, Complainant

Respondent

Anonymised Parties

Child A  

A School

Representatives

  Appeared In Person

Stephen O’Donoghue, BL instructed by  Murphy Healy & Company, Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00043015-001

11/03/2021

On March 11, 2021, the Complainant, acting in the capacity as next friend for her son, Child A submitted a complaint of discrimination on grounds of disability in relation to his being “denied access to the entrance exam, 2021 in a Post Primary School”.

The Complainant, suing as next friend to her son, and a litigant in person, submitted a copy of the ES1 and ES2 and written submissions. The written submissions incorporated a copy of the complaint submitted to the school by the parent on 5 December 2020.

The Respondent is a Post Primary School as recognized in Section 7(2) of the Equal Status Act and has denied the claim.

The Respondent was represented by Stephen O’Donoghue BL instructed by Murphy and Healy Solicitors.

The Respondent filed a prehearing submission, which incorporated the ES2.

At the conclusion of hearing, I allowed the Complainant to make a responding submission to the Respondent reliance on ADJ 32055 /32493. I also asked her to submit a record of the email which she   referred to in evidence as confirming Child As place in the school on 11 March 2021.

I asked the Respondent to submit the record of the application form received from Child A. This was referenced in the  Principals  evidence.

I received these documents and both submissions were met by comments by the Parties.

It is important for me to reflect that in my approach to the hearing, I explained to all present that taping or recording of the proceedings was strictly forbidden This was accepted without objection.

I also outlined the legal definition of disability, the burden of proof associated with the case and my objective as seeking to hear from both sides.

 I also allocated some time to addressing the Equality of Arms in the case by outlining the procedural framework around the hearing and the presiding jurisdiction of the Equal Status Act.

The Complainant is the mother of Child A. She is suing as his next friend. She confirmed that she signed the ES1 in the case. The Mother of Child A is a litigant in person.

On March 11, 2021, the Complainant submitted a complaint of discrimination to the WRC, on behalf of her son. The complaint was on grounds of disability against the Respondent school. She centred the occurrence of discrimination on the entrance exam on December 2, 2020.

The complaint was framed as:

My son was discriminated against and denied access to “the entrance exam, 2021” for secondary school.

The Complainant described her arrival at the school in the company of her son, then aged 11 and a prospective student. She informed the principal   that her son could not wear a mask. Her son was requested to wear a visor instead, but this was impossible.

The principal said that “no one could enter the building without face covering “

The Complainant sought a written reason for the denial, and this was agreed and later refused. The Complainant told the principal that her son was being discriminated against and this was denied.

The complainant submitted that her son had been denied education as permitted in the Constitution, but also caused both her and her son stress. She referred to the complaint she subsequently made to the Board of Management of the School.

Application made for anonymisation of the decision in the case.

At the outset of the hearing, the Complainant made an application for anonymisation of the Decision in light of her son being a minor. She also submitted that she wished the medical details of her child to remain private.

The Respondent did not oppose the application for anonymisation.

I took some time to consider both parties approach to the application.

I then informed the parties that in light of Child A being a minor, I was prepared to apply special circumstances and anonymise the decision in accordance with Section 14(b) of the Workplace Relations Act, 2015(as amended)  

The case would be referred to as Child A v A School.

I confirmed to both parties that I would still continue to probe the condition put forward at hearing under the title of disability and I would have to report on that condition in my findings and eventual decision. This was accepted the Parties.

Substantive Case:

The Complainant submitted ES 1 dated 24 January 2021 and ES2 dated 24 February 2021

Summary of Written Submission:  

The ES 1 referred to the operation of SI 296/2020. The Complainant stated that

 “ the Respondent was communicating words in its school which sounds “ no mask, no entry “ and I say that these words amount to a refusal of service within the meaning of the Equal Status Acts, as these words ( at a minimum ) give the appearance of refusing service to [persons who may have a reasonable excuse ( and are therefore not illegally entering or remining in a relevant premises with the wearing of a face covering or (b) have a disability within the meaning of the Equal Status Acts

I confirm that my child has a reasonable excuse within the meaning of the S.I and I say that I view the “no mask, no entry “words told by the Respondent as refusal of service /education

……

The Complainant concluded that by Child As inability to wear a face covering due to disability, he was treated less favourably than another person has and would be treated in a comparable situation on disability grounds and denied reasonable accommodation “

On the hearing day, the Complainant outlined that she had attended the Respondent school in the company of Child A, aged 11 and another child, aged 6 on 2 December 2020. The objective of the visit was for Child A to undertake the entrance assessment test.

He was refused entry as he did not have a face covering and this constituted discrimination.

 Summary of the Evidence of the Complainant

The Complainant outlined that her son, Child A, was refused entry to the School on December 2, 2020, as he was preparing to undertake an Assessment.

The Complainant said that she walked into the school in the company of child A and his younger brother and was asked to pay the entrance fee. She was met by the principal who informed her that” no body can enter the building without a face covering “she told the principal that this sounded like a refusal and discrimination.

He called her into the next-door office, where the complainant requested a written reason for the refusal. She found the principal to be arrogant when he said that he was not obliged to give anything in writing.

Child A asked her “where am I going to go to school now? “

The Complainant told the hearing that she found another school for Child A in June 2021.

The Complainant argued that the school had an awareness that her son was aged under 13 at that time and thus not subject to the provisions of SI 296/2020. No other Regulation trumped this.

The Complainant told the hearing that she received details of Child A enrolment in the school at the end of May by means of log in details. She had no further communication with the school.

The Complainant told the hearing that Child A had an early life bronchitis and used inhalers after which he developed claustrophobia, where he could not breather freely.

He attended a Paediatrician in Croatia and there were records there.

The Complainant outlined that Child A was invited to the school for 14.45 hrs on December 2, 2020. He was 11 years old then.

The Complainant detailed that she had made application also to

1 Children’s Ombudsman

2 Child Protection as Department of Education and Science

3 Human Rights Group

4 School Board of Management

I asked if the Complainant intended on exhibiting these documents or categorising by dateline. She exhibited the inter party correspondence with the board of management at the school alone

The Complainant submitted that it appeared to her that nobody wanted to take responsibility for what happened. The principal was conflicted, and the Board of Management backed him.

She did follow up the Ombudsman on 25 January 2021.

The Complainant contended that Child A had been denied his constitutional right to education on December 2, 2020.

The Complainant exhibited a Certified translated document from Croatian to English dated 25 April 2022. This referenced a first date of visit for Child A, (date of birth 28 .12.2008) as 21 December 2020.

The Complainant submitted that she had received log in details from the school at the end of March/April 2021. On March 25, she had queried the status of Child A at the school? On March 29, she was informed that he had been accepted at the school. She found this confusing as she had not paid the fee, nor had Child A attended the Assessment.

Child A had not received a formal offer of a place at the school.

She concluded that Child A was unable to wear a face covering, he had been denied education, discriminated against and denied reasonable accommodation.

During cross examination:

Counsel asked the Complainant to consider the Medical Report relied on from December 2020 the Complainant said she was uncomfortable in the medical records being shared.

When asked why the report was unsigned, she replied that the Drs name was on the stamp, and this was an extract of a larger report.

Counsel rejected the report as a medical document. The Complainant stated that there were 3 doctors involved.

Counsel put to the complainant that this document was not proof of a disability as it contained a nonspecific history.

The Complainant disputed this and submitted that the condition of bronchitis was flagged at age 8 as having the potential to return in puberty. It had disappeared.

Child A had claustrophobia.

The Complainant stated that because of Child A medical background she anticipated that his sweating and affected breathing would arise on mask wearing. She said that she never put a mask on Child A and that the Dept guidelines did not trump the law.

Counsel asked if she wore a mask and the Complainant refused to answer saying that this was not the subject of the hearing and “her believes were private “

She refused to answer when Counsel asked whether she had problems with Authority or Institutions?

She responded by reflecting that the principal had looked at her on December 2” like I was causing trouble “

She confirmed that Child A was offered a Visor, but was unable to wear this

She described the area around reception.

The Complainant accepted that she had not given supporting medical evidence on the day but placed the responsibility of accommodating Child A firmly on the school.

She was disappointed that at first, she was assured of a written response for refusal, then this changed.

The Complainant told Counsel that Child A was enrolled at the school without her knowledge or acceptance, and she felt as if she was “played with “She contended the place was offered just to placate her.

She referred to Article 42.2 of the Irish Constitution. She referred to the Board of Management response but did not exhibit to Counsel.

The Complainant replied that Child A had not been educated on December 2, 2020.

In clarification, the complainant confirmed that she had submitted the complaint to child protection at DES on 5 December 2020 when complaint also sent to the School Board.

I am satisfied that my obligations on reportage under the Child Care Act are not at play here as the complainant clarified that she had not reported that her child was a “child at risk “in a physical setting.

The Complainant clarified that she had applied for a school place on 19 November 2020 for Child A. By then she had been four years resident in Ireland.

Child A was not under Specialist care, nor did he have medical practitioner reports outside of the report relied in in evidence. He was not under treatment for any illness or disability at the time.

When asked to clarify what limitations were experienced by Child A. The Complainant clarified that his hands sweated.

The Complainant confirmed that no one in the family trio wore masks that day. I asked if the Complainant had a conscientious objection to masks and the complainant said “no “

When asked to clarify what reasonable accommodation was requested, the complainant said that “it did not come to that “

Her knowledge of enrolment arose through the log in details received from the school.

The Complainant recalled that the meeting with the principal lasted 2-3 minutes

In conclusion, the Complainant confirmed that the principal was on notice of the complainants age, and he was not bound by statutory regulations for mask wearing. The school relied on the Department guidelines; however, SI 296 should have been their guide.

Child A was enrolled at the school by late May.

The Complainant submitted that 9 out of 12 recent claims for discrimination in similar circumstances were refused by the WRC.

When asked to clarify how that information supported her case? the Complainant did not present a response.

She sought the application of section 2(e) on thought processes to satisfy the definition of disability.

The Complainant sought an apology for discrimination directed at Child A.

On June 2, 2022, the Complainant submitted her response to the First Instance Decisions of ADJ 32055

The Complainant did not address the body of the decision and instead took issue at questions posed on cross examination and my own clarifications.

The Complainant sought to refer to points made at hearing.

In response to ADJ 32493, the Complainant took issue with the Adjudicators wording and did not address the body of the decision.

The Complainant included a copy of the translated Health Report relied on at hearing and attached a new document in the Croatian language (not requested)

2 25 March 2021 Complainant queried the status of Child A at the school via school software?

3 29 March 2021

Email from school seeking a response on whether Child A wished to remain on the First Year Student 2021 list. (unsigned)

4 28 August 2021 email from the Complainant to the school

(1)    The offer of a place in the school for Child A had not materialised

(2)    Complainant registered refusal of offer and confirmed the cases was before the WRC

(3)    Request to erase data

The Respondent operates a Post Primary School in the South of Ireland. The school   hosted a number of Online Assessments for the 2021 student intake during early December 2020 over a two-week period. These assessments were not determinative of acceptance at the school, but were tools to plan for mathematical, verbal, spatial and nonverbal elements for the academic year of 2021. Child A was invited to attend for this Online Assessment by means of a letter of invitation.

Summary of Written Submission:

Child A was invited to attend on Wednesday, December 2, 2020, between 3pm and 5 pm. All students were requested to wear a mask and were provided with gloves, with provision for break times.

The invitation to attend stated: “The results of the assessment will not in any way affect your sons place in the school “.

The attendees were requested to submit any reports regarding “your sons health or educational needs or other relevant information before the assessment “

The Complainant did not submit any information on Child A being unable to wear a face covering due to claustrophobia.

The Respondent has rejected the claims of discrimination advanced by the Complainant.

The Respondent set out the provisions of the roadmap for the full re-opening of schools published by the Department of Education on 27 July 2020

In particular Appendix 4 which mandated the wearing of face coverings for staff and students with noted exemptions. A Medical certificate was required to certify an exempted category

It was the Respondent case that the Complainant on behalf of Child A had taken issue with the medical and scientific evidence underpinning the necessity to wear face coverings.

The school had already addressed the Complainants concerns through its complaint’s procedure.

The Respondent maintained that they had adhered to the Department of Education guidelines and denied discrimination.

Preliminary Issue:

Application made for anonymisation of the decision in the case.

The Respondent did not oppose the application made by the Complainant to anonymise the decision.

Substantive Case:

Counsel for the Respondent outlined that the claim for discrimination on grounds of disability was denied. He said that the Respondent disputed the Complainants reliance on the “condition of claustrophobia “as she had not incorporated it in the report before the WRC.

He outlined that as the school prepared to receive students in undertaking an Assessment test, the school had alerted the candidates that masks had to be worn. The school was adhering to the guidelines set down by the Department of Education, which allowed for the submission of medical certification.

Counsel argued that the Complainant did not have a disability and had not notified the school of any medical condition prior to attendance on December 2, 2020.

Summary of the Evidence of the Principal

The principal recalled December 2, 2020, as the day of the entrance exam where 75 prospective accompanied pupils were attending. He recalled the reception foyer being busy and the Complainant party were the sole three attendees who did not wear masks.

He was surprised by this occurrence and recalled offering Child A a visor. The Complainant told him that that was not possible as Child A was claustrophobic. The principal identified that it would be impossible to deviate from the Dept roadmap regarding entrance assessments and asked them   to leave.

The principal confirmed that Child A had not submitted a medical certificate in support of any condition prior to this day.

He contrasted this with the school accommodating a Child with Downs Syndrome during the Assessment process.

In addressing the lack of written reasoning for the complainant, he said that he was not aware such was necessary when the school was adhering to the guidelines at secondary school level.

He confirmed that his Board of Management had supported his approach and confirmed that the complainant’s complaint had followed protocol.

During cross examination, the principal confirmed that there were two days of entrance exams. He confirmed that Child A was not requested to return another day.

He denied behaving arrogantly and confirmed that he was aware that Child A was under 12 years of age.

In clarification, the principal confirmed that the discussion with the Complainant lasted 3-5 minutes and incorporated the discussion on the visor.

When asked how he knew that the Child with Downs Syndrome was attending at the entrance day? he replied that this information was declared on the application form.

He added that the Complainant had sought to delete Child A s application form, birth cert and photo from the school file.

He clarified that the school was fortunate in having no waiting list. All applicants were automatically deemed as students and the assessment were to assist in planning.

All applicants faced a closing date of October annually. The Complainant was a late applicant.

In closing, the Respondent concluded that there was no evidence of a disability on the submitted medical report, where the Doctor was unnamed.

The disease was unspecified, and the document relied on was created in the aftermath of December 2, 2020, at the centre of this case.

Child A had no history then or now of disability and the condition of claustrophobia was not referred to in the discussions with the Principal on December 2.

The Respondent remained convinced that Child A did not possess a disability and the apprehensions expressed by the Complainant remained untested and could not amount to the legal definition of disability.

Counsel read in the First Instance cases of

Bernard Carberry and T OHuiginn and A Comlucht Teoranta, T O’Higgins and Co ltd   ADJ 32055

Anthony Lyttle and Buy Wise Discount Stores Cost cutter, North Strand   ADJ 32493

He submitted that the Complainant had not discharged the burden of proof in the case. He said speculation was insufficient to satisfy Section 2(1) (e) of the Act.

He also submitted that Child A had been offered a visor which was accepted by the complainant as reasonable accommodation.

He concluded that Child A had not been discriminated against.

On 9 June 2022, the Respondent filed a response to the complainants post hearing submission.

1 They objected to the inclusion of the certificate appended in the Croatian language, which was not sought.

2 In response to the enrolment form 2021 and the complainants lack of reference to Child A disability. The Respondent submitted that the lack of reference to populated medical details as requested in the sections titled health /other information and particular problems “was striking and seriously undermines the complainant’s contention that he suffers a disability.”

3 It was open to the complainant to cross examine the principal on the approach adopted to the Child with Downs Syndrome and she did not.

I have been requested to consider the circumstances of this case and to decide whether Child A was discriminated against on grounds of disability in the course of his attendance at the Respondent School on the afternoon of December 2, 2020?

. In addition, I must also consider whether the complainant was denied reasonable accommodation in accordance with Section 4 of the Act.?

In reaching my decision, I have considered the oral evidence adduced at hearing. I have also considered the oral and written submissions of the parties.

I also took time to review the ES1 And ES2 form relied on by the Parties in this case. 

Section 3(1) of the Equal Status Act outlines the occurrence of discrimination. This is built on the definition contained in Section 2 of the Act

disability” means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour.

In this case, the Complainant has submitted that Child A had a disability of claustrophobia as provided for in section 2(e) of the Act. This was opposed by the Respondent.

Discrimination (general).

3.—(1) For the purposes of this Act discrimination shall be taken to occur—

(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) or, if appropriate, subsection (3B),] (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

Section 3(2)(g) outlines the grounds of disability

(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) outlines the rule around Reasonable Accommodation

Discrimination on ground of disability.

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

Section 5 of the Act provides a clear prohibition to discrimination in the provision of goods and services

Disposal of goods and provision of services.

5.— (1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.

In order to progress this case to decision, I find that I need to engage on a direct clarification to the parties on the exact parameters of my role in the case. To achieve this, I find that I must set out what my role does not involve.

Statutory Instrument 296/2020

Both Parties referred to this emergency legislation which referred to the Covid Pandemic. The Complainant argued that Child A was 11 years of age and outside the remit of these Regulations

The Respondent referred to Department of Education and HSE guidelines on the use of face coverings in education settings.

I have set out offered an excerpt of the SI and the 1947 Health Act here.

I have linked SI 296/2020 to Section 31A, Health Act, 1947 to distinguish my role in this case. I wish to explain that I have no role in policing the wearing of face masks on behalf of the WRC.

It is clear from the legislation, that there are a number of designated Ministerial authorities on permitted controls, action, interventions, exemptions and punishment in respect of Section 31A of the Health Act, 1947. I do not hold any jurisdiction in relation to that Act.

EQUAL STATUS ACT

My jurisdiction rests solely in the Equal Status Act, 2000-2018, as amended.

I have incorporated the Heading in the Act to explain my point:

 An Act to promote equality and prohibit types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public generally or a section of the public has access, to provide for investigating and remedying certain discrimination and other unlawful activities, to provide for the administration by the equality authority of various matters pertaining to this act, to amend the employment equality act, 1998, in relation thereto and in certain other respects and to provide for related matters.

Section 7 of the Act prohibits discrimination in a School setting . It is of note that Child A was a primary school student at the time of the occurrence on December 2, 2020 .

Educational establishments.

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.

(2) An educational establishment shall not discriminate in relation to—

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

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

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

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

It is of note that SI 396/2018 and SI 6/2020 brought certain sections of the Education (Admission to Schools) Act 2018 (Commencement) Order 2018. into operation

I note that the charging of fees for entry, outside certain instances is prohibited, and an Admission Policy is provided for

Section 7(A) (6) In this section of The Equal Status Act, 2000 was amended to reflect —

‘Act of 1998’ means the Education Act 1998;

‘admission policy’ has the same meaning as it has in section 2 (amended by section 2 of the Education (Admission to Schools) Act 2018) of the Act of 1998;

‘applicant’ has the same meaning as it has in Part X (inserted by section 9 of the Education (Admission to Schools) Act 2018) of the Act of 1998;

The Education Act, 1998 carries its own separate and unique complaint system to that of the provisions of Section 21 of the Equal Status Act, 2000, as amended

The Complainant submitted that she has also made a number of complaints to named public bodies on what occurred at the school on December 2, 2020. I did ask her to feedback on their progression or to expand on where those complaints had ended?

 I did not receive any details of how they had concluded with the exception of the December 5 complaint to the school board being met ultimately with the ES2 in February 2021.

I can only conclude that there are a number of live complaints currently before public bodies.

Equal Status Act, 2000

The focus of the complaint before me, however, comes under Section 21 of the Equal Status Act

Redress in respect of prohibited conduct.

21.— (1) A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director of the Workplace Relations Commission.

(1A) If the grounds for such a claim as is referred to in subsection (1) arise—

(a) on the gender ground, or

(b) in any other circumstances (including circumstances amounting to victimisation) to which the Gender Goods and Services Directive is relevant,

then, subject to subsections (2) to (7) and (8) to (11), the person making the claim may seek redress by referring the case to the Circuit Court instead of referring the case to the Director of the Workplace Relations Commission under subsection (1) (and, if the case is referred to the Circuit Court, no further appeal lies, other than an appeal to the High Court on a point of law).

This is a separate and distinct pathway for throughput of a complaint on prohibited conduct.

Finally, I wish to refer to the Complainants’ submission on Child A being denied access to Education on a Constitutional footing.

I do not hold jurisdiction to decide on this aspect of the case. I would instead draw the Parties attention to a Judicial Review in the case of Burke v Minister for Education, Notice Party v Minister for Education and Skills [2021] IECA 69, which out of interest shared a similar chronological background in the case when is captured in para 1 the procedural background to that case when it highlighted

“The Covid 19 pandemic arrived in Ireland in the Spring of 2020. From Mid-March onwards, the country went into a cycle of lockdown and restriction easing which continued throughout 2020 and into 2021. Of the many severe challenges posed by the public health crisis, one of them was the sphere of secondary education ….

In May 2020, the Government announced a non-statutory scheme known as the Calculated Grades Scheme.

Two respondents had been “home schooled “and this excluded them from the scheme.

The question posed on appeal from the High Court

“The appeal raises many questions, including whether the factual matrix presented in this case engages any constitutional rights on the part of the Respondents.

Whether or not there has been an exercise of executive power pursuant to article 28.2 of the Constitution, and the appropriate judicial review test to be applied in the event that both constitutional rights and the executive power are both engaged. The judgement also explores the nature and extent of the rights and powers of parents, children and the state as regards education under Article 42 of the constitution and, in particular home-schooled children “

It may be of assistance to the Parties to consider the deliberations of the Court of Appeal in this case.

Burden of Proof in Equal Status Act case

Section 38A provides for the burden of proof in this case. I outlined this to the Parties at the outset of the hearing.

38A.— (1) Where in any proceeding’s 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.

The onus is on the Complainant to provide evidence from which I can infer that prohibited conduct occurred.

This brings Section 3(2) (g) of the Act into sharp focus as I must be satisfied that on the balance of probability:

1 The Complainant is covered by the relevant discriminatory ground relied on of disability

2 There was specific treatment by the respondent

3 The treatment of the complainant was less favourable than the treatment that was or would have been afforded to a comparator in similar circumstances.

Disability

Section 2 of the Act defines disability as

disability” means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour.

In chapter 6 of Equal Status Acts 2000-2011, Judy Walsh opens the Chapter with two informative paragraphs on Reasonable Accommodation. #

“In Discrimination law, “Reasonable Accommodation “refers to an obligation to adjust rules, standards, policies or physical environments to meet the specific needs of people covered by a protected ground. It involves removing barriers, and often treating people differently, in order to secure equality of opportunity. Unlike most other elements of discrimination law, reasonable accommodation obliges service providers to take a protected characteristic into account when providing access to education, housing and so on.

Reasonable accommodation first evolved in the US as a means of adjusting work practices to facilitate the religious beliefs of employees……

Reasonable accommodation was introduced to Irish discrimination law under the Employment Equality Act, 1998 and extended to the field of goods and services in the Equal Status Act, 2000. Mirroring the position under EU Law, it only arises in relation to people with disabilities.” 

The Question now for me to decide is whether Child A has a disability for the purposes of this case?

The Complainant has relied on the condition of claustrophobia as the basis of Child As’ disability. She has not accompanied that assertion with a medical validation or evidence of limitation. I accept that the Complainant told the principal that Child A had claustrophobia on the afternoon of the assessment, but this had not been flagged in advance, as requested or accompanied by an independent validation.

 The Complainants request for a written reason from the principal stood in sharp contrast to the absence of any written detail of Child A’s health on the application form from November 19, 2020, some two weeks before the Assessments.

Instead, I have an acknowledged extract of a larger report dated 21 December 2020, almost 3 weeks after the Assessment Day. I accept counsel for the Respondent point that this is not authorised by a Medical Officer.

My attention was drawn to the template of the letter of invitation extended to Child A to attend for assessment. I accept that the Respondent did not have a waiting list for places in academic year 2021 and this assessment was tailored at “planning and organising classes “The closing date was cited as 18 September 2020, yet the Complainant applied for a school place on 19 November 2020.

I accept the Complainant evidence that she had not received official confirmation of a place for Child A at the school before 2 December 2020. However, I must take concrete meaning from the insertion in the letter of invitation for the Assessment which stated:

“We ask that each student wears a mask, and we will be providing gloves and adhering to all Covid 19 guidelines including giving the boys breaks. Students will be assessed on Mathematical, verbal, spatial and nonverbal elements. The assessment is completed online, and students do not need to bring anything with them. The results of the assessment will not in any way affect your sons place in the school ….

Please submit any reports regarding your son’s health or educational needs or other relevant information before the assessment “

A reasonable person reading of that invitation suggest to me that the school place was a definite and confirmed .However, I appreciate it would have been more helpful for this to be spelled out to the Complainant.I did not have the benefit of considering the School Admission Policy .

 However , I accept that the complainant had been accepted to the school and the issue before me is what occurred when child A attended the school for an online assessment on December 2, 2020 .

I return to the topic of disability, which is necessary to ground a claim for discrimination.

On the application form, an applicant is requested to insert a detail under the headings of health, aptitudes or particular problems. On a careful examination of the completed application form dated 19 November , 2020 , all of these three areas were left blank by the Complainant.

I sought sight of this application form, which had not been included in either of the parties documents .  It took on a special interest for me following the Principals evidence on the accommodation made for a child with a notified disability on an application form during the same assessment period .

I appreciate that there is a huge sensitivity surrounding the topic of disability and some disabilities may not be immediately visible.

However, I would have expected some mention of relevant medical background for child A on a school application form as this information was tendered during the hearing before me.

I have reflected on the complainant’s evidence at hearing, and I have returned again to the translated document dated 21 December 2020. I cannot conclude that this amounts to evidence of a disability. I have reflected on the Complainants responses to my questions as to whether Child A had received any treatment for a condition or was limited in social activities? The answer to both questions was no.

I returned again to the ES1 form where the Complainant contends that “I confirm that my child has a reasonable excuse within the meaning of the Statutory Instrument and I say that I view the “no mask, no entry “words told by Respondent as refusal of service/education. I say that my child’s reasonable excuse amounts to a “disability within Section 2 of the Equal Status Act ……”

The complainant contended that Child A had claustrophobia and was unable to wear a mask. The condition/ illness /disease relied on was not medically diagnosed or supported by evidence of limitation. Instead, I found that the Complainant asserted that Child A had a disability, she has not proved it, to my mind.

 In this, I have found persuasive authority in the cases relied on by the Respondent and in terms of a subsequent case of A Customer v A Retail shop ADJ 33208

I had some unease when the Complainant offered her analysis of unsuccessful cases taken before the WRC. I asked her to clarify this submission as all cases are heard and decided on on their own merits. I could not establish the relevance of this assertion.

I understand fully that the Complainant retained a concern on Child As early life brush with breathing problems, which she predicted may arise again if a face covering was applied. However, I must conclude that this is a projected and anticipative thinking and not proof of disability I would have liked to have taken evidence from any treating Doctor involved in the case as the December 2020 extract was not determinative of disability.

I had some concern that the Complainant sought to present as an unmasked trio at the highly populated assessment school zone, without addressing the last line of the invitation in advance. Surely, this was the perfect opportunity to advance the detail of any health issues, which went on to feature freely in the WRC hearing. I did establish a reason for this in my investigation but was informed that the Complainant was exempt from mask wearing for an unspecified reason. I accept that this point was not flagged by the Complainant in advance of the assessment.

I am satisfied that Child A did not possess a disability in terms of Section 2(e) of the Act. I found that the Complainant had maintained an active interest in the public policy surrounding the Covid 19 Pandemic and this was heavily apparent in the inter party correspondence in the wake of December 2, 2020, occurrence at the school. This was not balanced or matched with a cogent medical diagnosis of illness / condition or disease.

However, I must conclude that the claims in accordance with Section 3(2) (g) and Section 4 of the Act cannot succeed as the first limb of the test, the presence of a disability has not been reached.

The Complainant has not satisfied the burden of proof set out in Section 38 A of the Act. I have not found that the Complainant has proven facts from which a reasonable inference of discrimination can be found

Child A was not discriminated against on grounds of disability.

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Section 27 of that Act.

The Complainant has not satisfied the burden of proof set out in Section 38 A of the Act. I have not found that the Complainant has proven facts from which a reasonable inference of discrimination can be found

Child A was not discriminated against on grounds of disability.

Discrimination on grounds of disability. Mask in School setting.