The Equality Tribunal
Equal Status Acts, 2000 to 2008
Equality Officer Decision
A Mother, on behalf of her Son
Board of Management of a Boys' National School
[Represented by P.J. O'Driscoll & Sons, Solicitors]
File Ref: ES/2009/0122
Date of Issue: 11 April 2012
Keywords: Equal Status - Disability - Direct discrimination - Failure to provide reasonable accommodation - Equal Status Acts 2000 to 2008, s. 4 (1) and 4 (2).
1. This complaint was referred to the Director of the Equality Tribunal on 27 November, 2009 under the Equal Status Acts, 2000-2008 (hereinafter "the Acts"). The respondent was notified of this complaint on 23 September, 2009. On 30 April, 2010 the Tribunal received a written submission from the complainant. A responding submission was received from the respondent on 21 June, 2010. As required by section 25(1) of the Acts and as part of my investigation, an oral hearing was held on 13 May, 2011 and both parties were in attendance.
This dispute concerns a claim by the complainant, a mother on behalf of her son (hereinafter "the complainant") that he was discriminated against by the Board of Management of a Boys' National School (hereinafter "the respondent") on the disability ground in terms of section 3(2) (g) of the Acts contrary to section 7 of the Acts and by its refusal or failure to do all that is reasonable to accommodate his needs as a person with a disability, contrary to section 4(1) of the Acts.
3.1 At the time of the alleged discrimination, the complainant was a pupil in sixth class of the respondent primary school, a mainstream national primary school for boys. He has the condition Down Syndrome with moderate learning difficulties and a speech impediment. The complainant has been a pupil in the respondent school for 9 years. The complainant states that he has always been made welcome by staff and students alike and has been treated as a valuable member of the school community. He has received a fully inclusive and integrated education, based on his Individual Education Plan (I.E.P.). He states that each and every teacher he has had prior to sixth year has enthusiastically adhered to his I.E.P. Throughout his time at school his father has been employed by the respondent as the complainant's special needs assistant (SNA) and has sat with him in class.
3.2 The complaint relates to how the complainant was treated in the first month of his sixth class, September 2009. During the fortnight 1st to 14th September 2009 the complainant's class were taught by a substitute teacher, a retired school principal, Mr S. During the second fortnight, 15 to 30 September 2009 the class were taught by the class teacher for the year, Ms S, until she went on sick leave and was replaced. Mr S is the father of Ms S.
4. Summary of complainant's case.
4.1 The complainant claims that the substitute teacher Mr S treated him less favourably than the other boys without a disability. In particular, no interaction of any kind occurred between Mr S and the complainant, according to his father who was his SNA. There was no allocation of teaching time to the complainant by Mr S. He was not issued with any school work for the day, there was no correction of any work in class, no homework was given, and there was no verbal address by Mr S to the complainant to during the two weeks Mr S was teaching. By comparison, all the other pupils received instruction, correction etc. in the relevant curriculum. The complainant believes it was because of his learning difficulties Mr S ignored him and was either unable or unwilling to educate him. No other child was ignored.
4.2 The complainant claims that Mr S also failed to make reasonable accommodation for his disability. On 11 September 2009 the complainant requested permission to go to the toilet. He approached Mr S and as he would speak more slowly than other pupils, he said "May, May, I, I... ..." and without being allowed finish his sentence, he was told by Mr S "Oh just go!" The complainant found this very humiliating in front of the class. Mr S was unwilling to give the complainant enough time to finish his sentence. Instead of recognising his speech difficulties, encouraging him to speak properly, and having the complainant formulate his request clearly, Mr S cut him short and dismissed him. No other pupils were treated in this way.
4.3 The complainant was not allowed to read aloud when the other boys were reading from their books. When the other boys had finished reading, Mr S asked "Did I miss anyone?" When the complainant stood up and went to the front of the class to read, Mr S told him "Sit down; the other boys were taking down their homework now". The complainant got very upset, replied "That's not fair!" and started to cry. This incident was witnessed by the complainant's father, his SNA. Another parent reported her son's account of the incident to the complainant's mother.
4.4 On 15 September the Class Teacher Ms S returned from maternity leave. The complainant states that there was no interaction between the teacher and the complainant all day, no class work or homework given to him. The teacher spoke to the complainant's father and said that she had seen an advert in the Examiner newspaper for a Special School and that his parents should make enquiries and perhaps think about sending him to the school for a day or two a week. The parents considered that the teacher was acting way beyond her remit and in suggesting that the complainant might attend another school for a certain time each week was to suit herself, not the child. Also Ms S asked his SNA to remove him from class for 30 minutes as she wanted to set a test for the other boys in the class. This had never happened before and was discriminatory.
4.5 On 17 September the complainant's father and SNA complained to the Principal about discrimination.
4.6 On 21 September the SNA was working on a one-to-one basis with the complainant at the back of the class. Ms S approached and said in an aggressive manner "I can't have this talking." So the SNA gave the complainant some non-verbal written work and sat him with the rest of the class where he normally did his writing. The teacher told him not to sit there but to return to the back of the class. The complainant's parents believe that this was discriminatory. Their son had always interacted verbally and quietly with his SNA in his class. This was part of his ongoing education as set out in his IEP. He had always sat with the other boys when writing.
On 22 September the class teacher, Ms S asked to speak to the SNA outside the classroom. She told him she could not teach in class because of the level of noise from the complainant and him. No previous teacher had mentioned there was a problem with the complainant and his SNA conversing.
On 24 September the complainant's parents made a formal complaint to the Board of Management on their son's behalf. Following the complaint their son received school work from Ms S on 28 September. This was the first time since 1 September that the class teacher or substitute had taken steps to teach him. Up until then the only teaching he had received was what the SNA had provided. The parents believe that the class teacher had a premeditated strategy to have their son removed from her class.
When asked what redress they sought the parents said that they wanted an admission that these things happened and shouldn't have happened and they want an apology.
Summary of respondent's case.
The allegations made by the complainant were fully and formally investigated by the Board of Management. The respondent denies any discrimination occurred. The complainant concluded his primary school education at the respondent in May 2011. He is a success story in terms of the mainstream education of a child with special needs. He was very well liked at the school. The complainant was one of 21 boys in sixth class with Ms S as class teacher. He was also allocated a full time SNA (his father) and a Resource Teacher (Ms R) who provided one-to-one teaching for 40 - 45 minutes every day. Ms R was absent from work for medical reasons during the three weeks of September 2009 that are the subject of the complaint.
During the first two weeks of September 2009 Ms S took pre-arranged parental leave. Mr S, Ms S's father, a retired primary school principal substituted for Ms S from 1 to 14 September 2009, inclusive, comprising 10 school days.
Ms S reported to work on Tuesday 15 September 2009 as arranged. Ms S was absent on 17 and 18 September 2009 for two days as her own child was hospitalised requiring her absence from work. Her father Mr S substituted for her on those days.
Allegations of discrimination against Mr S were made verbally to the school principal on 17 September 2009 by the complainant's SNA who was his father. The school principal enquired whether the complainant's father wanted him to investigate his allegations and the complainant's father replied that he did not require any steps to be taken as Ms S would be back and all would be fine.
Ms S taught the sixth class boys for a net four school days before a written complaint to the school issued. A written account of the alleged discrimination against both Mr and Ms S was hand delivered to the respondent on 23 September 2009 informing the respondent of the complainant's intention to submit a complaint to the Equality tribunal.
A detailed investigation in line with INTO agreed procedures commenced and a decision issued from the board of Management to the parents on 30 April 2010. In broad terms the allegations made by the complainant have been put to both teachers for their reply. The Board of Management did not find that any discrimination occurred. A summary of the findings of the inquiry by the Board of Management as communicated to the complainant's parents is as follows:-
"The Board of Management acknowledges and sincerely regrets any upset, distress and hurt felt by you, on behalf of your son in relation to difficulties that arose in the early weeks of his transfer and entry into sixth class.
"A number of combined factors contributed to the difficulties that arose:
1. The class teacher was absent on approved Parental Leave from Sep 1 to Sep 14. She was replaced by a substitute teacher, Mr S. He had done substitute work previously in the respondent school and was and still is highly thought of as an excellent teacher with vast experience, especially at 6th class level and was chosen specifically to cover these two weeks by the Principal precisely because of his excellent reputation as a teacher.
2. In June 2009 when teacher/class allocations for the school year 2009/2010 had been completed and when the class teacher's Parental Leave had been approved, it was confirmed to the SNA that the class teacher would be on leave for the first two weeks of September and would be replaced by a substitute teacher. The class teacher agreed with the SNA and with the Principal in June 2009 that the substitute teacher would 'look after the class and that the SNA would take care of the boy'.
3. It was the case that the substitute teacher clearly understood from the class teacher that 'he would look after the class and the SNA would take care of the boy'.
4. It was also unfortunate that the complainant's Resource/Support teacher, Ms R was unavoidably absent from school on sick leave during this time, and the complainant was not in receipt of his allocated Resource teaching time of 45 minutes per day.
"The upset, distress and hurt felt by you on behalf of your son in relation to the difficulties that arose in the early weeks of his entry into 6th class, is sincere, heartfelt and genuine.
a) In relation to Mr S, the Board had employed him several times in the past in a supply capacity in the school and was, and still is, highly regarded as an excellent teacher with vast experience, especially in 6th class level and was chosen specifically to cover these two weeks by the Principal precisely because of his excellent reputation as a teacher.
b) The Board also wishes to acknowledge the excellent relationship that has existed between the school and the complainant's family all through the complainant's primary school years up to September 2009.
c) The work of the SNA (the complainant's father) with the complainant throughout his primary school years has been pivotal to the 'success story' regarding the complainant already referred to. While the SNA role is primarily a caring role (not a teaching one), it is acknowledged that SNAs in most mainstream settings generally go beyond their 'caring role' in order to support the children in their care. The boy's SNA is a competent and effective SNA who has been and continues to be a valued member of the staff of the school.
d) The Board notes that Mr S did not deny that the incidents relating to going to the bathroom and the reading incident happened, but that he emphatically insisted that it 'wasn't at all like it was reported in the letter of complaint.'
e) Mr S stated categorically in his response to the complaint that there 'had not been any neglect of or discrimination against the boy during his time in class'. He did, however, say that he found the presence of the boy's father as SNA 'intimidating' at times even though there was little interaction between them for the two weeks.
f) The Board wish to acknowledge the upset and distress felt by Mr S as a result of the aforementioned allegations. Mr S reported that he felt that 'his reputation and standing within the teaching community had been severely and unjustifiably attacked by the parents for which I am entitled to expect an apology and retraction'.
g) If the two incidents above i.e. the boy's request to read aloud and to go to the bathroom, happened as alleged, even inadvertently, it would be most unfortunate and certainly not consistent with the highly professional behaviour exhibited by this substitute teacher, in all of his previous periods of employment in the School.
h) Further, if the direction from the teacher Ms S to the substitute was, that the substitute would 'look after the class and that the SNA would take care of the boy', then it would seem to have been over-interpreted by the substitute teacher if he (Mr S) took this to mean that he wasn't to have any interaction at all with the boy or with his SNA (as also alleged) during the two weeks.
i) However, even though it is clear that there was indeed a plan in place for the boy for the 2 weeks of Ms S's approved leave, the perceived deficit of interaction between the boy and Mr S and the SNA, seems to have led to very real difficulties that arose during these two weeks.
j) To conclude, the Board sincerely regrets the upset and distress the difficulties aforementioned have caused for the boy and for you, as the boy's parents.
k) Notwithstanding the aforementioned difficulties and considering the care and provision made for the boy during his time to date and which is still ongoing in the School, the Board of Management does not believe that this amounts to discrimination on the part of Mr S or on the part of the school.
"In relation to Ms S, the Board notes that she has worked in the School since 1987. She is a competent and effective teacher. She is highly regarded as an excellent teacher with vast experience, especially at 6th class level. In any case, her competence or performance as a teacher is not a matter for consideration here.
1) Ms S 'stated categorically that there 'had not been any neglect of or discrimination against the boy during her time in the class'. She 'totally and categorically refutes' that she had no interaction with the boy on the 15th September claiming:-
a) That she spent from 9 to 9.15am speaking to the SNA about the boy;
b) That she discussed the plan for the morning with SNA;
c) That she discussed the reasons why she would give a lower level 2 (Micra T) reading test to the boy;
d) That she acquired a lower level (1) subsequently as level (2) was too difficult;
e) And that when the test was over, she gave him a bar of chocolate and praised him.
2) The Board notes in your letter of complaint that it is your prerogative whether you ever send the boy to Special School. Ms S refutes this allegation stating that she sees it as part of her role to assist the transition of children from Primary to Post primary and offer advice as she has always done.
The Board finds in relation to this issue that, while it is certainly part of the role of the 6th class teacher to give advice in relation to a pupil transferring to second level, this should be done sensitively, sparingly and only when an opinion is asked for, as per existing school custom and practice.
The Board accepts that it was never the intention of Ms S to cause distress or upset in relation to this matter. However, it believes her actions to be unfortunate at the very least, i.e. to give an opinion that could have been interpreted as seems to be the case, as relating to the present school year and not the forthcoming one.
3) The Board holds the allegations relating to 17th September to be unfounded as Ms S was absent from work on that day as her own child was hospitalised. Ms S was not on the school premises on 17th September.
4) Ms S also totally refutes that the boy was ignored on 18th September citing:
a) The boy was included in the Red Day celebrations on the day
b) The SNA was approached that morning regarding the boy's work
c) They agreed that the SNA would keep going like he normally does with the boy
d) At 11.30am, during PE, the boy was included
e) The boy enjoyed participation in 'The boy in the Striped Pyjamas' from 1 to 1.30pm.
5) On the balance of probability, it seems that the above interactions did take place on the 18th September and therefore does not equate to the boy being completely ignored by Ms S on these (two) days as alleged in the letter of complaint.
6) It is acknowledged that Ms S approached the Principal a number of times about 'the noise' in the room in relation to the interactions between the boy and his SNA. The preferred way of dealing with this and such matters however, as with all issues relating to classroom and child management, is for the teacher to speak to the parents of the child. This is usually the best and recommended way to make progress for all concerned.
7) In this case the SNA was doing what he had been previously doing in other years i.e. 'working away' with the boy while doing his best to keep these interactions as quiet as possible for the benefit of the class and the teacher.
8) Indeed the SNA was doing here what he believed had been agreed with Ms S 'that he would work away with the boy as before'.
9) The Board also wishes to acknowledge the upset and distress felt by Ms S as a result of the aforementioned allegations. She has reported that 'On both a personal and professional note, I am completely devastated by its content.'
10) The teacher, while declining the advice from the Principal to meet with the boy's parents at the earliest opportunity, acted correctly in reporting the difficulties that were emerging to the Principal.
11) The Principal was informed of the situation by the SNA on September 17th. When the Principal asked the SNA if he wanted him to look into it further, he replied "No, Ms S will be back and everything will be fine". When again asked if he was sure about this he replied "Yes I am".
12) The Board held that this specific request by the SNA to the Principal, not to 'look into it further', put the Principal in the difficult position of knowing a difficulty existed but being effectively prevented from intervening at that point. In any case, the remark 'Ms S will be back and everything will be fine' led the Principal to believe that this indeed would be the case.
13) To conclude, the Board of Management once again sincerely regrets the upset and distress the difficulties aforementioned have caused for the boy and for his parents.
14) Notwithstanding the very real difficulties aforementioned and considering the care and provision made for the boy during his time in the school the Board of Management does not believe that this amounts to discrimination on the part of Ms S or on the part of the school.'
The relevant sections of the Equal Status Acts are as follows:
Section 2 (1) -
"disability" means --
(a) the total or partial absence of a person's bodily or mental functions, 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
Discrimination is defined in Section 3 -
(1) (a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the 'discriminatory grounds') which --
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned
(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:
(g) 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")
And in section 4 (1) -
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.
7. -- (1) In this section "educational establishment" means a preschool service within the meaning of Part VII of the Child Care Act, 1991, a primary or post-primary school, an institution providing adult, continuing or further education, or a university or any other third-level or higher-level institution, whether or not supported by public funds.
(2) 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, facility or benefit provided by the establishment,
(c) any other term or condition of participation in the establishment by a student,
(d) the expulsion of a student from the establishment or any other sanction against the student.
(4) Subsection (2) does not apply -- ...
(b) to the extent that compliance with any of its provisions in relation to a student with a disability would, by virtue of the disability, make impossible, or have a seriously detrimental effect on, the provision by an educational establishment of its services to other students.
5.2 I must 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 he can rely in asserting that prohibited conduct has occurred in relation to him. 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, written and oral, made to me by the parties to the case.
5.3 I am satisfied that the complainant has a condition (Down syndrome) which is a disability within the meaning of the Acts.
5.4 This is a very sad story of the breakdown of a close and beneficial relationship between the parents of a pupil with a learning disability and a school which (according to the parents and others) provided a first class supportive learning environment for the pupil. The appointment of the father of the pupil as his SNA is unusual but, in the view of the school, it has for the most part been beneficial. The SNA was well qualified and while both Mr S and Ms S stated that the felt intimidated by having the complainant's father in the classroom as SNA, the principal at the hearing still stood over having the father as SNA. Many of the facts alleged by the complainant have been conceded by the respondent in the report of their enquiry into the allegations.
5.5 I shall now list the facts as I found them and go on to consider if they prove discrimination as alleged. If any treatment complained of was not discriminatory, it is not my function to decide if that treatment was appropriate or not from an educational or any other perspective or if the response of the Board of Management to the complaint was adequate.
Allegations against Mr S.
5.6 It is clear that the fundamental problem arose because both the class teacher, Ms S and the resource teacher Ms R were unavoidably absent during the first 2 weeks of the school year. It is also clear that a plan was agreed between the SNA, the class teacher and the principal that the SNA would work away with the complainant while the substitute teacher was present. The Board of Management stated in its report that even though there was a plan in place, the perceived deficit of interaction between the substitute teacher, the complainant and the SNA seems to have led to very real difficulties. On the balance of probabilities I find that the substitute teacher misunderstood his role vis-à-vis the complainant. As regards the incidents of asking to go to the bathroom and reading aloud, I find that these incidents happened as alleged.
5.7 However less favourable treatment in the classroom can only be considered discrimination under the Acts if the less favourable treatment constitutes "a term or condition of participation in the educational establishment by a student". In the present case, however, it was the belief of the school, based on what had been agreed earlier, that the complainant was receiving adequate education during the 2 weeks in question and in my view the school took such steps as were reasonably practicable to provide for this. The "deficit of interaction" could have been tackled earlier if the complainant's father (who was uniquely placed as SNA) had raised the issue sooner. I do not consider that the lack of engagement by the substitute teacher with the complainant constituted discrimination. The reading incident, a one-off event, does not constitute a less favourable term or condition of participation within the meaning of the Act and is therefore not discriminatory.
5.8 As regards the bathroom incident, if a teacher was to refuse to allow a child to go to the bathroom on any of the discriminatory grounds this may constitute discrimination in access to a facility, contrary to section 7 (2) (b) of the Acts. In this case the complainant was not in fact denied access to the toilet and was therefore was not discriminated against.
Allegations against Ms S.
5.9 The complainant's parents allege that the actions or omissions of Ms S are evidence of a premeditated strategy to have their son removed from her class. I do not believe this to be the case. Ms S disputes the facts presented by the complainant to the effect that she did not engage with the complainant. On balance I find that Ms S has given enough evidence for me to conclude that she did not ignore the complainant.
5.10 The complainant alleges that Ms S excluded him from class on the grounds of his disability. I believe that Ms S asked the SNA to take the complainant outside while she set a test for the class because she understood that a) the test should be conducted in silence and b) the complainant would require his SNA to talk him through his test. It was not because of his disability that he was asked to sit his test outside.
5.11 The complainant alleges that Ms S suggested sending him to a special school. While this approach was not welcome, I think it was made in good faith. There is nothing discriminatory per se about special schools and it is normal for schools and parents to discuss second level options for 6th class primary pupils.
5.12 The complainant alleges that Ms S discriminated against him by demanding quiet from the SNA while she was teaching and by directing him to sit at the back of the class. Alternatively the teacher, by objecting to the SNA and complainant talking she was denying reasonable accommodation. It is clear that the Board of Management consider that the dispute about noise in the classroom could have been better handled by the class teacher. I do not consider that the actions of the teacher were directly or indirectly discriminatory on the ground of disability. A teacher must be allowed a certain autonomy under the Acts in how he or she teaches and controls a class.
5.13 I am satisfied that, taken as a whole, the school made reasonable accommodation for the needs of the complainant. In so far as the standard of education during the period in question fell below what was usually provided by the school to the complainant, this was due in the main to exceptional circumstances and was not of sufficient gravity to bring it within the definition of discrimination in the Act.
6.1 In reaching my decision I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision.
6.2 I find that the respondent did not discriminate against the complainant on the disability ground pursuant to section 4 and section 7 of the Acts.
11 April 2012.