AADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00050327

Parties:

	Complainant	Respondent
Anonymised Parties	Child	Pre School

Representatives

Parents

John Barry Management Support Services (Ireland) Ltd

Complaint(s):

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00061830-001	28/02/2024

Date of Adjudication Hearing: 21/06/2024; 21/08/2024 &21/10/2024

Workplace Relations Commission Adjudication Officer: Brian Dalton

Procedure:

In accordance with Section 25 of the Equal Status Act, 2000, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. The decision is anonymised as it relates to a mnor.

Background:

The minor based on the parent’s assessment has special education needs relating to language and understanding others’ requests. At times he can be very active. The claim is brought against the pre school alleging that the school failed to reasonably accommodate their child.

Prior to the case being heard there was objection by the school for the substantive matter to be heard as the requirement to notify the school as set down in the Act was not met.

That objection was considered, and a reply issued to both parties stating that the Act provides for an Exceptional reason to allow a case to be heard. That decision is detailed as a preliminary matter.

PRELIMINARY MATTER:

Extending Time:

The following written ruling was issued to the parties concerning the application to extend time by the Parents of the child.

Dear Mr Barry,

At the hearing yesterday the 21st of June 2024 you raised a preliminary matter about the failure of the Complainant to meet the requirement to notify the Respondent, pursuant to the Act, of the of prohibited conduct on the ground of their child’s disability and that unless resolved the parents would bring a complaint to the Commission and that this notification should be in writing.

Section 21 of the Act states:

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

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

(a) on the gender ground, or

(b) in any other circumstances (including circumstances amounting to victimisation) to which the Gender Goods and Services Directive is relevant, then, subject to subsections (2) to (7) and (8) to (11), the person making the claim may seek redress by referring the case to the Circuit Court instead of referring the case to the Director of the Workplace Relations Commission under subsection (1) (and, if the case is referred to the Circuit Court, no further appeal lies, other than an appeal to the High Court on a point of law).

(2) Before seeking redress under this section the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act,

and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court], question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.]

(3) (a) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may—

(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction, and, where such a direction is given, this Part shall have effect accordingly.

On the facts the parents of this preschool child have not met the requirement in full. While they did submit their complaint in writing very soon after the pre-school determined that the school could not meet the specific needs of their child, they did not also state that they would bring the matter to the Workplace Relations Commission under the Equal Status Act. It was some 5 months later after the alleged prohibited conduct occurred that the school was placed on notice of the complaint and a potential referral to the Commission. On the facts it is clear that the requirement to notify the Respondent within 2 months or due to reasonable cause within 4 months has not occurred.

The child’s father stated that they were not fully aware of the notice requirement and that they had hoped for a mediated agreement. As is well settled law and relied upon by the Respondent, that ignorance of the law cannot be relied upon as a defence. However, the Complainant has met the requirement to lodge a Complaint with the Commission with 6 months of the alleged prohibited conduct.

The Act does provide that the notice requirement within 2 months to the service provider and with reasonable cause for exceptional reasons can be set aside. It is accepted that the reason mut be exceptional. This is a case brought by a child’s parents, the child cannot be accountable for any omission or failure by the parents to fully comply with the notice requirements. While the parents did meet some aspects of what the law requires, there are deficits. There are exceptional reasons why I have decided that I will exercise the right to set aside the notice requirement at section 21 (2) and that relates to the fact that the Respondent was on notice within days of the parents’ complaint and within 5 months of their intent to refer the matter to the WRC.

However, the overriding exceptional reason is the right of a child with an alleged disability to have their case heard particularly in the context of access to education that could have a significant effect on their development. To deny a child access to the case being heard, based on a technical procedural omission made by his parents would be unjust. For this reason, I have determined that it fair and reasonable allowing for the circumstances of this case for the notice requirements not to be applied and I direct that the requirement to notify the Respondent within 6 months of the alleged prohibited conduct meets the notice requirements to the Respondent in this case. The Respondent is not at a disadvantage as they have been on notice within days of the child’s parents raising a written complaint with them, when told that the school was not able to offer their child a place.

I have determined that it is fair and reasonable in this case to apply the exception as provided for at section 21(3) of the Act. I will be requesting that the hearing of the substantive matter is listed as soon as possible.

Yours sincerely

For the reasons as detailed I have determined that (ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant.

Secret Phone and Video Recordings:

The Parents had asked for secret or covert recordings to be opened at the hearing. The Respondent objected to this request. Secret recordings maybe admissible in evidence. A recording may have probative value depending on the context of that recording; however, a question that the Adjudicator asked how necessary was reliance on such evidence?

At the first day of hearing the Parents were asked did both or either require the assistance of an interpreter and that offer was declined. It became evident during the hearing that the mother’s understanding of the nuance of what was being said at times was not comprehended. In that context it is highly probable that misunderstanding could arise in conversation particularly about her child.

Evidence given under oath has far greater probative value than a recording presented to a hearing. This is more so when what must be determined is over a period of several weeks did the pre-school reasonably accommodate this child? It is not about contentious conversations at a point in time chosen by one side and recorded, where the teacher and assistant have no idea what is occurring and are blind-sided.

There is no professional report open to this tribunal or to the school, that had diagnosed what the child’s special needs were. In other words, the Parents could see that their child had a special need, and the school based on experience also attempted to accommodate the child. However, after several weeks the school decided it could not accommodate the child as the child required more specialist intervention and one to one support, that they were not resourced to provide. It is in this context that covert recordings took place initiated by the parents. The absence of a professional report arises as there are very long waiting periods for the Educational and Child Support services of the State to complete a child assessment.

The Parents were asked during the hearing, to put to the teachers what was said at each recorded meeting and what they meant. The parents had access to the transcripts. What was not allowed was the recording itself being played as evidence. The reason for that related to the mother’s English proficiency and the fact that the recordings were less likely to be a fair reflection of each teacher’s view of how they tried to accommodate the child’s needs over weeks and more likely to be accusatory and capturing a comment easily taken out of context and in effect clipped.

The school has funded an additional childcare worker from their own resources for the first few weeks. Additional teacher or assistance is available through the Access and Inclusion Model (AIM) a stated funded programme. An additional Childcare assistant commenced at the preschool to provide support to the existing staff so that the child pupil ratio was reduced. However, the AIM funding only became available after several weeks when the child was funded by the school itself. This state funding occurred based on an application made under a state support programme for Early Childhood Care and Education. The programme is referred to as Access and Inclusion Model (AIM). An assessment takes place, and the purpose is to allow a child who has special needs to continue with their preschool education by reducing the child/teacher ratio. It is not a dedicated resource for that child.

It is clear from the written submissions and oral evidence that the parents believed that the additional childcare assistant was to be assigned solely to their child, but that is not the purpose of that scheme.

The preschool had closed for the 3rd day of hearing so that all parties who had engaged with the parents could attend. All conversations and meetings being relied upon by the Parents could be put to the respective teachers and class assistant. A balance must be struck between the right to present any evidence even if covertly recorded and the context gathering or producing of that evidence. A recording at a point in time, recorded with the intent of undermining the actors involved in providing care to the child, and accommodating that child over several weeks has limited value in contrast to oral evidence where all the facts can be tested openly and thoroughly. I have decided not to permit recorded evidence as the parents’ case is more fully presented through oral presentation of their case and cross examination, to include putting to the teachers a version of any conversation which they also recorded, but not opened as an evidentiary recorded document, as it would only be a one-sided account, likely to prejudice any conclusions determined on such recordings. This would mean it would have inferior evidential value in the context of this investigation and the weight that must be given to oral evidence and cross examination.

Redress Sought:

The Child has commenced pre school with another provider and therefore the Parents changed their claim to Compensation.

Summary of Complainant’s Case:

Their son was attending redacted preschool in September 2023 (with AIMS support) only one hour per day, five days a week. After one month on 04/10/2023 the teacher and manager through a virtual Zoom meeting decided to remove their son from preschool class because as they argued they cannot manage him, and the preschool is not for him and both of them requested special need assessment for their son.

In 10/10/2023 they formally complained about this decision by sending a letter/email to the preschool.

In 16/10/2023 the principal responded and giving reasons for the decision which were not based on fact.

The parents’ visited the preschool four times to clarify those false accusations and confirmed that all those accusations made by the principal and their son’s teacher were not true. The parents applied for assessment to Children's Disability Network Team, and we got recommendation on 21/12/2023 for Adam to continue Speech and Language Therapy and preschool.

The preschool teacher and manager discriminated and excluded their son and did not give him the opportunity to be treated like other children because of his delay in communication skills and learning.

In 20/02/2024 the parents decided to raise their complaint to the chairman of the board of directors Redacted Foundation Company Limited by Guarantee.

In 21/02/2024 they received email confirmation from the secretary of the Foundation. She wrote that she would bring their complaint to the attention of the Board. She said she would get back to us in due time.

The parents initially were looking for their son to return to the preschool class as soon as possible because he is losing valuable time for improving his communication skills before he starts the school. The redress option preferred was later changed to compensation as the child has found an alternative pre-school to attend.

Summary of Respondent’s Case:

As stated, the school at all times attempted to provide the service which applies to all students regardless of whether they were living with a disability. As is also evidenced, the service that can be provided by the school is dependent on the parents’ willingness to work in partnership with the school and avail of whatever supports, and resources are available to assist the school in achieving positive outcomes for the child involved. It is the contention of the Respondent that they did all that was possible to achieve these objectives and positive outcomes in relation to the child. Unfortunately, that was hindered by the lack of partnership with the parents in seeking and securing the supports that other parents have taken the responsibility to do, to allow the school to deliver the service which it is there to do. The contention of the parents that the discriminatory act was the refusal to allow the child to continue in the school, and this was because the child was disabled. It is the school’s contention that the reason it made the decision to ask the claimant not to come back to the school was a consequence of the parent’s failure to partner with the school and seek the necessary supports required to allow the school to deliver services that would achieve the outcomes that could have been possible for the child.

Findings and Conclusions:

Definition:

At section 2 of the Act Disability is defined as:

“disability” means—

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

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

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

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

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

Both the parents and the School accept that the child has special education needs that in turn were assessed in so far as speech therapy was confirmed as supportive, along with a class with a reduced teacher pupil ratio.

Section 4 of the Act defines discrimination as it relates to a person with a disability:

Discrimination on ground of disability.

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

(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.

(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination.

(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.

Facts:

The school attempted to accommodate the child from the about the 30th of August 2023 to the 4th of October 2023.

The school reduced the child teacher ratio which it funded during the first few weeks.

The parents applied for a grant so that the school could reduce the child teacher ratio.

That grant does not provide a special teaching resource to the school. Its primary purpose is to reduce the child teacher ratio so that the child can participate in pre-school education.

The class size in this school is about 1.11 and that is agreed with the relevant Department.

When funding is given to reduce that class size it is dependent on the child with the special education needs attending at the pre-school.

The additional resource is not a one-to-one child allocated resource.

The parents based on the evidence presented at the hearing I have concluded that they believed that the child would have one on one teacher support.

Initially the school in agreement with the mother allowed her to attend the class.

However, the experienced teachers at point found that the mother’s attention on her child was creating challenges for the other children. It was hoped that the mother’s presence would calm the child. However, the over attentive reaction to what the mother believed her child needed created a dilemma for the teachers as it became disruptive and affected the learning environment for the whole class.

The class teachers had worked out a programme with the parents hoping that it would facilitate the participation of their child at the school. However, that programme didn’t work as the teachers and parents were at odds about the level of educational support required for the child.

The school was of the view that the child required structured support at home so that he could participate in the class without affecting the learning outcomes for the other children.

After several weeks of reduced class size and observation, the teachers concluded that the child required to be assessed, and that at this time the child could not be accommodated without negatively impacting the other pupils.

As other children in similar situations were subsequently accommodated back into the school after a pause, it was proposed this child would also be accommodated in a similar way. While the school caters for children between the ages of 2 years and 9 months to 4 years and 9 months, this can be extended, and this is what would have occurred in this case.

Reasonable Accommodation:

While this case refers to an employment matter it is relevant to this equal status claim, I note that in Nano Nagle School v Daly [2019] IESC 63 in McMenamin’s J judgement he stated:

29. Referring to Article 5, the Court held an employer was required to take appropriate measures in particular to enable a person with a disability to have access to, participate in, or advance in employment. It referred to Recital 20 in the preamble to the Directive which gave a non-exhaustive list of such measures, which may be “physical, organisational and/or educational.” It concluded that, in accordance with the second paragraph of Article 2 CRPD, reasonable accommodation was to be understood as being necessary and appropriate modification and adjustments, not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms. Thus, it held: “It follows that that provision prescribes a broad definition of the concept of ‘reasonable accommodation’

And I note that section 7(4) of the Act states:

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.

On the facts I have concluded that the school did reasonably accommodate this child. Only after a reasonable period, and most significantly funded initially by the school, the teachers based on the interest of the child and the other students arrived at decision that the child’s continuing attendance was not reasonable. However, this decision was not final, and the school would positively look to accept the child back into the school with the option of extension of time so that his pre-school education was not negatively impacted.

Like many other disputes a natural human tendency is to blame one another for the decision not to continue with the child’s participation at this school. That went as far as secretly recording teacher discussions. It is clearly understood that a decision like this is very upsetting to the parents. However, the legal test that must be applied is to consider the school’s response in the round. While another school may have continued longer, in the round I must find that the school and teachers acted reasonably and compassionately. The facts on balance show that the wider class was being negatively impacted and that ultimately this gave rise to the decision for this child’s participation to be paused. It was not a final rejection. The school would engage again with the parents to see how they could reasonably accommodate their child. The school on these facts did not engage in prohibited conduct.

On these facts I must find that the school did not engage in prohibited conduct.

Decision:

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

On the facts I have concluded that the school did attempt to reasonably accommodate this child. Only after a reasonable period, and most significantly funded initially by the school, the teachers based on the interest of the child and the other students arrived at decision that continuing attendance was not reasonable. However, this decision was not final, and the school would positively look to accept the child back into the school with the option of extension of time past the normal age, so that his pre-school education was not negatively impacted.

On these facts I must find that the school did not engage in prohibited conduct.

Dated: 14-01-25

Workplace Relations Commission Adjudication Officer: Brian Dalton

Key Words:

Reasonable Accommodation-Extending Time – Exceptional Ground