Complainant

Respondent

Parties

Sofiya Kalinova

Bellerophon Ltd Trading as Griffith College

Representatives

Cathal McGreal BL instructed by Stephen Collins Irish Human Rights and Equality Commission

Claire Bruton BL instructed by Dermot Casserly DWF Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00041720-001

27/12/2020

The complainant sought to apply for a 10-week course to help prepare for the King’s Inns entrance exams. The complainant is profoundly deaf and sought accommodation to participate in the course such as ISL interpretation and a notetaker. The respondent did not provide the accommodation.

Evidence of the complainant

The complainant outlined that she enquired with the respondent by email about a course and expected a positive response. She was expecting a discussion about her needs and how the respondent could provide access to her. She just received a blunt ‘no’ from the respondent. She was never invited to meet anyone from the respondent.  She only saw the policy at the end and the respondent informed her that it was for her to pay for interpretation.

The complainant said that she was emotional and sad to get the respondent’s response. She had heard positive things about the respondent, and she was hoping to participate in the course. She has experience of hitting barriers throughout her life. She did not accept the reason stated by the respondent.

The complainant outlined that the course was exam preparation for the King’s Inns and the course itself did not have a final exam. The course commenced in June and later she decided to take an exam preparatory course in advance of the King’s Inns entrance exams. She was aware that the course had started. She thought she would attend the lectures to address some complicated areas of law and also address the issues she wanted to explore. The course materials would not have been enough, and she wanted to attend the course like everyone else. The entrance exams are tough for anyone and doubly so for her. While she passed, completing the course would have made her life easier and she might have got higher marks.

The complainant enquired about the course on the 29th June and was surprised with the response of the 30th June. She felt that they could help in some way, and this was not what I expected. She was disappointed and sent the further email to escalate the matter. The complainant was aware she had applied late and that she would miss part of the course. She would have been starting from the moment of application. She was ready to negotiate with the respondent but there was no discussion with the respondent. She sought relevant information but did not get the policy at this stage.

Referring to paragraphs 6.2.1 and 6.2.2 of the policy, the complainant said that she was not aware that the provision of a sign language interpreter was ruled out. Referring to the email of the 9th July, it was not clear that the respondent was looking at alternatives. Clause 6.2.2 means that she is stymied and blocked from education. She would not be able to understand anything in the classroom as she is profoundly deaf.

The complainant outlined that she completed the ES1 form after the entrance exams and the form was completed on the 7th September. IHREC sent it by courier on the 8th September. The complainant believed that it was submitted on time. In her view, the last email was a blunt rejection and the date of contravention. It was the date she decided to make a complaint. She was surprised that the ES2 referred to the ES1 being received on the 9th September when it was delivered the previous day.

The complainant received the respondent’s ES2 reply. While the respondent refers to reasonable accommodation, it did not offer reasonable accommodation. She had not seen the research referred to in the ES2.

The policy referred to discussing a student’s needs, but the respondent did not offer to meet her. The complainant asked the respondent for the research referenced in the ES2 form. She wanted to see the cost assessment and their research, but they have no evidence of any of this. The respondent should have sat down with her and consulted with her to see what alternatives were available. It was their assumption that her position was that it was full ISL interpreter and notetaker and nothing else and they did not ask.

The complainant said that she felt really frustrated and sad, and it was like having a panic attack and it felt oppressive. She did not feel valued as a person, and it felt that they did not want to engage with her. She said she is tired of this frustration. 6.2.2 of the policy rules out ISL interpretation and the respondent would not change its fixed policy.

The complainant used ‘Speechtext’ in first year of university but there were complications with it. She preferred a full note as this goes into more depth. The complainant had an interpreter and notetaker at UCD. She was learning Irish Sign Language in first year but could use an interpreter by second year. She only had interpreters while studying at the King’s Inns. 

Cross examination of the complainant

In cross-examination, the complainant said that her email of the 24th June 2020 asked if it was possible to provide both ISL interpretation and notetaking. She had received this before. She was open to discussion and was not being belligerent. She agreed that interpretation is helpful as she can follow the content and write notes as it is hard to follow interpretation and take notes. While she was late applying for the course, she was willing to pay full fees. She had never asked for interpretation to be provided for the lectures she had missed and would not have expected this. Her request for interpretation was only for the remainder of the course.

The complainant said that she also sought to attend another preparatory course. While they did not provide an interpreter and a notetaker, they discussed the matter with her, and they had an in-depth meeting. They were supportive and she gained access to the online class materials and problem questions.

The complainant said that having to pay herself for interpretation and fees was an insult. There was a publicly funded ISL remote interpreting service to help deaf people liaise with services, such as banks. There is a limit of 22 minutes of any intervention for one task. It was not suitable for a legal class.

The complainant’s email of the 1st July had sought to escalate matters. She agreed that the email of the 9th July repeated the respondent position on funding. She had wanted the respondent to review its stance of being a privately funded body that could not provide interpretation.

The complainant accepted that she had applied to the respondent in 2019 for the FE1 courses but she dropped the application. She could not recall whether she applied for an accommodation. She could not recall being informed in 2019 that the respondent could not provide the accommodation.

The complainant decided to make a complaint on the 9th July. It was put to the complainant that she had plenty of time to refer the ES1 form in July or August, but she had only done so when it was too late.

In re-examination, the complainant applied in 2020 because she wanted to study there, and she had heard positive feedback about the lectures and there was no motivation against them. She contrasted her experience between the respondent and the other college. She said that the legal profession needs a diversity of people. She loved the law and cannot think why she would be blocked in this way.

Further evidence of the complainant

In respect of whether the complainant was seeking an ISL interpreter and a notetaker, the complainant said that these were the best options, and she could have availed of other options. She had assumed that they could provide this. In further cross-examination on the point, the complainant agreed that her email had referred to two accommodations and ‘such as’. On the 24th June, she had asked whether the respondent could provide interpretation and a notetaker. She said that while a notetaker would have helped, she could have only asked questions with an interpreter. Asked whether she suggested any alternative option, the complainant said that they had said ‘no’ and she had asked why. It was put to the complainant that she was best placed to offer an alternative.

Evidence of Ellen McCarthy

In June and July 2020 Ms McCarthy was a legal executive with IHREC and involved in lodging the ES1 form on the 8th September. She arranged for the courier to be sent and it was collected that day. It would have been delivered that day and a receipt was provided.

Closing of the complainant

The complainant submitted that it was always the respondent’s duty to cost the service as part of reasonable accommodation. The respondent has tried to shift the burden to the complainant. The complainant was asked why she did not provide an interpreter and they did not look at cost. The respondent gave hearsay evidence of what they had seen, and a finding could not be made that the respondent had obtained a costing.

It was submitted that there was a contrast between the evidence of Mr Mac Eochagain that reasonable accommodation is measured against a budget, and this contrasted with to Ms Sutton’ s evidence that it was measured against a course. It is to be measured against the resources and funds available to the respondent.

Clause 6.2.2 seeks to negate 6.2.1 and 6.2.2 rules out any ISL interpretation and also notetaking with no de minimis provision. A meeting could have discussed an alternative or one or the other to some degree. As regard a course of action, it was submitted that the respondent remains wedded to 6.2.2 and this is in breach of section 7 and 4 of the Equal Status Act.

Ms Sutton said that there was a limit of €3,000. The complainant outlined that there was no costing done in this case. Ms Butler did not give a source of a costing. The respondent had to demonstrate what the cost is. Ms Sutton gave evidence of a named source, but this related to an emergency service and multiplied with 22 minute rate and always for the entire course. Ms Sutton’s evidence could not be relied on as 6.2.2 obviates the need for a costing.  The complainant was not informed of the costing, and this undermined the credibility of the respondent’s evidence as is the evidence of costing being lost. There is no mention of this in correspondence even in the emails recently submitted.

Ms Sutton said that she did not ring around and presumed that it would be standard pricing. This is not sufficient to meet the standard. The respondent did not contact an outside source even though the policy provides for this. The AHEAD document also asks that the applicant be met with.

It was submitted that the respondent has ignored the section 7 complaint, i.e. the discrimination and failure to give reasonable accommodation and failure to access an education service. The complainant was not out of time. Ms Sutton made both decisions so time cannot be said to run from the first decision.

It was insulting to ask the complainant to bring her own interpreter, and this was an aggravating figure as there is no point to the Equal Status Act if there is such an accommodation. It is like asking a wheelchair user to build a ramp.

The complainant outlined that a meeting was required to ascertain a need and a cost of the accommodation. The measure of ‘nominal cost’ is the profits and resources available to the company. This is a sophisticated respondent and an industry leader. The complainant distinguished Regan v Old Bawn Community School (DEC-S2010-043) which related to reasonable accommodation in the context of anon-profit making respondent. In respect of the case law, there was not a single case that damaged the claim. The key was ‘proportionality’ per Cahill v Minister for Education [2017] IESC 29– an assessment must be made of the need of the person and the resources and context available. There was no authority for nominal cost being limited to the cost or value of the service actually provided. The complainant relied on the consideration of the resources and size of the service provider in Fogarty v Employment Appeals Tribunal (DEC-S2009-087) and A Complainant v Marks and Spencer PLC (DEC-S2009-005).

No decision could have been made without meeting the complainant as is provided for in the policy and in accordance with common sense. This is not just against a person with a disability, concrete evidence of differential treatment amongst people with disabilities.

Evidence of Karen Sutton

Ms Sutton is the head of faculty of the professional law school. The course is a 10 week course with 10 hours of lectures during each week. This was the first Zoom only session and before lectures were recorded and there was a course manual. There were 34 students on the course and fees range from €1,000 to €1,500 and each module is €325. The law faculty is privately-funded. The SUSI grant is not available and nor is funding from the Funding for Students with Disabilities.

Ms Sutton said that they had received the complainant’s 2019 application. A colleague asked whether they could provide interpretation and Ms Sutton said that they did not provide this service. Ms Sutton had seen the complainant’s 2020 application and the reference to a sign language interpreter and a notetaker. She decided to price an interpreter and consulted named websites. She was able to price interpretation over the whole course at a price of €9,000. She priced the cost of a notetaker too. She generated these documents on the 24th or 25th June. The income from the whole course was only going to be €10,500. It did not occur to her to share the costings with the complainant. Ms Sutton said that she did this enquiry even though 6.2.2 was so clear. The faculty provided scribes, readers and one to one support to students.

In cross-examination, Ms Sutton said that she was aware of clause 6.2.2. and could not recall whether she had previously done a costing. She provided the text of the reply to the complainant of the 29th June and also reverted to the complainant on the 9th July. She completed the costing and there was no record of this.

It was put to Ms Sutton that the complainant could not have simply watched the lectures without the support and could not engage. She accepted that the complainant had never asked for the lectures of the previous weeks to be interpreted. It was put to Ms Sutton that she had confined her consideration to an ISL interpreter and a notetaker; she replied that the provision of an interpreter on its own was excessive. She said that in hindsight she could have got other prices but was not sure whether this would change the outcome. She did the calculation in respect of 100 hours.

Ms Sutton said that it did not occur to her to meet the complainant, who was then an applicant and not a learner. In the reply to the complainant, she referred to 6.2.2 as this is what would apply if the complainant became a learner. She agreed that no one had pointed the complainant to the difference between applicant and learner. She anticipated that it could support a cost of €3,000 and did not tell the complainant of this.

It was put to Ms Sutton that her costing was against the income from the course and not the resources of the respondent; she replied that they did not run nonprofitable courses, and this was a business decision. The respondent had never said no to providing the course but had said no to the accommodation.

Evidence of Orla Butler

Ms Butler is learning support manager and started in January 2019. The policy was devised in 2018 and looked at what could be reasonably provided. The fund for students with disabilities cannot be accessed by private colleges. She included the specific reference to funding not being available for sign language, leading to the inclusion of 6.2. She engaged with DAWN including about ISL and she was aware of the cost of an ISL interpreter, and the cost was €160 per hour. There was a sense that it was difficult to source ISL interpreters. Her information was that ISL interpreters are out of the range of the private colleges.

The respondent is a member of AHEAD, the national body for giving support to students. It offers one to one support and reasonable accommodation for examinations. Its offers a weekly drop in session to provide support.

Ms Butler became aware of the complainant’s application on the 2nd July. This was 6 weeks into the 10 week course. The law faculty had covered much of the ground and the application was late. It was clear that the complainant needed an ISL Interpreter to participate in the course. She inputted into the response from Ms Sutton.

In cross examination, Ms Butler said that she inputted into the response of the 2nd July. Neither an interpreter nor notetaker were within the range of supports available. There was no meeting in this case because of the timeframe involved. She had viewed the request as a request for an ISL interpreter and did not consider any other supports. The respondent would ask what supports the applicant had previously obtained. She was informed of the supports the complainant obtained in UCD. The complainant had stated in her application that she needed these supports. Ms Butler recalled the reference to ‘such as’ but they take what an applicant states in the application at face value. It was put to Ms Butler that this was not consistent with ‘such as’.

Ms Butler agreed that they had interpreted the request as going back to the start of the course. She took it face value that the cost would exceed the cost of the tuition fee. It was put to Ms Butler that the complainant was treated differently in not being met with as students with a disability were. She accepted that she took what Ms Sutton said at face value. Ms Butler was informed of the 2019 application and that there was ‘history’ with the complainant.

Ms Butler said that its decision was based on the policy. They sought that applicants be clear what supports were available as the respondent is constrained by the lack of access to supports. There are supports the respondent can provide and there are supports the respondent cannot provide. It was put to Ms Butler that she considered that it was an all or nothing and that it was interpretation and notetaker for the whole course. She replied that it was the policy and the additional factor of the late application to the course. Her colleagues had covered a lot of work, so she took on face value what they said. There are no plans to take out 6.2 given the lack of access to the FSD.

Ms Butler said that in this case it would not have provided an accommodation had they known that the complainant was willing to consider other options. When asked whether the complainant should have been met with; she replied that the applicant stated a particular learning support need and the faculty responded to this. She accepted that the AHEAD course referred to meeting applicants, but this was geared to bodies who have access to the FSD.

Ms Butler said that it was the policy and not resources that came into her thinking. The policy and 6.2 is informed by the lack of access to the FSD. The applicant was responded to and given the time frame and the constraints the faculty responded appropriately. They considered the complainant’s learning need and her application. This was a learner applying 50% through the course with a particular learning needed and they needed to respond quickly.

Ms Butler accepted that 6.2.2 only ruled out an ISL interpreter but a notetaker was also outside the range of supports available, because of the lack of access to FSD.

Evidence of Patricia O’Sullivan

Ms O’Sullivan said that she is Director of the AECA, a representative body of the majority of private higher education bodies and represented 12 members and liaised with the Department, the Minister, the HEA and other bodies. The FSD is primarily available to publicly funded institutions. The policy approach underpinned by the SUSI legislation and the 2011 Act is that certain bodies are listed as eligible.

Evidence of Greg O’Brien

Mr O’Brien is Manger of Digital Learning. The respondent used Zoom to deliver lectures remotely and closed captioning was not adequately available at the time of the course. He said that there were ongoing accuracy issues with closed captioning.

Evidence of Tomas Mac Eochagain

Mr Mac Eochagain is the Director of Academic Programmes and has been in this position for 30 years. The respondent had wished to formalise the supports offered to learners and to make it available college wide. They wanted to communicate the policy and to grow it. He is responsible for quality assurance and enhancement and wanted to benchmark against best practice. The policy reflected the position regarding the availability of ISL in private colleges. The respondent had looked at what it could provide in the context of funding. It has sought that funding should follow the learner.

The respondent makes decisions according to the needs of learners. There is an expanding service for people with disabilities and monies are increasing all the time. The respondent looked at what is reasonable according the learner’s needs. This has grown from €75,000 per year to €185,000 per year; it provided scribes, readers etc at examinations and provided equipment for rooms.

Mr Mac Eochagain said that ‘nominal cost’ was not a hard number and it looked at whether it can do this for the learner and seek to do it if it reasonable. There are certain things beyond the scope of what is reasonable, and this includes ISL interpreters, and this is reflected in the policy. Learners cannot avail of SUSI to come here, and students can get those resources elsewhere.

Mr Mac Eochagain said that there were learners that the respondent cannot provide the same level of support as public colleges. It is excluded from access to public funds. There are limits to what the respondent can match, and it makes that known. There is a range of supports offered and a range of costs associated with this. It provided supports to people who are deaf.

Reasonable accommodation is provided where the respondent can provide supports to service users. What is ‘within the funds’ is the assessment made by the college and what is available. A learner would come and suggest an accommodation and the college would seek to provide an appropriate learning environment. There was communication with the complainant. Where a person asks for something that was not within the scope of the policy, they would be told straight. In respect of whether the respondent should have met the complainant, the respondent communicated clearly with the complainant, setting out the position. 

Closing of the respondent

In respect of the costing issue, the respondent outlined that Ms Sutton gave her best evidence and she had costed this from a website. This was evidence that regard could be had to. The respondent was not trying to shirk its responsibilities and there is no suggestion what the correct costing would be. 

The complainant in direct evidence said that she wanted an ISL interpreter and needed this to engage in the course. This was consistent with the email where she sought both. While the complainant now says that there may have been other possibilities this is a technical basis and there was no real veracity to the evidence with what she said and had availed of in the past.

The respondent gave evidence of not being able to accommodate applicants because they cannot access the FSD, and this was not less favourable treatment. The complainant sought ISL interpreter support but there was no funding available. This is more than a nominal cost. In contrast, UCD has access to the fund and made a profit of €34 million.

The respondent outlined that the complainant was incorrect to say that nominal cost in section 4 had to be interpreted in line with reasonableness. At paragraph 73 in Cahill v Minister for Education, there is discussion of reasonableness and proportionality comes into the mix then. Disproportionality includes the effect on other students (the application here was late) and the business.

Deans v Dublin City Council (Circuit Court, unreported, 15th April 2008) is the only judgment that discusses nominal cost, and it is a low threshold. In Wellard v Killester College (DEC-S2008-024), €10,000 was seen as being in excess of nominal cost. Regard should be had to the cost of the course and the cost of the accommodation. Clause 6.2.2 is there because of the lack of access to FSD.

In Cahill v Minister for Education,Laffoy J held that the provisions of section 4 and 5 must be applied together. If there is a finding of no breach of section 5 there must be no breach of section 7.

It was submitted that the complainant knew in June that ISL would not be provided and the reasons for the delay do not stack up. There were no grounds for the extension of time. Ms Sutton gave honest evidence and referred to the costs of the service. There was no evidence of any less expensive cost, and it is costly.

Regarding any meeting, the respondent referred to paragraph 105 of the MacMenamin J. judgment in Nano Nagle v Daly [2019] IESC 63 and there being no mandatory duty of consultation. An absence of consultation cannot amount to discrimination. The complainant had been clear what accommodation she was looking for and she never suggested any other service. As there was no ongoing relationship between the parties, there was an onus on the complainant to suggest alternatives.

Nominal cost should also have regard to there being no FSD funding available and this reduces what can be expected in nominal cost. ISL interpretation is costly and skilled.

In 2020, the complainant sought to participate in an exam preparatory course run by the respondent. While other providers offer similar course, the institutions deemed eligible under the Fund for Students with Disabilities do not provide a comparable course.

The complainant enquired as to ISL interpretation and a notetaker. Her evidence is that she made a similar enquiry with the other body. While this other body did not provide this accommodation, they met with the complainant and provided a different accommodation (course materials).

The respondent’s Academic Learner Support Policy addresses specific learning difficulties and at 6.2 addresses ‘Hearing impaired, deaf, hard of hearing’. The provision states:

6.2 Hearing Impaired, Deaf, hard of hearing

6.2.1 The extent of the challenges faced by a learner with a hearing impairment will vary depending on the degree of deafness diagnosed. Learners are met with individually to discuss their needs and adaptations that might need to be carried in advance of programme commencement.

6.2.2 In the case where a learner who is deaf has the requirement of Irish Sign Language (ISL) interpreter, the cost of this will be borne by the learner.

The parties differed as to whether Ms Sutton’s online enquiries amounted to ‘evidence’. I take this case at the height of the respondent’s evidence and accept that she priced the cost of interpretation.

I also find that the respondent was notified of the claim within two months. The July date is the date of contravention. Even if I held that it was the June date, I would extend time. This was during a pandemic. In the absence of specific prejudice, access to justice takes precedence.

Section 4 of the Equal Status Act provides:

‘(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.

(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.

Section 7 specifically addresses the provision of services by educational establishments.

At the core of section 4 is the requirement to evaluate a person’s needs to see if those needs can be accommodated. The difficulty with a fixed policy like 6.2.2 is that it deters the service provider from evaluating a person’s needs. Why make the evaluation when the policy prohibits the provision of the accommodation?

Also at the heart of section 4(1) is the person’s ‘needs’. The difficulty with the respondent’s approach is that it made assumptions. It assumed that all the complainant wanted was ISL interpretation and the notetaker. It assumed that she wanted the whole course, including the weeks that had passed. It made inferences from the 2019 enquiry, which were not warranted. The complainant has no ‘history’ with the respondent.

It is not that a meeting is mandatory, but the service provider should have a clear understanding of the person’s needs in order to comply with section 4(1).

I contrast the respondent’s approach with that of the other college, who did not provide ISL interpretation or a notetaker, but liaised with the complainant and provided other accommodations.

I have taken the respondent’s evidence at its height. I am taking it that the respondent did one pricing of the cost of ISL interpretation. This does not provide a defence for the respondent as it was predicated on her doing the whole course and priced from only one provider. The respondent ought to have made further enquiries. The obvious step was to share the costing with the complainant and confirm whether she was looking for interpretation for the previous weeks.

It follows that there was a contravention of the Equal Status Act. I find that redress of €3,000 is appropriate, taking account of the effects of discrimination.

I order a course of action: the respondent shall re-evaluate the policy and clause 6.2 and 6.2.2 in particular to ensure that it complies with the provisions of the Equal Status Act.

I take the respondent’s point that ISL interpretation is costly and skilled. The respondent and other colleges cannot access the Fund for Students with Disabilities. The funding is earmarked for eligible education bodies and the funding does not follow the student. The evidence contrasted this situation with Springboard, where funding followed the jobseeker, who were then able to take courses at institutions like the respondent. The fact of FSD funding not following the student means that those students will not be able to take up courses provided only by private colleges. They are confined to those courses by the listed bodies.

CA-00041720-001

I decide that the complainant was discriminated against on grounds of disability, and the respondent shall pay to the complainant redress of €3,000. I order a course of action that the respondent re-evaluate the Academic Learner Support Policy and clauses 6.2 and 6.2.2 in particular to ensure compliance with the Equal Status Act.

Equal Status Act / reasonable accommodation / Irish Sign Language interpretation