Ms. Rita Kwiotek (Represented by Mr Conor Power B.L. Instructed by the Equality Authority) V National University of Ireland, Galway (represented by Mr. John O'Donnell S.C. Instructed by William B. Glynn, Solicitors)
Delegation under Equal Status Acts, 2000-2004
The complainant referred a claim to the Director of Equality Investigations (now the Director of the Equality Tribunal) on 4 January, 2001 under the Equal Status Acts, 2000-2004. In accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2004, the Director then delegated the case to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000-2004.
1.1 The complainant, Ms Rita Kwiotek, who is visually impaired, alleges that she was discriminated against by the respondent, the National University of Ireland, Galway, in terms of Sections 2, 4 and 7 of the Equal Status Act, 2000 and contrary to Section 3 of that Act when the University failed to provide her with adequate Braille material to meet her needs as a student in the University.
2.1 The complainant, who is visually impaired, commenced a PhD in Sociology in the NUI Galway in September, 2000. Prior to registering she had discussions with the University and she understood that the books required would be provided to her in Braille. This did not happen and she was only provided with some material which was not suitable to her needs. By November, 2000 she had not received any material in Braille and she complained to the Acting Registrar by letter dated 15 November, 2000 and notified him that she intended referring the matter to the Director of Equality investigations.
2.2 Following a meeting with the University library staff and the Disability Liaison Officer the complainant, by letter dated 19th December, 2000 informed the University of her dissatisfaction with the Brailled material received at that stage. The complainant was very dissatisfied with the amount of material she had received in Braille and she again wrote to the Registrar on the 1st May, 2001. On the 22nd December, 2000 the complainant submitted a form referring her complaint of discriminatory treatment on the disability ground to the Director of Equality Investigations.
2.3 The respondent's case is that they provided services and equipment to meet the needs of the complainant. They provided the majority of her first reading list on computer disk which she could listen to by voice synthesizer and it was understood that the complainant would then identify the relevant chapters which she needed to be converted into Braille. However, this did not happen. The respondent then sourced some books for the complainant in ACB format (Audio Cassette Book), but the complainant informed them in November, 2000 that ACB format was not suitable and she needed all the material in Braille. Once they were made aware of this, the University through its library ,set about meeting the complainant's reading list requirements through Braille and employed a part-time library assistant to meet the complainant's needs. They deny that the complainant was discriminated against contrary to the Equal Status Act, 2000 and state that they did everything possible to meet the needs of the complainant resulting from
her visual impairment.
3 Summary of the Complainant's Submission
3.1 The complainant, who is visually impaired, has a degree in Social Work and Social Science which she obtained in Germany and a Masters Degree in Equality Studies obtained in University College Dublin in 1999. She applied for, and was accepted to study for a PhD in Sociology in the respondent University, NUI Galway, in early 2000. She met with her research thesis supervisor in January, 2000 and they discussed the core reading requirement when they drew up a list of fifteen books which the complainant required to commence her studies. The University was aware that the complainant needed this material in Braille. It was submitted that Ms. Redden the librarian confirmed she knew the complainant required the material in Braille. The complainant gave the book list to either the library or to Ms. Agnes O'Farrell, the disability liaison officer (DLO), so that the library would be in a position to meet her needs when she registered.
3.2 The complainant intended to register for her course in April, 2000 and gave the book list to the library in January so that she would have some of the reading done before she registered. In or around March, 2000 the complainant was provided with some information on computer disk. However the complainant after listening to the tape ascertained it was not appropriate to her needs. Around this time the complainant's thesis supervisor Dr. Mark Hougart spoke to the disability liaison officer, Ms. O'Farrell and Dr. Hougart suggested three titles out of the fifteen titles as the most important books that the complainant needed.
3.2 In April 2000 the complainant was informed by the library assistant that while the University had Braille equipment the Braille service was not up and running. She was told by the library assistant that she would be notified when the Braille service was available. The complainant then decided because she had not received any Braille material from the University that she would delay her registration until the Autumn as she believed that the service would then be vailable. During the Summer of 2000 the complainant applied for and was granted a fellowship by the respondent.
3.3 In late August or early September the complainant left her full book list with the library. She believed at this stage that the University was well aware of her requirement to have the material provided in Braille and not on disk. On 15 November, 2000 the complainant wrote to the acting registrar of the University complaining about discriminatory treatment in that she had not received adequate material in Braille and notifying him of her intention to take her complaint to the Director of Equality Investigations if her complaint was not resolved to her satisfaction. The complainant also notified the Acting Registrar that she required reading material in Braille. The complainant stated in her letter that she had only
received to date (15 November, 2000) one accessible chapter of one text book.
3.4 On 13 December the complainant was called to a meeting with the library staff, Mr. Bernie Finan, Sub Librarian and Ms. Ann Mitchell, Assistant Librarian at which she outlined her difficulties with the Braille material she had received to date. On 19 December, 2000 she put her comments in writing concerning the difficulties she was experiencing with the Braille material. She requested that the books should be bound in order to protect them. She had received two chapters of one book and the introduction to another book in Braille and both only needed minor adjustments. However another book she received did not indicate a publisher, nor the year of publication and the pages were in complete disorder. There were also difficulties with the line spacing which made it difficult to read. The complainant also outlined in her letter that in all the Brailled texts received there were difficulties identifying the paragraphs and the page numbers.
Evidence of Ms. Rita Kwiotek
3.5 The complainant stated that because of her visual impairment she felt it important to go to the University well in advance of registering for her PhD to give the University a chance to identify her needs. She had a meeting with her supervisor Dr. Mark Hougart in January, 2000. At that meeting a list of books was drawn up by Dr. Hougart. She knew that reading material for a PhD thesis would involve reading between 300 to 500 books but was well aware she could not ask the library to supply that number of books in Braille. Her supervisor identified a core reading list of fifteen books of which five were priority and this list was given to the library in order that they could to source the books. The complainant called to see the Disability Liaison Officer, Ms. Agnes O'Farrell in late January or early
February, 2000. They discussed her course and the complainant said that she made it clear that she needed course material in Braille.
3.6 The complainant stated that she intended to register for her course in April and she expected to commence immediately. She received some material on disk from the library and there were a lot of mistakes in it. It was difficult to understand it and also difficult to listen to it. She said that listening to material by voice synthesizer was not appropriate to her needs for a number of reasons, such as being unable to control the speed or to pause and reread the material in order to think the ideas through. Sometime in April, 2000 and about two weeks after getting the disks the complainant spoke to Mr. Alan Hayes, the library assistant, and was told by him that the University was not in a position to provide material in Braille as the printer was broken. The complainant decided because she could
not get the material in Braille format she would defer registration.
3.7 The complainant said that she was highly motivated about the course and quite eager to start provided she could access material in Braille format. She needed the material in Braille format as she needed to physically read the material in order to conceptualise it. In late August or early September 2000 the complainant realised that the library did not have access to the preliminary reading list of 15 books which were absolute priority for her course. She said that she got no Brailled material in September or October. She was dealing with the library assistant Mr. Alan Hayes who had already informed her that the Braille printer was broken. In November she had a number of conversations with Mr. Hayes but no Braille material was forthcoming. She said that she was worried about the
course and about being unable to fulfil her commitments to the University which had given her a fellowship.
3.8 The complainant decided to write to the Acting Registrar of the University complaining about the insufficient access to reading material for a visually impaired person, outlining the provisions of the Equal Status Act and advising the University if the matter was not resolved to her satisfaction within one month of the letter, she would refer a complaint to the Director of Equality Investigations. Following that letter the complainant had a telephone call from the Acting Registrar, Professor Cunnane saying that he would investigate her complaint. The complainant had a meeting with the library staff and Ms. O'Farrell the Disability Liaison Officer on 13 December, 2000. The complainant was asked to put her complaints in writing concerning the Braille material provided to her so
far and she did so on 19 December, 2000. The complainant outlined all the errors which had occurred in the material which was proving difficult for her to read and understand. The complainant also suggested that the University should contact UCD Braille Service Office for guidance assistance and training as she had experience of the expertise in Brailling available in UCD. Professor Cunnane wrote to her on 13 December, 2000 stating that he had discussed her complaint with a number of senior people and he understood that reasonable progress had been made in providing her with the Brailled material she had requested. The complainant said that she was not happy with the outcome of the meeting or the response from Professor Cunnane. There was no progress in the provision of accessible material and the time was being lost for her in the perusal of her course and she decided to lodge a complaint with the Director of Equality Investigations on 22 December, 2002.
3.9 The complainant said that she only received material in Braille after she wrote to the Acting Registrar. The material received was not satisfactory as the page numbering was incorrect and she had to separate and sort the material herself. One small book in Braille was completely unmanageable and she could not follow it. The complainant submitted that the library did not know how to provide a service to a person with a disability and it was necessary for her to write to the University on 3 May, 2001 again pointing out that she was still not being provided with a reasonable amount of study material in Braille format and this had interfered in her progress with her studies. The complainant submitted that she was dissatisfied with the service she received up to the end of May 2001 but from then on she had no complaints.
Evidence of Mr. Alan Hayes witness for complainant
3.10 Mr. Alan Hayes was employed as a library assistant by the respondent with specific responsibility to provide a library service to students with disabilities. He said that he was first contacted by Ms. O'Farrell, Disability Liaison Officer in early February, 2000 and informed that a visually impaired PhD student had registered in the University and the library needed to provide her with a service. He said that he was given 3 book titles to scan on to disk and edit. The disk can then be used for either computer reading or for Brailling. A PhD student with a disability needs a lot of extra resources and a postgraduate student was employed in February to assist with the scanning and editing. Mr. Hayes stated that he understood that once the books were scanned and edited that they would be converted to Braille, but Ms. O'Farrell instructed him to provide the material on disk. He was surprised at this as he understood that some Brailled material would
be needed by a visually impaired student.
3.11 Mr. Hayes said that the first time he met the complainant was about March/April 2000 when she came to the Office to collect the 3 titles scanned on to disk. At that stage the library had a Braille printer, it was not working and software was on order. He remembers saying to the complainant that he was looking into sorting out the problem with the Braille printer as the library was not in a position to produce material in Braille format at that time.
3.12 Mr. Hayes said that he had not been provided with the complainant's reading list and he asked her for it for it. He was informed by Ms. O'Farrell that the complainant was not a registered student. No work was done on the complainant's material during the summer and a postgraduate student employed by the University to assist with the Braille was let go.
3.13 In late August the complainant contacted him and informed him she was about toregister. He asked the complainant for her reading list and she told him that she had already provided it to Ms. O'Farrell in the Spring. However, Mr. Hayes had not seen it and the complainant gave him another copy which contained 15 core books. Two other blind students had also registered. Mr. Hayes said that he realised that the library would be busy and no extra resources had been provided and it would be difficult for him to scan and edit all the material. He took a decision to source material externally from the Library of Congress in America. He felt it was better to give the complainant something rather than leaving her without a library service. Dr. Hougart, the complainant's supervisor, came to see him in the library to discuss the material which the complainant required. Mr.Hayes said that he showed him the whole process of converting material to Braille and he also told him that he was researching material from the Library of Congress. They decided to order books in ACB (Audio Cassette Book) from this source. Mr. Hayes said that he was later asked to cancel the order as the complainant wanted Braille material only.
3.14 Mr Hayes said he was continually asking for extra resources and on one occasionMs. O'Farrell told him that the complainant could do the scanning at home. Following the complainant's letter of 15th of November 2000 Mr. Bernie Finan Head of Library called him about the problems. Mr. Hayes informed him that he was seeking extra help to do the editing and scanning. Mr. Hayes said that it was only after the complainant's letter that the extra resources were put in place. Mr. Mike O'Farrell a postgraduate student was hired at the end of November to help with the scanning and editing, a new computer, a Braille scanner and software was purchased. He asked that a consultant be brought in to do training and this happened at the end of January 2001. He said that he anticipated that
management would have put in place some support for the library staff as well as for the complainant as soon as she started her course, but this did not happen.
4. Summary of the Respondent's Case
4.1 The complainant applied to NUI Galway to pursue postgraduate studies on 10th January, 2000. A formal letter of acceptance was issued to her on 5th April, 2000 and the complainant registered for the course on 13th September, 2000. In response to the complainant's contention that she would have started to study for her PhD in April, the respondent stated that the normal registration date for students is at the start of the academic year and it would be unusual for students to start mid-year, since they would not yet have received a fellowship. The policy in relation to students who wish to start mid-year is to charge full year fees regardless of the date of starting.
4.2 The complainant's supervisor had made a reading list available to the complainant in February, 2000. The University was not aware at that stage that all the reading material would be required in Braille format. No undertaking could be given to the complainant that the books would be made available in Braille before registration even if the University knew of her requirements, but the University was willing to facilitate the complainant as much as possible before she registered. The complainant made contact with Mr. Alan Hayes, the assistant librarian and Ms. O'Farrell, the Disability Liaison Officer in Spring
2000, but no reading list was provided at that stage to either party. The complainant requested three books and made a verbal request for a fourth book. A number of chapters of these books were given to the complainant on disk by Mr. Hayes and there was an agreement that the complainant would indicate to Mr. Hayes the chapters which she required in Braille as not the entire particular book would be relevant to the complainant's studies. In February 2000 the respondent employed a postgraduate student to assist with scanning the books. In June 2000 Mr. Hayes asked the complainant for a full bibliography of the publications she required. There was no contact from the complainant. The book list was ultimately given by the complainant to the library in September, 2000. The complainant at no stage indicated that the books provided by the library on disk were unacceptable.
4.3 Once the book list was received in mid to late September, the library set about locating the materially internationally. The majority of the list was located in ACB format (Audio Cassette Book). The University understood that the ABC tape would be helpful for a student to decide whether an entire book or only part of that book is required to be Brailled. The respondent submitted that ACB tapes are professionally produced with high quality sound recording of complete books read by specialists. The ACB tapes are used by blind or visually impaired students for reading purposes or as an aid to assessing the relevance of material for research purposes and are particularly useful to postgraduate students in selecting and prioritising whether an entire book or part of a book needs to be
converted to Braille.
4.4 If a student requires a book or part of a book to be converted to Braille, a clean copy of the book has to be sourced and it then has to be scanned edited and proof read. This is a very time consuming process because scanning can distort the printed material and difficulties arise also in editing/proofing because of the complexity and specialist nature of a postgraduate research material. After editing/proof reading, the material is transferred to either a computer disc or converted to Braille text by the relevant computer software. After it is converted to Braille the text is rechecked.
4.5 In the week of 6 November, 2000 the complainant met with Mr. Hayes. Later that day following a meeting between the complainant and her supervisor Dr. Hougart, Mr. Hayes was informed that ACB format was not a suitable format and that all the reading material would have to be made available in Braille. Mr. Hayes informed the respondent that extra help would be required in the library. A postgraduate student was employed on 27 November, 2000 to assist with the Braille work.
4.6 Following the complainant's letter of 15th November, 2000 to Professor Cunnane, Acting Registrar, a meeting was arranged with the library staff. The complainant raised four points in relation to the service provided by the library. She complained about, binding, page numbering, indentation of paragraphs, and methods of citing bibliographical details. All the points raised by the complainant were acted upon immediately. It was submitted that once the respondent became aware of the complainant's request for material exclusively in Braille they set about supplying it to her immediately. The complainant identified her priorities for Braille and all the material converted to Braille was available for collection each Saturday morning. Between November 2000 and February 2003, 11,202 pages of text were scanned and edited and 20,959 Brailled pages were produced. The respondent submitted that this would equate to about 45 volumes of material.
Evidence of Dr. Mark Hougart
4.7 Dr. Hougart stated that he is a college lecturer and he was the complainant's supervisor for her PhD. He met her in January 2000 and recognised because of her visual impairment the need to facilitate her as much as possible. He drew up a reading list and gave her 2 copies one for herself and the other for the library. The complainant did not indicate in which format she needed the reading material nor did she say that she would only accept Braille. He said that he did not give the list to the DLO as it never occurred to him. Postgraduate students do their own research and he was confident that the complainant could handle dealing with the library herself. At this stage the complainant was not a registered student and she needed to an M.Litt before she could do her PhD.
4.8 Dr. Hougart said that he knew from past experience with visually impaired students that the library could facilitate the complainant. The purpose of drawing up the list before the complainant registered was to make sure that the library would be ready for the complainant when she registered in September. He said that the complainant could have registered in April but having discussed this with the University being made aware she would have to pay full fees for the year it did not make sense to register in April. The complainant was offered the course in April and she registered in September. In the meantime she could have use of the college library material. He was not made aware that the complainant was experiencing any difficulties with the library nor she did not complain to him between January and April 2000.
4.9 In April 2000 the complainant came to Dr. Hougart's office and complained about the library service. He realised that there was some ambiguity about the reading list and his recollection is that he e-mailed a copy to Mr. Alan Hayes. Later he spoke to Mr. Hayes and prioritised the procurement of 3 books on the list and at a later stage a fourth book was identified. He was happy that progress was going to be made by the library and he relayed the content of the conversation to the complainant. Dr. Hougart knew in April 2000 that the complainant's preference was to get books in Braille but she did not exclude getting them on disk. He understood that the books would be produced on disk and after the complainant listened to them she would identify the chapters which needed Brailling. In April the complainant received books from the library on disk and in May the complainant presented her proposals for the thesis.
4.10 Dr. Hougart did not see the complainant again until she registered in September, 2000 and at that stage she related she was not happy with the service she was receiving from the library. Again she gave no indication that she would only accept material in Braille. In October, 2000 the complainant continued to complain and Dr. Hougart checked a number of websites and located material on the Library of Congress website. He made an appointment to see Mr. Alan Hayes and together they spent a couple of hours going through the Library of Congress website and ordered a large number of books in ACB format. He informed the complainant that he had ordered the books in ACB format. The complainant did not make any immediate response, but in a later conversation she informed him that she did not want the ACB format but required all the books in Braille format. It was not the first time that the complainant expressed a preference for Braille but it was the first time she made it clear she would only accept material in Braille. Dr Hougart got in touch with Mr. Hayes and cancelled the books ordered in ABC format.
4.11 Dr. Hougart said that Mr. Hayes showed him the process of scanning and editing the books before they could be converted Braille. He tried to get books in electronic format from his own publisher he told the complainant but she made no request to receive books in this format. He said that he would have approached other publishers sooner if he had known that the complainant would only accept Braille. There was also a difficulty in converting books provided by publishers in electronic format to Braille because of copyright.
4.12 Mr. Hougart said that he recollected Mr. Hayes telling him that there was a problem with the Braille printer in October when he and Mr. Hayes met to order the books in ABC format. He recalls the complainant commenting about the quality of the Braille in December 2000 and between January 2001 and May, 2001. She was complaining about the quantity of Braille material she was getting. In this period his general impression was that the complainant was reasonably satisfied, but her complaint was that the Braille books were arriving late. Dr. Hougart said that the complainant was not penalised by the University in any way due to the delay in getting the books.
Evidence of Ms. Ann Mitchell
4.13 Ms. Ann Mitchell, Assistant Librarian Reader Service, said that she had day to day responsibility for the library service and was Mr. Hayes's line manager. She reported to Mr. Finan the librarian. She said that there was Braille equipment in the University on her appointment in 1997. A special area was constructed in the general information area and 5 computers were located there for students with disabilities. She said that there were two Braille printers in the University in 2000 (one a new model) when the complainant registered. Between 1997, when another student with a visual impairment finished University, and the arrival of the complainant in 2000 the Braille facilities were not utilised. To prepare for the complainant's arrival a new software package was purchased which converted MS Word documents to Braille and staff training took place at the end of March
2000. She said that the Braille printer was working at that time otherwise the training could not have taken place.
4.14 Mr. Hayes did not complain about the Braille printer during the Summer of 2000 and if he had it would have been fixed. Mr. Hayes did indicate there was a problem sometime later in 2000 and computer experts and the National Council for the Blind Ireland both checked the equipment and said it was working properly. She said that she became aware in late January, 2000 that the complainant was going to register and that the library needed to provide facilities for a visually impaired student. She said that the library was not provided with a list of books and neither was it informed in what format the complainant needed the books. She understood that a small number of books 3 - 5 would be scanned and edited and given to the complainant in disk format so she could listen to them and identify the chapters which needed to be converted to Braille. The library would then convert those chapters to Braille. A request for extra assistance was received from Mr. Hayes and a postgraduate student was employed on 31 January, 2000 to the end of the academic year. Mr. Hayes then could work on material required for the complainant and could have extra assistance from the student.
4.15 It was felt that during the Summer when there was little demand on the library Mr. Hayes would have sufficient time to do the scanning and editing himself without assistance. In or around April, 2000 Mr. Hayes told management that there was not enough work for the student. Ms. Mitchell stated that she worked closely with Mr. Hayes in setting up the disability library service and he never had a difficulty in making her aware if a problem arose. Mr. Hayes did not apprise her of any difficulties in relation to the service being provided to the complainant. She denied that the complainant was not provided with a library service prior to November, 2000. Her understanding from the library was that the
material requested by the complainant was provided to her on disk and from which she would identify the chapters which needed to be Brailled. She was not made aware that Mr. Hayes had ceased to work on material for the complainant during the Summer of 2000. She understood that he was providing her with any material requested. She knew that Mr.Hayes had a list of 3 - 4 books and that he was awaiting a copy of a bigger list. After the complainant registered she understood that she would contact the library to discuss her needs. The specific needs of students with disabilities are usually discussed by the student with the college on registration and the library is then informed of the person's
4.16 Ms. Mitchell said that the first time she became aware that the complainant needed all her books in Braille only was in November 2000. She said that Mr. Hayes had day to day contact with the complainant and if the complainant had made him aware of her specific needs for Braille extra facilities would have been put in place immediately and there was no difficulty in employing an extra person and this happened in late November 2000.
4.17 On 27 November, 2000 an assistant was employed in the library to do the scanning and editing and Mr. Hayes then did the Brailling. As soon as they became aware that the complainant was not happy with the Braille material the library provided, they asked the complainant to call into the office the next time she was around. She called on 13 December and they had a meeting. She outlined 4 areas of the Braille material she would like changed, (i) material bound, (ii) different indentation for the start of a paragraph, (iii) page numbering, (iv) citations/references. The complainant stated at the meeting that she would follow up with a letter outlining the difficulties and she did this.
4.18 In January, 2001 training was organised to address the concerns raised by the complainant. Ms. Mitchell said that she understood from the training expert that there was no specific set standard for Brailling material as each individual had their own specific preferences. She had no further complaints related to her by either the complainant or Mr. Hayes and she had no further contact with the complainant until Mr. Hayes went on sick leave in May, 2001. Ms. Mitchell said that she took over running the library service for the complainant at that stage. She arranged for the NCBI to train herself and another staff member in the running of the Brailling system
4.19 In May 2001 Ms. Mitchell received a letter from the complainant complaining about output. She explained to the complainant that Mr. Hayes was out sick. Ms. Mitchell said that producing all the material by Braille was very time consuming. The library was producing two to three books a month but as they became more experienced this number grew. Ms. Mitchell said that it was noteworthy that by the Spring 2001 the complainant wanted all the material both in Braille and on disk and also accepted supplementary material by e-mail. She also did a short part-time course and accepted material on disk for this course.
Evidence of Ms. Agnes O'Farrell, Disability Liaison Officer,
4.20 Ms. O'Farrell said that her job is to co-ordinate the services and supports for students with disabilities. She makes arrangements for their needs and liaises with the academic staff. She met with the complainant in early February, 2000 and was informed she was going to register to do a PhD in Sociology. They discussed the type of computer equipment and Braille and speaking equipment available. She also informed her about European Social Fund funding for individual students with disabilities, but she told her that this funding could only be applied for when the student has registered. The complainant did not indicate at this meeting that she would only accept Braille material. Ms. O'Farrell said that she understood that the complainant used a variety of formats. She said that the complainant did not give her a reading list as suggested. It was not usual for her to have such a list it was normally given to the library by the individual student.
4.21 Ms.O'Farrell said that at the time she met the complainant she had already been in contact with the library. In January, 2000 and she had received a request from the library about employing extra staff and a postgraduate student was employed to scan material in preparation for Brailling. A scanning programme called Textbridge and a Duxbury software package to convert print to Braille was also purchased. A computer expert and an employee of NCBI who is blind loaded the package and trained Mr. Hayes how to operate it.
4.22 The next contact with the complainant was in June 2000 when she telephoned. An appointment for a meeting was made for 19th June 2000. The complainant subsequently cancelled the appointment. Ms. O'Farrell next met with the complainant on 18 September when they discussed the computer equipment which they would apply for under ESF funding. The complainant made no complaint to Ms. O'Farrell about the library service or about the material she had received to date. An application by the complainant dated 5 October, 2000 was sent to the Department of Education, requesting funding of £3,540 in respect of a lap top computer, scanner, jaws facility and a 4 track cassette recorder.
4.23 In December 2000 Ms. O'Farrell liaised with the Student Assistance Fund to secure funding from this special fund for the complainant and she was issued with a cheque for £500 in January 2001. The complainant had contacted Ms. O'Farrell on 8th November 2000 to change one piece of equipment ordered under the ESF funding for more up to date equipment. There was no complaint about the library service on that date and if the complainant had any complaints Ms. O'Farrell believed she would have been informed. The ESF funding was approved in late December 2000. Ms. O'Farrell then ordered the equipment to the value of £2,530 and it was collected on behalf of the complainant in February 2001. The following equipment was provided for the complainant's use: a laptop computer, document scanner, software to scan documents, software to read back text (HAL), and in June 2002 an update of HAL software package.
4.24 Ms. O'Farrell said that the first time she became aware of any difficulties was the complainant's letter to Professor Cunnane on 15th November, 2000. She said that prior to this the complainant had not made a request for Braille material only. She said that the request for Braille only was not consistent with having ordered synthesised voice recorder equipment. She submitted if the complainant had made her aware that she only wanted material in Braille she would have employed another person at an earlier stage to assist in the library. As soon as she was made aware of this she arranged immediately to employ an MA student who was doing research. He was employed to assist in the Brailling within eleven days of the request from the complainant.
4.25 Ms. O'Farrell said that she does not carry out a needs assessment of students with
disabilities. Students have different needs depending on their disability and they would normally bring their needs assessment with them. For example some students would bring an assessment from NCBI. Ms. O'Farrell's duties as a DLO is to liaise with the library and to ensure resources are in place to meet the needs of the particular student. Students with disabilities who register with the University are mainly post Leaving Certificate students who have no experience of doing research. Ms. O'Farrell submitted that the complainant was a mature student and would have known the ropes. She would have expected the
complainant to make her aware of her particular need to have Brailled material only at their first meeting. As soon as the library was made aware resources were put in place to assist the library to produce Braille material for the complainant.
4.26 Ms. O'Farrell denied that she was dismissive to Mr. Hayes when he raised some issues about material for the complainant. She did recollect asking Mr. Hayes to prioritise material for an undergraduate student with a disability shortly before this student's final exam. The student complained that the work had not been done and she needed it urgently. She said it was not a large amount of work but Mr. Hayes was not pleased as he believed the complainant's needs were more important. This happened in November, 2000 and at that stage arrangements were already in place to employ the extra person in the library.
4.27 Ms. O'Farrell said that between January, 2001 and May, 2001 she had no contact
with the complainant and she believes if there was a problem the complainant would have contacted her. She was surprised to get a letter dated 3 May, 2001 from the complainant complaining that she had not received a reasonable amount of material in Braille format.
5. Conclusions of the Equality Officer
5.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Sections 3(1)(a), 3(2)(g) and 4 of the Equal Status Act and in terms of Section 7 of that Act. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint. Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
"On any of the grounds specified... (in this case the disability ground).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(g) provides that: As between any two persons, the discriminatory grounds ... are ... that one is a person with a disability and the other either is not or is a person with a different disability (the disability ground)."
Section 7(2) provides:
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, or facility or benefit provided by the establishment,
(c) any other term or condition of participation in the establishment by a student".
A person making an allegation of discrimination under the Equal Status Acts, 2000-2004 must first demonstrate that a prima facie case of discrimination exists. Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination.
5.2 I have identified the key issues to establish a prima facie case as follows:
(i) Is the complainant covered by the discriminatory ground? (in this case has the complainant a disability?)
(ii) is there evidence that she has been subject to a specific treatment by the respondent?
(iii) is there evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by the discriminatory ground or someone with a different disability, would have received in similar circumstances?
(iv) did the respondent's actions amount to a refusal or failure to provide reasonable accommodation, in accordance with section 4 of the Equal Status Act, 2000 for the complainant's needs as a person with a disability, which made it impossible or unduly difficult for her to get a service from the library?
(v) would providing for those needs have given rise to greater than nominal cost to the respondent?
5.3 While the complainant has not got to satisfy all the issues above she needs to satisfy test (i) (that she is covered by the disability ground) plus tests (ii) and (iii), or test (iv) (that is that the respondent has failed to provide reasonable accommodation in accordance with section 4 of the Equal Status Act). It was submitted on behalf of the respondent that the complainant had not established that she was treated less favourably than a person with a different disability or a person with no disability in that she had not been able to point to a comparator who had been treated more favourably than her. Even if the complainant could point to a comparator the respondent has shown in evidence that the complainant was given considerable advantages over and above those provided to students who did not have a disability. It was also submitted that the respondent did all
that was reasonable to accommodate the complainants needs. As the complainant's case is that the respondent's allegedly failed to provide her with accessible reading material for her studies between 25 October, 2000 (the date the Equal Status Act came into operation) and the end of May, 2001, I am satisfied that the appropriate tests to examine are (i) and (iv) above. What the complainant must establish in satisfaction of the criterion (iii) above, is that the respondent did not do all that is reasonable to accommodate her needs by
providing special treatment or facilities to make it possible for her to mitigate any undue difficulty in pursuing her course.
5.4 Disability is defined in Section 2(1) of the Act as:
"(a) the total or partial absence of a person's bodily or mentalf unctions, 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".
The complainant has a visual impairment and is covered is covered by the Act.
This satisfies test (i) above.
I am now going to examine the treatment of the complainant in the context of Section 4 of the Act which deals with the provision of special facilities for a person with a disability.
5.5 Section 4 of the Act states, inter alia:
"(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.
The question is did the respondent do "all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities". This means that the Act requires the complainant to show that the University did not do everything it could reasonably do to accommodate the needs of a visually impaired student in the pursuit of her PhD and that they did not provide her special facilities to meet those needs. I am now going to examine the evidence in the context of the above.
5.6 The complainant's case is that the respondent failed to provide her with a reasonable amount of study material in Braille between 25 October, 2000 (the dated the Equal Status Act came into operation) and the end of May, 2001. She stated that she had submitted the reading list to the respondent and she expected that the material would be provided to her in Braille. She never requested that it be provided on disk as this was not a suitable format as it is difficult to listen to a synthesize voice for any period of time. The complainant's representative submitted that the failure by the respondent to provide Braille material to the complainant in an adequate and timely manner was due to a system failure in the respondent's library.
5.7 The respondent's case is that they only became aware the complainant would only accept material in Braille format in November, 2000. They submitted that once they became aware in January, 2000 that a blind student was registering facilities were put in place prior to her registering in September. A postgraduate student was employed in January, 2000 and prior to the complainant registering to assist the library assistant in scanning and editing the material. Software and scanning equipment was purchased and training was sourced from the NCBI. Three books were scanned and edited and supplied to the complainant and a fourth book was subsequently identified and scanned and edited and they were all given to the complainant on disk by April, 2000. The respondent expected the complainant to identify, after listening to the disk, the chapters she needed Brailled. The complainant did not identify any material she needed Brailled. The complainant's library list was not provided to the library until late September by the complainant, but there was no indication from her at that time Braille was the only acceptable format. Discussions had taken place with the DLO concerning ordering of equipment for the complainant's personal computer which would enable her to use a voice synthesiser. The respondent submitted that ordering this equipment was not consistent with requesting Braille only. It was assumed that the complainant would use a variety of formats to access material. Once the complainant made the respondent aware of her need for Brailled material only a postgraduate student was employed and further training was provided for the library staff. The respondent submitted that at all material times it sought to facilitate the complainant's needs as a person with a disability and that the complainant has failed to show that it was impossible or unduly difficult for her to participate in the programme of education provided by the University.
5.8 I am satisfied that the respondent was only made aware of the complainant's need
for material exclusively in Braille format at a meeting with Dr. Hougart in November, 2000. I am also satisfied that once the respondent knew of the need for Braille material that extra resources were put in place and the library did embark in providing the service which the complainant required. It was accepted that the complainant had a meeting with Ms. O'Farrell (DLO) in early February, 2000. The complainant believes she made Ms O'Farrell aware of her need for Braille only at that meeting. However I am satisfied from the evidence that this was not the case. The complaint's case that the failure to provide her with Braille or an adequate amount of Braille material was due to a systems failure on the part of the respondent University has not been convincing. It is clear from the uncontested evidence of the respondent that systems were in place to accommodate the needs of students with disabilities and this is evidenced by the extent of the respondent's efforts in obtaining and converting the required reading to formats generally accepted as appropriate to the needs of visually impaired students. If any failure could be perceived to have occurred it was a failure in communication by the complainant of her own very specific requirements in terms of Brailled material to the DLO and to the library in particular. I also note that the Dr. Hougart had not been made aware by the complainant of these particular requirements until quite late on. The extensive efforts he made in sourcing books in ACB format from the Library of Congress underscores the efforts made by all those concerned at the respondent University to facilitate the complainant in embarking on her PhD programme. Other notable initiatives by the University were the willingness to take on extra staff at postgraduate level to complement the work already being done on the complainant's behalf by the library. New equipment was purchased prior to the complainant registering and training was provided in the use of the equipment.
5.9 Complaints that the Braille equipment was not working prior to the complainant registering in September have not been established. This has been evidenced by the fact that staff members were trained in March of that year in the use of the Braille equipment with the view to the complainant registering in September. For this training to have happened I am satisfied that the equipment would need to have been in working order. I note that in a report dated 6 June, 2000 to the library management by Mr. Hayes about the services being provided to people with disabilities, it was not mentioned by him that the Braille printer was broken and I believe that if this was the case it would have been mentioned in the report. I also note that report mentions that the author Mr. Hayes was scanning editing and Brailling material for the complainant, it is clear to me that this is inconsistent with the suggestion that the Braille machine was out of action.
5.10 The next question I have to consider is the complainant's contention that she was not provided with an adequate volume of Braille material between October 2000 and the end of May 2001. I note that during this period that the complainant was provided with a total of 7 publications which amounted to a total of 1648 printed pages of text which was converted to Braille. I consider however that due regard must be given to the Brailling process and the time involved in reproducing printed books in Braille. In this case I note that the University were in a position to initially provide the material to the complainant in formats whereby the complainant could identify her immediate Braille requirements from the computer disks provided to her. However, the complainant chose not to avail of this facility and I further note that such facilities had proven to be acceptable to her at a later
stage. It seems to me if the complainant had been amenable to accepting material in disk format and identifying from this format the chapters she needed to read that this would have eliminated time wasted in unnecessary Brailling. I speculate that in the long term that this would have facilitated the speedy production of the material germane to her academic pursuits during this period.
5.11 During the October to May period the complainant also complained that some of
the Brailled material provided was not in an accessible format in that there were errors and formatting problems with the material I also note that once the complainant made the respondent aware of the specific difficulties she experience in reading the Brailled material systems were put in place to resolve her complaints. Additional training was provided for the library staff in January, 2001 and an expert was brought in to check the system.
5.12 It was the respondent's cases that after these measures were put in place no further complaint was received from the complainant during the period from January to 3 May 2001 when the complainant complained again about receiving an inadequate amount of material in Braille format. In response to the complainant's letter of 3 May, 2001 the University explained that Mr. Hayes, who had responsibility for the production of the material for the complainant, was on sick leave. I note here that the University immediately responded to the sick leave problem and put a senior library staff member in charge of the production of the Braille. She arranged training for herself and another staff member to
acquire the requisite skills to provide the complainant with a continuing service. I note that this arrangement has proven satisfactory to all parties and the complainant's evidence was that she received a satisfactory amount of Brailled material after May, 2001. I am therefore satisfied that the respondent did everything possible to resolve the difficulties the complainant experienced.
5.13 A number of cases were cited by the complainant's representative in support of the complainant's case. Cases from the United States were cited and also it was represented that the relevant US legislation Title II of American with Disabilities Act, 1990 is akin to Irish legislation in the use of its term "reasonable accommodation".1 In the case of Complaint No 09-97-2002 it was submitted 1 Complaint No 04-98-2120 Valdosta State University (GA) Office for Civil Rights Region 4 1999 NDLR Complaint No. 09-93-2214-I Los Rios Community College District (CA) OCR ix 1994 NDLR Complaint No. 09-97-2002 California State University - L.A. OCR ix 1997 NDLR that in determining what type of auxiliary aid and service is necessary a public college shall give primary consideration to the request of an individual with a disability. I am satisfied as already stated that the specific request of the complainant regarding her Braille requirements did not emerge until November, 2000 some two months after she registered and several months after she contacted the University with a view to enrolling on the programme. Therefore I do not consider that the test outlined in Title II is relevant to the circumstances to this case. I should point out that the American Disabilities Act, 1990 imposes specific obligations on public bodies which are much more stringent and not necessarily the same as those under the Equal Status Acts, and in the circumstances it is not necessary for me to consider whether it has persuasive force in interpreting this
5.14 I have also been asked to consider whether the respondent University responded
to the complainant's request for material in an accessible format in a timely and effective manner with regard to US cases cited. I am satisfied in terms of the timing of the requests made by the complainant concerning her precise Braille requirements i.e. November 2000, the University responded both quickly and efficiently. With regard to the period leading up to this I am also satisfied that the University acted both efficiently and in a timely way on foot of the information they had available to them in terms of the complainant's requirements.
5.15 The complainant's referred me to a number of other equality decisions from both the Irish and English case law 2 which dealt with the issue of reasonable accommodation. In the Williams case the complainant was deaf and the employer arranged a training course which included a video with no subtitles. The complainant was successful in claiming discriminatory treatment. In the Harrington case, the complainant claimed discrimination on the disability ground (she was a wheelchair user) in relation to the facilities in place for her interview. 2 Williams -v- Channell 5 Engineering Services IT (230213697) and Anne Harrington -v- East Coast Area Health Board EE2001/003 In that case the Equality Officer concluded that the complainant established a prima facie case of discriminatory treatment in that the respondent failed to do all that was reasonable to provide special facilities for her in ensuring that the interview room was accessible. However, I found nothing in these cases to support the complainant's proposition that reasonable accommodation was not
provided to her by the University. In both of the above cases the employer did not provide any facilities. In this case the respondent provided facilities in a number of formats for the complainant to access material albeit not Braille only which was the complainants preferred choice of receiving material.
5.16 The next issue for consideration is nominal cost. Although I have concluded that that the respondent has met the test of reasonable accommodation required under Section 4(1) of the Equal Status Act in the interest of completeness I am also considering Section 4(2) of the Equal Status Act which provides: " 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".
5.17 In this case it was submitted by the respondent that the complainant was provided
with reasonable accommodation which amounted to more than a nominal cost. The University submitted that if it were to produce 400 books in Braille as requested by the complainant it would cost them between €88,900 and €114,300 depending on the number of books and hours taken to do the Brailling. This figure excluded the cost of converting approximately 200 journals to Braille. From figures provided by the University during the academic years 1999/2000 and 2000/2001 an estimated total of €35,215 was expended on providing facilities for the complainant. In addition the University applied and received on the complainant's behalf an additional €2530. Taking the library budget as an example, of the total library budget of €3,978,549 in the academic year 200/2001, approximately 1.54% circa €61,000 was allocated to disability support. The DLO budget in that year was €108,000. The average expenditure per head on disabled students in that academic year was given as €873 for library services and €1,543 for DLO services. The average expenditure on other students was €333 for library services only. Correspondingly according to the figures provided total direct library expenditure for the complainant during that year was €7,490 in addition DLO costs were £13,906. While these library and DLO expenditure figures may have benefited other students in the longer term the initial outlay was directed specifically at the complainant meeting the needs identified by her. These
figures were not disputed by the complainant's representative.
5.18 In considering the nominal cost issue I referred to an equality case under the Employment Equality Act, 19983 in which the issue of nominal cost was considered. The Equality Officer in that case having considered the Oireachtas Debates on the passage of that legislation, and he also examined the Supreme Court judgment in the matter of Article 26 of the Constitution and of the Employment Equality Bill, 19964, and concluded that 'the legislature's understanding on the issue of "nominal cost" was that all employers would not be treated in an identical fashion and that the particular circumstances would have to be evaluated in each case.' In that case no provision was made to meet the complainant's needs and differed from the instant case where facilities were provided. In the particular circumstances of this case the respondent library was working from a budget allocation of which a certain percentage was devoted to the provision of facilities for students with disabilities over and above the allocation made to the entire student body inclusive of those disabled students. Also there was a special Budget allocation to the Disability Liaison Office for expenditure on services for the disabled. It is incumbent upon the University to use those budgets to provide special facilities to all disabled students including the complainant.
3 An Employee and A Local Authority Decision No: DEC-E/2002/4
4 SC, ELR 132
5.18 I am satisfied from these figures that the provision of reasonable accommodation
to the complainant exceeded the nominal cost requirement under the Act when compared with the outlay from the budgets for other students both with and without disabilities.
On consideration of all the evidence presented by both parties and arising from my conclusions drawn from that evidence, I find that the allegation of discrimination on the disability ground set out in this complaint is not sufficient to establish a prima facie case of discrimination. I find therefore that NUI Galway did not discriminate against Ms. Rita Kwiotek in terms of section 2, 4 and 7 and contrary to section 3 of the Equal Status Acts, 2000 - 2004.
26 November, 2004