Complainant

Respondent

Anonymised Parties

A Child

A National School

Representatives

Kevin Roche BL

Aine Haberlin Solr.,

Mason Hayes and 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-00062625-001

05/04/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my function and I made all relevant inquiries in the usual way.

In response to the Supreme Court decision in the constitutional case of Zalewski  -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021), I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice.  I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 5th of April 2024. In general terms I will therefore be looking at issues that have arisen in the six-month period directly preceding this date.

I am not required to provide a line-by-line assessment of all the evidence and submissions that I have considered. Any matter not specifically addressed is deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”. 

As the Complainant is a Minor/Child whose interests are being represented by his Mother and Next Friend (hereinafter to be called the Mother), this decision needs to be anonymised.

The Complainant is a Minor. A case is being made for and on behalf of the Minor by his Mother. The Mother gave evidence on Affirmation for and on behalf of the Complainant. The Mother relied on the case already set out in the Workplace Relations Complaint Form as well as the issues fully articulated in the ES1 Form provided. I was provided with supplemental documentary evidence in support of the Complainant’s case. No objection was raised to any of the materials relied upon by the Complainant in the making of her case. The Evidence adduced by the Complainant’s Mother was challenged as appropriate by the Respondent’s Representative.

The Complainant (through his Mother) alleges that he was discriminated against on the grounds of his disability and concerning his access and acceptance into the Respondent national school. In particular the Mother has suggested that there has been a failure to provide reasonable accommodation and that there has been direct discrimination in respect of the provision of goods and services

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant’s Mother in the first instance.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent had full legal representation at this hearing. The Respondent entity was represented by a number of witnesses including a Board Member and the School Principal.   The Respondent provided me with a written submissions dated 18th of November 2024. I have additionally heard from the two witnesses for the Respondent.  No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation/Oath.

The Respondent rejects that there has been any Discrimination of the Complainant.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

The Complainant is a four-year-old Minor diagnosed with Autism and entering the Primary/National school system. The Complainant is being represented by his Mother and Next friend and I recognise the appropriateness of the Mother and Next Friend being allowed to advocate for and on behalf of her son in this way.

The Mother applied for a place with the Respondent school for the Complainant in the October of 2023. As is her entitlement, the Mother applied to a number of local schools in and around the area where they lived. Applying to several schools is not unusual, and I am aware that there is a well-documented perception that having a child with special needs can be problematic when it comes to getting a placement in the first year of the Primary school cycle.

However, this was not the case in the Respondent School. In fact, the Complainant was offered a place in the Respondent School, and it seems that that offer came in quite early in 2024 so that the Mother had eight or nine months to consider that placement.

The Respondent principal said that he was happy when he heard that the Complainant Mother had requested a meeting with him in and around February of 2024. He was aware that the Complainant had a diagnosis but was unclear what the exact diagnosis was and what it might mean for the school as a matter of practicality. The principal indicated that he was well versed in the process of applying for Special Needs Assistance cover, and with the process of on boarding any new SNA which the Department sanctioned. I accept the evidence put forward by the principal that the system is slow and difficult, and resources when eventually given, are at a bare minimum.

The principal went on to explain that generally speaking an assessment (for personal assistance and/or educational assistance) will only take place when the child/children are already in situ. Only then will recommendations for supplemental help be made. This can, he said, lead to frustrating delays. There is an expectation that whatever hours the school has already been given in past assessments, will be spread more thinly for the first month of the school year as an assessment is being carried out in connection with new students qualifying for Department resources.

It is not clear to me that the Mother knew that this was how the School, and indeed all schools, were obliged to operate.

It is clear to me that the Mother was very concerned that she was doing the right thing by her child. She was, naturally, looking for some comfort in this regard. She needed to be sure that if she accepted the slot offered to her in the Respondent school that this would be the right step for the Complainant. I had great admiration for the Complainant’s Mother who has been dealing with the many difficulties that must be associated with the raising of a nonverbal or pre-verbal child with all the extra needs and requirements that will never be needed by others of his classmates. I accept (and it was made clear to me) that the Mother came from a place of embattlement and frustration.

I can never know how exactly the conversation between the Principal and Mother played out. In their evidence before me there seemed to be some small alignment as to the language being used. However, there is no escaping the fact that the Mother formed the view that her son had little hope of being catered to, nurtured and assimilated into the Respondent school. There is also no escaping the fact that the principal somehow created this impression. The Mother wrote to the principal in the aftermath of the meeting. The letter speaks for itself and demonstrates how annoyed and indeed bitter the Complainant’s Mother was. Excerpts include:

I really was quite upset at your very flippant attitude towards this and how you tried to laugh off any concerns I raised throughout this meeting.

The Mother was concerned that the understanding of Neurodiversity was not as advanced as she might have liked. Issues around the healthy eating policy and school lunches gave her cause for concern. The seeming reluctance to confirm that the class teacher would use a range of visuals to ensure that her son would be able to fully participate.

The Mother was concerned that the conversation circled back a number of times to an alternative place in an alternative school to which the Complainant’s Mother had also applied on behalf of the Complainant. This was noted as follows:

I know you stated [child] would be welcomed and accepted there, and you will do your best to meet his needs. I heard that, but it appeared to be then retracted by repeatedly saying we Should consider [alternative school]. I asked you many times if you did not want [child] to attend your school, because this is how it came across. Your repeated statement that " [child] would of course be welcome and accepted and has a placement at the school" it did not seem remotely genuine and in fact came across as something you were saying because you know it is legally something you must say. I firmly felt that both my conversation with you and the previous conversations with your secretary, were attempts to make me reconsider [child] attending your school because of his autism diagnosis.

In the end of the letter the Mother indicated that she was no longer looking at the Respondent school for her child:

Because of how your comments and attitude towards autistic children made me feel, I do not want to go ahead with enrolling [child]  in your school. I would have genuine fears for him being bullied and made to feel excluded and like a-burden by you and your staff, rather than accepted. I really hope this makes you take some time to reflect on your approach to applications to your school, your lack of neuro affirmative practices and perhaps look into some personal and professional development in this regard.

I accept that the principal was very upset that his conversation with the Complainant’s Mother had been construed as an intention to belittle her or to criticise her parenting skills. The principal noted that no formal assessment had yet been carried out and that he could only know what the school would have to do to assist the complainant, when such an assessment had been performed. His conversations with the Mother around food issues and toiletry issues and visual stimulation would all be subject to the formal assessment and to some extent he was entirely in the dark before that had been conducted. At that point in time, the matter was out of his hands. The principal said that he was speaking his truth. He could make no commitment until a formal assessment had been conducted. The assessment would determine the level of intervention required. He said that he and the school caters to all of his students. He said that he had indicated to the Complainant’s Mother  that the school had capacity for the Complainant and that any bumps along the road would be overcome. The principal was shocked and upset that the Mother had taken his meaning and intent to be negative and disparaging.

The principal confirmed that the conversation had indeed turned to a possible placement in another school. The principal confirmed that he had suggested that as that other school had had no previous requirement for SNA time, then the Complainant might find himself in the happy position of being the only child getting one on one SNA attention. The principal was simply pointing out that he would not be able to guarantee that the Complainant would get that one-to-one attention in the Respondent school where there were several children already drawing on the hours sanctioned by the Department.

I fully accept and validate that the Complainant came away from the meeting conducted between herself and the principal feeling her son had been rejected. I am, however, not fully convinced that this was a reasonable take away from the conversation had. I do accept she felt that way - why else would she write such a strongly worded email in the aftermath.

However, I am bound to suggest that perhaps the Complainant was acutely sensitive on behalf of her child?

One way or another I do accept the argument made on behalf of the Respondent school that the Mother’s sense of grievance and dissatisfaction does not translate into an active discrimination of her child. At all times it is clear that the Complainant was welcome to become a part of the school community. How that placement might have worked is unknown and unknowable as the Complainant never took up the placement and was never assessed for extra resources.

On balance, I find that the legal argument made on behalf of the Respondent is correct. As set out in their submission as follows:

In light of the foregoing the respondent submits that the complainant has failed to establish a prima facie case in accordance with the provisions of s.38A.

It is submitted that the complainant’s case, at its height amounts to generalised perceived misgivings regarding the respondent.

In respect of the allegation that the complainant was directly discriminated against in the provision of goods and services, it is respectfully that this complaint is misconceived. It is clear that the complainant was in fact offered a place in the respondent school, the respondent engaged with the complainant to establish care needs, and the respondent would have done everything in its power to ensure it had adequate SNA cover in respect of the complainant’s educational needs. It is also clear that s.5 does not apply to matters covered by s.7(2) of the Act.

In respect of the allegation that the respondent failed to reasonably accommodate the complainant, again this is misconceived. This allegation is based purely on the conjecture of the complainant and not routed in any evidence whatsoever. This fact is encapsulated in the complainant’s own description of the respondent’s ‘apparent reluctance to accommodate’ the complainant’s needs (which is denied). For the avoidance of doubt, the complainant’s needs would have been fully catered for by the respondent to the best of its ability. That being said, the respondent did not at any stage fail to reasonably accommodate the complainant herein.

On balance I am finding that the Complainant has not, through his Mother, been able to establish a Prima Facie case of discrimination.

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

CA-00062625-001 – The complaint under the Equal Status Act fails in circumstances where no Prima Facie case of discrimination has been established.