THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision No. DEC-S2010-039
Letterkenny Institute of Technology
Equal Status Acts - Section 3(2)(g), Disability ground - Section 4(1), reasonable accommodation - Section 11, harassment - Section 7 - Course requirements - Course documentation - harassment policy - Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002 - Section 3(2)(j), Victimisation
1. Delegation under the relevant legislation
1.1. On 21 January, 2008, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. Submissions were sought from both parties. On 1 April, 2009, in accordance with her powers under section 75 of the Employment Equality Act and under the Equal Status Acts, the Director delegated the case to me, Gary O'Doherty, 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 (hereinafter referred to as "the Acts"), on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing in Sligo on 22 April 2010. Both parties were in attendance at the hearing. Further information was sought from both parties, and the last communication in that regard was received from the respondent on 24 May, 2010.
2.1. The dispute concerns a complaint by the complainant that he was discriminated against by the respondent on the Disability ground contrary to the Acts in terms of Sections 3(1)(a), 3(2)(g), and Section 4(1), and contrary to Section 7 of the Acts, that he was victimised by the respondent in terms of Section 3(2)(j) of the Acts, and that he was harassed by the respondent in terms of Section 11 of the Acts. In that regard, the complainant submits that the respondent treated him less favourably, harassed him and failed to provide reasonable accommodation to him in relation to his treatment of him while he was participating in a course of education with the respondent.
3. Summary of the Complainant's Case
3.1. The complainant has been a paraplegic since 2004. Therefore, it is clear he has a disability within the meaning of the Acts. He attended for interview for an IT course in the respondent college and was successful in his application. He started the course in June 2006.
Complaint of discrimination: work placement
3.2. The complainant submitted that he was told in the interview for the course that the students for the course did not have to worry about looking for a work placement as it had placement officers to look after this. He stated that, if, as alleged by the respondent, he had ultimate responsibility for obtaining the placement, he would have set out looking for such a placement at an early stage. Mr A, who was present at the hearing and was a student on the same course as the complainant, stated that he was not specifically told this either.
3.3. The complainant stated that he never saw the course documentation referred to by the respondent and on which it relies for its claim that work placement was a matter for the individual student. He stated that no other student received such documentation. The complainant submitted that he was offered an unpaid post and refused it, stating that this was contrary to the Equal Status Act because he was being treated less favourably than those who got the paid posts. He stated that he should have got a paid post because he was over 26 and couldn't afford to take an unpaid post. In relation to the interview arranged by the respondent for work placement in Organisation Y, the complainant stated that this interview was the day before his exam and so it was impossible to prepare for or even try to attend the interview as he needed to study for the exam. He stated that there were interviewees who attended that interview who were also doing the same exam and he did not inform the respondent about his difficulty with the date until some time after the interviews were held.
3.4. The complainant stated he could not see how the project work (known as CISCO) that was offered to him in lieu of industrial placement was a suitable alternative. In any event, he submitted that he had already completed the CISCO course and that if CISCO was an alternative to work placement then he should have had the requirements to progress to Year Two. He stated that Mr A was the only other person who did not receive a work placement. He did, however, participate on the CISCO course that was offered in lieu of work placement as, unlike the complainant, he had not done this course earlier. Mr A is also disabled, though with a different disability to the complainant.
Complaint of discrimination: other issues
3.5. The complainant stated that if the respondent is correct in its submission that he failed to complete outstanding academic work for the first year of the course and so he could not proceed to second year, he was being discriminated against as Mr A had been allowed to progress to second year when they had both completed the same amount of work. He also submitted that there was one other student, Ms B, who was also allowed to progress to second year who had not completed an exam, though he stated she had completed the work placement.
Complaint of victimisation: general
3.6. The complainant referred to an exam he had missed when it was first held due to a serious illness which arose because of his disability and for which he was hospitalised. He submitted that he was sent an e-mail on 20 June, 2007 in which he was told he would have to pay a fee to resit this exam. He stated that the respondent only agreed to waive the fee after he pointed out to it that its own policy stated fees would be waived in such circumstances. The complainant also referred to grant money to which he alleged he was entitled and which was never paid to him. He alleged that these incidents were acts of victimisation because the Equality Authority had previously communicated with the respondent on his behalf about the matters that had already arisen. In that context, he also considered that the issue outlined in paragraph 3.5 was an instance of victimisation.
Complaint of victimisation: removal as student
3.7. The complainant stated that when he went to college on 18th October 2007, he noticed that his student e-mail account was disabled and his electronic swipe card didn't work when he tried to access the library facilities that day. He asked a member of staff of the respondent library to investigate the matter. He submitted that when he came back after lunch he found his card was left with a note on it saying "Card invalid, not a student anymore" and submitted that he was shocked by this as at no stage had he unregistered. He submitted that he also noticed that the person who wrote this note did not sign their name to it and that it was immature for them to have failed to do so. He submitted that his student card stated that he was expected to continue on the course until January 2008. He submitted that he also discovered that his student ID card had been disabled as had his electronic swipe card. He submitted that these incidents were also acts of victimisation.
3.8. The complainant submitted that when he spoke with the IT manager of the respondent about the matter, he said he could not understand why the account had been disabled as the complainant was still a registered student. The complainant submitted that he then got the feeling that the decision to disable his account was taken by someone in a higher position of authority. He submitted that the respondent eventually agreed it would allow him a few hours to access his account to get the information he needed, but he rejected this offer on the basis that it was treating him differently to the way that others in the class were being treated (i.e. they were allowed to continue on the course).
3.9. The complainant rejected the claim he was no longer a student; he had registered for the course and had not yet completed his Year One modules and so was still in Year One. He stated that he had completed all the courses in the prospectus including the CISCO course, which the respondent said carried 30 credits. He also submitted, as proof that he was still a student, that the respondent's sports department had issued a press release in relation to his participation in a photoshoot in October 2007 in which it stated that he was a student at the respondent institution.
3.10. The complainant submitted that not being able to access the library is depriving him of vital information he needs to continue his studies. He submitted that he was still registered with the course for Year One and still had the course placement to continue for that year. He stated that he was victimised by not being allowed to continue into Year Two and that this was done because he had complained about not being provided with a work placement. In that regard, he stated that noone else in his year had their account disabled.
Complaint of harassment
3.11. The complainant submitted that his general treatment by the respondent, and particularly in relation to the victimisation, was harassment within the meaning of the Acts. In particular, he submitted that information regarding his complaint to the Tribunal was "leaked" to the admissions office and that when he went to that office, the staff behaved in an abusive and threatening manner towards him and that he felt harassed by the way he was treated by them.
4. Summary of the Respondent's Case
Complaint of discrimination: work placement
4.1. The respondent submitted that, at the interview of the complainant for the course, he was advised by the interviewers that, while the respondent would endeavour to assist him in finding a placement, ultimate responsibility for finding a placement rested with the relevant student. It submitted that all students were told this. The respondent stated that the interview in question was carried out by three named staff members of the respondent. None of these persons were present at the hearing. However, the respondent submitted to the Tribunal a letter from each of them in which they outlined their recollection of the interview process in question.
4.2. The respondent also referred to the course documentation which was put together when it sought its initial validation for the course from the relevant authorities. It stated that there is a stipulation in this course documentation that "while an institute will make every effort feasible to obtain placement for all students, the student is also responsible and must actively cooperate with LYIT by availing of all opportunities and presenting himself/herself in the best possible manner." It added that the course documentation also stated that "a student who fails, through no fault of him or herself, to secure a placement is required to undertake project based work in the institute" and that students "may be paid during the industrial placement." It stated that this course documentation would not normally be given out to students, but was available on request. It submitted that LYIT is therefore responsible for trying to assist the student in finding a placement rather than actually finding a placement for them.
4.3. The respondent submitted that there were four employers offering both paid and unpaid placements that year. It said that it assisted in arranging interviews for each of these posts. It stated that the complainant did not attend for a joint interview carried out by two of the organisations. The respondent added that he did not inform it that he was not happy with the date the interview had been arranged until six weeks after the interview took place. The respondent stated if he had informed it within a reasonable timeframe, it would have facilitated the complainant as it had done for another student who had a difficulty with a particular interview date. It added that it made sure that appropriate disabled facilities were available for the complainant in order to attend the relevant interviews.
4.4. The respondent submitted that one of the organisations was willing to offer him an unpaid placement but he declined the offer. It submitted that it then wrote to the complainant to advise him that it was willing to offer CISCO in lieu of a work placement, and that this arrangement fully complied with the course documentation. In relation to the complainant's claim that he had already completed this course, it stated that he had completed Part One of the course and the offer in lieu of work placement related to Part Two of that course. In that regard, it stated that if everyone who did the CISCO course in the academic part of the year did not have to do the work placement, then they would all do it and noone would do the work placement.
4.5. The respondent submitted that, on 27 February, 2007, it informed the complainant that, as he had not been successful in obtaining one of the paid placements it arranged, and as he had refused its offers of unpaid placements and project work in lieu of placement, it was now his own responsibility to secure a placement. The respondent responded to the complainant's argument that he was unaware that he had a responsibility to find a placement by reiterating that the regulations are clearly detailed in the course documentation and that this was explained to him at the interview. It said that the complainant stated that, as he was disabled, he should have been one of the first students to get a placement, a claim which it rejected. Nor could it agree that particular students should be given paid placements over others because they were over a certain age, as suggested by the complainant.
4.6. The respondent submitted that it wrote to the complainant on 18 May 2007 to inform him that it planned to put his name forward to employers as part of the June 2007 placement cohort. It submitted that his response was that he would be returning to college with the rest of his class in June to complete the course as he was supposed to have been in the January 2007 work placement cohort. The respondent submitted that it then engaged in a series of correspondence with the complainant in an effort to resolve his difficulty.
Complaint of discrimination: other issues
4.7. The respondent submitted that it met the recommended recruitment targets for persons with disabilities. It submitted that its recruitment of a proactive Access Officer and a user friendly campus is further evidence of its innovative approach to all students.
4.8. In relation to Ms B, the respondent said that she had missed an exam in January 2007 because of an accident, and was allowed to continue on the basis that she would complete that exam before September but had done the work placement. As she had met the criteria and had completed the necessary credits, she was allowed to continue into Year Two.
4.9. In relation to reasonable accommodation, the respondent submitted that it was fully compliant with the requirements for students with disabilities, adding that the list of companies offering work placement were also in a position to take students with requirements for wheel-chair access facilities.
Complaint of victimisation: general
4.10. In relation to the grant money which the complainant alleged he was entitled to receive, the respondent stated that, in some cases, it had no control over the decision to pay the relevant grant or not (e.g. VEC grants, where while the respondent paid the money to the complainant, it did so on instruction from the VEC). In these cases, any payments which the complainant considered he was entitled to and did not receive were not paid to him because he was no longer eligible (e.g. because he had not moved on to Year Two). However, it said that there was a grant over which it had control, half of which was paid to the complainant in the first half of Year One. The respondent stated that the complainant would only have been eligible to receive the second half of this grant if he was on unpaid placement. However, in his particular circumstances, it was decided to pay him this grant money even though he did not meet the eligibility criteria.
4.11. In relation to the fee for the examination resit, the respondent pointed out that it ultimately waived these fees and that its initial request was unrelated to his complaint, in any event.
Complaint of victimisation: removal as student
4.12. The respondent submitted that the complainant was not eligible for progression to Year Two as he had not completed the work placement programme which was a mandatory element of the Year One stage of the course. It submitted that this requirement was notified to the complainant before he made his complaint to the Tribunal. It submitted that he was not granted access to computer facilities because he had not met these requirements and so was not a registered student and not because he had made a complaint. The respondent stated that it could not waive academic requirements in that regard in circumstances where he was not willing to take unpaid placements.
4.13. The respondent stated that the issue around the library card being left by someone who didn't sign it was not an attempt at intimidation. It submitted that, in response to correspondence from the Equality Authority, who was writing to it on the complainant's behalf, it afforded the complainant access to the computer facilities for a period of 11 days in December 2007 to allow him access the materials he needed and that it would be enabled once he obtained his work placement. It added that a similar offer had been made to him earlier but he had declined such offer. It also submitted that it tried to arrange meetings to resolve the issues, but that these were declined by him.
Complaint of harassment
4.14. The respondent totally refuted the allegation of harassment. It submitted that the complainant had not specified how it had allegedly harassed him and that its staff had been courteous in its interaction with him. In any event, it submitted that the Student Handbook contained procedures for students to use if they feel they are being harassed and that these procedures were never invoked by the complainant. Furthermore, its complaints procedure was in the student prospectus, was notified to him at the induction course, and was available on the website, but he never made a complaint.
4.15. In conclusion, the respondent submitted that it had treated the complainant in an open and fair manner consistent with all legislation and consistent with the treatment of all other students and that neither discrimination nor victimisation had occurred. It stated that it did not treat the complainant any differently to anyone who failed or didn't take a particular subject.
5. Conclusions of the Equality Officer
5.1. Section 38(A) of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
5.2. The complainant has made a complaint on the disability ground, and I must consider whether the respondent has discriminated against him on that ground. As the complaint is on the disability ground, I must also look, in accordance with Section 4(1) of the Acts, at whether the respondent did "all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities", and whether "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." If relevant to considering what is reasonable in this context, and in light of Section 4(2), I must take into account whether the provision of the special treatment and facilities referred to in Section 4(1) would "give rise to a cost, other than a nominal cost" to the respondent. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
5.3. The complainant submits that the respondent discriminated against him in its treatment of him in relation to the provision of work experience as part of the course.
5.4. I note that the respondent's submission that it is responsible for no more than assisting the student in finding a placement is based primarily on reference to the "course documentation". However, this documentation was never given to any student; indeed, its very existence was unknown to them. I don't see how you can ask for something which you do not know exists and, frankly, to rely on it for support for its position that students should have known that it was ultimately their own responsibility to obtain work placements is disingenuous to say the least.
5.5. I also note the series of letters from the interviewers of the complainant at his initial interview for the course in question which the respondent submitted as proof that the complainant was told that ultimate responsibility for obtaining the work experience in question rested with him. As these letters are not contemporaneous and none of the authors of them presented themselves as witnesses for cross-examination at the hearing, they are of limited value as evidence. In any event, the letters concerned were not definitive in indicating what the interviewees in general were told and none of the authors could specifically recall interviewing the complainant. On the other hand, the evidence of both Mr A and the complainant was direct, clear and credible.
5.6. Therefore, I am satisfied that the complainant was not specifically told, either at his initial interview or in the early months of his participation in the course, that the ultimate responsibility for obtaining work experience rested with himself. I do not believe that the respondent clarified the position until much later in the year, and certainly not before there were only a few people left who had not obtained work placements.
5.7. However, the complainant must show that he was treated less favourably than someone without a disability, or someone with a different disability. While Mr A is also disabled within the meaning of the Acts, I am satisfied, on balance, that the failure of the respondent to explain to the candidates for the course at the interview stage that they had to obtain work experience for themselves was a general one rather than one based on whether the candidates concerned had disabilities or not. It was therefore not discriminatory.
5.8. It is also clear that the respondent provided everyone with equal access to the interviews they arranged for obtaining work experience. That the complainant did not attend one of those interviews had nothing to do with discrimination; inconvenient though the timing of it may have been, he was not treated less favourably than anyone else in that regard. I am also satisfied that the offer that was made to him with regard to the CISCO course was the same offer that was made to anyone else who had not obtained work experience. In that context, the dispute over whether it was suitable or not is irrelevant. In short, I am satisfied that the respondent did not discriminate in relation to the assistance it provided to students in obtaining work placements.
5.9. I am also satisfied that Ms B was allowed to continue on the course because she had completed all the necessary credits, including the work experience, whereas the complainant had not. Therefore, this decision was not a discriminatory one.
5.10. The complainant did not identify any special treatment or facilities which the respondent failed to provide and without which it would have been impossible or unduly difficult for him to continue on the course. Rather, he sought to argue that his disability required him to be treated more favourably than someone else. That is a misinterpretation of the relevant provisions of the Acts.
5.11. The complainant's claim of victimisation relates primarily to the circumstances surrounding the termination of his registration as a student in the respondent college. He submits that this was done to get back at him for indicating that he considered their conduct to be prohibited under the Acts. The respondent submits that the termination of his registration was because the year was over and he had not completed enough credits to continue into second year; he could not therefore continue as a student until he completed the necessary credits.
5.12. I note the timing of the actions taken by the respondent, in that they were taken at the beginning of the new academic year. I note that it is clear the complainant did not in fact have the necessary credits to continue into Year Two. I note that the student handbook states that registration is valid up to a maximum of one year at a time and the context of the statement on the back of the complainant's student ID card is clearly predicated on the student in question completing the necessary elements of the course and is not a guarantee. In that context, I am satisfied, on balance, that the actions the respondent took in suspending his access to the facilities of the college were taken because he had not completed the requirements for Year One and so was no longer a student rather than because he had objected to the alleged prohibited conduct and/or because he had made a complaint to the Tribunal. In that regard, Mr A and Ms B were allowed to continue into Year Two because they had completed the necessary credits and had nothing to do with victimisation of the complainant.
5.13. I am also satisfied that any failure of the respondent to pay grant money to the complainant arose because his eligibility for the relevant grant was in question and was unrelated to this complaint. Finally, I am satisfied that the dispute over whether the complainant should have to pay for the resit of his exam was not related to his complaint of prohibited conduct but was the usual procedure that was applied in such cases, even if it may have been harsh given that his disability was the cause of him being unable to sit the initial examination.
5.14. The complaint of victimisation therefore fails.
5.15. The complainant submits that the behaviour of the respondent, in general, had the effect of creating a hostile, degrading, humiliating or offensive environment for him. His complaint in this regard was tied in with the complaint of victimisation in that, in allegedly victimising him, he alleges that the actions the respondent took made him feel harassed.
5.16. The respondent relies primarily upon its harassment policy as a defence to this claim. I note that this policy does not mention harassment other than sexual harassment and the information regarding sexual harassment is very limited. In my view, this cannot be considered to be an effective harassment policy, at least in the context of the present complaint. In essence, then, the procedures that the respondent says were never invoked do not exist, at least as far as the harassment claim is concerned, so they could not have been invoked.
5.17. However, harassment must be related to a ground under the Acts and I am not satisfied that there is sufficient evidence that the treatment of the complainant by the respondent which he alleges amounts to harassment was related to his disability. In all the circumstances of the present complaint, then, the complainant has failed to show that he was harassed in relation to the disability ground.
5.18. Although I consequently cannot make any order in this regard, I would advise the respondent as a matter of urgency to review its harassment policy in consultation with an appropriate body expert in the area. In that regard, I would refer it to the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002.
5.19. It is clear that the approach the complainant took to the course was predicated on the assumption that the responsibility for providing him with work experience rested with the respondent. While it would appear that most other students on the course came to realise that this was not the case, the failure of the respondent to clarify the matter to the complainant at an early stage led to the unfortunate consequences that arise in this complaint. It is clear that the respondent often experienced unusual difficulty in explaining certain matters to the complainant and that some members of the respondent's staff did their best to assist him. However, it was often uncompromising and dictatorial, in circumstances where its own failure to effectively communicate its course requirements had led to the complainant's difficulties, a fact which it blithely ignored, and it frequently treated the complainant in a condescending manner. This only served to exacerbate an already difficult situation. While this behaviour was not connected with the complainant's disability, there is no doubt that he suffered as a result of it.
5.20. I also note that, with regard to the issues arising in this complaint, the respondent considers that its policies, practices and procedures are advanced. I disagree. Its entire approach to this complaint give the lie to that assertion; in particular, its harassment policy is quite clearly not advanced. It is clear that if there had been better supports in place for students such as the complainant, this unfortunate sequence of events would never have happened. There are plenty of organisations available to advise the respondent in this regard - I would suggest that it consult with at least one, though I can make no order in this regard.
6.1. In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision:
6.2. I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in terms of Sections 3(1)(a), 3(2)(g), Section 4(1) and Section 7 of the Equal Status Acts.
6.3. I also find that the complainant has failed to establish a prima facie case of victimisation and harassment contrary to sections 3(2)(j) and Section 11 of the Equal Status Acts respectively.
6.4. Accordingly, the complainant's case fails.
5 August 2010