Complainant

Respondent

Parties

Ellie  Dunne

National College of Art & Design

Representatives

Aisling Mulligan BL instructed by Gareth Noble KOD Lyons

Rosemary Mallon BL instructed by Paul McDonald AJP McDonald Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00063567-001

21/05/2024

The Complainant, who has Down Syndrome, alleged that she was discriminated against by the Respondent because they failed to provide her with the supports and accommodations that she needed to access the course for which she qualified.

In June 2023, the Complainant received confirmation of her acceptance to study Fine Art at the Respondent institution, pending a formal offer. On the same day, her long-time support person, Nathalie Marshall—who had worked with the Complainant for 17 years—was also noted to have applied to the same course. Ms Katy McGuinness, the Complainant’s mother, acting on her behalf, informed the Respondent of Ms Marshall’s vital role in helping the Complainant understand academic instructions and manage her assignments. She requested that both be placed in the same group to support the Complainant’s transition into college life.

The Respondent confirmed that the Complainant and Ms Marshall would be grouped together for the first six weeks of the course, though it was unclear whether this arrangement would continue beyond that period. The Complainant formally accepted her offer on 3 August 2023.

In preparation for the academic year, the Respondent contacted Ms McGuinness on 31 August 2023 to arrange a needs assessment for the Complainant. Recognising the importance of her support network, Ms McGuinness was invited to attend the meeting. On 12 September 2023, she requested that Ms Marshall also be present, given her central role in the Complainant’s academic support. The needs assessor agreed.

During the assessment, the needs assessor was asked to consult with the Complainant’s former teacher in Stillorgan College, where she had previously studied art for two years as well as her educational psychologist, Dr Moira Kennedy, to ensure the support plan was well-informed. Dr Kennedy’s report was submitted after hours on 12 September 2023, and the needs assessor agreed to speak with the Complainant’s former teacher in Stillorgan College the following day.

Despite these commitments, the final needs assessment was completed without input from Dr Kennedy, the Complainant’s former teacher in Stillorgan College or the Complainant herself. The document was dated 12 September and included a forged signature purporting to be the Complainant’s. The declaration falsely stated that she understood and agreed to the recommendations.

When the Complainant began her studies on 18 September, she did so without the educational support worker recommended in the assessment. The needs assessor contacted her teacher in Stillorgan College on 19 September 2023 to seek advice on supporting the Complainant, and on 26 September 2023, the teacher in Stillorgan College provided detailed guidance on classroom strategies, project management, and communication methods. He recommended using a notebook to help the Complainant track assignments. However, the needs assessor did not update the assessment to reflect this advice.

Around 28 September 2023, an educational support worker was assigned to the Complainant, but only for two days per week—far less than what was needed. On 12 October 2023, a tutor of the Respondent expressed that Ms Marshall should no longer support the Complainant, contradicting the existing support plan and the views of the assistive technology specialist. Concerns were also raised about the Complainant not completing work on campus, but these were not communicated to her or her support team.

On 19 October 2023, the Complainant was informed that Ms Marshall was no longer in her class group. Her mother contacted the Respondent, expressing concern that the Complainant might struggle to understand instructions without Ms Marshall. Although a place became available for Ms Marshall, no objections were raised at the time regarding her continued support role.

On 25 October 2023, tutors expressed concern about the Complainant’s upcoming assessment, but again, these concerns were not shared with her or her support network. In early November 2023, the Complainant failed her first assignment. It was then discovered that the Respondent had not implemented the support plan, nor had they incorporated the expert advice from her teacher in Stillorgan College and Dr Kennedy. The forged signature remained on the assessment.

On 21 November 2023, the Complainant’s parents met with the Respondent to revise the support plan. The updated plan included a full-time support worker, tailored lecture notes, structured one-on-one assignment guidance, modified communication techniques, extended deadlines, weekly essay support, bespoke assignment briefs, and advance notice of environmental changes. This plan went through several drafts before being finalised. However, the Respondent also informed the family that the Complainant would need to re-sit the failed module.

The Complainant’s parents argued that a resit should not be required, given that reasonable accommodations had not been provided. Nevertheless, on 7 December, the Respondent confirmed in writing that the Complainant must re-sit the module. At this point, the Respondent ceased engaging with the Complainant’s support network, despite the revised support plan.

Efforts to resolve the matter continued, and on 16 January 2024, the Complainant’s parents agreed to mediation.

On 2 February, the Complainant received formal notice from the Exam Board that she must re-sit the module before the May exam board. On 9 February, the Respondent stated that all further correspondence would be paused pending the outcome of mediation.

The mediation took place on 8 March 2024 but was unsuccessful. The Respondent maintained its position that the Complainant must re-sit the module, despite the documented failures in providing appropriate support and accommodations.

In preparation for her entry into the Repondent’s Level 8 Fine Art degree programme, the Complainant underwent an Assessment of Needs on 12 September 2023 with a psychologist with the National Learning Network (NLN), an independent organisation contracted to carry out such assessments for third-level institutions. The meeting took place in the presence of the Complainant and her parents, prior to the start of the academic year.

During the assessment, the document was typed in real time and displayed on a large screen, allowing all attendees to view and suggest changes. No objections were raised at the time regarding the content of the assessment. Following this meeting, the needs assessor prepared a Profile of Needs Statement (PONS)—a condensed version of the assessment designed to share only essential information with relevant staff at the Respondent institution to facilitate appropriate support.

However, a procedural error occurred: the needs assessor did not send the PONS to the Complainant for her signature. Instead, he mistakenly typed her name into the document, believing this to be standard practice. This error was later discovered, and the Complainant’s parents alleged that the document had been forged. The Respondent acknowledged the breach of protocol and issued an apology, but maintained that the assessment itself had been properly conducted and that appropriate supports were put in place.

As part of the support plan, the Complainant was assigned an Educational Support Worker for two days per week, a decision made jointly by the Head of Student Experience and the Head of Academic Affairs. At the time, neither the Complainant nor her parents raised objections to this level of support. In fact, the Complainant’s mother, Ms Katy McGuinness, expressed satisfaction with the Respondent’s efforts. In an email dated 25 September 2023, she praised the institution’s inclusive approach, stating:

“Given the resistance to including people with DS in mainstream education that is the norm in Ireland, it is truly wonderful that she has been welcomed by NCAD and we have already had such positive engagement with Learning Support.”

She also noted the benefit of the Complainant’s friend and long-time support person, Ms Marshall, being a fellow student, describing her presence as a “huge help.”

Efforts to accommodate the Complainant continued into October 2023, including attempts to ensure that she and Ms Marshall could take the same elective. On 24 October, staff were reminded via email from the Head of First Year Art and Design Studios, about a talk being given by Down Syndrome Ireland. The email emphasised the importance of understanding how best to work with the Complainant, reinforcing the institution’s commitment to inclusive education.

Further positive feedback was received from the Complainant’s mother on 6 November 2023, in which she acknowledged the support provided by tutors and staff, including assistance with technology. Up to this point, there were no concerns expressed by the Complainant or her parents regarding the accommodations provided.

However, the situation changed when the Complainant failed her first assessment, having not met two of the required criteria. This assessment was critical for progression to the second year of the programme. A meeting was arranged to discuss the outcome, but the Complainant did not attend; her parents attended in her place. Also present was Dr Siún Hanrahan, Head of Academic Affairs.

To ensure fairness, a blind assessment had been conducted, meaning the assessor was unaware of the student’s identity. Despite this, the outcome remained unchanged. At the meeting on 7 November, the Complainant’s parents were informed of the failure and given feedback, including input from the external assessor. The parents reacted with anger and disappointment, expressing the view that the Respondent was not acting in the Complainant’s best interests. While the Respondent sought to explore ways to support the Complainant through remediation, her parents insisted that the course should be modified to suit her needs, stating: “You need to make the course one Ellie can do.”

The Respondent clarified that the programme was a Level 8 degree, subject to national academic standards that could not be altered. All assessments were subject to review by an exam board, and the institution could not override these regulations without jeopardising the programme’s accreditation.

During the meeting, the Complainant’s parents expressed that she required more support. Dr Hanrahan agreed to increase the level of assistance, and steps were taken to expand the Educational Support Worker’s availability from two to five days per week. This change was implemented swiftly, with the support worker contacted immediately and the additional support in place by 13 November. However, the Complainant did not avail of the increased support until the following week due to illness.

At the same meeting, the Complainant’s parents insisted that she should not be informed about her failed assessment. Subsequently, a Zoom meeting was held on 16 November 2023, involving Dr Moira Kennedy (Educational Psychologist), Dr Hanrahan, the Complainant’s parents, and a Senior Educational Psychologist with NLN. This meeting had been requested by the Complainant’s parents. Dr Hanrahan later described the meeting as hostile and felt that it yielded little insight, aside from Dr Kennedy’s observation that the Complainant was good at art and identified as an artist.

On 28 November, the Respondent sent a follow-up email to the Complainant’s parents explaining the situation regarding the Assessment of Needs and the procedural error involving the PONS.

A further meeting was held between the Director of the College, Dr Hanrahan, and the Complainant’s parents—at their request. At this meeting, the parents reiterated their desire for the Complainant’s failed assessment to be disregarded. The Respondent explained that while the Complainant could repeat the assessment without incurring a fee or academic penalty, the result itself could not be erased due to regulatory constraints.

The following day, the Complainant’s mother phoned the Director of the College, Professor Sarah Glennie. During this call, mediation was proposed and agreed to, although it ultimately proved unsuccessful. During the conversation, the Complainant’s mother identified herself as a journalist and made a threatening remark, stating she would “bury” Professor Glennie. Professor Glennie responded by saying she was not interested in a public relations battle.

The Complainant, who has Down Syndrome and is therefore accepted as disabled, asserted that she was subjected to discrimination by the Respondent on the following grounds:

(i) that, during the six-week period prior to 13 November 2023, the Respondent failed to provide her with reasonable accommodation to make the Fine Art Level 8 degree programme in which she was enrolled more accessible; and

(ii) that, following the conclusion of a mediation process in March 2024, the Respondent again did not provide reasonable accommodation by requiring her to pass a module she had previously failed, the result of which had been communicated in November 2023.

Preliminary Matter – Notification Requirements

Prior to filing a complaint with the WRC, a Complainant is required to notify the Respondent of the allegation(s) and the intention to seek redress under the Act. The statutory notification requirements are set out in section 21 of the Equal Status Acts 2000–2015.

Specifically, section 21(2)(a) of the Act provides:

"Before seeking redress under this section, the complainant-

(a) shall, within 2 months after the prohibited conduct 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.”

Section 21(3) of the Act further states as follows:

(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.

(b) In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commission or, as the case may be,

the Circuit Court shall have regard to all the relevant circumstances,

including —

(i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii) the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.”

In accordance with section 21(2)(a) above, notification of alleged prohibited conduct must, as a matter of law, be given in writing to the Respondent. In this regard, I note that the Respondent received an ES1 form on 2 April 2024, in which it was alleged that the Complainant had been discriminated against on the basis that she was not provided with appropriate supports and accommodations. It was further contended that this failure resulted in her not passing a programme module, the outcome of which had been communicated to her parents in November 2023.

I further note that Ms Mulligan BL, for the Complainant, submitted that the outcome of the failed mediation process — undertaken after the Complainant’s parents declined to accept in November 2023 the Respondent’s requirement that she re-sit the module failed— constituted prohibited conduct. Specifically, it was alleged that the outcome of the mediation process, which concluded in March 2024 and thus fell within two months of the Complainant’s written notification of 2 April 2024, was that the Respondent required the Complainant to re-sit the module she failed.

In examining this argument, I note firstly that the ES1 notification made no reference whatsoever to the mediation process or any subsequent outcome of same. I also noted that the evidence, as outlined above, makes clear that the requirement to re-sit and pass the module, which did not change following the mediation process, had been communicated much earlier, in November 2023, to the Complainant’s parents. This is of particular importance because section 21(2)(a) requires that written notification be given within two months of the alleged prohibited conduct. If, therefore, the requirement to re-sit is said to constitute prohibited conduct, the ES1 notification ought to have issued within two months of November 2023.

Furthermore, the Complainant did not make any application under section 21(3)(a) for an extension of time or for a dispensation from the requirement. In the absence of such an application, I am bound by the statutory framework and may only consider alleged prohibited conduct occurring within the two months prior to the referral of the complaint, in respect of which I find that no evidence was presented either on the ES1 form or in evidence at the hearing.

For completeness, and in the alternative, even if I were to accept — which, for the avoidance of doubt, I do not because same would be contrary to the case law— that there was an ongoing requirement on the Complainant to re-sit the exam, such that the notification of 2 April 2024 might arguably have been in time, I cannot accept that such a requirement constitutes discrimination on the ground of a failure to providereasonable accommodation. The obligation to re-sit and pass a failed module is not an arbitrary imposition but an inherent and essential element of the Respondent’s academic standards. The Respondent is delivering a Level 8 Honours Degree programme, and it is not open to it to wipe the slate clean or overlook the fact of a failed module. To do so would be to depart from the academic regulations by which the Respondent is bound.

Accordingly, the Complainant’s claim fails, both on the basis of non-compliance with the statutory notification requirements and, in the alternative, on the substantive merits.

I find that the Respondent did not engage in prohibited conduct for the reasons set out above.