EQUAL STATUS ACTS 2000-2015
DECISION NO. DEC-S2017-014
PARTIES
A Mother (On Behalf of a Minor Pupil)
v
A National School
(Represented by Eamon Marray BL,
instructed by Corrigan & Corrigan Solicitors)
&
A Charity
(Represented by M.P. Guinness BL,
instructed by Porter Morris Solicitors)
File References: ET-155599-ES-15 & ET-155602-ES-15
Date of Issue: 27th March 2017
1. DISPUTE
1.1 This dispute concerns complaints by a mother taken on behalf of her son, a national school pupil, alleging that the Respondents discriminated against him on the ground of disability, subjected him to harassment and failed to provide him with reasonable accommodation, contrary to Sections 3(1), 3(2)(g), 4, 5, 7 and 11 of the Equal Status Acts (hereinafter also referred to as ‘the Acts’). It was further alleged that they were vicariously liable for the acts of their respective staff, contrary to Section 42 of the Acts.
1.2 These complaints were lodged with the Director of the former Equality Tribunal (now Workplace Relations Commission) on 23rd April 2015, notifications under Section 21(2) of the Acts having been sent to the Respondents on 15th December 2014 and responded to on 12th and 19th January 2015 respectively. As these complaints are inter-related, they have been dealt with together with the consent of all Parties. The First-named Respondent is a National School (hereinafter also referred to as ‘the National/School’) and the Second-named Respondent is a Charity which provides specialist support services for people with intellectual disabilities (hereinafter also referred to as ‘the Charity’). On 10th November 2016, in accordance with her powers under Section 16 of the Workplace Relations Act 2016, the Director General of the Workplace Relations Commission (hereinafter ‘the WRC’) delegated these cases to me, Aideen Collard, an 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 Acts. This is when my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 14th November 2016. The Complainant represented herself whilst the Respondents were legally represented. At the outset, I outlined the relevant legal provisions of the Acts in lay terms. I also confirmed that given that the Complainant is a minor with a disability, I would be exercising my discretion to anonymise this decision and only had jurisdiction to adjudicate on matters preceding submission of the complaint forms herein. All evidence presented and extensive submissions and documentation submitted before and during the hearing have been taken into consideration.
1.3 This decision pursuant to Section 25(4) of the Acts is issued by me following the establishment of the WRC on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015.
2. SUMMARY OF THE COMPLAINANT'S SUBMISSIONS & EVIDENCE
2.1 The Complainant’s mother, Mrs A, attended at the hearing of these matters and represented herself, confirming that her primary reason for proceeding with a hearing of these complaints against the Respondents was for the purposes of “telling her story” and that she was not seeking financial compensation under the Acts. She was also seeking an apology from the Respondents, to which I explained that was probably not something I could properly direct under the Equal Status Acts if I was to find in her favour. During the course of the hearing, Mrs A also referred to being directly subjected to discrimination by the Respondents on the ground of disability arising from the association with her son.
2.2 Mrs A proceeded to outline the background to these complaints. She confirmed that the Complainant, her son had Cerebral Palsy which entailed a mild physical and intellectual disability. She confirmed that he had initially been happy attending at the National School in question (First-named Respondent), a small mainstream school, and his difficulties arose from when he moved up into the combined Second and Third Class. He was assisted by a Special Needs Assistant (SNA) whilst at the National School. He also availed of the services of a Charity (Second-named Respondent) which provides specialist services to children with an intellectual disability and links in with their schools/parents via a Key Worker.
2.3 Mrs A explained that the side-effects of her son’s Cerebral Palsy included drooling (uncontrolled release of saliva) which resulted nail irritation (Chronic Paronychia) caused by fingers being persistently wet and which is notoriously difficult to clear up. His drooling is managed by wearing a medicated patch on his ear, non-medicated tape on his chin and ongoing speech therapy to strengthen his oral muscles.
2.4 Mrs A said that on foot of welfare concerns regarding the infection to her son’s fingers which was wrongly contended as worsening along with other issues, the Charity made a referral to TUSLA in October 2014. She took grave issue with this and with his Class Teacher covertly photographing her son’s fingers on her phone without her consent for the purposes of “building up a case against her”. Mrs A had also made a complaint to the Data Protection Commissioner in respect of the photos which is still pending. Further to an assessment by TUSLA, it confirmed that there was no evidence of child protection concerns and recommended a meeting with the National School to discuss other issues. Mrs A contended that the Respondents should have discussed the matter with her, referred to her GP and/or have dealt with the matter informally before making the referral. The Respondents had ignored her views in relation to her son’s infection and she felt unjustifiably criticised and under attack as a mother.
2.5 Mrs A further complained that since in or around March 2014, the Complainant’s SNA had refused to apply the non-medicated tape and thereby failed to provide her son with reasonable accommodation.
2.6 Mrs A also felt that the National School gave excessive homework and holiday work to her son which became increasingly burdensome, amounting to harassment of her son owing to his disability. She had to employ an Assistant to assist with his homework. Whilst she had volunteered for some of the work, she did not anticipate the level of work involved which the other pupils were not required to undertake.
2.7 Following these difficulties and subsequent break-down in relations with the Respondents outside the remit of these complaints, Mrs A confirmed that her son had moved to a special needs school from 2016.
2.8 Under questioning, Counsel for the First-named Respondent put it to Mrs A that the National School had always demonstrated the highest level of care for her son, that no complaints were recorded as having arisen before 2014, and she had brought these complaints as she was aggrieved at the referral to TUSLA. She refused to accept that, stating that the Respondents had taken it upon themselves to form their own medical opinions regarding her son’s infection when they were not doctors. It was further put to her that on numerous occasions as per its records, various teachers from the School had raised the issue of her son’s worsening infection with her including at an IEP (Individual Education Plan) meeting in October 2014. Whilst she disagreed with the record, she accepted that teachers had raised this with her but that it was “all very casual” and she had been dealing with the infection with the assistance of her GP. When it was put to her that she had not provided the School with medical evidence that the infection was being addressed and was vague about the treatment, she said that she had felt hounded and harassed and did not feel she should have to explain herself. She again expressed her upset at her son’s Class Teacher taking photos of his fingers without her consent. She also contended that the infection had not been as bad as made out and she had been applying a cream prescribed by her GP. It was also put to her that the School had not refused to apply the non-medicated tape as alleged and she had never made any prior complaints in relation to this issue. In fact, the records showed that her son’s Teacher had raised issues with the need for him to be properly cleaned and prepared before school so that the tape could be applied. Finally, it was put to her that her son’s homework was set in accordance with his IEP, that she had never raised its excessiveness as an issue prior to the referral to TUSLA, and had in fact requested a summer learning package. She said that this would have been brought to the School’s attention in his journal.
2.9 Under questioning from Counsel for the Charity, Mrs A accepted that her son’s Key Worker who had reported her concerns to the Designated Liaison Person resulting in the TUSLA referral was a qualified nurse, and had also seen the Complainant at least 22 times during his lifetime. When asked how this amounted to discrimination against her son as against any of its other clients, all of whom had intellectual disabilities, she said she could not say or compare. It was also put her that her son’s Key Worker felt that his infection had worsened over the summer and this was addressed formally at the IEP meeting in October 2014 which properly included such welfare issues. She accepted that she had not returned to her GP during the summer to obtain oral antibiotics. It was also put to her that the photos taken by his Teacher had not influenced the Charity’s views and there had been no contact with the School over the summer. It had formed its concerns independently and had made the referral to TUSLA in its professional capacity in accordance with policy. Mrs A maintained that the Respondents had been acting in collusion. Finally, it was put to her that her son’s current school is run by the same Charity.
3. SUMMARY OF THE RESPONDENTS’ SUBMISSIONS & EVIDENCE
3.1 At the outset, Counsel for both Respondents submitted that the Complainant had not made out a prima facie case of discrimination or harassment on the ground of disability and denied the allegations made herein. Both the Complainant’s former Teacher and Key Worker were anxious to rebut the allegations made by Mrs A on his behalf, and gave evidence confirming that they had acted in accordance with their professional obligations in the interests of his welfare and wellbeing in good faith at all material times.
3.2 Specifically, Counsel for the First-named Respondent submitted that as the complaint was based solely upon speculation and assertions unsupported by any evidence, consequently it cannot be elevated to a factual basis upon which an inference of discrimination can be drawn as per Valpeters -v- Melbury Developments (2011) 21 ELR 64. Counsel for the Second-named Respondent submitted that as the Charity only provide services for people with intellectual disabilities, no comparator had been identified.
4 FINDINGS & CONCLUSIONS
4.1 I must determine whether the Respondents discriminated against the Complainant on the ground of disability, subjected him to harassment and failed to provide him with reasonable accommodation. The facts adduced must be assessed in relation to the relevant legal provisions. Section 3(1) of the Equal Status Acts provides that discrimination shall be taken to occur “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)...” Section 3(1)(b) provides for discrimination by way of association. Section 3(2)(g) defines the discriminatory ground of disability as arising in circumstances when as between any two persons “…one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”)”. Section 4 sets out the requirement for service providers including educational establishments to provide reasonable accommodation to persons with disabilities. In relation to the disposal of goods and provision of services, Section 5(1) provides: “A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.” Section 7(1) defines an educational establishment for the purposes of the Acts which includes primary schools and Section 7(2) defines discriminatory treatment in relation to education as including any term or condition of participation.
4.2 Section 11 of the Equal Status Acts defines harassment and sexual harassment under any of the prohibited grounds for the purposes of the Acts. Specifically, Sections 11(1) & (2) specify the persons who may be held responsible for harassment which includes: “A person (“the responsible person”) who is responsible for the operation of any place that is an educational establishment or at which goods, services or accommodation facilities are offered to the public”. Section 11(4) broadly provides that harassment comprises of any “unwanted conduct related to any of the discriminatory grounds”, which must have the “purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person” and may “consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.” Section 38A of the Acts sets out the burden of proof which applies to all complaints of discrimination under the Equal Status Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut that inference.
4.3 Firstly, I note that there is no issue that the National School (First-named Respondent) is an educational establishment or that the Charity (Second-named Respondent) provides services to the public for the purposes of the Acts. Turning to the specific complaints against the National School and taking Mrs A’s evidence at its height, I am satisfied that up until the issues with the treatment of the Complainant’s finger infection arose, the Parties had enjoyed a relatively good relationship. It appears that relations and consequently communication really began to break down from March 2014 onwards when the Complainant’s Class Teacher questioned Mrs A’s treatment of his finger infection and preparation for application of the non-medicated tape. I will reserve comment in relation to the Teacher’s actions in taking photos of the Complainant’s fingers without his parents’ express consent given that this is subject to a complaint before the Data Protection Commissioner. However, I am satisfied that the National School was acting in good faith in raising concerns with Mrs A regarding her son’s finger infection and there is no evidence to suggest that it would have acted any differently in relation to a pupil or parent of a pupil without a disability or with a different disability. Based upon the absence of any records of prior complaints or specifics given by Mrs A in evidence, I find that there is no evidential basis for the various complaints made against the National School including the SNA’s refusal to apply the tape to the Complainant and the excessive level of homework assigned to him. It is clear from the copious exchange of correspondence between the Parties that these complaints first arose after the Charity’s referral to TUSLA and indeed I am satisfied that they were brought in reaction to that referral.
4.4 Turning to the complaint against the Charity which primarily relates to its referral of the Complainant to TUSLA based upon welfare concerns, as it only provides services to persons with intellectual disabilities, a comparator has not been identified and the complaint against it is therefore misconceived. In any event, I am satisfied that in making the referral to TUSLA, there is no evidence to suggest that the Charity was acting other than in its professional capacity and in good faith, irrespective of whether its concerns arose independently from those raised by the National School. Whilst the Complainant’s sense of hurt and injustice at the referral is completely understandable, for the aforesaid reasons, there is no factual basis upon which an inference of discrimination on the ground of disability can be drawn.
5. DECISION
5.1 I have concluded my investigation of these complaints and based on the aforementioned, I find pursuant to Section 25(4) of the Acts, that the Complainant and/or his mother have not established a prima facie case of direct or indirect disability discrimination and harassment contrary to Sections 3(1), 3(2)(g), 4, 5, 7 and 11 of the Equal Status Acts by either Respondents requiring rebuttal and accordingly dismiss same.
________________________________
Aideen Collard, Adjudication Officer
27th March 2017