Complainant

Respondent

Anonymised Parties

A Student (a Minor)

Second-Level School

Representatives

  Self-Represented

Mr Mark Curran BL instructed by Catherine Kelly Mason Hayes & Curran

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00061499-001

11/02/2024

The Complainant is a minor with dyslexia and selective mutism, which are uncontested disabilities for the purposes of this case. The Respondent is a second-level co-educational school with approximately 1,000 students. The Complainant, through his mother (Ms A), submits that no proper accommodation was made for his dyslexia and selective mutism in the provision of his education. Furthermore, she claims that the Complainant was victimised and harassed on the grounds of his disability. The Respondent denies all allegations of discrimination against the Complainant on the grounds of disability, asserting that the claim is out of time and that it has made reasonable accommodations for the Complainant at all times.

Ms A gave evidence and submissions on behalf of her son. She detailed her son’s struggles with dyslexia and what she termed was the lack of support the Complainant received  at the Respondent school. Despite providing reports outlining the Complainant's learning needs and repeatedly communicating with the school, she claimed the Complainant’s needs were not accommodated. Ms A submitted that management at the school resisted supporting the Complainant adequately, preferring to label him with behavioural issues rather than addressing his dyslexia.  Ms A listed various incidents, amongst other things, which she believed indicated discrimination, including:

·         Placement on a reduced timetable without proper protocol in September 2022.

·         Being excluded from Home Economics practical classes due to lack of ingredients, without the teacher informing the parents.

·         Receiving no reading assistance during his first-year Christmas exams, despite Ms A’s request.

·         Facing threats of losing a tutorial due to his poor memory, and criticism for lateness and incomplete homework, despite his learning disability.

·         The school constantly characterising his disability as misbehaviour.

 Ms A submitted that her  attempts to communicate with the school and seek support from relevant authorities had been unfruitful. She asserted that the Complainant’s  support file lacked crucial information about his learning disabilities, and the school's decision to place him in lower-level classes without consultation undermined his potential. She said the Complainant has memory and spelling problems, that he should not have to take notes and should not have been “put on the spot” due to his selective mutism.  

Ms A said that she provided the school with a 2018 Educational Psychologist's report detailing the Complainant’s  dyslexia and low working memory upon his  enrolment in November 2021. In May 2022, Ms A  met with Ms B, head of Special Education Needs at the school, to provide an updated National Educational Psychological Service (NEPS) report with recommendations for the Complainant’s  transition to secondary school. Ms A said she told Ms B that her son was on the severe end of the Dyslexia spectrum.  Ms A said Ms B  refused to accept the report, claiming she would get it from the Complainant's primary school. Ms A argued that the school was responsible for engaging with the Complainant’s primary school and requesting the “Educational Passport” materials, but they failed to do so. Ms A said she  supplied the school with  a Speech and Language Therapist report in May 2023 diagnosing the Complainant with a mild language processing disorder. Despite this, Ms A asserted,  the school produced an Individual Education Plan (IEP) a month later, where she claims the school  incorrectly stated that his language processing skills were normal for his age. Ms A claimed the  IEP included irrelevant details from years ago and failed to address the Complainant’s  mild language processing disorder, despite recent reports highlighting this issue. The file lacked documentation on the Complainant’s progress or accommodations, and no records indicate his memory and processing issues.

In a phone conversation with the Woodtech teacher in November 2023, Ms A said she had to press him  for information. The teacher had  mentioned to her that class notes were available on Microsoft Teams, yet Ms A claimed that the Complainant was not part of the group. After requesting his inclusion, she claimed he had  discovered the notes were  on Teams, but she had  had not been informed.

Ms A claimed that the Complainant was victimised and harassed when:

1.       Mr C, the vice principal,  appeared to follow the Complainant  across school corridors without reason in May 2023 ( a claim she said was supported by video evidence). She believed this was an incident  of both  harassment and victimisation because of representations made by  Ms A   to Mr C  regarding the school’s inadequate accommodations for his learning disability.

2.        Ms A alleged that the then School Principal, Ms D, had made a threat in the form of a statement at a meeting in September 2022 . Ms D suggested that Ms A might give consideration to choosing a smaller school for the Complainant.

Ms A said she had refused SNA support when offered by the school because it was not recommended by NEPS, and she also felt it would be humiliating for the Complainant and create a stigma around his condition. Ms A  fears that without proper support, the Complainant’s  academic achievements will be severely limited, impacting his future opportunities.

Cross-Examination:

Counsel for the Respondent Mr Mark Curran conducted the cross-examination on behalf of the Respondent. CCTV footage, as referred to in the witness’s evidence alleging harassment and victimisation by Mr C was exhibited. It was put to the witness that the footage shows Mr C shepherding a group of students down a number of corridors between classes and that the witness’s harassment claim of the Complainant being singled out is simply incorrect. The witness did not agree.

It was also put to the witness that an opening paragraph in an  email sent by her husband, with her obvious support, described the Complainant’s and the parents  overall experience with the school as being positive and that this  contradicts her case. The witness said that this paragraph should be taken as an untrue sentiment and was inserted intentionally to appear to show the parents in a positive light.

It was put to the Complainant that the behavioural issues she  attributed to Dyslexia  and Selective Mutism like throwing chewing gum that stuck in a student’s hair, squirting water at another student, throwing a stone at a student, and changing another student’s locker code, as reported back to her by the school, could never realistically be associated with the Complainant’s disability. The witness did not accept the school’s version of misbehaviour as attributed to the Complainant.

The witness accepted that at a meeting of 12 September 2022 she was informed of certain strategies that would be in place. The witness also accepted that she refused SNA support when offered but said that she was of the opinion that it was said in such a way as to constitute a threat and said it would be totally undesirable to have an SNA follow the Complainant around all day long. It was put to the witness that she did not understand the concept of SNA support, and that it was never intended to have full time SNA support for the Complainant. The witness disagreed that she had misunderstood the nature of the  accommodation offered.    

Preliminary Issue: Statutory Time Limits:

The Respondent submits that the Complainant’s claim is out of time. The Complainant’s ES1 form, submitted on 21 June 2023, states that the discrimination occurred between 13 September 2022 and 23 May 2023. The Complainant’s WRC Complaint Form was filed on 23 February 2024, approximately nine months after the last alleged incident of discrimination. Under section 21(6)(a) of the Equal Status Act 2000, a claim must be submitted within six months from the date of the last alleged discriminatory act . The Respondent cites  Employee v An Employer [UD1264/2008] where the Employment Appeals Tribunal held that it could not assume jurisdiction over claims that are statute-barred. Based on this, the Respondent contends that the Complainant’s complaint is statute-barred, as it was filed more than six months after the last alleged incident. Even if the Complainant  argues that the discriminatory conduct is ongoing, the Respondent notes: (i) No ES1 form was submitted for conduct occurring after 23 May 2023. (ii) Any conduct post-dating the submission of the WRC Complaint Form on 23 February 2024 cannot be considered by the WRC. The Respondent further cites  Reilly v Link Credit Union Limited [ADJ-00021693] , the Adjudicator confirmed that complaints are invalid if the ES1 form is not submitted within the statutory timeframe. The Respondent submits that no valid ES1 form has been submitted regarding conduct after 23 May 2023, and therefore, any claims related to such conduct are invalid.

Allegation of Discrimination:

Ms D assistant principal, but principal at the time of the alleged discrimination, gave evidence of being a French/Irish teacher since 2001 and she also served as secretary to the Board of Management. She spoke of the open night for parents at the end of September and gave an account of the Special Educational Needs  teachers and their role, especially with the input needed for the  160 first year students in 2022. She said that the ratio of students with dyslexia was 1 in 10 and that the school was well experienced in dealing with this disability.

On SNA support, she said that this would never be envisaged as being full time for a student with dyslexia – rather this would be for a student who had a profound disability to help primarily with care needs during school hours. In this instance case she said that the SNA support envisaged would, for example,  the organising of books in a box in the library for the different subjects. However, the offer of SNA  support for the Complainant was categorically rejected  by Ms A at the beginning of term. The witness spoke of receiving extensive email correspondence from the parents of the Complainant but would have invited them in to sort it out, as distinct from constant email correspondence.

She said that all staff who were interacting with the Complainant in first year were told of his disability and the suggested accommodations to be made.

When she met Ms A in late September 2022, she felt that Ms A had been overanxious and sceptical of the capacity of the  school to provide accommodation at that juncture  and suggested that a smaller school might suit the Complainant better. She made this comment, not as a threat, but solely with the welfare of the Complainant being uppermost  in her thinking.

She believed the behavioural issues not to be connected to the Complainant’s disability, but to be of a minor nature and not untypical of a teenager at that age. She was of the opinion  that more time was spent in supporting the Complainant in his class, than on any other student.

In cross-examination the witness did not accept that the degree of the  Complainant’s dyslexia, as made known to the school in the reports, could be classed as overly severe but was within the average level that the school routinely accommodated. The witness denied that she had  instructed the year head, Ms F,  to contact the Complainant’s primary school to “dig up the dirt” on the Complainant after Ms A had made complaints.

The witness was questioned on an English paper exam result, where the Complainant received 40% but where the real mark was 10%, when it was queried further by Ms A. The witness said that this is a normal system utilised in situations where an average is determined when the results of all the students in the class is factored in, and results are adjusted accordingly.

Mr E, the Woodtech teacher gave evidence of being a teacher in this area as well as in  graphics for a period of seventeen years. He said there was never a formal complaint made against him in his career. He was aware of the Complainant’s dyslexia/selective mutism and made every effort to accommodate him through using ‘Mindmaps’ and putting notes on ‘Teams’. He said he would never call any student “a clown” but commonly uses the term “stop acting the clown” when coming across mild misbehaviour and may have used it when addressing the Complainant, or other students.  

He described an interaction he had with Ms A during a parents/teacher  meeting on 19  February 2023 (exhibited memo) where  he welcomed Ms. A, but he said  she immediately and abruptly questioned his  comment about improvements in class behaviour from the Complainant’s  Christmas exam report, which noted he could improve his grades with more focus. The witness  attempted to explain that the Complainant should concentrate more on his own work, but said she that she continually interrupted him. Despite his  insistence to be heard,  he said she dismissed his  responsibility for 19 other students in the same practical class and criticised his  professionalism. Ms. D  intervened to suggest Ms. A move on due to a growing queue of parents waiting to see him, but Ms. A reacted angrily, calling Ms D "useless" and claiming she had done nothing for the Complainant.

Ms A put it to the witness that the notes were being put up on Teams, but the witness expressed unawareness of the fact that the Complainant did not have access to Teams.

Ms B gave evidence of being the Special Education Coordinator for over ten years, with specific qualifications for that area of teaching. She made the distinction between the Complainant’s reading ability and his oral reading ability. She testified that, in her opinion conclusion he was  on the moderate scale of dyslexia, as distinct of it being labelled severe, which was identified as such  in  the Complainant’s Psychological report. He had an exemption from Irish and was entitled to a reader in State exams. She gave evidence that she had informed all the Complainant’s teachers that he had difficulty in note taking and  they were instructed not to require him to read text aloud. The accommodations afforded to the Complainant  included repeated instructions, literacy and numeracy support, exam accommodations, and additional learning resources.

The witness described a meeting with Ms A on 9 May 2022 before the commencement of term in September. She described Ms A’s demeanour as “confrontational” and accused the witness of not understanding dyslexia. When Ms A offered the witness a copy of the  psychological report,  the witness  thought  she meant the 2018 report, of which she had a copy and did not realise that Ms A was offering a copy of the 2022 NEPS report.

When describing the benefits of SNA support, which Ms A had refused, she outlined how students with dyslexia can receive a breakdown of instructions from the SNA as well as the box support in the library. She said the provision of full time SNA support was very rarely offered in the school and it was ten years since it was last availed of by a student who needed to use a wheelchair. The witness said it could never be envisaged that a full time SNA would be allocated to a student with dyslexia. The witness also said that according to the 2022 report the Complainant was not in need of assistive technology.

The witness said it was rare for a student to have an IEP (Student Support file) but agreed that the file exhibited by Ms A from June 2023 did not reference a weakness in working memory but that these files are a work in progress and would be amended accordingly. The witness reiterated in cross examination that the Complainant was deemed  ‘moderate’ on the scale, and not ‘severe’ as asserted by Ms A. The witness said that the number of students with dyslexia that the school deals with or have dealt with runs into the hundreds and is not a rare condition. When the difficulties that the Complainant had experienced in History/English/Maths were brought to the attention of the witness at the hearing, she said that had SNA assistance been availed of, the SNA could check in with the Complainant and the relevant teacher, at least twice a day if needed and would also help out with any issue working the Microsoft Teams system.  

Ms F, Year Head for the Complainant, gave evidence of having 28 years’ experience and described her duties as monitoring attendance, helping in subject choices, and  looking after pastoral care, together with her normal teaching duties. She had been made fully aware of the Complainant’s dyslexia and selective mutism. She said it was normal practice to ring up primary feeder schools at the beginning of the first-year  term to seek further clarity for students who require supports. She emphatically denied that she rang up the Complainant’s school selectively,  at the behest of Ms D, in order to “dig up the dirt” as suggested by Ms A.

She said that when Ms A brought it to her attention, in September 2022, about the problem of the Complainant not been able to note the ingredients for Home Economics, the witness said she spoke to the Home Economics teacher about this. She said that the Complainant progressed well in second year. 

Mr C the vice principal  gave evidence of a twenty-five-year teaching career. He said he had extensive experience of catering for the needs of students with dyslexia and selective mutism down through the years. He said that every staff member was aware of the needs of the Complainant at the beginning of term. He said he given a generic copy of a timetable to Ms A  before the beginning of term. This did not reflect the actual timetable that was eventually adhered to, but it was on the insistence of Ms A at a pre-term meeting so as to give a flavour for the workings of the school. He said he was at the meeting of 29 September 2022 when SNA support was offered to Ms A on behalf of her son but that this was categorically refused. He re-iterated that the offer of a full time SNA would never have been made. He was referred to correspondence from Ms A by counsel where it was alleged that the Complainant, according to Ms A, was called “a liar” by Mr F in the library when questioned about his response to non-attendance in class. Mr F said he would never call a student “a liar”. Furthermore, on the allegation that he had  intimidated and harassed the Complainant by walking directly behind him down some corridors  on a certain day, the witness pointed out that the CCTV footage exhibited clearly showed that he was shepherding a group of students down a number of corridors between classrooms. This was the norm as students can never be unsupervised in the corridors. The witness stated that the footage clearly shows him some way back from the Complainant, with students in between.

In cross-examination the witness accepted that there was a  problem with the Complainant  accessing a list of ingredients  and he acknowledged  that the list should have been up on Teams. He said the school learned from this.

Mr G, present principal of the school gave evidence of 23 years’ experience of teaching. He also possessed  a Diploma in Special Needs. He said that the number of SEN teachers and the systems of support were unique for a school of its size, and it was widely  considered as a school employing best practices in the area of special supports. He spoke of the reluctance of Ms A from June 2023 onwards to engage with the school. He said that when he offered the opportunity at the time to Ms A  to just send one page of what she might  suggest would be added support for her son, it was not forthcoming.

In cross examination he said that the Student Support File is not a finished document but is updated on a continual basis.

Respondent Argument:

The Respondent cites section 2 of the Education for Persons with Special Educational Needs Act 2004, where children with special educational needs are entitled to an inclusive education unless this would be inconsistent with their best interests or the effective education of other children.

Section 4 of the Equal Status Act 2000 (“the Act”) defines discrimination based on disability as a failure to provide reasonable accommodations.

The Respondent refers to  A Student v A Secondary School [DEC-S2018-018], where it was established that service providers must take reasonable steps to accommodate persons with disabilities, and such steps must be assessed objectively.

Section 7 of the Act prohibits educational establishments from discriminating against students in admissions, access to facilities, or disciplinary actions. The Respondent asserts that this obligation is limited when compliance would detrimentally affect the provision of education to other students.

Section 38A of the Act  sets out the burden of proof in equal status complaints, requiring the Claimant to establish a prima facie case before the burden shifts to the Respondent. The Respondent submits that the Complainant  has failed to establish a prima facie case of discrimination. It argues there are no significant facts from which it can be inferred that the Complainant was discriminated against due to his disability. The Respondent refers to  Atilla Inanc v Compass Catering Services Ireland Limited ADJ-00038980, where the Adjudication Officer  held that facts must be of “sufficient significance” to establish a prima facie case. The Respondent asserts that the Complainant  has not provided sufficient evidence of discrimination, and the claim is therefore misconceived.

The Respondent opened  Clare (A Minor) v Minister for Education and Science [2004] IEHC 350 , where  the High Court ruled, that schools are entitled to balance the needs of individual students against those of the wider school community.

The Respondent referred to the accommodations it had provided to the Complainant. The Complainant’s  2022 psychology report was provided to the school only on 22 May 2023. Ms F, the  Year Head contacted his primary school in September 2022. The Complainant’s  needs were communicated to staff before the school year began. Ms F reminded teachers of his needs throughout the year. Meetings and communications with Ms A and her partner,  regarding the Complainant’s  progress were ongoing. The Respondent’s transition process for students, outlined by Mr G in evidence, includes multiple steps designed to address special educational needs, including meetings with parents and accommodations planning. The Respondent submits that it  provided numerous accommodations for the Complainant  in his first year, including repeated instructions, literacy and numeracy support, exam accommodations, and additional learning resources. Additional accommodations were provided in the Complainant’s  second year, such as timetabled tutorial classes and organisational support.

The Respondent wishes it to be noted that the   Complainant’s mother’s refusal of SNA assistance hindered the Complainant’s  ability to benefit from available supports. The Respondent highlights that  Ms A’s confrontational approach has complicated constructive engagement with the school. Furthermore,  the  Respondent submits that  CCTV footage exhibited and well as convincing direct evidence from the Respondent’s witnesses completely rebuts any allegation of harassment or victimisation under the Act. The Respondent, in closing, referred to the evidence of Ms A where she admitted that any positive thing she had said about the school in correspondence should be disregarded as being  untrue, whereas the negative accusations she made must be regarded as  true. The Respondent asserted that such a proposition  cannot be seriously  entertained  by the Adjudication Officer. 

Preliminary Issue – Out of Time:

The Respondent argued that the Complainant’s claim is time-barred. The ES1 form, submitted on 21 June 2023, indicates the alleged discrimination occurred between 13 September 2022 and 23 May 2023. However, the WRC Complaint Form was not filed until 23 February 2024, approximately nine months after the last alleged incident. Under section 21(6)(a) of the Equal Status Act 2000, the Respondent submitted that claims must be in within six months of the last discriminatory act. The Respondent referenced Employee v An Employer [UD1264/2008], where the Employment Appeals Tribunal held it lacked jurisdiction over statute-barred claims. Accordingly, the Respondent asserted that the complaint is statute-barred, as it was filed outside the six-month limit. The Respondent further contended that even if the Complainant contends that the discrimination is ongoing, the Respondent highlighted: (i) No ES1 form covers conduct after 23 May 2023, and (ii) Conduct occurring after the filing of the WRC Complaint Form on 23 February 2024 cannot be considered.

Additionally, the Respondent cited Reilly v Link Credit Union Limited [ADJ-00021693], where the Adjudicator confirmed that complaints are invalid if the ES1 form is not submitted within the statutory timeframe. Therefore, the Respondent concludes that no valid ES1 form has been submitted for conduct after 23 May 2023, making any related claims invalid.

I am satisfied that the alleged acts of discrimination which formed part of the complaint in this case was a continuing one, with the Respondent actively considering the circumstances surrounding the Ms A’s complaints. It has long been established that the ES1 form does not hold the Complainant to a certain timescale and all the evidence indicates that the Complainant remained a student at the school up to the submission of complaint to the WRC in February 2024 (and beyond) . Furthermore, I find that the circumstances show that the Respondent was not prejudiced.  I deem that  there was  no violation of section 21 of the Act, and that the complaint is properly before me.

Applicable Law:

The ‘Reasonable Accommodation’ provision in the Act, in its relevant part, at section 4 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) 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.

(3) 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.

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

(5) This section is without prejudice to the provisions of sections 7(2)(a), 9(a) and 15(2)(g) of the Education Act, 1998, in so far as they relate to functions of the  Minister for Education and Science, recognised schools and boards of management in regard to students with a disability.

(6) In this section—

“provider of a service” means— …

(b) the person responsible for providing a service in respect of which section 5(1) applies,

(e) an educational establishment within the meaning of subsection (1) of section (7) in relation to any of the matters referred to in subsection (2) of that section, or as the case may be, and “service” shall be construed accordingly; providing”, in relation to the special treatment or facilities to which subsection (1) refers, includes making provision for or allowing such treatment or facilities, and cognate words shall be construed accordingly.”

Section 7 of the Act provides:

“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.

(4) Subsection (2) does not apply—

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

(b) to the extent that compliance with any of its provisions in relation to a student with a disability would, by virtue of the disability, make impossible, or have a seriously detrimental effect on, the provision by an educational establishment of its services to other students.”

In relation to harassment, section 11 of the Act provides:

 (1) A person shall not sexually harass or harass (within the meaning of subsection (4) or (5)) another person (“the victim”) where the victim—

( a) avails or seeks to avail himself or herself of any service provided by the person or purchases or seeks to purchase any goods being disposed of by the person,

( b) …

( c) …

(2) A person (“the responsible person”) who is responsible for the operation of any place that is an educational establishment or at which goods, services or accommodation facilities are offered to the public shall not permit another person who has a right to be present in or to avail himself or herself of any facilities, goods or services provided at that place, to suffer sexual harassment or harassment at that place.

(3) It shall be a defence for the responsible person to prove that he or she took such steps as are reasonably practicable to prevent the sexual harassment or harassment, as the case may be, of the other person referred to in subsection (2) or of a category of persons of which that other person is a member.

(4) …

(5) ( a ) In this section — (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and (ii) … being conduct which in either case has the purpose or effect of violating a person ’ s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

( b ) Without prejudice to the generality of paragraph (a) , such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

 In relation to victimisation, section 3(2)(j) of the Equal Status Act provides a person is victimisedwhere he or she is treated differently from another person because he or she:

(i)                  has in good faith applied for any determination or redress provided for in Part II or III,

(ii)                 has attended as a witness before the Authority, the [ adjudication officer] or a court in connection with any inquiry or proceedings under this Act,

(iii)                has given evidence in any criminal proceedings under this Act,

(iv)                has opposed by lawful means an act which is unlawful under this Act, or

(v)                  has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv).

The Burden of proof provision at section 38A provides:

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

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director of the Workplace Relations Commission under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the respondent to prove the contrary.

The Respondent opened Atilla Inanc  where the WRC stated that: “The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case  is established and the burden of proof shifts to the respondent.”

The Complainant must therefore first establish a prima facie case of discrimination, in a twofold process that: (1) he has a disability and (2) he was subject to discriminatory treatment, namely in this case that he was  not afforded reasonable accommodation and was furthermore harassed and victimised because of his disability. If the Complainant establishes this prima facie case,then the burden shifts to the Respondent to show, on credible evidence and to the normal civil standard, that the discrimination was objectively justified in that it was for a legitimate reason and that any action taken by the Respondent was proportionate.

When  considering the primary facts adduced by the Complainant I must  take into consideration any contrary  evidence of the Respondent, when determining whether the burden of proof should shift . In the Labour Court case of Dyflin Publications Limited v Spasic EDA0823, it was stated that:-

“….the Court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant”.

It is uncontested in this case that the Complainant has a disability(s), namely dyslexia and selective mutism, which complies with section 2 of the Act. I am satisfied, based on what I would classify as the expert evidence of the SEN, Ms. B, that her interpretation of the available psychological reports suggests that the Complainant would be classified as having “moderate” rather than “severe” dyslexia. I conclude, therefore, based on the evidence provided by Mr. G, the current principal, that the school had the capacity to reasonably accommodate the Complainant, given the size of the school and the evidence that several other students with this disability are currently enrolled.

The first question I must address is whether, after hearing the evidence and submissions, the Complainant has established a prima facie case under section 38A of the Act that he was not reasonably accommodated and that he was harassed and victimised, as alleged by his mother, Ms. A.

It is well established that “reasonable accommodation” does not mean perfect accommodation, and the test for what is reasonable is an objective one. Furthermore, there is an additional qualification under section 7, which imposes an obligation on educational establishments not to discriminate against students in their admission or participation in the school. This obligation is qualified by subsection (4), where compliance would render it impossible or have a seriously detrimental effect on the provision of education to other students.

The Complainant, through Ms. A, has provided numerous examples of alleged discrimination based on the non-provision of reasonable accommodation, as outlined in the ES-1 and complaint forms. Ms. A also gave evidence, albeit hearsay, of what allegedly transpired in the classroom. Many of these incidents relate to similar issues, such as teachers' failure to repeat instructions to the Complainant, the Respondent's failure to contact the Complainant’s primary school, the Respondent's failure to consider the Complainant's 2022 psychological report, and teachers' general lack of awareness regarding learning difficulties. Ms. A also alleged that Mr. C harassed the Complainant by stalking him in one instance, which was purportedly captured on CCTV footage, and further alleged that Ms. D, the then Acting Principal, threatened her by suggesting the offer of a full-time SNA. She perceived Ms. D’s comment suggesting a smaller school for the Complainant as a threat. Ms. A categorised these incidents as victimisation, in retaliation for her vocal complaints about the school.

The school, on the other hand, provided evidence of various actions it considered reasonable accommodations, including the timetabling of literacy and numeracy classes for the Complainant, ensuring that all teachers were informed of the Complainant’s disability and needs, contacting the Complainant’s primary school to ensure that no needs were overlooked, and the provision of reader support in small, shared classrooms during simulated preparatory scenarios for state exams. Significantly, Ms. A categorically refused the offer of SNA support at a meeting in September 2022. Where evidence showed problems arising in Home Economics and Woodtech classes regarding notetaking and organisation, I am satisfied that those issues would not have occurred had Ms. A accepted the offer of SNA support at the relevant time.

Regarding Ms. A’s accusation that the Respondent deliberately ignored the 2022 NEPS report when first offered in May 2022, Ms. B, the SEN coordinator, provided convincing evidence that she believed it to be a duplicate of the 2018 report, which she already possessed, as Ms. A did not specify otherwise. Furthermore, when Ms. A finally provided the NEPS report to the Respondent in May 2023, she refused to meet further with the Respondent and declined to submit a one-page recommendation list outlining what she considered additional necessary accommodations. I am satisfied from the evidence that Ms. A adopted an antagonistic approach, initially refusing SNA support for the Complainant and culminating in an uncooperative stance that obstructed the Respondent from providing additional accommodations, even though I conclude that the school had already offered more than reasonable accommodations by June 2023. After considering all evidence, I am satisfied that the Complainant has not established a prima facie case that he was denied reasonable accommodation under the Act.

Ms. A further alleged that the Complainant was stalked and intimidated by Mr. C, who allegedly followed him through three corridors while transitioning between classrooms. Ms. A claimed that CCTV footage would confirm this. However, after viewing the footage, I am satisfied that no harassment occurred; Mr. C can be seen guiding a group of students, as was his duty, without singling out the Complainant.

Ms. A also claimed that Ms. D’s suggestion of a smaller school for the Complainant, along with the offer of SNA support, constituted threats and examples of harassment/victimisation under the Act. I find this argument to be implausible in the greater scheme of things as outlined above. 

I have the greatest sympathy for Ms. A in this case. She is understandably protective of her son and sought every available accommodation. However, I believe she was overly zealous in her efforts, seeking accommodations that extended beyond the reasonable measures the school had already taken in compliance with the Act.

After considering all the  evidence and submissions in this case, I find, for the reasons outlined above, that the Complainant did not establish a prima facie case of discrimination on the grounds of disability, nor were primary facts demonstrated to support claims of harassment or victimisation.

For the reasons outlined above , I decide that the Complainant did not make out a prima facie case of discrimination on the grounds of disability, contrary to section 38A of the Act, and therefore I find that the Respondent did not engage in prohibited conduct

Equal Status Act 2000, Disability, Dyslexia, Selective Mutism, Reasonable Accommodation, Harassment, Victimisation.