EQUAL STATUS ACTS 2000 to 2015
DECISION NO. DEC-S2017-011
PARTIES
A Complainant
-v-
A Racing Academy
Case Reference No: et-159153-es-15
Date of issue: 2nd March 2017
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 4th September, 2015. On the 27th September, 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 of the Workplace Relations Commission 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 20th January, 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 he was discriminated against by the Respondent on the disability ground in terms of Sections 3(1)(a) and 3(2)(g) contrary to section 7(2) of those Acts in relation to access/admission to an educational course which is generally available to the public.
3. Summary of the Complainant's
3.1 The Complainant has a disability, namely Attention Deficit Hyperactivity Disorder (ADHD), and he made an application for entry to a Trainee Jockey course which was being provided by the Respondent and due to commence in September, 2015. The Complainant and his parents attended an Open Day which was held at the Respondent’s campus on 21st April, 2015. The Complainant claims that the Respondent’s General Manager made a discriminatory reference to his ADHD during the course of a briefing session for parents and course applicant’s which was conducted as part of a campus tour on this date. The Complainant submitted that the Respondent’s General Manager directed a remark at him during this briefing session stating that “we have had people here before with ADHD so don’t think of not telling us because we will find out”. The Complainant’s father stated that he felt compelled to inform the Respondent about the Complainant’s disability and learning difficulties during the Open Day after the General Manager had made this remark. The Complainant’s father received a telephone call from the Respondent a number of weeks after the Open Day requesting an Educational Psychologist’s Report for the Complainant. This information was duly forwarded to the Respondent.
3.2 The Complainant subsequently attended and participated in a five trial period starting on 6th July, 2015 as part of the selection process for the course. However, he was informed by the Respondent on 20th July, 2015 that his application for a place on the course was not successful.
3.3 The Complainant’s father contacted the Respondent after receiving notification of the refusal to seek clarification in relation to the reason why the Complainant’s application had been unsuccessful. The Complainant’s father claims that he was informed by the Respondent that it was because of the Complainant’s general behaviour and manners that he had not been allocated a place on the course. The Complainant also claims that the Respondent refused to forward a copy of the scoring sheet in relation to the assessment of his performance during the trial week and that this information was only made available to him after the present complaint was referred to the WRC.
3.4 In summary, the Complainant claims that the reason why he was refused a place on the course was directly attributable to his ADHD and he submitted that this treatment amounts to discrimination on the grounds of his disability.
4. Summary of the Respondent's Case.
4.1 The Respondent has been providing Trainee Jockey courses since 1977. The Respondent submitted that the Complainant attended an Open Day on its campus on 21st April, 2015 and subsequently applied for a place on its Trainee Jockey course via the Solas offices as is the normal procedure. The Complainant supplied all the relevant documentation as requested (including the application form, medical questionnaire, GP information sheet etc.) and met the initial eligibility criteria, and so was called to attend a five day trial on the week beginning 6th July, 2015. As this course is always over-subscribed, the purpose of the trial is to make selections from the larger group of eligible candidates (there was 30 places available from over 60 candidates) and establish who is best suited to the demands of a 42 week residential traineeship programme. The Respondent submitted that a balanced score-card is completed for each individual at the end of the trial period which reflects input from various instructors and supervisors on the performance of each candidate and this objective scoring system is used to rank candidates and make selections for the programme.
4.2 The Respondent submitted that the Complainant was one of 27 candidates on his trial and, along with 30 candidates from the other trial week, these scores fed into an overall ranking sheet. While the Complainant performed quite well over the week, his final score unfortunately fell short of the level required to be offered one of the places on the course. The Respondent submitted that it was felt that the Complainant might be suitable for pursuing a career with horses and could be a suitable candidate for an alternative training programme in the future should the opportunity arise and this was referred to in the letter sent to him on 20th July, 2015. Out of the 24 unsuccessful candidates, the Complainant was one of only eight who were given a letter with this indication.
4.3 The Complainant’s father contacted the Respondent on 21st July, 2015 to seek feedback and spoke at length with the Training Manager who explained the selection process to him in detail and provided specific feedback in relation to the Complainant’s performance during the trial week. The Respondent submitted that the Complainant’s father raised the issue of his son’s ADHD and indicated that he felt his son was discriminated against on that basis. The Respondent submitted that the Training Manager clarified the scoring methods and explained that an individual’s learning difficulties, ADHD or other conditions are not included in the scoring and that it was simply a case that the Complainant had not scored sufficiently across the range of areas to merit inclusion in the course. The Respondent submitted it is commonplace that 30-40% of participants selected for the training programme each year present with some form of learning or behavioural difficulty including ADHD. In the 2015/16 group, there were 10 (or 33%) of candidates selected for the course that had a learning difficulty and two of these persons had been diagnosed with ADHD.
4.4 The Respondent also denies that the General Manager made a discriminatory remark in relation to the Complainant’s disability during the course of the Open Day on 21st April, 2015. The Respondent submitted that the General Manager, to whom the discriminatory remark has been attributed, had been conducting campus tours over seven or eight years and was well experienced in dealing with visitors. The Respondent submitted that the alleged remark (about ADHD) was definitely not part of the official briefing and there is no reason why such a matter would be alluded to in the course of a campus tour unless brought up by someone in attendance. Candidates are openly asked to declare any certified learning or behavioural difficulties or prescribed medication as part of the application process to ensure that the Respondent can prepare any possible support resources and inform relevant staff. The Respondent submitted that there is no reason why this would be presented in a threatening way as alleged by the Complainant as they are very up front in any requests for this information.
4.5 In summary, the Respondent emphatically denies that the Complainant’s disability was in any way attributable to him not been selected for a place on the course but rather he simply did not score well enough to merit selection.
5. Conclusions of the Equality Officer
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 he can rely in asserting that prohibited conduct has occurred in relation to him. 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.
Discriminatory Treatment
5.2 The Respondent in the present case is an educational institution which, inter alia, provides continuing or further education to students and, as such, is an “educational establishment” 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”
5.3 It was not disputed between the parties that the Complainant has ADHD, and I am therefore satisfied that he is a person with a disability within the meaning of section 2(1) of the Equal Status Acts. The Complainant has claimed that the Respondent’s refusal to select him for a place on its Trainee Jockey course for the academic year 2015/16 was directly attributable to the fact of his disability. The Complainant claims that the Respondent’s General Manager made a discriminatory remark about his ADHD during the course of the Open Day which he attended and that the discriminatory treatment culminated with the Respondent’s refusal to offer him a place on the course after he had completed a five day trial period.
5.4 In considering this issue, I note that there was a conflict of evidence between the parties in relation to the alleged discriminatory remark that was made by the General Manager at the Open Day on 21st April, 2015. In this regard, I heard evidence from the General Manager at the oral hearing and I have found him to be a very credible and reliable witness and I therefore accept his evidence that he did not make the alleged discriminatory remark about the Complainant’s disability during the course of the briefing session that took place as part of the campus tour on this date. On balance, I prefer the General Manager’s evidence that any references which he may have made to learning or behavioural difficulties would have been in the context of a response to questions raised by parents during the course of the briefing session.
5.5 I have also found the Respondent’s evidence to be very compelling and credible in relation to the manner in which the assessment of the candidates’ applications were assessed following their participation in a five day trial period. The Respondent adduced cogent evidence that approx. 30% of the applicants for the course had learning or behavioural difficulties and that two of the successful candidates had ADHD. I am satisfied that the Respondent had an open and transparent selection process in place to assess the candidates’ performance during the trial period. Having carefully examined the assessment documentation submitted in evidence by the Respondent, I have found no evidence whatsoever to support the claim that the assessment of the Complainant’s application was in any way influenced or tainted on account of his disability. I accept the Respondent’s evidence that the reason why the Complainant was not selected for a place on the course was wholly attributable to the fact that he did not score well enough during the trial week and that his ADHD was not a factor which was taken into consideration in terms of the assessment process.
5.6 Having regard to the totality of the evidence adduced, I am satisfied that the Complainant has failed to establish that the reason why he was not offered a place on the Trainee Jockey course which was provided by the Respondent was in any way attributable to his disability. Accordingly, I find that the Complainant has failed to establish a prima facie case of discrimination on the ground of disability.
Reasonable Accommodation
5.7 In the case of disability in considering whether discrimination occurred, consideration must be also be afforded to the issue of the provision of reasonable accommodation to a disabled person within the meaning of Section 4 of the Equal Status Acts. 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". This means that the Act requires the Complainant to show, in the circumstances of this case, that the Respondent did not do everything it reasonably could do to accommodate his needs as a person with a disability by providing him with special facilities or measures to access its services. In considering this issue in the context of the present case, I note that the Complainant did not adduce any evidence to suggest that he had any difficulty or that he required any special treatment or facilities to access the Respondent’s services on account of his disability. In the circumstances, I find that the question of providing special facilities or measures for the Complainant to access the Respondent’s services does not arise in the context of the present case.
6. Decision
6.1 In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and I find that the Complainant has established a prima facie case of discrimination on the disability ground in terms of sections 3(1) and 3(2)(g) and/or section 4 of the Equal Status Acts. Accordingly, I find in favour of the Respondent.
_________________
Enda Murphy
Equality Officer/Adjudication Officer
2nd March, 2017