THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision No. DEC-S2011-057
Dublin Institute of Technology
(represented by Arthur Cox, Solicitors)
File Reference: ES/2009/071
Date of Issue: 2nd December, 2011
Equal Status Acts, 2000 to 2011
Decision No. DEC-S2011-057
Equal Status Acts - Section 3(2)(g), Disability - Section 4(1), Reasonable accommodation - Section 7(2) - whether respondent aware of disability -whether impossible or unduly difficult to complete course
1. Delegation under the relevant legislation
1.1. On 15th June, 2009, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. On the 26th April, 2011, in accordance with his powers under section 75 of the Employment Equality Acts 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, on which date my investigation commenced.
1.2. Written submissions were received from both parties. A hearing of the complaint was held on 16th September, 2011. Further documentation was sought from the respondent and copied to the complainant and final correspondence in this respect was received on 24th October, 2011.
1.3. It should be noted that the complainant chose to leave the hearing before it was completed. However, in the interests of fair procedures and natural justice, I clearly stated to the complainant that the hearing would continue in his absence. I was also satisfied that the respondent had been provided with sufficient opportunity to put questions to him. In that context, I proceeded to conclude the hearing in his absence and hear the remainder of the evidence which the respondent chose to present.
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 Equal Status Acts (hereinafter referred to as "the Acts") in terms of Sections 3(1)(a) , Section 3(2)(g) and Section 4(1) of the Acts and contrary to Section 7(2) of the Acts in that the respondent treated him less favourably by failing to provide him with reasonable accommodation with respect to a course he undertook with the respondent institution.
3. Summary of the Complainant's Case
3.1. The complainant outlined his disability and how it manifested itself. In that respect, he stated that he had been diagnosed with dyslexia, dyspraxia and Irlen Syndrome. He submitted that he was enrolled in the learning and teaching Certificate in Third Level Education Course provided by the respondent at its Mount Street Campus. He stated that he first informed the respondent of his disability in October 2007 in a conversation he stated he had with the named programme leader. He stated that he also informed one of his tutors, Ms A, of this disability. He stated that he was not seen by the disability service until 29th April, 2008 and gave a detailed account of the efforts he made to contact the respondent in that respect.
3.2. The complainant submitted that he was not provided with reasonable accommodation by the respondent with respect to the course in question. In that context, he referred to a number of particular requirements which he considered to be special treatment or facilities without which it was impossible or unduly difficult for him to complete the course in question. Firstly, he referred to one-to-one tuition to assist him with his writing which he stated he received "for a while" from Ms A but did not receive after she went out sick towards the end of 2007. With respect to an e-mail the respondent said he received from Ms A in 2008 in that respect (which appeared to indicate that he had no contact with Ms A prior to that time), he said that he could not recall receiving this e-mail.
3.3. The complainant also referred to the teaching observations requirement of the course in question and stated that the respondent failed to provide him with simulated student and tutor observations as promised by it. In that regard, he gave an account of when he stated that promise was made. He stated that he had been unable to finish the required components for this element of the course as his teaching hours had been changed in the educational institution where he had been undertaking them. He outlined the efforts he had made to arrange teaching hours himself. He accepted that the requirements of him in this respect were the same as for everyone else.
3.4. The complainant stated that he also required particular computer programmes. In that respect, he said that he was told by Mr C of the respondent's disability service in April 2008 that he would be able to obtain funding for these programmes as well as for a laptop and a dictaphone. He said he did not request these but was told they were all part of a disability student allowance.
3.5. The complainant also stated that the respondent failed to obtain disabled student funding for him. He said that he first became aware of the existence of this funding when he met Mr C in April 2008. The complainant stated that he was familiar with requirements for obtaining disability-related services in UK colleges from having completed courses there, but he stated that the methodology for obtaining this funding was a lot different in the UK to Ireland.
3.6. In general, the complainant submitted that the respondent failed to do anything to provide him with the support which he needed to complete his course successfully. He submitted that, consequently, it failed to accommodate his progression from the course in question onto the learning and teaching diploma M.A. despite several requests to the respondent for the special treatment already outlined.
4. Summary of the Respondent's case
4.1. The respondent submitted that if students require additional supports on the ground of disability, they are required to register with the Disability Service. In that context, it stated that the complainant had failed to identify himself as being a person with a disability in a timely manner. It stated that the application form for the complainant's course did not include an explicit opportunity to indicate whether an applicant had a disability and the complainant had not otherwise given any indication he had a disability on that form. It provided a copy of the complainant's application form to the Tribunal in that context.
4.2. The respondent also stated that the services in question were widely advertised in relevant publications, including on its website, and that, if the complainant had made the appropriate enquiry, he would have been directed to Disability Services. It outlined why it could not accept his contention that he made requests to access those services prior to April, 2008. Prior to the hearing, it also provided a detailed written account of all communication it had with the complainant.
4.3. Nonetheless, the respondent stated that, once the complainant had informed it of his requirements with respect to his disability, it made every effort to provide reasonable accommodation to him and that it had engaged with him in that respect. It stated that it spoke with him about those requirements and that it provided him with the special facilities that it provides to all disabled students, including exam accommodations. It also stated that Ms A endeavoured to provide him with assistance with note-taking skills and reading strategies but only after he had informed it of his disability in April 2008 and, in that respect, it denied that he had received assistance from Ms A before that time.
4.4. The respondent stated that EU funding was available to students with disabilities such as the complainant's but was not available to part-time students of which the complainant was one. In any event, it stated that the final deadline for receipt of such funding for that year had passed before it became aware of the complainant's disability. It stated that Mr C might have spoken to him about the facilities outlined in par. 3.4 above but was not aware that the complainant was a part-time student and therefore not eligible for the funding in question.
4.5. The respondent stated that the complainant approached it about arranging teaching practice within the college. It stated that it told him that it was a matter for individual students to organise their teaching practice but that it could be quite flexible in its interpretation of what that teaching context might be. It denied that it ever promised he could carry out his teaching practice within the college. It stated that the difficulties he had in completing the course were entirely unrelated to his disability as they related to his obtaining teaching hours. In that respect, it said the onus was on the student and the difficulties he encountered in meeting the necessary requirements were unrelated to his disability.
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.
5.3. Section 7(2) of the Acts states as follows: "An educational establishment shall not discriminate in relation to --
(b) the access of a student to any course, facility or benefit provided by the
(c) any other term or condition of participation in the establishment by a student,
5.4. The complainant submits that the respondent failed to provide him with special treatment or facilities without which it was impossible or unduly difficult to complete the course in question. However, I am not satisfied that the complainant made the respondent aware of his disability prior to April 2008. In those circumstances, the respondent was not in a position to provide him with special treatment or facilities. In any event, it is clear that the complainant had completed the requirements of the course up to that point without any great difficulty and, in that context, it is clear that it was not impossible or unduly difficult for him to access any course, facility or benefit provided by the respondent or to comply with any other term or condition of participation on the course in question.
5.5. With respect to the provision of reasonable accommodation after April 2008, it is clear that the only treatment that the complainant required to allow him complete the course and move on to the next stage was the completion of his teaching practice requirement. The only reason why he was unable to complete this element of the course in question was because his teaching hours had been changed by the institution where he was carrying out those teaching hours and he had been unable to obtain the required teaching hours elsewhere. This was clearly unrelated to his disability. In that context, Section 4 does not apply and it is irrelevant whether the respondent promised to provide him with an opportunity to complete the required teaching hours or not.
5.6. The complainant has failed to establish a prima facie case of discrimination of him by the respondent and his case fails.
6.1. Having investigated the above complaint, and having concluded my investigation, I hereby make the following decision in accordance with Section 25(4) of the Equal Status Acts:
6.2. I find that the complainant has failed to establish a prima facie case of discrimination of him by the respondent on the Disability ground in terms of Sections 3(1)(a), 3(2)(g), Section 4(1) and Section 7(2) of the Equal Status Acts.
6.3. The complainant's case fails.
2nd December, 2011