Complainant

Respondent

Anonymised Parties

Parent of School Pupil

National School

Representatives

  Self

Liam Riordan,Mason Hayes & Curran Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00027467-001

03/04/2019

The complainant is the father of a pupil attending a National School.  On 24 January 2019 the school had organised for a group of pupils to attend an event in an outside facility some miles from the school.  The pupil in question was not allowed attend the event as she did not possess a spare insulin pen.  The complaint alleges that the pupil was discriminated against on the grounds of disability in respect of her exclusion from the event by the respondent.

The pupil is a diabetic and her condition is known by the respondent.

The pupil was informed on the morning that the event took place that she could not attend the event as she did not possess a spare insulin pen.

No prior advice about this requirement had been received.

There was no actual requirement for this extra pen.

The action resulted in the exclusion of the pupil from normal school activities and the consequent disappointment for the pupil.

The respondent has failed to explain their actions in this regard.

Given that the complainant is a minor I have decided to exercise my discretion and anonymise the parties to the complaint

It is accepted that the pupil is a diabetic and a specific Healthcare Plan has been put in place for the pupil by the respondent in consultation with her parents.

Earlier in January 2019 experience and training in best practice led the respondent to decide that there was a requirement for a spare insulin pen to be available in the school for the pupil.

The pupil was informed of this requirement and a note written in the pupil’s homework notebook to this effect.  There was also a telephone conversation in this regard with the complainant.

As no spare pen had been provided the pupil was not allowed attend the outside event for health and safety reasons.

The situation was explained to the complainant during a number of telephone calls on the day in question.

It is accepted that the pupil concerned is a diabetic and is therefore a person with a disability for the purposes of the Equal Status Act, 2000.

Section 4(1) of the Act 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.

The complainant is the father acting on behalf of his daughter.  The parties are anonymised as the pupil is a minor.

The respondent’s School Principal in evidence stated that in her two years in that position she had ensured that proper policies and procedures had been put in place and that the number of Special Needs Assistants (SNA) attached to the school had been increased to four.  The duties of the SNAs included being aware of the health care issues of the pupils.  Amongst the policies introduced was a Diabetes Policy.  This was a generic document which dealt with the separate responsibilities of the Board of Management, teachers and parents / guardians.  The section dealing with the responsibilities of parents included the following clause:

Provide the school with any necessary equipment such as hypo kit and replenish supplies as needed.  The parents must provide the school with extra supplies, such as hypo kit, extra test strips, spare insulin pen, batteries for pump etc.

This policy is circulated to the relevant parents and is also available on the school website.

In addition to this policy a specific Healthcare Plan for the complainant’s daughter was drawn up in September 2018 in conjunction with input from the parents.  Under the heading Party Days and School Trips there are a number of commitments among which are the following:

 Include child in all events and activities.

Ensure the child remembers to take their blood glucose meter, insulin and hypo supplies with them.  Along with food for their snack and lunch.

According to the School Principal there was a change in the medication regime applicable to the child which was notified to the school at the commencement of the new school term in January 2019.  This change required the child to administer insulin by injection every lunchtime before eating whereas previously there was no insulin administered during the school day.  A meeting took place with the parents and an amended Healthcare Plan was agreed on 8 January.  The complainant for his part was unsure as to the date when the regime change occurred but the respondent was clear that their records in this regard were correct.

The Principal stated that on 15 January an incident occurred with the child whereby the insulin pen failed to work.  Efforts to contact the parents by the school staff were initially unsuccessful but eventually the complainant responded and the child was collected from school but without having received her insulin injection.

As it happened, the SNA who assisted the child attended a training course in relation to diabetic care run by a hospital on 16 January.  The medical staff running the course emphasised the need for an extra insulin pen to be retained in the school.

According to the evidence the child was informed on the following day (17 January) that the school now required that a spare insulin pen be provided.  On 21 January a note to this effect was written in the child’s homework notebook.  On 23 January the Principal instructed the SNA to telephone the complainant to emphasise the need to supply the school with a spare pen.  There is a difference in recollection between the parties with regard to this call.  The complainant accepts that he was contacted by the school on that day but his understanding was that it was in regard to the need for a spare pen and he does not recall being told that his daughter would not be allowed go on the school trip the following day if no spare pen was supplied.  The staff evidence was that the complainant was informed in this regard and that he promised to call the school back that day but that no further contact occurred.  A note was therefore put in the child’s homework notebook stating that she would not be permitted to attend the event, a football blitz, if no spare pen was provided.  It was subsequently noted that this note was not signed by a parent.  The complainant for his part stated that he did not see that note in his daughter’s notebook.

On 24 January the child was informed that she could not attend the event.  The SNA telephoned the complainant to inform him of this situation.  Following this first conversation the complainant rang the SNA back querying why the pen was needed as the school group going to the event was due to return to the school by 12.45, before lunchtime and the requirement for his daughter’s insulin injection.  The SNA explained that the school had to cover the possibility of delays arising during the event.  The complainant asked to speak to the Principal but she was not available at that time.  The complainant then arranged to collect his daughter from the school.  The complainant asked staff for a copy of the school policy and a statement on the issue.  A copy of the school’s Diabetes Policy was forwarded to the complainant some time later.  The complainant in his original statement stated that he asked his daughter when he collected her if she knew why she had been prevented from attending the event and that she replied that the teacher told her it was because her father wasn’t allowing her to go.  Staff for their part denied saying this.

A meeting took place between the parties on 1 February at which the situation which had occurred on 24 January was discussed.  The complainant subsequently served an ES.1 form on the respondent dated 25 February 2019.  The respondent did not reply or complete form ES.2.  The complainant then filed a complaint with the WRC which was received on 3 April 2019.

The respondent in their defence state that there was no discrimination against the complainant’s daughter in refusing her attendance at the school event because she did not have a spare insulin pen.  The requirement to have a pen had been made known to the pupil.  In particular the respondent was relying on Section 4(4) of the Act which states:

Where a person has a disability that, in the circumstances, could cause harm to the person or others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.

The respondent argued that the child’s disability of diabetes could result in harm to herself or others.   It was appropriate therefore for the respondent to decide that because of the concern in relation to the child’s health and safety, having regard to the circumstances where the event was off-site, involved physical activity, necessitated a bus trip and could have been subject to delays, it was appropriate and reasonable to insist that a spare pen was available to be taken on the trip.  The respondent also submitted that another pupil of the school who had the same disability as the child in question did provide the school with a spare pen.  The respondent further stated that the potential liability for the school had to be considered should any incident arise in relation to a student attending an outside event organised by the school.

The school is an educational establishment for the purposes of Section 7(1) of the Act.  Section 7(2) of the Act states:

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 the student tom any course, facility or benefit provided by the establishment

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

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

Section 7(4) of the Act states:

Subsection (2) does not apply –

(a)    in respect of differences in the treatment of students on the gender, age or disability ground in relation to the provision or organisation of sporting facilities or sporting events, to the extent that the differences are reasonably necessary having regard to the nature of the facilities or events…

Finally, Section 38A of the Act sets out the burden of proof required of complaints under this Act as follows:

(1)     Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

In the present case it is accepted that the pupil had a disability and that her exclusion from the event organised by the school was linked to that disability.  I believe therefore that a prima facie case in relation to discrimination on the ground of disability has been established.  The onus is therefore on the respondent to prove otherwise.

  In considering this issue I cannot accept the complainant’s contention that no prior notice was received in regard to the crucial requirement to supply a spare pen.  A note was put in the pupil’s homework notebook which is a normal manner for a school to communicate with parents.  In addition, a specific telephone call was made by the SNA to the complainant regarding this matter on the day before the event.  There is a difference in recollection as to the contents of that call but I accept the evidence of the respondent that the requirement for a spare insulin pen was discussed.  The timing of the call would appear to reinforce this.  In summary therefore I believe that the respondent notified the complainant in this regard.

A number of events occurred in January 2019 in quick succession to each other.  The first issue that arose was the change in the pupil’s treatment regime when the new term commenced whereby it was necessary for her to have an insulin injection at lunchtime.  According to the respondent this made the necessity of adequate provision of equipment very relevant and the amendment of the Healthcare Plan was done in consultation with the parents on 8 January.  There followed the incident on 15 January when the insulin pen failed and it took some time to get in contact with the parents.  I accept that their absence was for bona fide reasons but there was a protocol in relation to an emergency contact in the Plan to cover such an eventuality   On 16 January the SNA who was attending a medical training event specific to dealing with issues such as those affecting the pupil was advised by staff involved in the training of the need to have a spare pen in situ in the school.  All these developments led the school to decide to advise the child’s parents that it was now necessary for them to provide such a pen.  This was communicated in the normal manner by informing the pupil and by including a note to this effect in the homework notebook.  It was followed by the telephone call between the SNA and the complainant on the day before the event.  It was probably unfortunate from the pupil’s point of view that the event happened within days of this set of occurrences as I accept that the short time-frame between the decision to require that an extra pen be supplied and that event taking place left little time for clarification or explanation.   

Having regard to all of these factors, however, I believe that the respondent acted in the best interests of the pupil in regard to the decisions made in this matter and that the actions taken were reasonably necessary.  I accept therefore that Sections 4(4) and 7(2) of the Act apply to the circumstances of this case.   It follows that I find that the respondent did not discriminate against the complainant’s daughter with regard to her disability or that she was treated unlawfully in the provision of goods or services.   

I find that the complainant has failed to establish that the respondent discriminated against the pupil on the grounds of disability or that the respondent failed to treat her lawfully in the provision of goods or services contrary to the Equal Status Acts,2000 – 2015.

Disability, Discrimination, Equal Status Acts, Sections 4(4) and 7(2)