Complainant

Respondent

Anonymised Parties

A Mother on behalf of her daughter 

A Secondary School

Representatives

E. Woodfull B.L., instructed by McMahon & Williams Solicitors

K. Douglas B.L. instructed by Eversheds Sutherland

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00013055-001

09/08/2017

This dispute concerns complaints by a mother taken on behalf of her daughter, the Student alleging that she was discriminated against by a Secondary School, on grounds of disability pursuant to Section 3(1)(a) and 3(2)(g) of the Equal Status Acts 2000-2015 (hereinafter referred to as ‘the Acts’) and that the school failed to provide reasonable accommodation pursuant to Section 4 of the Acts.

In her ES1 form the Complainant alleged that the Respondent has treated her daughter, the Student unlawfully on the grounds of disability by discriminating against her and by failing to provide her with reasonable accommodation. The Complainant alleged also that the Student has been harassed on the grounds of disability. On 22nd February 2018, the first day of the adjudication hearing the Counsel for the Complainant confirmed that she was pursuing two claims against the Respondent, namely:

1.       That the wearing of facemasks was direct discrimination on grounds of disability pursuant to Section 3(1)(a) and 3(2)(g) of the Equal Status Acts 2000-2015.

2.       That the school failed to provide reasonable accommodation by failing to put and/or have in place a written Intimate Care Policy/Plan (hereafter referred to as an ICN policy) pursuant to Section 4 of the Acts.

Both Parties offered extensive submissions related to various matters referred to in the substantial correspondence between the Parties. For the purposes of this decision only matters relevant to the abovementioned claims are considered.

Given that the Student is a minor, I would be exercising my discretion to anonymise this decision. Both Parties concurred.

Counsel for the Respondent raised a preliminary objection to the jurisdiction of the Workplace Relations Commission (hereinafter ‘WRC’) to hear this complaint as being out of time.

The Complainant’s notification (ES1) was sent to the Respondent on 13th April 2017 and the complaint was made to the WRC on 9th August 2017. A complaint under the Equal Status Acts must be notified within two months of the alleged discriminatory act. Section 21 of the Act states “(2) Before seeking redress under this section the complainant…shall, within 2 months after the prohibited conduct is alleged to have occurred…notify the respondent in writing of…(i) the nature of the allegation, (ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act.” The Respondent submits that the complaint regarding the wearing of the facemasks, which practice was completely discontinued by 10th February 2017 is thus out of time. The Respondent submits that, as there was a failure to comply with the time limits outlined in the Act, the WRC has no jurisdiction to hear these aspects of the complaint and it should be dismissed.

The Complainant submits that the ES1 Notification was sent by registered post on 13th of April 2017. The Complainant's online Complaint was submitted to the WRC on 9th of August 2017, therefore within the required six-month period.

The Complainant submits that on 17th January 2017 the Complainant sent a written complaint to the Board of Management (BOM). In that complaint she requested the removal of surgical/face masks during catheterisation and she again asked the BOM to adopt an appropriate ICN policy and plan in order to meet the Student’s intimate care needs. She stated that the complaint was being submitted on the grounds of discrimination, exclusion and non-accommodation. The BOM did not reply to that letter until 14th of February 2017. In their letter they stated that the BOM were disappointed that the parents felt that the Student's needs were not being met and that the BOM believed that considerable and genuine efforts have been made to accommodate and include the Student. The notification under the Equal Status Acts was submitted on foot of this letter. The notification clearly states that the complaint arises as a result of the refusal of the BOM to address the Complainant's complaints of discrimination, exclusion and failure to provide reasonable accommodation as set out in the detailed letter of complaint to the Respondent on 17th January 2017. The Complainant did not receive a written reply to the complaint of discrimination and failure to provide reasonable accommodation from the BOM until the letter of the 14th February 2017. At that stage the Complainant and her husband were forced to conclude that the BOM were not willing to address the request to provide reasonable accommodation and to address the complaint of discrimination. For the avoidance of doubt, in her letter of complaint, the Complainant specifically requested the removal of surgical/face masks during catheterisation. The reply of 14th February 2017 did not address this complaint and in the circumstances the Complainant submits that the discrimination was ongoing on that date.

The wearing of face masks had been ongoing since 11th of January 2017. Following the Complainant’s letter to the BOM of 17th January 2017, the practice continued. The practice was

ongoing for the period during which the Complainant was awaiting a reply from the BOM. The Respondent submits that the practice completely discontinued on Friday, the 10th of February. The Respondent did not communicate its position to the Complainant, in particular in the

abovementioned response from the BOM the following Tuesday, 14th of February.

The Complainant's Notification was sent by registered post on 13th of April 2017 therefore within two months of 14th of February 2017 as required by Section 21 of the Equal Status Acts.

The Complainant's complaint was submitted to the WRC on 9th of August 2017 therefore within 6 months of the 14th of February 2017, as required by section 21 of the Equal Status Acts.

It is submitted that there was no failure to comply with the time limits, as the complaint was submitted within the requisite time limits.

Without prejudice to the foregoing, the Complainant will, if necessary, rely on section 21(3) of the Act in this regard which provides that, on application by a Complainant, the Director may for 'reasonable cause' direct that the notification period of 2 months be extended to not more than 4 months, or 'exceptionally' where satisfied it is fair and reasonable the Director may direct that the requirement for notification shall not apply to the extent specified in the Direction.   The Complainant submits that the wearing of face masks was not a one-off incident. The Complainant sent a formal request for the complete cessation of the practice. The practice continued and was ongoing at the date of that request and while the reply was outstanding. In response to the Respondent's assertion that Friday the 10th of February was the last date of the wearing of face/surgical masks, the Complainant was not and could not have been aware that this was the last date, particularly when the BOM did not make its position known to the Complainant or even address the issue in the response of 14th of February.

The Complainant does not accept that the notification was out of time as it was submitted within two months of 14th of February. In so far as the Respondent is relying on the date of 10th of February, the Complaint submits that, at worst, any such alleged delay in this regard is a delay of three days. The Complainant has clearly shown good reason for any delay, which is not accepted. The Complainant submits that the Complainant brings this complaint on behalf of her minor daughter who was in fact sitting her junior certificate mock examinations between the 21st of January and 17th of February 2017. As the WRC has established, a short delay may require only a slight explanation whereas a long delay may require a more cogent reason. It is further submitted that the Complainant was not present on the 10th of February and is relying on the instructions of her minor

daughter who was under significant stress, both in terms of sitting her mock examinations and in terms of the distressing and ongoing difficulties which had arisen around her intimate care needs,

including the wearing of face masks.

lt must be borne in mind that the Notification was sent as a last resort. The Complainant did not consider it appropriate to complain to the WRC without lodging a formal complaint with the BOM. Having done so, it was reasonable, and indeed incumbent upon the parents to wait for the BOM to respond to and to address their complaint, in the hope the issues could be resolved satisfactorily. At this time, the Complainant also requested a meeting with the BOM. The reply did not address this request for a meeting. The BOM response made no reference to any of the issues raised or the request to meet. The Complainant's position is clear as regards issuing the notification under the Equal Status Acts on foot of this letter. It was at this point that the Complainant could reasonably have ascertained the Respondent's response to the complaint of discrimination and failure to provide reasonable accommodation.

The first issue that I must consider relates to the question as to whether or not the Complainant has complied with the notification provisions of Section 21(2)(a) of the Equal Status 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. The notification concerning the present complaint (i.e. the ES.1 Form) was sent to the Respondent on 13th April 2017 and it alleged discrimination on the grounds of disability, failure to provide reasonable accommodation and harassment. The notification form did not set out a specific date on which the act of discrimination and harassment was alleged to have occurred but instead stated that “This notification is issued on foot of the respondent’s response of the 14th February 2017…” I note that the Complainant is not pursuing the matters of in-chair catheterisation training and harassment. Consequently, there is no requirement for me to address these matters.

The Complainant’s representative contends that the effects of the alleged discriminatory treatment in question were ongoing over a period of time. It was submitted that the discrimination in terms of wearing of facemasks commenced in January 2017 and the Complainant could not have known that it ceased on 10th February 2017. The Complainant was at no stage informed by the Respondent that the practice of wearing facemasks was discontinued and the letter of 14th February 2017 did not address the matter at all. In respect of the ICN policy and plan, the Complainant submits that the first request was made to the Respondent in October 2016 and as of the date of the ES1 Notification neither the policy nor the plan were in place.

Section 21(11) of the Acts provides that:

“(11) For the purposes of this section prohibited conduct occurs – (a) if the act constituting it extends over a period, at the end of the period, (b) if it arises by virtue of a provision which operates over a period, throughout this period”.

I am satisfied that the ICN policy was not implemented and the evidence before me shows that as late as on 16th March 2017 the Respondent wrote to the Complainant stating: “Thank you for…and for the enclosed draft document, many elements of which have been included in the School’s ICN Policy that the Board of Management are due to rectify at their next meeting. On a separate note, we will be in touch shortly in relation to an individual intimate care plan for [the Student].” The Respondent submitted that the policy was ratified on 25th April 2017 and a revised version was re-ratified in October 2017.

In respect of the wearing of facemasks, the Respondent submits that this practice discontinued on the 10th February 2017. I note that the Complainant has kept a detailed record and presented to the hearing a document entitled “Account of information from [the Student] on Mask wearing at school”. The document lists in chronological order details of ICN person, observer, whether the mask was worn and any additional comments for the period from 11th January 2017. The last recorded occurrence of wearing of masks is on 10th February 2017. The record shows that the Student was not in school on 13th February and there was no information recorded for the 14th, 15th and 16th February 2017; the midterms break was noted between 20th -24th February 2017; on 27th and 28th February the Complainant was training a new SNA and there is no record of mask being / not being worn. From the 1st of March 2017 the Complainant’s record show that no masks were worn. The record was kept until 3rd March 2017. I am therefore of the view that, having kept the detailed record, as described above, the Complainant would have been aware that the last day the masks were worn as far as the Complainant was aware and had information on was the 10th of February 2017.

In applying the provisions of Section 21(11) of the Acts, I find that the notification (ES.1 Form) which was sent to the Respondent on 13th April 2017, was therefore, issued outside the prescribed period of two months after the prohibited conduct was alleged to have occurred.

I am conscious of the requirements imposed by Section 21(3)(a) of the Act, which stipulates that where reasonable cause can be shown the Director may extend the period in which the Complainant may give notice to the Respondent of the alleged prohibited conduct as required by the Act. The High Court on extending time where there is "good reason to do so" in the case of O'Donnell v Dun Laoghaire Corporation [1991] ILRM 301 where Costello J stated as follows: "The phrase "good reason" is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the Court should not extend the time merely because an aggrieved plaintiff believed he/she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay".

In Cementation Skanska v A Worker DWT0425 the Labour Court held that “…in considering if   reasonable cause exists, it is for the claimant to show that there are reasons, which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present his or her claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence, there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.In the context in which the expression reasonable appears in the statute it imports an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time.The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons.” 

Having considered the circumstances of the case before me, I grant an extension of time on the notification process to 4 months pursuant to S. 21(3)(a).  In reaching my decision, I am mindful of the fact that there has been a frequent and detailed correspondence between the Complainant and the Respondent. I note in particular that the matter of wearing of masks was addressed by the School Principal in her letter dated 27th January 2017, which states as follows: “…most staff members involved in [Student’s] ICNs are no longer wearing facemasks and I expect this will continue.” On 8th February 2017 Ms. S in her letter stated: “Re face masks, any staff member wearing a face mask is doing so on medical advice.” At no stage did the Respondent inform the Complainant that the wearing of face masks discontinued. The Complainant in her letter to the BOM of 17th January 2017 specifically asks for the matter of wearing face masks to be prioritised. The BOM does not address the issue at all in their response dated 14th February 2017.

I find this to be a reasonable explanation that both explains and affords an excuse for the Complainant’s delay in issuing the ES1 Form. I am also satisfied that the delay is not excessive and I do not consider that the Respondent has suffered any prejudice.

The Complainant submits that the Student is a full-time wheelchair user. She has Spina Bifida, Hydrocephalus Scoliosis and a Chiari 2 malformation.

The Complainant submits that the complaint is two pronged:

1.       That the wearing of facemasks was direct discrimination on grounds of disability pursuant to Section 3(1)(a) and 3(2)(g) of the Equal Status Acts 2000-2015.

2.       That the school failed to provide reasonable accommodation by failing to put and/or have in place a written Intimate Care Policy/Plan pursuant to Section 4 of the Acts.

Wearing of facemasks

The Complainant submits that the Respondent was in breach of Section 3 of the Acts by requiring the Student to undergo catheterisation while the Special Needs Assistants (SNAs) wore facemasks in excessive and unwarranted acts of inherent discrimination. It is submitted that the wearing of the facemasks is not a requirement pursuant to the Guidelines for the prevention of catheter associated urinary tract infections. It is submitted that the Respondent was supplied with a document entitled Catheterisation by Spina Bifida Hydrocephalus Irelandwhich does not include the wearing of facemasks in relation to equipment required for the catheterisation. It is submitted that the evidence of the experience Urology Nurse is that she: “has never deemed it necessary to wear face protection as she deems the procedure to be extremely low risk.” It is submitted that there is no evidence that the Respondent applied the purported Medmark advice throughout the school but rather singled out the pupil in an ill-informed and discriminatory way. The Complainant submits that there was medical evidence supplied by the parents that the Student did not have the flu in any event. She was given a flu jab on 20th December 2016. The Complainant notes that the HSE advisory document for seasonal influenza in 2016-2017 makes no mention of the wearing of facemasks. It refers to the most appropriate protection measure for staff and pupils alike. It advises staff, among the obvious hand hygiene and sneezing advice, to receive the flu injection annually. Nowhere in this document does it mention or advise the wearing of facemasks. The Complainant notes that the Respondent relies on a medical cert from a doctor in relation to one SNA. There is no evidence as to why this should apply it catheterisation in any event. The Complainant objects to the admission of the cert as it could not be tested.

The Complainant submits that no proper assessment was done and that lead to the discriminatory action as evidenced by the on off nature of the wearing of the facemasks and the variety of reasons offered as to why there were being worn. Ranging from the flu outbreak, to the unspecified health and safety regulations to an unverified claim re: an individual SNA’s purported medical advice.

The Complainant submits that an adequate assessment of the situation, including the needs of the Student before decisions are taken is necessary. This involves discussing the matter with the Student, parents and possibly their medical adviser (“Schools and the Equal Status Acts”). The Complainant submits that instead the Respondent took the Student by surprise by suddenly wearing of facemasks and carrying out actions that left her feeling unclean and contagious. The Complainant notes that the Respondent indicated that if the Student was upset it was in her own head. The Complainant submits that the initial request to wear masks was made on 10th January and the wearing of masks commenced the following day, without any discussion with the minor or with the parents. The Respondent submits that the explanation was given to the Student that the SNA were going to wear masks as a precautionary measure for the Student and the SNAs‘ protection “given all the superbugs that were going around the school”. It was admitted that none of the SNAs in question wore masks anywhere else in the school at any other time. The Respondent has not provided any evidence of any risk associated with clean intermittent catheterisation. The Complainant submits that she has obtained an expert medical opinion which confirms that influenza is not spread through urine. The Complainant argues that the Respondent obtained a clear medical advice from Medmark on 26th January 2017 stating that the previous advice with regard to the wearing of masks had been reviewed and was to be amended and that masks should not be worn unless there was clear medical advice to support them. Despite this, the Respondent wrote to the Complainant stating: “Following somewhat conflicting further medical advice and now that the school is no longer in the throes of flu, most members involved in [the Student’s] ICN are no longer wearing masks and I expect that this will continue…”

In its submission the Respondent submits that on the 18th January 2017 the Headmistress contacted its insurance providers who confirmed that protective clothing should be provided when requested. No evidence has been submitted. Facemasks were not worn anywhere else in the school on account of the purported flu outbreak in relation to able bodied comparators in the school and requiring them in relation to the Student was in breach of Section 3(1)(a) of the Act. It is submitted that it has not been proven by the Respondent that the Student was not treated less favourably than comparators with different disabilities where the medical related evidence is that the wearing of the masks is not recommended practice in relation to the use of catheters by people with Spina Bifida and/or Hydrocephalus. It is submitted that the Student was treated less favourably pursuant to Section 3(2)(g).

It is submitted that wearing of facemask was a term or condition of participation in the school in circumstances where the wearing of facemasks was required for catheterisation and against the stated wishes of the Student and where catheterisation was essential to her being able to attend school. It is also submitted that the Respondent was in breach of Section 7(2)(c) of the Act by requiring the Student to undergo catheterisation while the SNAs wore facemasks in excessive and unwarranted acts of discrimination. It is submitted therefore that the Student was treated less favourably that other persons pursuant to Sections 3(1)(a) and 3(2)(g) and contrary to Section 7(2)(c).

While noting that the International Convention on the Rights of the Child (1990) is not legally binding on a school, the Counsel for the Complainant argues that it is well established that organisations working with children should act in their best interest at all time and refers to Art. 2 and 3 of the Convention. In that regard, Counsel referred also to the UN Committee on the Rights of the Child General comment no. 14 (2013).

The Complainant submits that the Student then aged 15 was not consulted at all and should have been in relation to her wishes in relation to a most intimate matter relating to her. The Complainant submits that voice of the child should be heard.

The Complainant submits that the Respondent was in breach of the Health, Safety & Welfare at Work General Applications Regulations, 2007 that require an employer to undertake a risk assessment of hazards in order inter alia to identify the correct type of Personal Protective Equipment (PPE) to be worn and to ensure that the PPE is appropriate to the risk. The Complainant submits that the PPE was inappropriate and excessive.

Following the Respondent’s submission of 8th May 2018 the Complainant submits that the document referred to by the Respondent is unsigned and undated and does not meet the criteria of a risk assessment. Section 19 of the Safety, Health and Welfare at Work Act, 2005 requires that employers and those who control workplaces to any extent must identify the hazards in the workplace under their control and assess the risks to safety and health at work presented by these hazards. In the document provided by the Respondent there was no assessment of “other people” i.e. the Student. Introducing PPE without discussion with the parents changed the CIC technique. The psychological effect was also not taken into consideration for the Student.

Failure to put and/or have in place an Intimate Care Policy

The Complainant submits that the Respondent failed to act in the Student’s best interest by failing to reasonably accommodate her by having a policy in place within a time frame meaningful to her and/or at all. It is submitted that the Respondent has not proved that it did all that is reasonable to have and put an ICN policy in place as required by statute and in light the case law referred below. It was accepted by the Respondent that there should be such a policy in place. The Complainant submits that the delay and total lack of urgency in formulating the policy amounted to a refusal to compile in circumstances where the Respondent was first asked that such a policy be put in place in 2016 and despite repeated request the Complainant was never made aware of and never received any such policy. It is submitted that the failure to put and/or have in place an ICN policy made it unduly difficult for the Student to attend school in line with Section 4(1) in circumstances where the matter at issue related to her most intimate needs and functions. The Complainant submits that the failure to compile and have in place an ICN policy resulted in the unwarranted wearing of face masks that had a profound negative effect on the Student’s dignity such that it made it unduly difficult and stressful for her to attend school. It is submitted that this is evidenced by the fact that the Student was referred for specialised peer support to address the ongoing stress, and in particular, arising from the sudden wearing of facemasks and the continuing failure to meet her intimate care needs. The Complainant submits that if there had been an ICN policy in place it is likely that there would have been clarity in relation to the appropriate PPE and the stated basis for same based on a risk assessment. It is submitted that the Respondent failed to meet the proportionality test in that the compiling of an ICN policy that did not impose any significant burden on the Respondent particularly in the circumstance where the Respondent had been supplied with a recognised prototype and in the context of the fact that the Respondent service provider is a large school and not a small company. Furthermore, it is submitted that the cost of same would be nominal given the fact that the Respondent had been supplied with a recognised prototype. It is submitted that the Respondent burden of proof is not discharged by reliance on the claim that an oral policy was in place particularly in light of the differing and inconsistent practices of the SNAs regarding catheterisation and the wearing of face masks. It is further submitted that the Respondent failed to act in the best interest of the child by failing to have an ICN policy in place. It is further submitted that the Respondent failed to listen to the voice of the child by failing to have an ICN policy in place.

The Complainant gave direct evidence. She reiterated the details of the written submission. She also stated that her daughter is conscientious, happy, pleasant, quite shy student. She noted that the Student was the first wheelchair user in the school. The Complainant noted that everything was fine in the first school year (2015-2016) but issues arose in 2016, she believed that the SNAs were expressing unwillingness and in October 2016 she requested a written ICN policy. In relation to the wearing of facemasks she noted that the Student thought it was creepy, she felt upset and stressed. The Student felt that she was “smelly and contagious”, and that she was a burden to the Respondent. The Complainant submits that the Student was not asked for an opinion, not consulted and she was taken by surprise. One SNA, Ms Z told her it was a new health and safety regulation. The Complainant noted that she provided the Respondent with a letter from Dr, Senior Medical Officer of the Department of Public Health and Urology Nurse. Both stating that wearing of facemasks is not required during catheterisation. The Complainant noted that she has contacted Mr. MG, Special Advisor to the Minister of State for Disability Issues and he did not support the Respondent’s approach. On 23rd January the Complainant met with the Respondent with a view to resolving the matter. Ms A of SBHI attended the meeting. She felt that the Respondent clearly did not want to resolve the problem. The Complainant agreed that a verbal policy was in place. She asserts that she requested a written policy due to inconsistencies in practice, had the ICN Policy been in place issue like this would not arise.

Evidence of Ms A, Education Officer, Spina Bifida Hydrocephalus Ireland

She stated that she covers around 100 schools from Donegal to Kerry and it was the first time she came across masks being worn during catheterisation. She advised that she was quite concerned about the wellbeing of the Student following the events of January/February, she seemed upset and traumatised. Ms A suggested the Student to speak to a psychology service, which she did. Ms A said that she could not see justification for the masks and the policy re: catheterisation does not mention masks at all. Ms A stated that a written policy is an effect of a collaborative process for protection of a child and staff.

Without prejudice to the preliminary points, it is denied that the Respondent discriminated against the Student in the manner alleged or at all and/or that there has been a failure to provide reasonable accommodation to her in the manner alleged or at all. The Respondent submits that the school went to significant efforts to ensure that the Student was very much welcomed in the school and that all her needs were catered for. Considerable and genuine efforts have been made to ensure that the Student was able to fully access her education. The Respondent contacted at least twelve separate agencies to source appropriate SNA training in catheterisation. The majority of these agencies indicated that they would recommend that someone of the Student’s age, given her level of dexterity, undertakes self-catheterisation. Similarly, the Department of Education and Skills Circular 30/1014 states: “continued and on-going access to SNA support is generally not desirable for post-primary students, unless absolutely essential, as it can impede their independence and socialisation needs at an important developmental stage of their life.” The Respondent submits that the Complainant did not provide any medical advice which indicated that the Student should not undertake self-catheterisation. The Respondent submits that all female SNAs (the Student’s parents requested only female SNAs to attend the Student’s intimate care needs) received training and the Respondent was happy to accommodate this. Furthermore, the Respondent arranged for the Complainant to attend school to complete the training which was provided by her to four SNAs and demonstrations were given to two nurses. The Respondent submits that concerns were raised by two SNAs in relation to the finalisation of the training by the Complainant due to previous interactions in which they had raised issued regarding how she treated them and other SNAs. The Respondent notes that the Complainant did not address the Respondent’s response which indicated in May that it was understood that her husband was available to provide training and when this was completed, three of the four female SNAs would be trained in catheterisation and that two trained nurses were also available on a rotational basis. The Complainant failed to contact the Respondent regarding this even though at that stage there was ample time left in the school year for the training to be completed. It is only in August that the matter is being revisited by her. Guidance provided by Spina Bifida Hydrocephalus Ireland (SBHI) provides that “only one person is required to be in the room with the individual requiring assistance with catheterisation… it is also pertinent that there are two/three additional staff members trained to perform this duty in the event of sick leave/annual leave.” Therefore, it is submitted that at all times there were more than sufficient number of trained members of staff to attend the Student’s ICN.

Facemasks being worn during ICN It is denied that wearing of the facemasks was unwarranted, unreasonable, disproportionate or discriminatory. The Respondent submits that there was an outbreak of influenza in the school before Christmas 2016. On 10th January 2017, the SNAs assigned to undertake catheterisation of the Student requested permission to wear a mask in addition to the sterile gloves and disposable plastic apron. The Respondent submits that the personal protective equipment (PPE) was sought as the SNAs were concerned about influenza, which was prevalent in the Respondent’s school at the time. One SNA advised that she had received medical advice from her GP, that as she suffered from Psoriasis and Psoriatic arthritis and required two different immunosuppressants to stabilise her condition, she was more susceptible to infections and as such it was their medical opinion that she should take all precautions necessary to minimise the risk including wearing disposable gloves, a disposable apron and a disposable mask while performing catheterisation. The Respondent requested the SNA to provide confirmation of the medical advice given to her and this was furnished to the Respondent on 30th January 2017. The SNAs also presented the Respondent with the following resources regarding the use of masks:

1.       HSE Patient Safety Tool Box Talks: Safety Care & Support – Personal Protective Equipment (PPE) (2012)

2.       HSE Hospital: Standard Precaution Guidelines (September 2010)

The Respondent considered the matter and consulted other sources. The following documentation was considered and consulted prior to making a decision:

1.       An Information Booklet for Home Helps and Personal Assistants: Infection Prevention and Control (2014)

2.       HSE: Infection Prevention and Control – An Information booklet for Community Disability Services (August 2012)

3.       Safety, Health and Welfare at Work Act 2005

Whilst a number of the documents considered applied to catheterisation in a healthcare setting, the fact that the Respondent is a boarding school necessitated looking at a range of guidelines produced for residential, education and healthcare settings in order to assess what should be applied in the school. The Respondent submits that the Complainant in her submission relied on guidelines produced for a healthcare setting as being applicable to the Respondent. It is submitted that the same principles governing PPE in a healthcare setting similarly apply in an educational setting and that it is the risk factors which are material to an individual situation that determine what PPE should be worn in any particular circumstance. It is submitted that carrying out ICNs and catheterisation in schools have many, if not all the same risk as associated with carrying out the same procedure in residential and healthcare institutions. In determining whether or not to authorise the use of masks, the Respondent carried out a risk assessment regarding the use of same. The Risk Assessment shows that the SNAs had concerns about contact with bodily fluids when carrying out ICNs and catheterisation. The Risk Assessment notes that the Respondent’s Headmistress was to obtain further advice and was to contact the Joint Managerial Body (the JMB). Having considered the evidence available to it at the time, the Respondent authorised the wearing of masks, which were provided by the Respondent’s nurse and directed that the matter should be discussed with the Student. On 11th January 2017 the SNAs commenced using masks and the Respondent’s SNA explained to the Student that they were going to wear masks as a precautionary measure for her and the SNAs protection, given all the superbugs that were going around the school. On 13th January 2017 the Respondent received an email from the JMB outlining advice received from Medmark. The advice stated that every precaution should be taken to prevent the spread of cold/flu including the wearing of masks and that the Respondent had a duty to staff members to provide protective clothing, if requested by staff, including masks. The advice from the JMB, having consulted Medmark, was that the wearing of facemasks was medically sound during the influenza outbreak. On 13th January the Complainant attended the Respondent’s premises to train the SNAs in in-chair catheterisation. The Complainant questioned the use of masks. On 16th January 2017 the Deputy Headmistress contacted the Complainant and explained that the use of masks was in place due to a flu outbreak, health and safety concerns and as a result of requests by staff. The Complainant responded by email on 16th January and indicated that she was not willing to carry out training while the SNAs wore the masks as she did not consider the wearing of masks appropriate. On that day one of the SNAs went out on sick leave, she did not return and officially resigned from her position on 1st February 2017. On 17th January the Respondent contacted Medmark, who advised that the Respondent had a duty of care to staff, as an employer to provide PPE including masks. The Respondent submits that the Complainant’s evidence shows that no member of staff wore a mask after 17th January 2017, without doing so on medical grounds. On 18th January 2017 the Respondent received an email from the Complainant noting that she was relieved to hear that the Respondent was keen to resolve the matter and that she would set up a meeting to discuss same as soon as possible. On 18th January 2017 the Respondent contacted its insurance providers who confirmed that PPE should be provided when requested. On 23rd January 2017 the Respondent met with the Complainant and Ms A from SBHI regarding the issue. At this meeting the Respondent presented evidence that it had considered when permitting staff to use masks. The Complainant outlined other evidence, which suggested that the wearing of masks was not necessary. The Respondent confirmed that it had carried out a risk assessment and suggested that an independent expert be appointed to assess the situation, however the Complainant did not agree to this. On 25th January 2017 the Respondent received an email from MS A furnishing the Respondent with documents on flu prevention/infection control/PPE/Safety, Health and Welfare at Work and in Post-Primary schools, which had been referred to at the meeting on 23rd January. Each of these documents provide guidelines aimed at different bodies of people, such as teachers and school staff, the general public, safety and health practitioners, employers, managers, employees and other. Thus, it is again submitted that carrying out ICNs and catheterisation in schools evidently have many, if not all the same risks as associated with carrying out the same procedures in residential and healthcare institutions. On 26th January 2017, Medmark advised the Respondent that the previous advice had been reviewed and was to be amended and that masks should not be worn unless there was clear medical advice to support same. On 26th January the Complainant sent the Respondent an email stating that she has now come to the conclusion and she has clarified it with the Student that the SNA is not carrying out ICN correctly or according to steps and training provided. She stated also that she had no doubt that the masks were requested on the basis of the spillage of urine that has been directly caused by incorrect performing of the procedure itself. The Respondent replied to this on the 26th January. On 27th January 2017 the Respondent wrote to the Complainant stating the following: “I know that you have said that the wearing of masks is causing [the Student] distress. [The father] asked me to convey this to the SNAs. Following this and somewhat conflicting further medical advice, and now that the school is no longer in the throes of flu, most staff members involved in [the Student’s] ICN are no longer wearing masks and I expect that this will continue. The wearing of masks is in no way intended to upset [the Student] or yourself and I do regret if this has happened. [The Student] wellbeing is important to us.” The SNA who was given medical advice to wear a mask was permitted to do so between 27th January 2017 and 10th February 2017 and she was then replaced by a new SNA. On 1st February 2017 the Respondent informed the Complainant that Ms X who was on sick leave from 16th January 2017, had resigned from her position as SNA. On 2nd February a new SNA was appointed. On 8th February the Respondent notified the Complainant that “any staff member wearing a mask is doing so on medical advice”. It is submitted that the Respondent attempted to take all parties needs and considerations into account when considering the issue. It is submitted that had the Complainant agreed to the appointment of an independent person on 23rd January 2017, there would have been a full consultation and review of the situation by a person who had access to all relevant medical information and advice.

The Respondent relies on the Safety, Health and Welfare at Work Act, 2005. Section 8 sets out the general duties, which include the provision and maintenance of suitable PPE where risk cannot be eliminated or where such equipment is prescribed. Under Regulation 62 of the Safety, Health and Welfare at Work (General Application) Regulations 2007, when a risk cannot be adequately controlled by other means, there is an obligation on the employer to supply PPE. The Respondent submits that the selection of PPE should be based on the nature of the patient interaction, the risks, and/or the likely mode(s) of transmission of infection and not on the setting. Therefore, the guidelines for the use of PPE in schools, hospitals and residential institutions are broadly similar if the nature of patient interaction is similar and the likely risks and modes of transmissions are similar. Having regard to the fact that the process of catheterisation is similar in all settings and due to the exposure of the person performing catheterisation to bodily fluids, it is submitted that similar PPE will be required in all settings. In that regard the Respondent relies on HSE Hospital: Standard Precaution Guidelines. The Respondent submits that the guidelines referred to by the Complainant state that gloves and apron will usually be sufficient, but it is submitted that there are times when the wearing of masks is appropriate[1]. The Circular relied on by the Complainant “How teachers and other school staff can prevent the spread of influenza (flu) at school” notes that persons at a higher risk of flu, including those with immunosuppression are advised to consult the doctor. The SNA who was permitted to wear a mask beyond 17th January 2017 is exactly such a person.

The Respondent submits that the Complainant did not establish a prima facie case. The Respondent denies that the treatment complained of was specific treatment (it is argued that the mask falls into the same category as the disposable apron and gloves) or less favourable treatment than the treatment that was or would have been afforded to a person in similar circumstances. The Complainant submits that masks were not worn anywhere else in the school on account of the purported outbreak of flu in relation to able bodied comparators. It is submitted that it is not the correct comparator as the circumstances of the comparator must be the same or “not materially different”. If this line is followed than the wearing of disposable apron and gloves would also be considered less favourable treatment. The Respondent also submits that discrimination does not exist where it is established that the treatment undergone was in response to a provision that was ‘objectively justified by a legitimate aim’, and that the means for achieving the aims were ‘appropriate and necessary’. In the present case the use of masks, in conjunction with disposable apron and gloves was appropriate and necessary taking into account the medical advice available at the time. Without prejudice to the foregoing, the Respondent relies on Section 4(4) of the Acts and submits that the risk of harm is to the health of the SNAs who are at an increased risk of contracting influenza due to the exposure of bodily fluids whilst undertaking ICNs and catheterisation. The Respondent relies on A Post-leaving Certificate Student v An Educational Institution DEC-S2006-034. The Respondent relies also on Cahill v The Minister for Education and Science [2017] IESC 29 and submits that wearing of masks is not discriminatory per se, as the ICN service being provided was a service which was not available to all students but available only to promote the interests of students with disabilities for the principal purpose of promoting, “for a bona fide purpose and in bona fide manner, the special interest of persons in that category” - Section 5(2)(h).

ICN Policy

Prior to the Student commencing with the Respondent in 2015 a number of meetings took place between the Complainant and the Respondent to establish a verbal ICN Policy. For example, it was agreed that two SNAs would be in the bathroom for child protection reasons, two SNAs and two nurses would be trained in catheterisation, a bathroom would be specially adapted, a piece of equipment would be moved from the Student’s former school and installed in the Respondent’s school, materials required for ICNs would be provided and that a log book would be kept to records ICNs.

The Complainant submitted that a draft policy was provided to the SEN coordinator on 10th November 2016 by email. She then stated that it was provided in late October 2016. Having reviewed the SEN coordinators emails it is not evident as to when the draft of policy was provided by the Complainant. Following the matters that had arisen due to the wearing of PPE in early 2017, the Complainant again requested on 26th January 2017 that a written ICN policy be put in place and on the same date the Respondent confirmed that it is in the process of doing so and would liaise with the Complainant in this regard. The formulation, consideration and implementation of a written ICN Policy required consultation within the Respondent and the Respondent sought external advice from the wider school community and external agencies. The Respondent emailed the Irish School Heads Association and the relevant Principals and Deputy Principals Association. On 7th March 2017, the Complainant sent the Respondent a draft ICN policy and on 16th March the Respondent thanked her for the draft and confirmed that many elements of the draft had been included in the Respondent’s policy that the BOM were due to ratify at its next meeting. On 25th April 2017 the BOM ratified the ICN Policy and a revised version was re-ratified on 3rd October 2017.

Section 4 of the Equal Status Acts states that discrimination includes “a refusal or failure by the provider of service to do all that is reasonable to accommodate the needs of a person with 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.” The Respondent submits that it is clear from the foregoing definition that the absence of a written policy is not a failure to provide reasonable accommodation as this is not a refusal or failure to accommodate the needs of a person with special treatment or facilities. Furthermore, the Respondent submits that it is clear that not having a written policy did not make it impossible or unduly difficult for the Student to avail herself of the service. Notwithstanding that there is no legal requirement for a school to have an ICN Policy in place, a verbal ICN plan was established prior to the Student joining the school and was implemented. The Complainant does not assert that there was not an ICN Policy in place, rather, that a written policy was not in place, which is correct as a verbal plan was in place. The Complainant was informed that the Respondent was ratifying its ICN policy and was also offered a meeting with representative of the BOM, this suggested meeting was not availed of. The Respondent submits that the Complainant has failed to show how in the absence of a written ICN policy that it was impossible or unduly difficult for a person to avail of services in circumstance where there was an oral ICN policy in place from mid-2015. The Respondent submits that the period of time it took the Respondent to implement a school wide ICN policy does not constitute a failure to provide reasonable accommodation as this is not a refusal or failure to accommodate the needs of a person with special treatment or facilities in circumstances where a verbal ICN policy was in place. The Respondent submits that due to the fact that having a written ICN policy was not common amongst other schools and thus the lack of advice and guidance from educational bodies slowed down the process. The Respondent regarded the implementation of the policy as an important and sensitive document which would impact on all 600 students with a range of varying needs. The Respondent relies on Wellard v Eircom DEC-S2008-098.

The Respondent submits that it is committed to ensuring that all students have access to education and that no student is treated less favourably due to a disability. In fact, the Student benefited from more favourable treatment. The Respondent went to significant lengths to ensure that the Student was fully accommodated. The Respondent ensured that the Student was accommodated in over-subscribed home economics class, she received one to one attention in PE class in Form 2, she was accommodated in additional extracurricular Art classes, the Student’s parents were invited to an information meeting on transition year a year earlier than other parents, she was offered additional pastoral supports etc. As evidence of the Respondent’s commitment to equality, the following is a list of adaptations to the school, which the Respondent made to ensure that the Student was reasonably accommodated. These were made at the Respondent’s expense, which is not a nominal cost:

1.       Bathroom adaptation – two bathrooms were merged into one; this entailed the demolition of a wall, re-plumbing, re-wiring and re-tiling;

2.       Two staff members travelled to collect a bed and a hoist for the Student;

3.       A bed and a hoist were installed in the bathroom (these were collected from the Student’s previous school)

4.       Additional ramps were installed in the campus;

5.       Disability parking spaces were identified and marked;

6.       Two e-vac chairs were installed;

7.       A number of training sessions were provided to several staff members regarding the safe use of e-vac chair;

8.       A portable hob for home economics was purchased;

9.       Alterations were made to the home economics room;

10.   Suitable tables for classroom use were purchased;

11.   Classes were rescheduled for the form group to ensure accessibility in a school with a mix of old and new buildings;

12.   An SNA attended extra art classes in the evening time;

13.   Numerous training events were organised for the SNAs;

14.   Wheelchair accessible transport was arranged for school events;

15.   A raised bed was added to the school garden for transition year activities;

The Respondent thus denies that the Student was discriminated against as alleged or at all and/or that there was failure to provide reasonable accommodation for her.

Four witnesses gave evidence for the Respondent.

Evidence of Ms Y, the Headmistress

Ms Y stated that the Respondent has about 600 students and between 15% and 20% are students with disabilities. The Student was its first wheelchair user. The Headmistress submits that after receiving the Student’s application to the Respondent’s school she met with the parents. She claims that she explained to them that it was a very new experience but they were happy to have the Student in the school. She noted that initially there was more focus on school accessibility and she was not fully aware of the in-chair or out-chair catheterisation. She claims that in the early 2016 the relationship started breaking down slowly, mainly due to the in-chair catheterisation training. Ms Y stated that in January 2017 she was asked by the SNAs if they could wear masks. She noted that a number of students were ill with flu at the time, two of the SNAs were sick around Christmas time. Ms Y stated that she did not foresee that it would cause any upset to the Student and considered it fair in terms of balancing the need of the students and the staff. She noted that the Deputy Headmistress Ms B contacted Medmark, Ms Y also spoke with the JMB. The insurers were also contacted. She was also made aware that one of the SNAs had an underlying medical condition. Ms Y claims that at the meeting on 23rd January 2017 it was suggested to the Complainant to have an independent person to hep to resolve the issues but the parents felt it was unnecessary.

While cross-examined Ms Y confirmed that the masks were not worn on the corridors, in classes and general areas despite the outbreak of flu. She confirmed that neither the parents nor the Student were informed of the SNA medical condition, she felt it is not a good practice to discuss medical issues of staff member with third parties. Ms Y confirmed that she received a letter from Urology Nurse Specialist at the Crumlin Children Hospital stating that face protection is not required during catheterisation as this is an extremely low risk procedure. In relation to the ICN policy and plan Ms Y stated that she agreed in January 2017 that the policy was needed. She had a lot of communication with the parents. Ms Y claims that she verbally informed the parents of the progress in March. The policy was ratified on 25th April 2017 and the parents were informed of that development on 16th May 2017.

Evidence of Mr C, Special Educational Needs Coordinator

Mr C’s evidence related to the date of delivery of a draft ICN policy by the Complainant. Mr C denied that he received draft of the policy as early as 24th October 2017, as alleged by the Complainant. He didn’t receive a copy in November either, as alleged by the Complainant in the WRC complaint form.

Evidence of Ms B, Deputy Headmistress

Ms B in her evidence stated that the SNAs approached her with a request to give permission to wear masks during catheterisation. They presented “Patient Safety Tool Box Talks” and “HSE Hospital Standard Precautions Guideline”. Ms B stated that she did not make her decision at the meeting. She conducted some research in respect of PPE and discussed the matter with the Principal and they carried out Risk Assessment. She noted the outbreak of flu at the relevant time. She said she was trying to balance the duty of care in respect of the staff and students. She believes SNA Ms Z spoke with the Student and explained the matter to her. She stated that she did not receive a draft of ICN policy in October or November. The first time she received it was on 26th January 2017. She noted that the Complainant would have mentioned that the policy would be a good idea but no draft was received until 26th January 2017. Ms B stated that she wrote to all 18 members of the relevant Principals and Deputy Principals Association inquiring about the policy. Ms B stated that they were keen to develop a policy which would cater for students with various needs. The policy was ratified by BOM and the ICN plan was to follow. Ms B noted that things were relatively smooth in March/April 2017. The Student completed her exams and the parents were happy with the results. Also, the Complainant was happy with the new SNA. In cross-examination Ms B denied that she told the Complainant that the Respondent didn’t need a written policy. She did not recall the offer of a draft in November 2016. She confirmed that there was no evidence that the Student had flu at the relevant time. Ms B stated that having done some research and having advice from doctors, decision was made to allow for masks being worn. The policy was changed immediately after new advice came from Medmark. She confirmed that she did not speak with the Student in relation to the new policy.

Evidence of Ms Z, the SNA

Ms Z confirmed that she is a qualified nurse with 12 years of experience and also has a number of years of experience as an SNA. She started assisting the Student in September 2015 and was confident she could help the Student in her new school. In September /October 2016 a new principal SNA was assigned to the Student but Ms Z would regularly assist and she would conduct catheterisation on Wednesdays. She confirmed that there was a round of flu and she became ill on 22nd December 2016. She attended her GP around Christmas time and discussed her concerns in respect of contact with bodily fluids. She brought her concerns to the attention of the other SNA, Ms X and Ms X thought it was a good idea for anybody doing the procedure. They met with the Deputy Principal on 10th January 2017 and presented the relevant documents. On 11th January in the afternoon she was informed that she could wear a mask. She was told to introduce the wearing of the masks to the Student, she thought it was important. She claims that on that day at 2.30 pm she met the Student in the bathroom and explained to her that she would be wearing masks as a precaution. On 13th January 2017 the Complainant was to conduct training on in-chair catheterisation. Ms Z stated that prior to going to the bathroom she asked the Complainant if there was anything to discuss beforehand. She was told that there was not. During the training the Complainant asked about the masks and Ms Z asked her to discuss the matter with the Principal. Ms Z emphasized that at no point did she feel that wearing masks was not necessary, she felt it was a minimum protection. In cross-examination Ms Z confirmed that she has had a medical condition for 8 years. However, she was now put on a second immunosuppressant and the Student has had a lot of bowel issues this year. She confirmed that her main concern was in respect of bodily fluids not flu but she confirmed also that she had never been splashed by bodily fluids in the face before. She stated that she explained the matter to the Student as professionally, kindly and nicely as she could and made sure the Student knew why it was done.

The issue for decision by me is, whether or not the Respondent discriminated against the Complainant on grounds of disability in terms of sections 3(1) and 3(2)(g) of the Equal Status Acts, 2000-2015 by allowing facemasks being worn and whether the Respondent failed to provide the Complainant with reasonable accommodation for that disability pursuant to Section 4 of those Acts by not implementing a written ICN policy, as requested by the Complainant. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the hearing.

It is submitted that the Student is a person with a disability for the purposes of the Act. The Complainant mother advised the hearing that the Student is a full-time wheelchair user. She has Spina Bifida, Hydrocephalus Scoliosis and a Chiari 2 malformation. The Student started attending the school in September 2015 and SNA was secured in advance. The Department of Education Circular 0030/2014 lists catheterisation as a primary care need which warrants SNA support. The Respondent did not dispute that the Student is a person with a disability for the purposes of the Acts. I am satisfied from the totality of the evidence adduced in relation to this matter that the Respondent was on notice of the Student’s disability.

The Respondent is an educational establishment. Section 7(1) “In this section “educational establishment” means a preschool service within the meaning of Part VII of the Child Care Act, 1991, a primary or post-primary school, an institution providing adult, continuing or further education, or a university or any other third-level or higher-level institution, whether or not supported by public funds.”

Section 7(2) stipulates that “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,

or

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

I am satisfied that the Respondent is providing a service within the meaning of the Equal Status Acts.

Section 3(1) provides, inter alia, that discrimination shall be taken to occur where: “(a) 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) (in this Act referred to as the ‘‘discriminatory grounds)’’

Section 3(2)(g) provides that: as between any two persons, the discriminatory ground of disability is, “(g) that 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(1) states: “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.

(6) In this section—

“provider of a service” means—

…

(e) an educational establishment within the meaning of subsection (1) of section 7 in relation to any of the matters referred to in subsection (2) of that section…

“providing”, in relation to the special treatment or facilities to which subsection (1) refers, includes making provision for or allowing such treatment or facilities, and cognate words shall be construed accordingly”.

There are two issues for consideration:

1.       Whether the Respondent discriminated against the Student by allowing the SNAs to wear facemasks and

2.       Whether the Respondent failed to provide the Student with reasonable accommodation by failing to implement a written ICN policy.

Section 38(A) 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 when a prima facie case has been established that the burden of proof shifts to the Respondent to rebut the presumption of discrimination.

Discrimination

In order to determine whether the Complainant has established a prima facie case of discrimination, a three-stage test can be applied:

1.       The Complainant must establish that she is covered by the relevant discriminatory ground.

2.       The Complainant must establish, on balance that the specific treatment alleged occurred.

3.       It must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

It is not disputed that the Student is a person with a disability. It is also not disputed that the Respondent was notified of the Student’s disability. The claim of discriminatory treatment, the wearing of face masks, in the present case, is based on the events which took place over the period from 11th January 2017 to 10th February 2017. In this claim the ground is disability and the Complainant must show that her daughter was discriminated against by comparison with someone who had a different disability or who did not have a disability. There is no dispute that the masks were worn during that period. There is also no dispute that the masks were worn only by the SNAs and only during catheterisation. The masks were not worn by the SNAs or any other staff member while dealing with other students, without disability or with a different disability. Therefore, the wearing of the facemasks was directly linked to the Student’s disability.

In the circumstances, I am satisfied that the Complainant has established facts from which it may be presumed that her daughter was subjected to less favourable treatment than a student without a disability or with a different disability at the Respondent’s school. Accordingly, I find that this fact is of sufficient consequence to discharge the Complainant's initial burden of proof and shift the onus to the Respondent to rebut the inference of discrimination raised.

The Respondent submits that on 10th January 2017, the SNAs assigned to undertake catheterisation of the Student requested permission to wear a mask in addition to the sterile gloves and disposable plastic apron as the SNAs were concerned about influenza, which was prevalent in the Respondent’s school at the time. One SNA advised that she had received medical advice from her GP that due to her condition she should take all precautions necessary to minimise the risk including wearing disposable gloves, a disposable apron and a disposable mask while performing catheterisation. The SNA, on the Respondent’s request has subsequently provided confirmation of the medical advice given to her.

The Respondent reviewed the documents relied upon by the SNAs and considered other documentation, as listed above prior to making a decision. The Respondent agreed that they are not medical professionals and were not certain as to what is the correct procedure. For that reason, they claim, they permitted the wearing of the masks due to the health and safety regulation and the prevention of flu while further research was carried out. The Respondent claim that they relied on the advice obtained from their medical advisors, Medmark and from the JMB. I note that the email from the JMB dated 13th January 2017, which was presented at the hearing does not refer to wearing masks during catheterisation specifically. Rather it refers to wearing of masks in general. It states the following: “…he [Medmark doctor] commends the school for taking the action with respect to wearing masks as flu/cold is spread through respiratory droplets and therefore the SNAs are taking every precaution not to spread the cold/flu. Not doing so, would mean the withdrawal of the SNAs from their duty to this student. So, it is medically sound to wear a mask for cold/flu.”

It was confirmed at the hearing that:

1.       The wearing of the mask was inconsistent, some SNAs wore them, other did not, some would wear it while carrying out the ICN but wouldn’t if they were the “observer” in the bathroom;

2.       No masks were worn in classes, corridors, canteen;

3.       No teachers or canteen staff wore masks.

The Respondent submitted several booklets, guidelines and brochures they relied upon such as Patient Safety Tool Box Talks in respect of care in respiratory tract infections, Personal Protective Equipment (PPE) Adapted for pandemic (H1N1) 2009 Influenza, An Information Booklet for Home Helps and Personal Assistants: Infection Prevention and Control (2014), HSE: Infection Prevention and Control – An Information booklet for Community Disability Services (August 2012) amongst others. On the other hand, the Complainant submitted a variety of documents on the topic of personal protective equipment required during catheterisation, flu prevention/infection control in the school setting etc. In addition, a number of experts’ opinions were presented on the matter of wearing of masks during catheterisation and the prevention of influenza. However, the issue for me to decide is not whether or not masks are or are not an effective and successful method or prevention of flu, whether or not masks should or should not be worn as a method of flu prevention or indeed as a method of flu prevention during the procedure of catheterisation. The issue for me to decide is whether or not the Respondent treated the Student less favourably than another person is, has been or would be treated in a comparable situation on the grounds of her disability. It is my considered opinion that in this case the answer to this question is yes. Whichever argument, for or against wearing of the masks as a flu prevention practice would be proven correct it does not change the fact the Student was singled out. The Respondent came to a conclusion that masks are appropriate PPE in respect of flu prevention but it did not deem it necessary to instruct all the SNAs and indeed all other staff members to wear the masks in contact with other staff members and students. The masks were worn only by the SNAs (and not all of them) and only in their dealings with this individual. Therefore, they applied their own policy in terms of flu prevention inconsistently and exclusively in relation to the Student.

In regard to the Respondent reliance on Section 4(4) of the Act, the Section provides that: “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.” The Respondent submits that the risk of harm is to the health of the SNAs who are at an increased risk of contracting influenza due to the exposure of bodily fluids whilst undertaking ICNs and catheterisation. For the sake of completeness, I have reviewed the material provided by both parties and it appears that facemasks are not routinely needed and, in general are necessary only when spraying or splashing of blood or body fluids to the face is anticipated. The evidence before me shows that the splashing of bodily fluids (urine) is extremely rare during catheterisation and would indicate that the procedure is not conducted correctly. It was not disputed that the Student had no flu at the relevant time and, in any event, influenza is not transmitted in urine.

Having regard to the totality of the evidence adduced, I am satisfied that the policy of wearing of masks during catheterisation did amount to a discriminatory measure against the Complainant’s daughter on the grounds of her disability

Reasonable accommodation

The second element of the Complainant’s claim which I must decide is whether or not the Respondent failed in its obligation to provide the Student 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 school by failing to implement a written ICN policy.

Section 4 of the Act states that “(1) For the purposes of this Act discrimination includes a refusal or failure bythe provider of a service to do all that is reasonable to accommodate the needs of aperson with a disability by providing special treatment or facilities, if without suchspecial treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.”

For clarity, the complaint relates only to the failure to implement a written ICN policy. Therefore, any other events referred to in the parties’ submissions will not be taken into account in this decision.

It is common case that the Student joined the Respondent’s school in September 2015. There has been a number of meetings between the Respondent and the parents prior to the start of the school year. There is no dispute that a verbal policy was agreed. It appears that there has been an extensive and regular communication between the parties in relation to various aspect of the Student’s needs but things came to a head when an inappropriate comment was made by one of the SNAs in front of the Student on 26th October 2016. The Complainant emailed the Respondent stating that “…at this point, an Intimate Care Need Policy and Plan as recommended by the HSE and the Dept. Of Education and endorsed by SBHI and our Lady’s Children’s Hospital, Crumlin, must be and needs to be put in place immediately…” By emails dated 16th November 2016 and 16th January 2017 the Complainant again requested the Policy and Plan to be implemented. I note the Complainant’s assertion that the policy would eliminate many of the issues and ambiguity faced by the parents and the Student.

The Respondent agreed in their letter dated 26th January 2017 that “…a written ICN policy is necessary and we are in the process of instigating same and will liaise with you in relation to this.”

The Respondent raised the matter of the exact date of when the draft policy was sent to the SEN coordinator by the Complainant and the parties presented varied evidence in that respect. I am of the opinion that establishing the exact date is not of a paramount importance. There is no dispute that from 26th October onwards the Complainant repeatedly requested the policy to be implemented and on 26th January 2017 she was informed that the Respondent was in the process of instigating same.

I empathize with the Complainant in respect of her continuous effort to improve the standard of assistance and level of comfort for her daughter. However, I am of the view that the lack, or more accurately the delay in developing and implementing of the written ICN Policy does not constitute a failure to provide reasonable accommodation on part of the Respondent. The Respondent did not refuse to implement the requested written policy. The policy was, in fact, ratified by the BOM, albeit after the Student had left the school. Therefore, the Respondent did not fail to implement the policy. Moreover, the Student attended the school from September 2015 and the lack of a written policy did not render it impossible or unduly difficult to avail herself of the education in the Respondent’s school.

Accordingly, I find that the Respondent did not fail in its obligations to provide special measures and facilities to the Student, as a person with a disability, within the meaning of section 4 of the Acts in the context of the present complaint.

In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision: 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) of the Equal Status Acts and that the Respondent has not succeeded in rebutting the inference of discrimination. Accordingly, I award the Complainant €3,000 in compensation.

I find that the Complainant has failed to establish a prima facie case of discrimination on the disability ground in terms of sections and 4(1) of the Equal Status Acts. Accordingly, I find that this element of the complaint fails.

Disability- discrimination-reasonable accommodation