2(1) of the Equal Status Acts.

6.3 The Respondent in the present case is an educational institution which, inter alia, provides post-primary education to students and, as such, it is an educational institution within the meaning of Section 7(1) of the Acts and is therefore subject to Section 7(2) of the Equal Status Acts, which states that:

“7.- (2) An educational establishment shall not discriminate in relation to –

(a) the admission or the terms or conditions of admission of a person as a student to the establishment

(b) the access of a student to any course, facility or benefit provided by the establishment.

(c) any other term or condition of participation in the establishment by a student

(d) the expulsion of a student from the establishment or any other sanction against the student”

6.4 The question which I must decide in the present case is whether or not the Respondent failed in its obligation to provide the Complainant with special treatment or facilities within the meaning of Section 4 of the Acts and contrary to Section 7(2) to facilitate her participation in the course which she had enrolled during the academic year 2013/14. Section 4 of the Equal Status Acts states as follows:

"(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 difficulty 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".

The provisions contained within this section of the Acts require the Respondent to do "all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities". Therefore, in the context of the present complaint, the Respondent is obliged under Section 4 of the Acts to show that it did everything it could reasonably do to accommodate the needs of the Complainant, as a person with a disability, by providing special treatment or facilities in terms of facilitating her access to and participation in the third level course which she undertook during the academic year 2013/14.

6.5 The Complainant has claimed that the Respondent failed to provide adequate measures and facilities to accommodate her specific disability, and more specifically, in terms of its refusal to allow her to have the spelling and grammar check enabled on her computer during the final course examinations. The Respondent denies the claim that it failed to provide reasonable accommodation to the Complainant within the meaning of Section 4 of the Acts and contends that it provided a wide range of special facilities and measures in order to accommodate her disability and thereby facilitate her participation and ultimate completion of the course.

6.6 In considering this issue, I have taken note of the special facilities and measures which the Respondent contends that it provided for the Complainant in order to facilitate her participation in the course which included the following:

Relevant information in relation to the Complainant’s dyslexia was made available to her academic department. The Complainant also had access to a member in her academic programme with the specific purpose of addressing any concerns of an academic nature.

An individual assistive technology assessment was completed with the Respondent’s Educational Technology Officer on 20th November, 2013. The purpose of this assessment was to identify appropriate technology solutions to reduce the impact of a disability and promote independent learning. Literacy support software was installed on the Complainant’s laptop on 3rd December, 2013 and training was provided.

The Complainant was advised that she could register for Technology Plus, a module delivered through the Disability Office that works with students to integrate technology into their learning.

An extension on library loans was approved in circumstances where the Respondent recognized that students with dyslexia often have to retain reading materials for a longer period of time than other students.

A photocopying credit of €200 which is only granted to students by the Access Office in very limited circumstances.

A range of examination accommodations were approved including Marking Guidelines for examiners when marking scripts from students with a disability who have a reading, writing or spelling difficulty were made available to the Complainant’s examiners, providing a framework for marking the examination script of a student with dyslexia. The Guidelines ask examiners not to penalize the student for spelling and grammatical errors unless this is a competency that is being assessed in the examination; use of a personal computer to help compensate for slower than average speed of writing; extra time to compensate for slow speed of work in an examination setting (10 additional minutes per hour); a smaller shared venue with other students who are receiving accommodations in examinations.

6.7 I accept the Respondent's evidence that the abovementioned special facilities and accommodations were made available to the Complainant, as a person with a disability, in order to facilitate her participation the course of study. However, the Complainant has argued that the aforementioned accommodations which the Respondent put in place were not adequate or sufficient to accommodate her specific disability. The key area of contention between the parties relates to the Respondent’s refusal to allow the Complainant to have the spelling and grammar check facility enabled on her computer during examinations. The Complainant contends that this facility was essential to enable her to undertake her examinations and without this facility her ability to write was severely restricted. The Complainant contends that the Respondent’s refusal to change this policy, or to make an exception in her case, ultimately resulted in her not being able to sit the examinations and complete the course. In support of her position, the Complainant pointed to the fact that this facility was made available to her in a previous course which she had completed at another University in Ireland. However, I note that the Complainant accepted that she did not have to undertake written examinations in that particular course and therefore, I do not consider this a relevant comparison in the context of the issues in dispute in the present case.

6.8 The Respondent contends that the provision of examination accommodations for students is based on a nationally agreed policy developed by the Disability Advisors Working Network (DAWN) which provides guidance on a wide range of examination accommodations. I note that the working group which developed the policy could not reach a consensus on whether the spelling and grammar check facility should be enabled or disabled during examinations, so it was decided that each institution would decide on the issue locally. The Respondent adduced evidence that of the seven universities that are part of the DAWN group, four have taken the decision to disable the spelling and grammar check (including the Respondent) and three currently leave it enabled. The Respondent also adduced evidence that the decision to disable the spelling and grammar checker during examinations is a deliberate decision. The principle behind this policy is that the Respondent will provide support to enable the student to write, but does not provide automatic checking which could mask spelling and grammar difficulties. As an alternative to having the spelling and grammar check enabled for examinations, relevant students are granted access to the University’s Marking Guidelines which, in effect, allows examiners to distinguish between surface errors and errors which diminish the student’s ability to demonstrate achievement of the required learning outcomes. Academic staff members use the Marking Guidelines as a framework to ensure that they consider the work of the student fairly and consistently, by ensuring that they are not penalised for spelling and grammar errors. The Respondent adduced evidence that a review of this policy was conducted (in response to the issues raised by the Complainant) but the University’s Academic Council decided in May, 2014 to retain the existing policy.

6.9 In considering reasonable accommodation under Section 4 of the Equal Status Acts, I note that, in a Circuit Court appeal from a decision of the Equality Tribunal in the case of Deans -v- Dublin City Council, Hunt J. considered the concept of reasonableness in the context of that Section of the Act. Hunt J. stated: “… reasonableness must be judged according to the context of the individual case…….. The City Council is entitled to bear in mind all the extensive and considerable social, legal and policy considerations …… and they are indeed relevant to the decision as to what is reasonable in the particular case…. The Housing authority is not obliged to submit to every wish expressed by a disabled person in the context of an application for facilities..... All that it is commanded to do by the equality legislation is to devise a “reasonable” solution to a problem, not to achieve perfection and not to give in to every demand that is made of it”

6.10 In considering whether or not the Respondent has failed in its obligations to provide reasonable accommodation in the circumstances of the present case, I have taken into consideration the comments of Hunt J. that a service provider is not obliged to submit to every wish expressed by a disabled person nor is it obliged to achieve perfection in terms of the provision of special measures or facilities. I accept that the Respondent ultimately did not accede to the Complainant’s request to allow the spelling and grammar check facility to be enabled during examinations. However, I am satisfied that there were legitimate academic reasons as to why the Respondent adhered to its existing policy in relation to this matter. It is clear from the evidence adduced that there is a divergence of views taken by third level institutions within the State in terms of their respective positions on the disablement or otherwise of the spell check facility during examinations. I am satisfied that the Respondent had alternative arrangements in place in the absence of the enablement of the spell check facility to facilitate the Complainant and other persons with a similar disability to complete their examinations. In the circumstances, I am of the view that the provision of this alternative accommodation by the Respondent and the abovementioned other special facilities and measures which were made available to her clearly amounts to the provision of special facilities within the meaning of the Equal Status Acts in the circumstances of the present case.

6.11 Having regard to the totality of the evidence adduced, I am satisfied that the Respondent did, in fact put in place a wide range of special measures and facilities to accommodate the Complainant, as a person with a disability, in order to facilitate her participation and completion of the course of study which she had undertaken. Accordingly, I find that the Respondent did not fail in its obligation under section 4 of the Equal Status Acts to do all that was reasonable to accommodate the needs of the Complainant as a person with a disability, in the circumstances of the present case, by providing special measures or facilities.

Harassment

6.12 The next element of the complaint which I must consider relates to the claim that the Complainant was subjected to harassment by the Respondent contrary to the provisions of Section 11(5) of the Acts. The Complainant claims that the Respondent caused her a significant degree of stress, humiliation and harassment during her time at the university in terms of her efforts to obtain accommodations for her disability. She contends that this harassment was imminent throughout the process and that she was forced to repeatedly present her case to both administrative and academic staff in efforts to overcome the problem.

The Respondent entirely rejects the claim of harassment made by the Complainant in terms of the manner in which her requests for reasonable accommodation were dealt with by the relevant staff. The Respondent submits that a wide range of supports were put in place to accommodate the Complainant’s disability and that the relevant information relating to her disability was made available to her academic department by the Access Office.

6.13 Having regard to the evidence adduced, I prefer the Respondent’s evidence on this matter and I cannot accept the Complainant’s contention that she was subjected to harassment contrary to the Acts. As I have already found above, I am satisfied that the Respondent made available a wide range of supports and measures to accommodate the Complainant’s disability. I accept the Respondent’s evidence that the relevant members of its staff were respectful and supportive of the Complainant in all their interactions with her. I have not been presented with any evidence from which I could reasonably conclude that members of the Respondent’s staff engaged in any behaviour or conduct in terms of their interaction with the Complainant which could be construed as amounting to harassment within the meaning of Section 11(5) of the Acts. Accordingly, I find that the Complainant has failed to establish a prima facie case of harassment within the meaning of Section 11(5) of the Acts in relation to this aspect of her complaint.

Victimization

6.14 The final element of the complaint that I must address relates to the Complainant’s claim that she was subjected to victimization by the Respondent within the meaning of Section 3(2)(j) of the Equal Status Acts. The term "victimization" is defined within section 3(2)(j) of the Equal Status Acts as meaning:

"that one —

(i) has in good faith applied for any determination or redress provided for in Part IIor III,

(ii) has attended as a witness before the Authority, the Director or a court in connection with any inquiry or proceedings under this Act,

(iii) has given evidence in any criminal proceedings under this Act,

(iv) has opposed by lawful means an act which is unlawful under this Act, or

(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv),

and the other has not (the “victimization ground”)”.

It is therefore clear that victimization within the meaning of the Equal Status Acts takes place when a person is treated adversely because they have tried to enforce rights under equality legislation or to support someone else doing so.

6.15 The Complainant submits that the Respondent fabricated a complaint against her, claiming that she had been abusive towards the Disability Advisor. She contends that this complaint was entirely untrue and that it was fabricated to intimidate her out of the University because she had raised grievances about the nature of supports and accommodations which the Respondent had provided her in terms of accessing the course. The Respondent rejects the claim of victimization and submits that during the course of a meeting with her Disability Advisor from the Access Office on 26th November, 2013, the Complainant made a number of comments in relation to the Disability Advisor and the Access Office, which ultimately resulted in the Disability Advisor making a formal complaint in relation to the matter. The Respondent submits that the Disability Advisor alleged that the Complainant was intimidating and aggressive towards her during the course of this meeting and that her behaviour amounted to harassment.

6.16 Having considered the evidence adduced, I prefer the Respondent’s evidence on this issue and I accept that a complaint was made by the Disability Advisor regarding the Complainant’s behaviour and that the Respondent acted in accordance with its normal procedures in raising this matter with the Complainant. I am satisfied that I have not been presented with any evidence from which I could reasonably conclude that the complaint by the Disability Advisor was in any way fabricated or that the alleged treatment of the Complainant in relation to the manner in which this matter was dealt with by the Respondent could be construed as victimization within the meaning of Section 3(2)(j) of the Equal Status Acts. Accordingly, I find that the Complainant has failed to establish a prima facie case of victimization within the meaning of Section 3(2)(j) of the Equal Status Acts.

7. Decision

7.1 In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision:

I find that the Respondent has not failed in its obligation to provide the Complainant with special facilities and measures to accommodate her disability contrary to Section 4 of the Acts.

I find that the Complainant has failed to establish a prima facie case of harassment contrary to section 11(5) of the Acts.

I find that the Complainant has failed to establish a prima facie case of victimization contrary to section 3(2)(j) of the Acts;

Accordingly, I find I
favour of the Respondent in relation to the above matters.

Given the sensitivities in this case, I have exercised my discretion to anonymise this decision.

_________________

Enda Murphy

Equality Officer/Adjudication Officer

26th June, 2017