THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
(represented by DeafHear.ie)
Old Bawn Community School
(represented by Rosemary Mallon B.L. instructed by B.P. O'Reilly & Co., Solicitors)
File Reference: ES/2007/0171
Date of Issue: 31st August, 2010
Equal Status Acts, 2000 to 2008 - Section 3(1) - Direct discrimination, Section 3(1) - disability ground, Section 3(2)(g) - reasonable accommodation, Section 4(1) - Evening classes - sign language interpreter.
1. Delegation under the Equal Status Acts, 2000-2008
1.1 This complaint was referred to the Director of the Equality Tribunal on the 14th December, 2007 under the Equal Status Acts. On 11th December, 2008, in accordance with her powers under Section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the complaint to me, James Kelly, 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 to 2008 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the 5th March, 2010. A second hearing was held on the 27th May, 2010 and final correspondence with the parties concluded on the 2nd July, 2010.
2.1 This dispute concerns a claim by the complainant that she was discriminated against by the respondent on the grounds of her disability in terms of Sections 3(1)(a), 3(2)(g) and 4 of the Equal Status Acts in not being provided with a service contrary to Section 7(2) of the Equal Status Acts.
3. Summary of the Complainant's Case
3.1 The complainant, Ms. Mary Regan, is deaf, and at times requires a Sign Language Interpreter to assist her with her communications with third parties. Ms. Regan is a qualified Reflexologist and is self-employed in that area for over 20 years. She is a member of the Irish Massage Therapist Association and the Irish Reflexologist Institute. As part of the membership conditions for these associations Ms. Regan is required to meet certain standards and hold certain qualifications. She claims that one of these conditions is that she had to hold a recognised First Aid qualification. She claims that she noted from leaflets received in her home that the respondent ran adult evening classes, including a 10-week First Aid training course, provided by a recognised First Aid Trainer, at a total cost of €105. The school was local to where she lived so she decided to enrol.
3.2 The complainant wrote a letter to the respondent outlining her intention to enrol on the course and outlining her needs. She claims that she attempted to fax it through to the school prior to the enrolment date, which was the 15th September 2007. However, she claims she was unable to send the fax through as there appeared to be something wrong with the fax facility on the respondent's side. On the evening of the enrolment she claims that she went to the school and met with Mr. A who had responsibility for the adult education programme at the time. She claims she told Mr. A that she would need a sign language interpreter to assist her on the course and that he said that was not a problem. In the mean time, Ms. Regan organised sign language interpreting services from a service provider in Dublin, giving the respondent's address as the billing address. The course was set to start on the 2nd October 2007.
3.3 The complainant claims that the sign language provider made contact with the school in relation to the payment of the service on the 1st October 2007. She claims that it told her that the school said it did not have the financial resources to pay for such a service. On the evening of the course Ms. Regan went along to the school, where Mr. A was present, and she claims that at no time did he approach her. She claims that she was trying to lip read the tutor. She claims that this was very difficult and she felt "lost". She claims that by coincidence another one of the students on the course Ms. B, claimed that she was able to offer her assistance as she had studied sign language interpreting. Ms. Regan stated that it was a very informal arrangement, and Ms. B could provide assistance 10% to 15% of the time. Ms. Regan claims that she was very grateful for Ms. B's offer for help but that she was of little assistance to her.
3.4 Ms. Regan claims that on the evening of the 20th November 2007, Ms. B approached her in the class-room and told her that the school had decided to grant Ms. B an honorarium as a mark of its gratitude for her assistance and support to Ms. Regan. The complainant claims that Ms. B told her that she would get a cash payment, travel expenses and a refund of her course fees. Ms. Regan claims that this was extremely upsetting, that although Ms. B was good to offer her assistance, she was not providing a worthwhile professional service. Ms. Regan further contends that the respondent should have discussed this proposal with her first and its actions showed that it lacked any understanding of her needs as a Deaf student in their school.
3.5 Ms. Regan's son appeared as a witness before the Tribunal to give evidence on behalf of his mother. He claims that he rang the school on her behalf and spoke with Mr. A, where he claims that he again outlined his mother's needs as a Deaf person and student in the school. He also claims that it was obvious to him that the school had no procedure in place to provide assistance for people with disabilities.
3.6 Ms. Regan claims that she finished the course. However, there was some confusion in relation to the final exam which she understood she would have to undertake as oral exam. However, on the last evening of the course she was informed that everyone had successfully passed the course and there was no requirement to undertake an oral exam.
3.7 Ms. Regan claims that she informed the respondent of her disability and had outlined her needs as soon as she possibly could and that the school never provided her with any assistance or suggested any alternative to meet her needs. Ms. Regan said that she knows that the cost of the interpreting service is very high - from her calculations it would cost around €1,450 for the entire course - however, if the school was in a position to grant a payment of up to €400 to Ms. B in an honorarium, she believes that money could have been better spent if some thought was put into considering her needs. She also contends that when she joined the school there was no effort made to assist her and there was no follow up to assess how she was doing. Ms Regan claims that she was discriminated against because of her disability by the respondent and was not provided with reasonable accommodation which meant it was unduly difficult for her, a person with a disability, to avail of the services provided by the respondent.
4. Summary of the Respondent's Case
4.1 The respondent, Old Bawn Community School, is a post primary school, which provides Adult Education programmes where classes are held in the evening during the academic school year. It claims that it receives no funding from the Department of Education and Science for any of its Adult Education programme. It claims that it is under clear instruction from the Department of Education and Science to run all its part-time Adult Education programme in a self-financing manner. Accordingly, it claims that it can only run the part-time Adult Education Programme on that basis.
4.2 Mr. A, was head of the Adult Education programme at Old Bawn Community School at the time in question. He claims that he has no memory of meeting with Ms. Regan at enrolment on the 15th September 2007. He claims his first recollection of meeting with Ms. Regan was on the first night of the course on the 2nd October 2007, where she outlined her needs due to her disability. He claims that she asked for a sign language interpreting service and no other alternatives were discussed or sought. He claims it was the first request of this nature he had come across in his time in the school and once he was made aware of her needs he set about contacting other schools and organisations to see if they could point him in the right direction to get help. He was unable to get any satisfaction. He claims that even if he was aware of Ms. Regan's needs earlier, he would still have gone along the same lines and unfortunately arrived at the same conclusion.
4.3 The respondent claims that when it received the complaint from Ms. Regan, Mr. A wrote to her outlining the financial constraints and that it would not be able to pay for the services of a sign language interpreter. He also asked her for suggestions in order for the school to try to come to an acceptable solution. However, no suggestions were made or alternatives were offered by Ms. Regan. Mr. A further claims that in his telephone conversation with Ms. Regan's son, he also asked him for his input into how to get a solution. However, he received no input from him either.
4.4 The respondent claims that it became aware of Ms. B's sign language skills and approached her and asked if she could assist Ms. Regan. It accepts that it was not a perfect solution to Ms. Regan's requirements, but thought that it would be of some assistance to Ms. Regan for the few weeks she attended the course. The respondent claims that it checked with Ms. Regan's tutor to see how things were progressing and things seemed to be going okay, at least, no problems were reported.
4.5 The respondent also claims from its initial enquiry, that the cost of providing a sign language interpreting service to Ms. Regan would have been in the region of €1,300 to €1,700 for the 10 weeks. The respondent was very specific in its evidence in relation to the cost of running the entire Adult Education programme for the year. It presented evidence to show that in 2007/2008 it was left with a surplus of just €119.39 after running the entire Adult Education programme. The total cost of the programme was not fully covered by the fees collected from the participating students alone. It requires the additional money raised from its other services in the school, such as the canteen, to help fund the entire programme. It disputes the figures Ms. Regan claims were paid in a honorarium to Ms. B. It claims that the total cost was €200 in its entirety and this payment was a gesture of gratitude for Ms. B's assistance.
4.6 In response to certain aspects of the complainant's case, which were raised after the initial notification was sent to the respondent, including the issue in relation to the honorarium payment, and some of which were raised on the day of the hearing, the respondent claims that as these were not part of the original complaint that I have no jurisdiction to decide on them.
5. Conclusions of the Equality Officer in relation to the substantive issue
5.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A 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 they can rely in asserting that prohibited conduct has occurred in relation to them. 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, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
5.2 Having regard to the circumstances of this case, I have to consider a number of key questions in relation to this case which I must address in considering whether a prima facie case of discrimination has been established by the complainant in whether she was treated less favourably than another person in a comparable situation because of her disability. In considering these questions and based on the evidence presented, I am satisfied that the complainant is covered by the specific ground under the Equal Status Acts.
5.3 It would appear that at the outset Ms. Regan initiated her complaint by using the official Equality Tribunal forms. On form EE1 she notified the respondent, stating that she believed she was discriminated against by the respondent because of her disability, she stated that she had "a right to communication access" and she refers to the need for "reasonable accommodation" and she asked the respondent "do you not agree that I have a right to a sign language interpreter". At the time of referring the complaint by way of form EE3 to the Tribunal, on the 14th December 2007, it is apparent that both parties had been in written contact with each other and the tone of these communications would appear to be respectful, and in search of a possible solution to the problem that was central to the complaint, namely, the funding of a sign language interpretation service. I note that it was only in late November 2007 that through a series of events in particular where the school offered an honorarium to Ms. B for her assistance, that Ms. Regan became entirely unhappy with the situation, and she includes reference to the honorarium as part of her complaint before the Equality Tribunal. The respondent has asked me not to consider this aspect of the claim and a number of other aspects which were raised by the complainant at the oral hearing as they did not form part of the original complaint which was notified to them.
5.4 The first question that I have to address relates to the jurisdiction of this Tribunal to the investigation of the complaint that was referred to the Director of the Equality Tribunal. Section 21 of the Equal Status Acts sets out the procedure for a person who claims that prohibited conduct has been directed against him/her. Section 21(2)(a) makes provision for the time limits to which a complainant is obliged to adhere to before a complaint can be deemed admissible and this subsection also includes that the complainant shall notify the respondent of the nature of the allegation (section 21(2)(a)(i)). Having considered that the original notification of the complaint sent to the respondent was limited to the respondent's failure to provide interpretation services and having read the referral form lodging the complaint with the Director for investigation which includes the reference to the Honorarium, I am satisfied that the respondent was put on notice of these issues and therefore the jurisdiction of this Tribunal is limited to these aspects of the complaint only. All other references, complaints and issues raised by the complainant post referral of the complaint are outside of my jurisdiction for adjudication.
5.5 I will now consider whether the complainant was discriminated against by the respondent because of her disability in terms of Section 3(1)(a) and Section 3(2)(g). I am satisfied that the complainant successfully enrolled as a student with the school for the course of her choice namely, the 10 week First Aid course. I note that Ms. Regan said that she enjoyed the course and successfully completed it, albeit, in less than an ideal situation in not having the assistance of a sign language interpreter. It is accepted by both parties that the lack of funding for the provision of the sign language interpreter created a difficulty for Ms. Regan. However, no evidence was presented to establish that the complainant was refused access onto the course or was refused a sign language interpreter because of her disability. Therefore, I am satisfied that Ms. Regan was not subjected to less favourable treatment than another person in similar circumstances on the grounds of her disability in terms of the manner in which she was treated by the respondent. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in terms of Section 3(1)(a) and Section 3(2)(g) of the Equal Status Acts.
Reasonable Accommodation and nominal costs
5.6 In the case of disability in considering whether discrimination occurred, consideration must be also made to the issue of the provision of reasonable accommodation to a disabled person. Section 4 of the Equal Status Acts states as follows:
"4.- (1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question".
The question that I must address here is whether the respondent did all that was reasonable to accommodate the needs of the complainant, as a person with a disability, by providing special treatment or facilities. The Acts require the complainant to show, in the circumstances of this case, that the respondent did not do everything it reasonably could do to accommodate her needs as a person with a disability in terms of facilitating her access to avail of its service. Having regard to the wording of Section 4(1) of the Acts, discrimination occurs in circumstances whereby the unreasonable refusal or failure of the respondent to provide special measures or facilities makes it "impossible or unduly difficult" for the person to avail of the services on offer.
5.7 Having regard to the evidence it is clear and not disputed that Ms. Regan was able to attend the 10-week First Aid course. However, I note that the complainant identified her needs with the respondent at the outset prior to the referral of this complaint. I am satisfied that the respondent was fully aware of the difficulties the complainant would experience in terms of her access to its services. I note that Ms. Regan had asked for a sign language interpreter, and no other alternative was discussed with the respondent at the time. I also note that the respondent outlined to Ms. Regan the financial constraints on it and sought the complainant's suggestions in this regard to get a solution. However, no suggestions were offered. I accept the respondent's claim that it made an honest attempt to try to come to a solution and that it was restricted by the short time frame of the request and ultimately the lack of financial resources available to it. There is a difference in opinion as to when the respondent was first made aware of Ms. Regan's needs - 15th September 2007 or the 2nd October 2007 - be that as it may, I note that the respondent claims that it would have carried out the same process as it did in the same way and would have arrived at the same conclusion regardless of when it became aware of Ms. Regan's needs. Accordingly, I note that it was unable to come up with any access to funding to provide a sign language interpreter for Ms. Regan.
5.8 It is apparent from the evidence adduced that while the respondent was investigating the various options available to it that it approached Ms. B to ask her to assist Ms. Regan in class. It would appear that this was done without any consultation with Ms. Regan. I am satisfied that any interim solution should have been discussed with Ms. Regan particularly when it became the only solution offered by the respondent during Ms. Regan's attendance in the school. I note that the respondent's decision to grant an honorarium to Ms. B, as a token of their gratitude for her assistance, compounded Ms. Regan's anger and frustration towards the respondent. I understand the frustration the complainant has expressed in not being facilitated with a sign language interpreter. I understand the complainant's frustration in relation to her view that the she had not been consulted in relation to Ms. B. However, I am satisfied that the respondent's decision to show Ms. B its appreciation for her assistance was made in good faith and not designed to cause Ms. Regan disrespect or to discriminate against her.
5.9 I accept the evidence that Ms. Regan found the course unduly difficult and at times was confused and felt "lost" because of the lack of the appropriate facilities, namely a qualified sign language interpreter proficient in the skills to communicate all aspects of the class work. I note that the respondent's solution to the problem was to approach Ms. B and ask her to assist Ms Regan. I have taken note of the expert witnesses presented by the complainant in relation to the structure of the Irish Sign Language and the importance of having the correct qualified professionals carrying out the interpretation for a Deaf person. This is not in dispute. Likewise it is not disputed that the arrangement offered by Ms. B was not to that professional standard nor was the arrangement ideal. Accordingly, I am satisfied that for the purposes of Section 4(1) that Ms. Regan has established that due to the lack of suitable facilities that it was unduly difficulty for her, a person with a disability, to avail of the respondent's services.
5.10 Section 4 of the Acts provides that where the provision of special treatment or facilities gives rise to a cost, other than a nominal cost, to the service provider in question then the refusal or failure to provide the facilities in question is reasonable. It is accepted by both parties that the costs of providing the sign language interpreter service are high and I am satisfied that when the sign language interpretation costs are considered in comparison to the costs of attending the course, that this amounts to a high multiple of the fee paid by Ms. Regan (i.e. €105 as opposed to €1,450 approx). I note the respondent is under clear instruction from the Department of Education and Science and is obliged to run all its part-time Adult Education programme in a self-financing manner. The Adult Education programme is run totally separate from the schools budget for running its core function, which is providing a post primary educational service. I also note that there are no 'profits' accruing to the respondent from running the Adult Education programme.
5.11 Having regard to the foregoing, I am satisfied that the issue of nominal cost in terms of the provision of the special facilities which the complainant required was a major factor in this case. Having regard to the evidence adduced, I am satisfied that the provision of special facilities, which the complainant required, i.e. a sign language interpreter, would have amounted to more than a nominal cost in the circumstances of the present case. Accordingly, I find that the respondent has not failed in its obligation to provide special facilities or measures for the complainant in accordance with the provisions of Section 4 of the Acts.
6.1 In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision. On the basis of the foregoing 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), 3(2)(g) and 4(1) of the Equal Status Acts, and accordingly, I find in favour of the respondent.
The Equality Tribunal
31st August, 2010