Complainant

Respondent

Anonymised Parties

A Complainant

A Third Level Educational Institution

Representatives

  In person

William Hanly , Solicitor, O'Flynn Exhams LLP 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-00053408-001

20/10/2022

This complaint concerns an alleged failure by the Respondent to make reasonable accommodation for the Complainant’s disability.

This complaint originally was brought as a two-fold complaint: a direct discrimination complaint (on grounds of disability) and a failure to make reasonable accommodation for disability complaint.

The complainant was not legally represented and during day one of the Adjudication hearing (8.11.23) as the complainant had not identified a comparator in respect of his direct discrimination complaint and was not in a position to provide comparator evidence,  he indicated that he would only pursue the failure to make reasonable accommodation complaint. The adjudication thereafter was confined to that aspect of his complaint.

His complaint relates to how he was treated by his Spanish lecturer and how the Respondent, who employed that lecturer, dealt with his complaints thereafter.

The Complainant suffers from anxiety and the Respondent concedes that this is a disability for the purposes of the Equal Status Act 2000 (ESA.)

Facts

The Complainant gave evidence (by way of affirmation) as follows:

In September 2020 he started his fourth and final year at the Respondent college. He was studying Business and Spanish.

On 10 December 2020 he registered himself with the Respondent as a student with a disability. From this time on he says that reasonable accommodation should have been made by the Respondent for his needs. The material facts that first gave rise to the complaint arose before he registered his disability, namely between October and December 2020.

In respect of his Spanish module, a portion of the marks were allocated to a coursework assessment. The students were required to complete and send to the lecturer a draft assessment. The original deadline for this was 23 October 2020.

The first step in that assessment process was to send the lecturer a contents page which outlined the format that the assessment would follow (no marks would be allocated for this)  The Complainant did this on 23 October 2023.

Later that day, the lecturer emailed all the students to advise them that the deadline to file the assessment (that marks would attach) would be extended to 6 November 2020.

On 8 October 2021 the Complainant had approached the lecturer after class to tell him about his mental health condition. He contends that from this time on the lecturer knew of the Complainant’s anxiety disability and that he might need extra time to complete assessments.

At a later (unknown date but before 6 November 2020) the Complainant approached the lecturer again after class and the lecturer agreed to allow him an extension to file the assessment to “later in the semester.” The Complainant understood from this conversation that the revised deadline (of 6 November) would not apply to him because of the open-ended nature of the extension that the lecturer had granted to him. The semester ended in early January 2021.

It was the Complainant’s understanding at that point, that as long as he filed the assessment before the end of the semester (ie early January 2021) that he would be treated as having complied with the deadline that was specific to him, because of his disability. He did know, that the late filing of an assessment could result in a mark capping penalty being applied but because he had the benefit of an extension that his lecturer have given to him personally, he believed that he would not be penalised for filing the assessment after the 6 November deadline, which applied to everyone else.

An issue arose in early 2021 when the Complainant received his assessment mark. He saw that it was capped at 40% for late filing. When the Complainant complained about this the Spanish lecturer denied ever giving him a verbal extension of the deadline.   

The Complainant is aware of the Extenuating Circumstances Form (ECF) process.  An ECF is a form that is filed with the University if a student requires a deadline to be extended for extenuating circumstances. Prior to this, the Complainant filed ECFs in other modules (but only when his lecturer instructed him to) but because had not been told to do by his Spanish lecturer he thought that he had been granted the extension without filing an ECF. He believed that first and foremost it was up to an individual lecturer to allow a deadline to be extended and if an ECF was needed that the lecturer would advise the student of that.  The Complainant understood from other lecturers that the paperwork involved in the ECF process was onerous and sometimes lecturers preferred simply to allow a late filing without an ECF being filed. The Complainant added that in May 2021 in respect of another module, his lecturer extended his deadline and also did not advise him to file an ECF, although he accepts that the Respondent later told him to file the form retrospectively to avoid a penalty.

In any event when the Spanish lecturer gave the Complainant the extension verbally, he did not tell the Complainant to file an ECF, either during their conversation after class or in any subsequent email correspondence. So if an ECF was required, the Complainant contends that the lecturer should have told him that and their emails between 6 November and Christmas show that the Spanish lecturer did not refer to any ECF or ask if the Complainant had filed one or not.  

And if an ECF is mandatory for all late filing of coursework, as the Respondent is now suggesting, the Complainant asks why the lecturer did not warn him when they discussed it that he might be penalised if the coursework was presented after 6 November deadline, without an ECF being filed. Why did he not raise it in his emails to the Complainant between November and December 2020?

In failing to do so the Complainant’s needs were disregarded because he ended up being treated the same (and penalised) as every other student despite his disability. His disability was completely ignored by the Respondent.

Importantly when he registered his disability on 10 December 2020, the Respondent and all his lecturers would have been informed of his disability and yet the Respondent ploughed on normally, not raising any ECF issue with him and not warning him that he could be penalised for not filing one, which essentially disregarded his disability.  

The Complainant contends that by allowing him an extension verbally but at the same time failing to advise him that an ECF was required (when the lecturer gave him the open ended “later in the semester” extension) was a failure to take account of the Complainant’s need for further time (due to his disability) and a failure to protect him from being exposed to a much greater anxiety when the Complainant learned in early 2021 that he was being penalised for a late filing of his coursework. The Complainant contends that the lecturer singlehandedly created the situation by allowing him an open-ended extension but then denying that, to protect his own interests over those of the Complainant.

The impact to the Complainant for this module had been significant. He argues that by penalising him for filing a late assessment (capping him at 40%) this resulted in an overall loss of mark for his Spanish module of 2%, which has had an impact on his final degree mark.

He argues that when the Complainant made a complaint in early 2021, after an intervention by other Respondent staff he discussed it with his Spanish lecturer who promised to “make it up to him” later by adding an additional 2 percentage points to his end of year Spanish mark. Which the Complainant agreed to, although he was concerned that there was no written record of this agreement and he would need to rely on the lecturer’s word alone.

After the exams, in May 2021 the Complainant asked for and obtained - from an unidentified member of Respondent staff – a provisional mark for all of his modules. He wanted to find out if he could get the First-Class Honours degree, that had always been his hope.

This unidentified member of staff told him that his provisional mark in Spanish was 74 %.  As the Complainant had performed well in his other modules (based on his provisional Spanish mark) this meant that  his overall degree mark was 69% which would have brought him into the category of student that the Examinations Board could apply an uplift to, namely to 70%, which would have allowed him to achieve a First-Class Honours degree.

The Complainant was happy with this. It was always his ambition to achieve a First-Class honours degree however given what had happened with the assessment the Complainant did not trust that his provisional Spanish mark would be maintained. Everything hinged on his Spanish mark being the provisional mark of 74%.

The Complainant emailed the lecturer to ask him to confirm what his provisional result was in Spanish. He wanted confirmation directly from his lecturer. His lecturer replied that he was not permitted to issue provisional results but that the Complainant would get his results on Consultation Day on 12 June 2021, after the Exam Board Meeting. The Complainant’s worry that his provisional result of 74% would not be maintained increased. The failure to give him his provisional mark, particularly after that the lecturer’s line manager informed the Complainant that giving/withholding a provisional mark was within the discretion of each lecturer to decide compounded his anxiety that all would not be well.

On Consultation Day the Spanish lecturer told the Complainant that his overall mark for his Spanish module, as confirmed by the Exam Board, was 72%. The Complainant immediately told him that he had been already told by a Respondent employee (who would not be identified) that his provisional mark in Spanish was 74%. He told the lecturer that unless he received 74%, that he would not come within 69% for his overall degree. This meant that he would not be considered for an uplift to 70% in order to grant him a First-Class Honours Degree.

The Complainant contends that the penalty that was applied to him for his assessment being filed late, despite him having received permission for the extension, had long term serious consequences for him. The way of remedying that (adding an additional 2% to his module mark) was a remedy that was created by the lecturer, no one else. But the Complainant did not get the extra 2 % as promised. He contends that had he not been penalised in marks, he could have been considered for a First Class Honours degree, whereas instead he got a 2:1.

The Complainant raised a formal complaint with the Respondent and ultimately after a four-stage investigation hearing, his complaint was not upheld.

The Complainant contends that his Spanish lecturer verbally gave him an extension of time to file his assessment because his disability required it. The lecturer did not advise him to file an ECF form or warn him that if an ECF form was not filed his mark would be capped. This is evidenced because in their emails the lecturer did not refer to the ECF in the period up to and including 8 December when the lecturer asked the Complainant to “resend his coursework” and up to 28 December when the Complainant filed his assessment.

In February 2021 the Complainant learned that he had been docked marks for late filing. The Complainant felt entirely let down. He even thought about changing modules and the only reason he did not was because it would have necessitated him to do another academic year. However, when another member of staff intervened with his Spanish lecturer, the Complainant met with the lecturer and he assured him the Complainant that he would give him an additional two marks when it came to the exam at the end of the year.

As far as the Complainant was concerned so long as the additional two marks were eventually given back to him, he could still achieve a First-Class Honours Degree, which is all he ever wanted.

Then after the exam when he surreptitiously found out his provisional mark for Spanish, which was 74%, he was happy because along with his other marks he knew that, while not a great result, at least it would mean that he would still get an overall degree mark of 69% and therefore be considered for an uplift to a First.

That is why he contacted the Spanish lecturer at that stage, because before the Exam Board met (after which the Complainant knew that the marks would become unamendable) he wanted the lecturer to confirm that his provisional mark, and the mark that would go before the Exam Board was 74 %. When the lecturer told him that he was not allowed to give out provisional marks, he emailed the head of the Business and Law faculty and found out that it was within his lecturer’s discretion to decide this. Even when he forwarded this advice to the lecturer, he still refused to issue the provisional mark.

On Consultation Day in June 2021, when his lecturer met him and said that his final mark was 72% and not 74 %, the Complainant realised that his hopes for a First-Class honours Degree had been dashed by the actions of this individual lecturer.

First, by refusing to acknowledge that he had verbally agreed to giving him an open-ended extension. Second, by failing to advise that the ECF was mandatory. Third, by denying telling the Complainant that he would make up for it by adding 2 extra percentage marks onto his final grade. The Complainant asks if this assurance was not given why, on Consultation Day, did the lecturer leave their meeting to go to the university Office staff to see if two percentage points could then be added onto the Complainant’s overall mark (it could not). Why would he have done this, which the Respondent accepts he did, if there was no basis to do so and no assurance had been given before then?

The subsequent investigation that was conducted by the Respondent accepted the evidence of the lecturer over the Complainant, which was essentially a denial of everything that the Complainant alleged.

The Complainant’s degree remained a 2:1. The Complainant contends that this outcome flew in the face of all the evidence what showed that the Complainant was telling the truth and the lecturer was lying to protect himself, his inadequacies and his disorganisation.

The Complainant contends that no reasonable accommodation was made for his disability.

He should have been advised to read the Student Guide to Exams and Assessment. He was not.

He should have been advised by his lecturer to file an ECF when an open ended “before the end of the semester” extension was given to him.

The lecturer’s assurance that two additional marks would be added to his exam should have been abided by, because if this assurance had not been given, the Complainant might well have chosen to do a different module, such was his distrust of this lecturer.

The lecturer should have provided him with his provisional mark when the Complainant asked him, to confirm that it was the same 74% as the Respondent employee had told him. This would have allowed whatever intervention/ clarification that was necessary to take place, to take place before the Exam Board met and the results became finalised.

The lecturer should have told the truth to the investigating committee and the investigating committee should have given greater weight to the email evidence (which supported the Complainant’s version of events.)

All in all, the Complainant contends that Respondent did not make reasonable accommodation for his disability. The lecturer was fully aware of his disability. Verbal assurances were given to the Complainant that a reasonable accommodation would be made, but this was then taken away by the lecturer denying that it was ever given in the first place.

Ultimately the Complainant’s right to submit his coursework late was denied and he was penalised for that. He was treated in the same way to non-disabled students who did not require an extension. In this way there was a failure in effect to make reasonable accommodation for his disability.

The Complainant was cross examined and stated the following:

He had not read was not made aware of the document entitled “Student Guide to Exams and Assessment” in which it states that the only route whereby a student can obtain an extension of time for an Assessment is by completing an Extenuating Circumstances Form (ECF). The Complainant stated that an ECF was not mandatory because he was given another extension the following May 2021 by another lecturer without filing an ECF however he accepts that subsequent to this, he was advised by the Head of Department that he needed to file an ECF, and he was permitted to file one retrospectively.

He accepts that he filed his assessment, following an email from the lecturer, on 28 December 2020 which was 7 weeks after the deadline that was given to the rest of the class.

He accepts that the “Student Guide to Exams and Assessment” document states that the ECF is for the student to file and that it is not up to the Respondent to ask the student to file one.

He did not accept that the extension of time was predicated on him filing an ECF. He was verbally assured by the lecturer that he was being given an open-ended extension of time and the only limit that was mentioned by the lecturer was that it could be filed “later in the semester.” The Complainant relied on that permission.  He also relied on the fact that in their emails between 6 November 2020 and the 28 December 2020 the lecturer never asked him to either file the assessment and significantly, never told him to file an ECF or warned that if he did not, he could face a penalty. The lecturer never made the extension dependent on an ECF being filed.

In synopsis the defence of the Respondent to the substantive claim follows in point form below. However, following the Complainant’s evidence and cross examination, the Respondent’s representative requested the Adjudication Officer to rule, based on the Complainant’s evidence alone and disregarding any evidence that the Respondent intended to give, if its preliminary application failed, that no prima facie case of discrimination had been established.

Substantive Defence:

1.      It is accepted that the Complainant registered his disability with the Respondent on 10 December 2020, ie after the lecturer emailed the Complainant on 8 December asking him to send him the coursework.

2.      It is denied that the lecturer verbally gave the Complainant an extension to file the coursework during or after class in October, November or December 2020.

3.      It is accepted that the Complainant and his lecturer did not discuss the filing of an ECF.

4.      It is accepted that the Complainant did not file an ECF.

5.      It is denied that the lecturer told the Complainant in February 2021 that he would make up the difference in his lost marks by adding an extra 2 % to his exam mark.

6.      It is denied that even if the Complainant was not capped at 40% for his coursework that he could have achieved an overall mark of 69% which would then have been rounded up to 70% to allow him a First-Class Honours Degree

7.      The complainant’s final overall degree mark was 68.5 %. Had his Spanish coursework not been capped his overall mark would have been 68.8%. At that mark, he would not have been rounded up to 69% and then rounded up again to 70%. There is no entitlement to an upgrade. Sometimes an upgrade is applied to those at 69% sometimes it is not, depending on whether in the view of the Exam board the student merits an upgrade. The Complainant is incorrect insofar as he believes and argues that he was been entitled to a First-Class Honours Degree even if he had a revised overall mark of 68.8%.

8.      The complaint of a failure to make reasonable accommodation is denied.

Respondent’s Application - that no prima facie case has been discharged by the Complainant

Following the evidence of the Complainant the Respondent made an application that the prima facie case of discrimination had not been discharged by the Complainant and that a finding should be made that the complaint is not well founded without the necessity of the Respondent calling evidence to counter the claim.

They submitted as follows:

The Respondent submits that there was no denial of the Complainant’s rights to an extension of time to complete his assessment.

The purpose behind section 4 (1) of the ESA (reasonable accommodation) is to ensure that measures are put in place to ensure that the obstacles which prevent a disabled person accessing the same service as a non-disabled person can, should be removed, unless it would cost more than a nominal cost to do so.

The Respondent submits that taking the Complainant’s case at its height, that he has not met the prima facie case of discrimination.

If the Complainant had read the advisory booklet “Student Guide to Exams and Assessment” (and he accepts that he did not, despite being in Fourth year) then he would have understood that the obligation lies on him and no one else, to use the proper route to seek an extension of time to allow late submission of coursework. There was nothing in the Complainant’s disability which prevented him from filing an ECF. His lack of knowledge of how to process an application for reasonable accommodation for disability is not grounds to find that reasonable accommodation has not been made. He did not properly ask for reasonable accommodation to be made.

This complaint is fundamentally misconceived because while the Complainant may be unhappy with how he was treated (and his factual allegations are denied, but even if they were accepted) unfair treatment does not mean that reasonable accommodation has not been made. Even if he is correct to say that the lecturer verbally gave him permission (which is denied) if he had read the Student Guide to Exams and Assessment he would have know that that of itself is not enough to get the extension and an ECF also needs to be sent to the college office and sanctioned by the Respondent.

The Complainant is evidentially unable to get around the fact that he neither filed an ECF nor was he ever told that he did not need to file one.

The Complainant’s own evidence (when he allegedly received the verbal extension) was that he did not ask the lecturer if he needed to file an ECF.

If he had, the lecturer could have said, “yes you do need to do that” and the Complainant would have done so and have got extra time (reasonable accommodation.)

Or if lecturer had said “no, you don’t need to file one” the Complainant might then have had a stronger case to contend that he was denied reasonable accommodation.

But the Complainant evidence is that despite knowing about the ECF process (he had filed an ECF previously) he says that he believed (incorrectly but this was his evidence) that it was up to the lecturer by himself, to decide if you needed to file an ECF, and yet he did not ask the lecturer if he needed to file one.

So in synopsis of his evidence: he knew about the ECF process, he says it was up to his lecturer to decide if he needed to file one, he didn’t ask his lecturer if he needed to file one but still believes that he didn’t need to file one.

Had the Complainant filed an ECF, he would have been entitled to a late filing permission. As he did not, he did not obtain one. The Student Guide to Exams and Assessment is on the Respondent website and the students are expected to know the rules processes that are set out within that, particularly if it is for a process that it designed to benefit them.

Reasonable accommodation does not extend to a suspension of all processes. The ECF process is in place to protect students and staff but primarily students,  to ensure particularly in cases of disability, that reasonable accommodation, in the form of late filing of an assessment made be determined through the application of a formal and transparent process. Such permissions cannot be given by an informal process by verbal permissions given here and there. It needs to be properly sanctioned by the Respondent because otherwise the process could be abused. A lecturer can give a student permission verbally but without Respondent sanction, via the ECF process, no permission stands.

It was not up to the lecturer to chase the Complainant to ensure that he has followed the ECF process. At the heart of this complaint is a misunderstanding of the duties of a lecturer to a student and the duties of a student to the college.

The Complainant concedes that he did not utilise the process whereby he could have been provided with reasonable accommodation. It is for that reason that he was treated like any other student who had a deadline of 6 November. None of the lecturer’s emails that the Complainant relies refer (as he alleges) to “an open ended extension until the end of the semester” But even if one had been granted verbally, that is not the end of the student’s obligation to ensure that late permission has been granted. The permission needs to be formalised by an ECF and without an ECF no permission may be given.

The Complainant admits this himself insofar as when later in May 2021 when he again sought verbal permission from another lecturer for a permission to file coursework late, and he was advised by the head of faculty that if he did not file an ECF (albeit retrospectively) that no permission would be granted.

The Respondent denies that the Complainant has discharged the onus of proving a prima facie case of discrimination. He has not discharged the onus of proof that he was not afforded reasonable accommodation was due to his disability. Had he followed the mandatory process to obtain permission to file late, he would have been granted this permission. If the process to obtain reasonable accommodation had not been applied for it cannot be argued that reasonable accommodation has been denied. The request for reasonable accommodation was not properly sought and this complaint ignores the fact.

The complainant has conflated a right with a process. Even though he accepts that he did not follow the correct process he says that he should have been granted the extension anyway on the basis of the lecturer’s verbal permission alone, which although it is what the Complainant would like is not supported by any evidence.

The Complainant’s evidence falls short of the test to prove that he was denied reasonable accommodation.  

Special Circumstances

In his evidence the Complainant asserts that he has a disability, in the form of anxiety, which the Respondent does not dispute constitutes a disability within the meaning of the Equal Status Acts 2000-18.  It is my view, bearing in mind the outcome that I have reached and applying section 25(2) of the Equal Status Acts that it would not be in the best interests of the Complainant to identify either party in this decision. I consider that a published decision which would identify the Complainant and record his evidence of anxiety would likely adversely exacerbate the Complainant’s condition and for this reason I determine that this adjudication should be held otherwise than in public. For the same reason I do not identify the Respondent, because doing so would likely identify the Complainant.

I determine that special circumstances exist to permit me to determine that this decision should not identify the parties.

Has the Complainant proven on the balance of probabilities a prima facie case of discrimination namely the failure to provide reasonable accommodation against the Respondent?

The Test

The right to reasonable accommodation in terms of the provision of services is governed by section 4 (1) of the Equal Status Acts 2000-18, which states:

“For the purpose of this Act, discrimination includes the 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.”

Therefore, the test for any complaint under this section is as follows:

There must be (a) a refusal to provide reasonable accommodation if (b) the person with a disability would be unable to access the service (that a non-disabled person can access) unless the reasonable accommodation sought is provided. Also (c) the cost of providing reasonable accommodation must not be greater than a nominal cost.

Has the Complainant’ evidence met this test?

The Complainant’s evidence at its height is that he was denied (reasonable accommodation) namely a late extension to file his coursework because he wasn’t properly advised how to apply for it.

He essentially complains that while reasonable accommodation may exist in the ether, if the Respondent provides reasonable accommodation but by its action in fact prevents access to that reasonable accommodation, the availability of reasonable accommodation becomes a falsehood.

Applying the legal test to the facts asserted by the Complainant.

The Complainant’s case hinges on a contention that he had no responsibility to be proactive about applying via a formal process of obtaining the late permission.  Once the verbal permission was given to him, he believed that that was all that he needed to get.

I do not agree with this submission.

An extension to a coursework deadline for extenuating circumstances is a support that is available to some (but not all) student applicants. It is a student support to reflect extenuating circumstances that the student may find themselves in. The responsibility lies on the student to request that permission in the form that the Respondent proscribes. This applies to all students. This support is not only for students with a disability, it is also for other extenuating circumstances; for example a bereavement, an illness, an electrical power outage that causes the internet to not work at the time the assignment is due. It also encompasses a disability.

But whatever the extenuating circumstances are, the onus lies on the student to obtain that extension (using an ECF form which sets out the extenuating circumstances) and to request the accommodation that is required. That request is made to the Respondent, not to the lecturer. A lecturer might give permission verbally but that is not the end of the matter because when an ECF is received by the Respondent even though the permission that may have been granted verbally by a lecturer, the Respondent can query if the asserted circumstances are sufficiently or insufficiently extenuating or if for example medical proof of extenuating circumstances has not been presented. So, a verbal assurance by a lecturer is not enough.  

In this case as the Respondent has made clear, if the Complainant had filed an ECF (bearing in mind his registered and evidenced disability) the permission would have been granted. But the point needs to be underlined: the decision is not up to a lecturer alone to grant an extension. The request is one for the Respondent’s administrative body to take and the reason that this process is mandatory is to ensure consistency across all of the faculties. The support via the ECF application is up to the individual student to seek. It is not for a lecturer to suggest.

The Complainant’s evidence is clear. It is not that he was assured by his lecturer that he did not need to file an ECF. It is that he, the Complainant, knowing about the ECF process did not raise it with the lecturer and because his lecturer did not raise it withhim, that he assumed that no ECF was needed.

The Complainant’s argument puts the onus of applying for reasonable accommodation on the lecturer rather than on himself, which is incorrect.

The Student Guide to Assessment and Exams clearly sets out that the process to obtain a time extension on coursework lies with the student.

Further, at the end of this Guide, students are informed that they are obliged to become familiar with the contents of the Guide.

The Complainant cannot contend that the process of applying for extra time was denied to him because he did not utilise the only process (via an ECF) that exists to obtain the extra time. He misunderstood that if he did not utilise the ECF process, he would not obtain the benefit. Had he read the Guide, he would not have misunderstood this onus, which is clear.

I do not accept that reasonable accommodation was denied to the Complainant. I am satisfied that had he applied for extra time using the ECF that he would have been granted extra time. Whatever discussions between his lecturer and himself took place (as long as the lecturer did not actively tell him not to file an ECF and the Complainant does not make this case) those discussions did not replace the need for him to file the ECF.

The purpose behind section 4(1) of the ESA is to allow a person with a disability who is trying to access a service to be reasonably accommodated so that he may have the same access to the service as a person without a disability.

If the process to access a service may be performed equally by a disabled or non-disabled person, then there is no requirement for an intervention. In this case, a person with a disability and a person without a disability were both able to complete an ECF. The Complainant’s disability did not prevent him from doing that. His belief, erroneously, was that he was not obliged to file an ECF if he needed extra time.

The analogy is someone who requires disability equipment. If for example there is a process to obtain a local authority-funded disability equipment (completing an equipment request form) and that process is mandatory, if the applicant doesn’t use that process but instead uses another process (eg he asks his county councillor, who assures him that all will be arranged) and when he doesn’t receive one, the local authority tells him that the process is only via this application form because he needs to be assessed before the provision of the equipment would be sanctioned, the refusal to provide him with the equipment is not because the applicant is not entitled to a wheel-chair or that a request for reasonable accommodation has been refused, it is because the applicant did not use the right process to obtain the equipment. The request for reasonable accommodation, in effect, has not been properly made.

Using the correct process is not an over formality. Academic achievement in third level institutions is desirable. It is a competitive process. If one student is to gain advantage over another, the process to gaining that advantage must be formally and transparently accessible. It cannot be conducted in a casual or non-transparent manner because that would lead to Respondent being exposed to complaints of bias and unfairness.

Registration of his disability with the Respondent did not displace the requirement for him to request a coursework deadline extension using the approved process. I am satisfied that the ECF process was and is mandatory. I am satisfied that the reasons for why that is so are sound.  I am satisfied that the Student Guide to Assessment and Exams clearly put the onus on the Complainant to file an ECF if he needed additional time. I am satisfied that his disability did not prevent him from applying this process. I am satisfied that the lecturer did not advise him that it was not necessary to file an ECF.  I am satisfied that the Complainant did not discharge this onus when he both spoke to his lecturer and emailed him subsequently between November- December 2020. I am satisfied that the Respondent was entitled to penalise the Complainant when his coursework was submitted late given that he had not sought nor obtained permission to file late using the mandatory process.

Based on the evidence of the Complainant and taking his evidence at a height, I am satisfied that he has not proven on a prima facie basis that the Respondent failed to make reasonable accommodation for his disability.

To apply the legal test: I do not accept that the Complainant was refused reasonable accommodation. Rather I am satisfied that the Complainant did not request reasonable accommodation using the process that he, and he alone, was obliged to activate and it was due to this that his coursework mark was capped at 40%

I find that the Complainant has not proven facts from which a prima facie finding of discrimination on grounds of disability (failure to make reasonable accommodation) may be found.

I find that the Respondent did not engage in prohibited discriminatory conduct. I find that this complaint is not well-founded

This complaint is not well-founded

Equal Status Act - Student  - Third Level College – Disability Discrimination – Failure to make reasonable accommodation