ADJUDICATION OFFICER DECISION
A Former Student
Complaint Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 25 of the Equal Status Act, 2000following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant referred her claim to the Director General of the WRC on 21st January 2019 alleging that she was discriminated against by the Respondent on the grounds of her disability and that she was victimised.
The Respondent disputes the claim.
A hearing for the purpose of investigation of the complaint was arranged for 18th June 2019. Further to the Complainant’s request to have the hearing arranged in a location nearer to her place of residence the hearing was re-scheduled for 1st August 2019 at a location more convenient for the Complainant.
On the first day of the hearing the Complainant expressed her dissatisfaction with the Respondent forwarding its submission on 29th July 2019, three days before the hearing. She argued that the decision of the Respondent to submit their response at this late stage was an attempt to place her at a disadvantage.
The Respondent explained the delay in the submission and noted that it would not be in a position to proceed with the hearing in the circumstances where the Complainant argued that she did not have an opportunity to familiarise herself with its submission. The Adjudication Officer offered the Complainant an adjournment to allow her to familiarise herself with the Respondent’s submission. The Complainant did not agree to the hearing being adjourned. She confirmed clearly that she was happy that she had sufficient time to read and consider the Respondent’s submission including appendices and she was happy to proceed.
The parties agreed at the hearing that any further evidence they wished to rely upon would be submitted to the WRC by 12th August 2019. The Complainant was informed that should she have difficulties in doing so, she should contact the WRC. The day after the hearing, the Complainant emailed the WRC to inform that due to doctor appointments she would be unable to forward relevant evidence until 19th August 2019. The Complainant continued to furnish the WRC with additional evidence up until 16th September 2019 at 7.09pm (the night before the second hearing date). This latest correspondence was not forwarded to the Adjudication Officer or the Respondent until the afternoon of 17th September 2019 (the day of the hearing). The Complainant was informed that any new evidence which was not open to the Respondent prior to or at the hearing cannot be considered.
The Complainant also submitted that the hearing (second day) went on with only small breaks in “a deeply intimidating and pressurised environment”. In her correspondence with the WRC, the Complainant noted that she did not fully process some questions at the time of the hearing due to “highly pressurised and intimidating circumstances of the hearing, in which the respondent’s side had several witnesses and I was representing myself with a disability…” In that regard, I would like to note that the Complainant was asked by the Adjudication Officer if she was comfortable to proceed with the hearing unrepresented and she confirmed she was. She was accompanied by her mother. The Complainant was informed by the Adjudication Officer at the outset of the hearing that, if any stage she required a break it would be facilitated. On the second day of the hearing, the Complainant requested and was provided with some seven breaks. The Respondent and the Adjudication Officer left the hearing room on each occasion as the Complainant indicated that she would prefer to take the rest in the room.
Moreover, the Respondent’s solicitor confirmed that she was specifically instructed by the Respondent to limit the number of individuals present in the hearing room to a minimum. On the first day of the hearing the persons in attendance were the Respondent’s solicitor, a trainee solicitor (note taker) and one witness. On the second day of the hearing, all the witnesses for the Respondent remained outside the hearing room and were called individually to the room to give evidence. Furthermore, the Respondent has forsaken its right to cross-examine the Complainant, which reduced the pressure and stress the Complainant claims she was exposed to.
At the outset of each hearing day the Complainant confirmed to the Adjudication Officer she is happy and comfortable to proceed without representation.
On the first day of the hearing, the Adjudication Officer drew the parties’ attention to the fact that the Workplace Relations Commission is obliged by legislation to publish its decisions.
Having considered the parties’ submissions and in keeping with the Commission’s normal approach concerning complaints involving material of a sensitive nature, I have decided to anonymise the identities of the parties involved.
In her correspondence, the Complainant also raised the matter of the hearing taking place over two days. She incorrectly claimed that “due to the respondent’s request for the hearing to take place over two days, the adjudication officer stated that there will be two adjudication hearings”. In that regard, I would like to point out that no such request was made by the Respondent. Rather, the first day of the hearing was dedicated almost in its entirety to the Complainant’s submission and her witness’s evidence. Due to time constraints only one of the Respondent’s witnesses gave evidence and was cross-examined.
Both Parties offered extensive submissions related to various matters referred to in the substantial correspondence between the Parties. For the purposes of this decision only matters relevant to the abovementioned claims are considered.
Summary of Complainant’s Case:
The Complainant referred her complaint to the WRC on 21st January 2019 alleging that she was discriminated against by several staff members of the Respondent due to being a student with a disability. She believes that she had suffered both direct and indirect discrimination due to the refusal and failure of the Respondent to implement reasonable accommodation, which greatly exacerbated her disability and made it unduly difficult for her to complete her studies. She believes that she has also been victimised by the Dean of Graduate Studies for making a complaint of discrimination within her appeal form in order to have her project remarked or to submit another form of assessment or sit an exam.
The Complainant submits that the most recent discriminatory incident was on 24th October 2018 when she received a response to her appeal from the Dean refusing her project to be re-marked or to submit another form of assessment. The Complainant also submits that she was victimised as well as directly discriminated against when the Dean rejected her appeal, as she made a complaint of discrimination within her appeal form. The Complainant claims that the postgraduate advisor to whom she initially took her appeal when she first received her results on the 5th September 2018, informed her that the fact that she had been incorrectly advised was grounds in itself to attain a remark from the Dean of Graduate Studies. However, the Dean refused, and Mr AA refused to assist her any further. The Complainant submits that she also appealed this decision and eventually received a reply from the Registrar of the Respondent on the 7th January 2019 stating that she wouldn’t go against the opinion of the Dean.
The Complainant submits that she failed the summer project and thus could not attain her master’s degree. She believes that she was unfairly and improperly marked leading to her failing the summer project. The Complainant believes that her mark was based on false claims such as that she missed deadlines, failed to communicate with the project group, lacked professionalism, that she did not live in the Respondent’s location and that she did not fully commit to the course. She also believes that she was unfairly denied her chance to attain her master’s by being refused to have her project remarked by an independent, external examiner, to submit a supplementary form of assessment, or to redo the project.
The Complainant also claims that she did not receive reasonable accommodation in terms of being placed in a group that was appropriate for her as a student with a disability despite requesting this from the supervisor and being informed that her circumstance would be taken into account.
She also claims that assignment extensions were denied by the Course Director on two occasions (mid-May 2018 and mid-October 2017).
The Complainant presented a very extensive submission on the first day of the hearing. The Complainant contended as follows:
Firstly, the Complainant submits that the Respondent has contravened the GDPR data protection and privacy laws by providing her private and confidential information to its solicitor. She submits that providing this information is an attempt by the Respondent to obfuscate the matter at hand.
The Complainant also takes umbrage with the Respondent’s suggestion that her case is a waste of the Adjudication Officer and Workplace Relations Commission’s time and that this is merely a case of a student being dissatisfied with their mark. She claims that this case is about an assertion of her rights as a citizen of Ireland living with a disability and to safeguard the rights of other students with a disability so that future students will not have to endure the way in which she was treated. This, in her opinion intimates the mindset of the Respondent in that it believes that it is beyond reproach.
The Complainant submits that due to the nature of her disability, the disability supports that she requested included flexibility on deadlines, attendance, emailing presentations in lieu of speaking, working in small groups, working with group members that she is comfortable working with and support during group meetings.
The Complainant submits that she qualifies as suffering from a disability, as outlined in Section 2(1) of the Equal Status Acts 2000-2015.
Her notification to the Respondent and her claim for redress were all sent within the appropriate time, as outlined in Section 21(1) of the Equal Status Act. She claims that the Respondent is an “educational establishment” as defined in Section 7(1) of the Acts and covered by the Section 7(2) of the Acts.
The Complainant further relies on: Section 3(1), Section 3(2)(j)(iv) and (v), Section 4(1) and Section 4(6).
The Complainant submits that first incident of discrimination occurred on the 29th September 2017 when the Complainant confided in the Course Director that she has a disability and the accommodations that she required in order to complete the course. This was before the second week of the course commenced. The Course Director informed the Complainant that it would be difficult for her to continue on the course if she didn’t speak publicly and that she should have informed him earlier that she had a disability. The Complainant then informed him of the duty that lecturers have to implement accommodations for students with disabilities. He appeared to have an aversion to providing her with accommodations as a student with a disability and on account of his attitude, she felt that he would not have given her a place on the course if she had informed him of her disability beforehand.
The Complainant submits that she then had to continually push throughout the first two months of the course for the small, reasonable accommodations that she had requested to be implemented. The Course Director delayed consenting to her learning educational needs summary report (LENS report) and she had to pursue the matter with her Disability Officer and several members of the department. The Complainant claims that she had to email the academic liaison officer for students with disabilities several times throughout October 2017 and her mother also emailed him stating that the delay by the Course Director in confirmation over whether the accommodations would be implemented was having a tremendous impact on the Complainant’s ability to continue on the course. This caused her undue stress and anxiety and greatly exacerbated her disability. The Complainant submits that she was on the verge of leaving the course due to his delay in implementing the accommodations and she also communicated this to her Disability Officer during a meeting on the 19th October 2017 which also related to the Course Director’s refusal to grant her an accommodation and she was also in tears due to the lack of support she was receiving from the Course Director during this meeting.
The Complainant submits that on 19th October 2017 the Course Director refused to grant an extension on an assignment as outlined in the LENS report. On the 23rd May 2018, the Course Director again refused an extension on an assignment. The Complainant only asked for an extra day extension on this project pitch assignment. The course had a myriad of assignments and these assignments were constant. The Complainant submits that she requested these extensions due to illness associated with her disability. Other students were also receiving extensions due to the workload of the course and the Complainant submit that she was the only student on the course with a disability.
The Complainant submits that the Course Director and Supervisor (BB) refused to place her in a group that was suitable for her as a student with a disability. BB assured the Complainant in an email sent the 16th April 2018 that she would be accommodated. During one of the supervisory meetings in early April 2018 with BB, the Complainant informed her that she wished to be placed in a group with people that she had worked with before and that she was comfortable working with. The Complainant stated that it would greatly exacerbate her disability to be placed in a group with people that she had worked with before who in her experience of working with them had a domineering attitude and that she had experienced difficulties working with. The Complainant clearly stated to BB that she did not wish to work with either EE or XY. She also stated that she particularly wanted to work with EO and KK, as she felt the most comfortable working with them. BB then stated to the Complainant that she should email her in May reminding her of the Complainant’s need to be accommodated and stating the names of the people that she wished to work with. As the Complainant was so worried about the arrangement of groups for the summer project, she emailed BB on the 11th April to remind her that she required accommodation regarding the formation of groups for the summer project and the people that she wished to work with. The Complainant also stated that she was more than willing to deviate from her interests in the project topic to ensure that she was working with people that she was comfortable with. She also reminded BB of her need to be accommodated during her last supervisory meeting with her for her dissertation during the middle of May. BB stated that the Complainant’s disability would be taken into account in the formation of groups and that she would be accommodated. However, it wasn’t. The Complainant wasn’t placed in the group with the people that she had specified and she was also placed in a group with EE and XY. The Complainant submits that other students were placed in groups with people that they had requested to work with. Two students informed the Complainant that they had requested to work with certain people and that their requests were granted.
The Complainant submits that the Respondent in its submission makes a number of claims that are unsubstantiated. In particular, the Respondent implies that she was obstructive during the group project including that she didn’t communicate and “prohibited collaboration and any prospect of team work”, yet in their submission, they did not provide any evidence for this claim, while she has copious physical evidence to prove that she communicated with the group despite mistreatment she received from the group.
The Complainant submits that she was continually singled out for ostracism by the group and the Supervisor, the Course Director, and the Associate Director of Teaching and Learning allowed this to continue. She was rarely given a chance to express her opinion about other members’ work due to this and any opinion that she did express was discounted by the group, while she continually made changes to her work according to the opinions of the group members, and always treated her fellow group members fairly and appropriately despite the fact that they did not behave in the same manner towards her.
The Respondent’s submission includes claims that she refused to make changes, refused to work collaboratively, refused to share her source files with the group so other members could work on illustrations. The Complainant wishes for the Respondent to provide evidence of this, as she has physical evidence to prove the contrary. She claims that she continually modified her work according to the opinions of the group; she never refused to make changes. As evidenced in an email which one of the group members sent her, the Complainant stated that she was willing to make changes to her work, as long as she is given the chance to make the changes and as long as the proposed changes are appropriately discussed with her, which she submits is completely reasonable. She was never given a chance to make the changes, the changes were made without her consent, her work was removed without her consent and the Supervisor allowed this to perpetuate.
The Complainant assumes that the statement that “[BB] reminded the complainant that the project was a collaborative project, and it was common practice for group members to suggest changes and work on tasks together” refers to the meeting on the 19th August 2018 which she submit was an example of the Supervisor siding with the group and displaying bias against her. She submits that the Supervisor acted unprofessionally and completely embarrassed her in front of the group during this meeting. She made false claims during this meeting that the Complainant did not wish to work collaboratively with the group and did not wish to make changes. The Complainant claims that she even stated to BB during this meeting that it appears that she is siding with the group and ignoring the fact that the Complainant had repeatedly made changes to her work according to the opinions of the group and had stated that she was willing to make the changes if the proposed changes were discussed with her appropriately beforehand. Also, while the Respondent states that BB stated that “it was common practice for group members to suggest changes and work on tasks together”, the Complainant was not afforded the opportunity by the group to do this and despite her repeated requests for assistance from the Supervisor, she was not provided with support to prevent her continued marginalization within the group. The Complainant was rarely given an opportunity by the group to suggest changes to their work. She was continually singled out for ostracism by the group and it was her work that was continually undermined and criticised without sufficient reason.
The Complainant takes particular umbrage with the statement that she accused BB of “nitpicking and criticizing” her work without sufficient reason, as this is a complete falsehood. The Complainant claims that she never accused BB of this and the email which Respondent refers to in that regard clearly shows that the Complainant never said this.
In respect of the email of 22nd August 2018 from BB which the Respondent referred to in their written submission, it was a response to three emails that the Complainant sent to BB on 19th, 20th and 21st August 2018 where she outlined the unfairness in how meeting was conducted on the 19th August 2018 in which the Supervisor stated that her work could be modified or removed without her consent and that she was not given the chance to make changes to her work. As evidenced in these emails, the Complainant also asked the Supervisor in these emails that in the interests of fairness, shouldn’t she be permitted to make changes to their work even if they don’t agree.
Regarding the Respondent’s statement that she would not share files with any of the group members, that the Complainant was reluctant to share her files for the purpose of testing their integration in the project or wouldn’t communicate with anyone but one member of the group, the Complainant requests to see evidence of this. The Complainant submits that she uploaded files to Google drive so that all members could see it and she emailed all members each time she uploaded a file.
The statement that she refused to communicate with anyone, but one member of the group is also inaccurate.
Also, the statement that there were problems with quality of the Complainant’s work sent to a programmer, and that she disregarded a document with instructions, and that this further delayed matters, this was completely not the case.
The Complainant submits that from the beginning of the project, the team members had each chosen aspects of the project that they wished to work on. The Complainant was responsible for content creation and visual design. It was not her role to be involved in the technical aspect of the project. However, while the Supervisor appears to imply that the Complainant’s technical knowledge was poor, the Complainant refutes this statement and the fact that she attained a 1st in programming, a 1st in visual computing and she attained a high 2.1 in web design which the Supervisor was the lecturer in this module, is testament to the fact that her technical knowledge was far from poor. The Complainant is perplexed by the statement made by the Supervisor, BB that this was evidence of problems with the quality of the Complainant’s contribution to the project and her standard of technical knowledge.
The Complainant submits that testament to her commitment to the project includes the fact that she never missed a meeting, she worked until 2am on her tasks for project, she returned from a short holiday that she had taken in June early to attend a supervisory meeting, two other students in the group had gone on a long holiday for over two weeks during the month of June and this resulted in a group meeting stalling until they returned. The Complainant had intended to take a short break of a few days at the end of June for her birthday. She cut short this break and flew all the way back to the Respondent’s location for supervisory meeting because she was thinking about the best interests of the group.
The Complainant submits that from early July until the end of August 2018, there was lack of assistance from BB and the Department in dealing with the project group despite repeatedly informing her of mistreatment that the Complainant received from the group throughout this period. The Complainant requested support from the Supervisor in dealing with the project group and support during meetings on multiple occasions. She was repeatedly mistreated by the other three group members, including them continuously undermining her contributing, insulting her both verbally and through electronic communications, and marginalizing her in the group.
The Complainant submits that the Supervisor met her requests for assistance with indifference and she treated her as if she was a nuisance and a burden and as if she was the cause of the problem. As the Complainant was not receiving support from the Supervisor, she sought help from her Disability Officer. The Disability Officer did liaise with the Supervisor and had stated to the Complainant that he had informed her that the Complainant should be offered more support by the supervisor during meetings. However, the issue continued to remain unresolved and when the Complainant’s mother contacted the Supervisor on 11th August 2018 reiterating to her the tremendous impact that this issue was having on the Complainant and asking why nothing was being done to resolve the situation, the Associate Director of Teaching and Learning, DD then became involved.
While DD did interview the students regarding their treatment of the Complainant during the middle of August and emailed guidelines to both the Supervisor and the group of how the project should be conducted for the remaining few weeks, these guidelines were not adhered to by the Supervisor. She refused to allow the Complainant to make changes that the group had proposed to parts of her work even though the Complainant had stated that she would make changes to her work herself if the proposed changes were suitably discussed with her and she had already altered her work multiple times according to the opinions of the group and she allowed the group members to remove parts of the Complainant’s work without her consent. She also behaved incredibly inappropriately and unprofessionally towards the Complainant during a group meeting after DD had interviewed the students. The Complainant emailed both DD and the Supervisor regarding the unprofessional way that BB spoke to her during this meeting and how this greatly distressed her. DD did not reply to this email. The Complainant’s mother had to travel all the way up the Respondent’s location and collect her after the meeting, as she was too distressed to travel home herself. In mid-August, BB also verbally refused to meet up with the Complainant after she had requested both in person and through email several times that she wished to have a short meeting with her before the rest of the group meetings in order to discuss her work and managing the group.
In respect of the way the project was assessed, the Complainant submits that the examination session was on 3rd September 2018. The external examiner never came over to review her work; only two lecturers out of the numerous lecturers listed on the Course Director’s statement of how she was assessed reviewed her work and only reviewed parts of her work.
The Complainant argues that, unlike the other members of her group she was not collaboratively marked; she was singled out to be marked individually. The Complainant claims that she was repeatedly informed by several lecturers throughout the project that the mark would be a collaborative, shared mark. On 30th May 2018 the Supervisor stated that the mark would be a shared mark, she also stated this verbally. The Complainant’s Disability Officer who regularly liaised with the Course Director during the summer project was informed by the Course Director that it would be a shared, group mark. The Complainant had expressed concerns that her work was being left out by the group, that it was unfair that their work was displayed, yet they were omitting her work and she had to constantly push for her work to be included. However, she was reassured on several occasions by both her Disability Officer and DD to not worry about parts of her work being left out, as the project would be a group, collaborative mark. DD also stated to the Complainant though email on the 16th August and verbally that it would be a shared, group mark. It was also stated by the Dean of Graduate Studies in an email sent on 3rd September that it would be a shared, collaborative mark. The Course Director even mentions that it was a team mark in the marking sheet of how the Complainant was assessed. When the Complainant phoned the Course Director on the 5th September 2018 to attain her results, he stated that she failed the summer project and thus would not attain her Master’s. When the Complainant informed him that she was told that the mark was a collaborative mark for the summer project, he stated that this was not the case for all students, that some students were marked individually. The Complainant submits that her mother and brother are both witnesses to this, as they were in the room with her during the conversation with the Course Director as she had the phone on loudspeaker. The Complainant then emailed him shortly after requesting to know why she was singled out to be marked individually and he then replied stating that all students were marked individually. The Course Director also admitted in an email that he had stated that the mark was a shared, group mark. The Complainant submits that she knows that that she was singled out to be marked individually, as she was repeatedly informed that the mark would be a collaborative mark and all members of the group apart from her attained their master’s.
The Complainant received a document from the Course Director on 12th September 2018 regarding how her mark was arrived at. She submits that there was clear bias in the marking of her summer project, including the way in which she was assessed and statements made in how her mark was decided which were completely contrary to how she conducted herself throughout the project including that she did not communicate with the project group, did not make deadlines, that her work was poor, that she was unprofessional and didn’t engage in peer learning. The Complainant argues that she attended all meetings, she regularly communicated with the group despite treatment received from the group, she modified her work multiple times according to the opinions of the group, she assisted two members of the group with the wording and presentation of the written aspect of the project on several occasions including during the showcase, as they requested her assistance and stated that they found writing in English very difficult. She presented with the group during the examination and also assisted the group with the setting up of the showcase. There were no deadlines for the project apart from two deadlines and she sent the deliverables within the two deadlines, as agreed. The supervisor never stated to the Complainant either verbally or through email that her work was poor, in fact she stated on several occasions that the Complainant’s work was good, or much improved. The Complainant argues that she has multiple pieces of evidence including electronic communications to refute these claims and she wishes the Respondent to submit evidence that she was unprofessional. The Complainant argues that she fulfilled all the requirements of the degree and she submits that it was utterly unjust and unfair the way she was treated on the course and the fact that the Respondent denied her master’s degree.
The Complainant submits that her appeal was refused by the Dean and she appealed it further to the Registrar of the Respondent who decides whether the appeal can be heard by the relevant Appeals Body. The Complainant argues that the Registrar refused to have her case considered by the Appeals Body stating that she would not go against the opinion of the Dean.
The Complainant submits that the Respondent’s claims in the notification response which she received from the Dean of Graduate Studies on 11th December 2019 included false claims and were an attempt to debase her good character.
The Complainant relies on Section 26 of the Equal Status Acts:
If, in the course of an investigation under section 25, it appears to the Director- (b) that the information supplied by the respondent in response to the notification or any such question was false or misleading, the Director may draw such inferences, if any, as seem appropriate from the failure to reply, or as the case may be, the supply of information as mentioned in paragraph (b)
The Complainant submits that the Respondent has displayed a lack of transparency, in respect of the refusal to supply her with information despite numerous emails and FOI requests sent requesting exact date and time examiner allegedly reviewed her work, the average mark that each group attained and how many students attained a masters in her group.
The Complainant submits that she also brought a case to the Ombudsman and the Ombudsman requested the Respondent to give account of what had happened from their point of view. They refused, stating that they are preparing for the adjudication case and thus didn’t have time yet.
The Complainant points out the inconsistencies in several lecturers in the departments statements, which were also noted by the postgraduate advisor (Mr AA). For example, DD stating that he “was not responsible for the marking of the module” both through phone and email yet he was mentioned as one of the examiners in the Course Director’s statement of how the Complainant was marked.
The Complainant submits that this was a master’s course, but she was only offered a diploma. She attained firsts and high 2.1’s in all other modules on the course. The treatment she received from the Respondent has not only severely exacerbated her disability but has resulted in her experiencing a significant financial loss including having a detrimental effect on her career plans. The Complainant submits that she cannot apply for numerous jobs that she had intended to apply for, as all these jobs require a master’s degree. The Complainant was receiving interest from employers including job interviews when she had on her CV that she was in the process of attaining her master’s. The Complainant submits that she cannot attain a place on master’s in forensic science course, which was a course that she fully intended of pursuing in the future and was one of the reasons why she pursued the master’s course with the Respondent.
The Complainant submits that the Respondent’s claim that an extra assessment measure was implemented whereby she could show her work that was left out during examination was never implemented during the examination and she had been repeatedly informed that the mark was a group, collaborative mark.
The Complainant relies on Kim Cahill vs Minister of Education and Science where the Supreme Court clarified the rights of disabled students and focused on the scope of the duty to make reasonable accommodation for persons with disabilities.
The Complainant relies also on a Labour Court decision (no citation provided) whereby the Labour Court upheld decision an Adjudication Officer which found that a major retailer failed to provide reasonable accommodation to an employee with a disability and thus discriminated against an employee. The employer refused to allow the employee to return to work on light duties in a different area of the store due to her disability. The Labour Court ruled that an employee must be regarded as fully competent and capable if the employer can take “appropriate measures” which would enable the employee to perform their role.
Evidence of Ms J, the Complainant’s mother
Ms J read out a statement on the first day of the hearing. She stated that on 17th October 2018 she contacted the academic liaison officer of the Respondent through email to ask why her daughter’s accommodations weren’t being implemented, and the tremendous impact this was having on the Complainant and her ability to continue on the course.
Ms J also said that she contacted the Complainant’s Disability Officer through email asking what was being done to assist the Complainant with implementing the accommodations, she didn't receive a response.
Ms J stated that the Complainant had to continually push for the first few months of the course for the few small, accommodations that she requested to be implemented. She shouldn’t have been put through this undue stress and pressure and should have been given the chance to just focus on her studies while having to continuously worry about whether her accommodations would be implemented.
Ms J said that on 11th August 2018, she emailed the Supervisor of the summer program project to ask what was being done to resolve the situation regarding treatment that the Complainant was receiving from the group and the effect that this was having on her. Ms J asked why the Complainant was not receiving support from the supervisor as a student with a disability despite her continuous appeals for assistance. The following week after Ms J sent this email, Dr DD interviewed the students regarding their treatment of the Complainant.
Two days after he interviewed the students, during a supervisory meeting, the Complainant was completely embarrassed by the Supervisor in front of the students and Ms J had to collect her from the respondent’s location, as she was crying after how the supervisor spoke to her in front of the group and she was in a distressed state. Ms J submitted that it was completely unacceptable for a lecturer in her position to treat the Complainant in this manner, particularly as the supervisor knew that the Complainant had a disability.
Ms J said that on 5th September 2018 her daughter received results from the Course Director, she had her phone on the loudspeaker, as she stated to her that she was nervous speaking to the Course Director due to past experiences. He stated that the Complainant had failed the summer project and thus could not attain a master's degree. When the Complainant stated that she had been repeatedly informed that it would be a group collaborative mark for the project, he stated that this did not apply to all students, and some students were marked individually.
Ms J said that she was astonished and perplexed by the treatment of her daughter.
Summary of Respondent’s Case:
The Complainant has brought a complaint against the Respondent under the Equal Status Acts, 2000 to 2018 (the “Equal Status Acts”). The Complainant alleges the following on the part of the Respondent:
(a) A failure to provide reasonable accommodations; and
(b) Victimisation following a "complaint" raised by the Complainant.
The Respondent denies that it is in breach of its statutory obligations towards the Complainant under the Equal Status Acts. It also denies that any of its officers have, at any time, subjected the Complainant to victimisation. The Respondent has made reasonable accommodations and, in addition, facilitated numerous “extra” requests by the Complainant during the provision of services to the Complainant. The Respondent will refer the Adjudication Officer to the additional requests acceded to and will give evidence to the effect that the level of engagement with and assistance provided to the Complainant by the Respondent’s Officers was multiples of that which is normally provided to students through the Respondent's Disability Service.
The Respondent has responded to the Complainant’s requests for information in Form ES.2.
RELEVANT FACTUAL BACKGROUND
The Respondent accepts that the Complainant has a disability for the purposes of section 2 of the Equal Status Acts.
The Complainant was enrolled as an undergraduate student with the Respondent for the academic years 2010/2011 to 2015/2016. Following completion of her Undergraduate degree, the Complainant applied, and was successful in obtaining a place on the Respondent's postgraduate course, provided by the Respondent (“the Course”).
Academic years 2015/16 to 2016/17
The Respondent was first made aware of the Complainant’s disability in January 2015, when the Complainant contacted the Respondent's Disability Service (“the Service”) to enquire about exam accommodations and borrowing of books from the Respondent's library. Following the Complainant's registration with the Service, the Complainant attended two dedicated sessions with the Respondent’s Disability Officers between 5th February 2015 and 17th February 2015, during which the Respondent’s Disability Officer discussed the Complainant’s goals and self-management of study and deadlines with the Complainant. The purpose of the Respondent’s dedicated service is to provide a confidential, practical, evidence-based occupational therapy service for students experiencing mental health and/or physical and sensory disabilities.
The Complainant subsequently took a period of leave from her studies in February 2015 and returned to complete her final year in October 2015. Between October 2015 and 19 February 2016, the Complainant attended a further nine sessions with the Respondent’s Disability Officers during which the Respondent’s Disability Officers undertook various actions, including but not limited to:
(a) Carrying out a Learning Educational Needs Summary ("LENS") Assessment to ascertain any reasonable accommodations that could be provided to assist the Complainant in completing her studies;
(b) Discussing with the Complainant her management of deadlines and methods of building self-confidence;
(c) Assisting the Complainant with the composition of essay plans;
(d) Preparing "timetables" for the Complainant to follow to assist with prioritisation of work and meeting of deadlines; and
(e) Agreeing and assisting in the preparation of "plans" for the Complainant to follow to increase her confidence.
Academic year 2017/2018
Upon commencing the Course, on 15th September 2017, the Complainant was contacted by XY, Disability Officer and Occupational Therapist for the Respondent, with a view to reviewing the Complainant's LENS report and discussing "transport costs and exam accommodations".
On 10th October 2017, a Needs Assessment was undertaken by XY to determine the reasonable accommodations to be made to facilitate the Complainant in undertaking her studies, including: Disability Service Interventions; Examination Accommodations and Adaptations to Teaching and Learning Situations. From the date of the assessment on 10th October 2017 to 18th December 2017, XY engaged with the Complainant extensively by email and during meetings, with regards to the accommodations to be included in the LENS report and the extent to which the Complainant's disability was to be disclosed to her lecturers.
On 18th December 2017, XY sent the LENS report, as approved by the Complainant, to the Course Director, HH. The report was subsequently circulated to lecturers on the Course, with the approval of the Complainant, and the lecturers' attention was drawn to the importance of making accommodations when “planning an assessment that might be difficult for [the Complainant] (such as class participation or oral presentations…)”.
Prior to and following the circulation of the LENS report to the necessary lecturers, XY also undertook the following actions:
(a) On 9th October 2017, review of the Complainant’s application to the Student Assistance Fund and preparation of a supporting memorandum to the Complainant's application;
(b) On 11th October 2017, meeting with the Computer Science School’s Disability Liaison Officer, to discuss the draft LENS Report and accommodations to be provided to the Complainant and subsequent email correspondence with BB with a view to finalising the draft report and accommodations to be provided;
(c) Email correspondence with TT in respect of the Complainant's application to the Student Assistance Fund on 12th October 2017 and 15th November 2017;
(d) Arranging a meeting with YY, Assistive Technology Officer and Disability Officer to discuss the Complainant’s use of Assistive Technology during the Course;
(e) Liaising directly with HH, Course Director with regard to the accommodations to be provided;
(f) On 14th November 2017, contacting VV to request an extension to a deadline on behalf of the Complainant from Friday 17th November 2017 to Sunday 19th November 2017;
(g) On 21st November 2017, contacting JC to facilitate the Complainant's request for additional access to a zoom recorder, used by students to complete assignments in JC’s Audio Visual Module (the number of which were limited in supply);
(h) On 23rd November 2017, contacting BL on the request of the Complainant, to facilitate an extension to the Complainant’s assignment, due on 3rd December 2017, of five days;
(i) On 23rd November 2017, contacting BB, on the request of the Complainant, to obtain an extension of two days to the Complainant's assignment, due on 27th November 2017;
(j) On 7th December 2017, meeting with the Complainant with regard to accommodation to be provided;
(k) On 12th December 2017, communication by telephone with JC, to discuss the Complainant's request for an extension on her assignment, due on 15th December 2017, and support to be provided to the Complainant;
(l) On 12th December 2017, contacting DD, on the request of the Complainant, to seek an extension to the Complainant’s assignment due on 22nd December 2017;
(m) On 10th January 2018, contacting FF, on the request of the Complainant, to seek an extension to an assignment due on 15th January 2018;
(n) On 15th January 2018, facilitating the Complainant's request for a "respite room” in the Respondent's Arts Building, made available to the Complainant once a week;
(o) On 18th January 2018, contacting DD, on the request of the Complainant, to seek an extension to the Complainant's written assignment;
(p) On 29th January 2018, contacting AM, on the request of the Complainant, to confirm the Complainant’s exam accommodation of 10 minutes extra per hour, in a separate low distraction venue;
(q) On 12th March 2018, contacting TT, on the request of the Complainant, to seek an extension to the Complainant's assignment due on 14th March 2018;
(r) On 15th August 2018, attendance at a meeting with DD at the request of the Complainant; and
(s) On 27th August 2018, 31st August 2018 and 6th September 2018, telephone contact with HH to discuss the reasonable accommodations to be provided to the Complainant in respect of the Group Project;
On several occasions, the Complainant’s mother contacted XY to discuss the Complainant’s condition and the accommodations made. However, as XY’s professional relationship was with the Complainant, and not her mother, XY was unable to discuss the accommodations with the Complainant’s mother. XY advised the Complainant’s mother of this and confirmed that he would be in touch directly with the Complainant to discuss any issues raised.
Teaching Semesters 1 and 2
“The course runs full-time over a twelve-month period commencing late September and completing early September of the following year. Formal teaching is divided into two twelve-week semesters, running from Sept to Dec and from Jan to April. Research proposals are submitted in November and agreed by mid December with students then commencing their research project which must be submitted in the form of a research paper of 12,000 words in May. After the research paper and coursework is assessed at the Exam Board in May, the students then go on to complete a final project which is a collaborative project with other class members.”
The Course comprises seven modules, six of which are completed in the two twelve-week semesters and are each worth 10 European Credit Transfer and Accumulation System (“ECTS”) credits. The final project, undertaken from May to September, is worth 30 ECTS credits. Postgraduate students are required to reside in or near the location of the Respondent throughout the twelve month duration of all postgraduate courses. This requirement is set out in the Respondent's Calendar, which provides, that:
“Normally, all graduate students should enter into residence in or near [the location of the Respondent]. In exceptional circumstances the Dean of Graduate Studies, after consultation with the graduate student's Supervisor and/or appropriate Course Co-ordinators/Directors, may permit a graduate student to undertake a significant portion of the work for their degree or postgraduate diploma outside [the location of the Respondent”.
The Complainant performed well in Teaching Semesters 1 and 2, achieving results of 65%, 68%, 71%, 72% and 75% in relevant subjects.
The accommodations provided to the Complainant, including by way of extensions to the date on which assignments were due, are set out above. On one occasion, the Complainant was not granted an extension. The Complainant’s Disability Officer was advised that the reason for refusing that extension was that it would have given the Complainant an unfair advantage over other students on the Course as the project in question concerned each student on the Course presenting their ideas to the class. An extension would have allowed the Complainant to listen to all other ideas prior to producing her own.
The final project (Semester 3) - Assignment to a Group
On 11th April 2018, the Complainant emailed BB, Assistant Professor, to request that she be placed in a group with classmates that she had worked with before, listing five possible classmates with whom she would be happy to work. At this point in time, BB was supervising the Complainant’s research paper and project groups had not yet been formed for the final project. BB replied to the Complainant on 16th April 2018 advising that, as a member of staff involved in the group formation process, she would accommodate the Complainant's request to the extent that it was possible to do so. BB noted that the extent to which the Complainant’s request could be accommodated would depend upon the skills, interests and ideas of other members of the class, and fairness to other students and the class as a whole. BB stated:
“The formation of the groups is a very complex process which has to take into account people’s skills, interests and ideas in order to form balanced groups with a coherent purpose. As I told you, we also take into account if there is a particularly difficult dynamic between people and try to avoid that and I and the others involved in the process bring knowledge of any such instances to the table. However, I cannot promise that you will be able to work with the people that you named in your mail. It may be that they have completely different interests to yours or that their skills are needed in other groups and we have to look at the interests of the class as a whole. That said, everything else being equal, I will try to accommodate you in this.”
The Complainant replied on 16th April 2018, advising that she was "willing to deviate from [her] interests in order to ensure that [she was] comfortable working with the people in the group". The Complainant noted the Respondent's obligation to other classmates, stating:
“I understand that the classes interests as a whole has to be taken into account but as I have a disability, I would appreciate if my circumstances would also be taken into account" (sic).
BB replied to the Complainant confirming that her circumstances would be taken into account.
On 29th May 2018, the students made presentations to the Course lecturers and their fellow students on their final project ideas. The ideas and interests of each student were subsequently considered by the Course Director and the Course lecturers at a meeting also on 29th May 2018, during which the decision on group formation was made. During that meeting, BB brought the Complainant’s request to the attention of the Course Director and lecturers and the Complainant was accommodated by placing her with one of the students she had specifically requested to be placed with. The other members of the Complainant’s group were chosen as they were known by the lecturers to be "good team players”. It was not possible to place the remaining four students the Complainant had referred to in the same group as the Complainant, as they had different interests to each other and the Complainant. Placing those students in the same group as the Complainant would have placed them at a disadvantage and would have been contrary to their interests and the interests of the class as a whole.
The Respondent’s lecturers and Course Director considered the Complainant's request carefully and spent a significant amount of time considering how to respond to the request. The Respondent presented a redacted photograph showing the process by which the formation of groups was considered, namely by consideration and discussion around potential groupings of interests, by moving notes containing student's names. This visual process allowed the lecturers and Course Director to consider the Complainant's request in the round, taking into consideration the interests expressed by other students and those students whom the lecturers felt would work well with the Complainant. The Respondent reiterates that it has a duty to consider the interests of all students, not only the Complainant, and this grouping was chosen as it accommodated the Complainant's request so far as possible, without compromising the interests of other students, and allowed the Complainant to avail of the Respondent's services. The LENS Report did not identify any accommodation requirement in respect of the identity of students with which the Complainant should work.
Accommodations provided throughout the final project
From May to September 2018, the group to which the Complainant was assigned worked on their project to develop a mobile app. The group was supervised by BB.
During the summer term, and while undertaking the final project, all accommodations and supports set out in the LENS report were provided to the Complainant. No group work accommodations were sought by the Complainant or identified in the LENS report, which confirmed that "[The Complainant] intends to engage in all aspects of the course, and reports that she is engaging in small group work formats". The Respondent also refers the Adjudication Officer to an email from the Complainant to XY of 28th September 2017, which forms part of a chain of correspondence during which the Complainant reviews and amends the draft LENS report on several occasions. In that email, the Complainant confirms that she is “happy to work collaboratively in groups".
Despite the Respondent providing the Complainant with all requested and identified accommodations, the Complainant raised various issues during the course of the project. Those issues related to communication issues within the group, which were exacerbated by the Complainant’s decision to work remotely during the final term of the Course. BB raised concerns with the Complainant over her decision to work remotely, during a group meeting on 2nd July 2018. However, the Complainant was adamant that she would be able to complete the project while working remotely. The Complainant was allowed to work remotely, despite not having made a request for permission to do so, as required by the Calendar, as the view was taken by the Respondent that this may further assist her in addition to the provision of reasonable accommodation in accordance with the LENS report and allow her to undertake the project and avail of the Respondent's services.
The issues raised by the Complainant during the course of the group project included:
(a) On 13 July 2018, an allegation that the group were not keeping the Complainant "informed" of decisions made.
In response, BB spoke to the other members of the group, who confirmed that decisions were being made organically while they worked in the same room during the summer term (a practice that is encouraged by the Respondent for the final project) as well as at the formal meetings which the Complainant attended, and it was not practical or possible to inform the Complainant of every minor decision made. BB reiterated the importance of communication to the group members verbally in or around 13th July 2018.
(b) On 19th July 2018, an issue raised about group communication generally.
On the same day, BB also received informal complaints from another member of the group that the Complainant’s approach to the project was impeding progress, as the Complainant did not agree with many of the suggestions made by the group. In response, BB discussed the matter individually with both the Complainant and the other group member who had raised issues in this regard. She subsequently spoke to all members of the group together about keeping the Complainant abreast of decisions and the importance of working collaboratively to progress and complete the project. BB highlighted the importance of teamwork and the difference between co-operation and collaboration, with the view that this would assist the group with moving forward with the project in a positive manner.
(c) On 29th July 2018 and 2nd August 2018, issues raised about the group’s feedback on the Complainant’s illustrations and contribution to the group presentation.
The Complainant raised issues with feedback she had received from the group, stating she was being “criticised without sufficient reason" and asking "what makes [name redacted] an expert on the illustrations". In response, BB arranged a meeting with the Complainant on 3rd August 2018 to discuss the issues raised. The Course Director was informed of the issues raised and contacted XY to seek advice as to what, if any, accommodations could be made. The advice of XY, given orally by telephone call to BB, was to get the Complainant to focus on the tasks to be completed, rather than the interpersonal issues. BB subsequently met with the Complainant individually, the student with whom the Complainant had raised an issue, and finally the group as a whole on 3rd August 2018. After the three meetings, the group agreed on a plan moving forward, which was based on XY’s advice to clarify tasks and focus on their completion. The plan was confirmed in an email from BB to the group members of same date.
To accommodate the Complainant, BB agreed to attend all group meetings, which is uncommon for a supervisor of group projects at this level and asked that she be copied on all relevant email exchanges between the group. BB could not accede to the Complainant's request that she arrive at and leave meetings with the Complainant. It would be inappropriate for an academic supervisor for the entire group to do this, as it would denote a lack of impartiality. However, BB suggested that the Complainant could wait in the lab next door until BB arrived and leave at the same time as BB did.
Between 9th August 2018 and 14th August 2018, further issues arose within the group due to the Complainant’s refusal to allow the group to make minor changes to her work to match the visual consistency of the project. On several occasions during supervision meetings, BB gave feedback to the Complainant that was in line with that provided by the group.
BB was also copied into emails from group members to the Complainant, with what she considered to be clear and detailed instructions on work to be undertaken or feedback on changes to be made to the Complainant's work to ensure alignment with the project. BB also had sight of the Complainant’s responses, refusing to make those changes or undertake the work assigned.
At this point, BB felt that she could not effectively supervise the rest of the group while managing the Complainant and, on 13th August 2018, notified the Course Director of the difficulties with supervision. As the Course Director was not in the location of the Respondent, he referred the matter to the Associate Director of Teaching and Learning (Postgraduate), DD. BB met with DD later that day and advised DD that she felt the Complainant was suffering from stress and needed help. BB advised that Complainant was demonstrating an inability to work collaboratively, and BB had observed a tendency on the part of the Complainant to act adversely to group feedback, which was affecting the performance of other students in the group and the group as a whole. BB noted that, as the supervisor for all students in the group, she was conscious of the need to take all students' academic welfare into account.
From 13th August to 17th August 2018, DD met with the members of the group individually. Following this, DD sent an email to the group setting out agreed "steps” to be taken. Those steps were suggested to assist the Complainant in completing the project, while limiting the effect on the remaining students in the group. They also took into account issues the Complainant had raised about her work being changed by the group. DD confirmed that:
(a) “….one step that will be taken by us is that each member in the team will be given the opportunity at the end of the project … to individually present their contributions to the project including any individual efforts they felt they made that did not make it into the final project or were changed. Full details of this process will be notified to students in due course”;
(b) “Decisions such as inclusion of major components and removal, change or overwriting of individual team members' work should be discussed at team meetings OR in a clear alternative way transparent to all members…I ask all team members to renew efforts to maintain communications between the meetings as much as possible..."; and
(c) “Where a team member has contributed efforts to develop a component of the work, if it is felt that there are potential improvements with the work in question, suggestions for change should, in the first instance, go to the contributor and the opportunity given to the contributor to improve the work himself/herself.… this does not imply that the contributor has sole rights to decide on whether the component is changed or integrated into the project. However, the team should be sensitive to the time and efforts investigated by the contributor and they should be given a larger opportunity to present their case in the discussion about the particular component."
DD also noted that:
“...team members should not leave decisions hanging indefinitely that might affect the whole team. With time running out, team members should expect more rapid changes and decisions; and to take responsibility for seeing and addressing updates that concern them if they have been duly notified. Communicating intermediate results for feedback could reduce loss of time or larger disagreements at a later stage…”; and
“[i]n general we cannot presumptively dictate what students must do in any situation but if their choices lead to the fairness, success or detriment of the project this could be reflected in their mark”.
Details of the marking process were subsequently sent to the group on 28th August 2018. Despite the accommodations offered, and DD making it clear to all group members that concerns about work should be acted upon or this may be reflected in an individual's mark, the Complainant continued to refuse to work collaboratively with the group. The Complainant refused to make changes suggested by the group by way of constructive feedback and refused to share her source files with the group so other members could work on the illustrations. When BB reminded the Complainant that the project was a collaborative project, and it was common practice for group members to suggest changes and work on tasks together, the Complainant accused BB of "nitpick[ing] and criticis[ing]" her work without sufficient reason.
At this stage, it was clear to BB that, despite the interventions of and supports by BB and DD, communication between the Complainant and the rest of the group had broken down to such an extent that the only option for completing the project was to clearly demarcate the tasks in a manner which necessitated only minimal communication between the group and the Complainant going forward. On 22nd August 2018, nine days before the group’s work was due to be displayed to the public, BB emailed the group proposing a way forward to ensure completion of the project within the requisite timeframe. BB suggests that the Complainant's work which “is already included in the build remains there" and the "outstanding deliverables" from the Complainant would be "added, without changes, when [the Complainant] delivers them". BB noted that “[w]hen the project is marked the examination team will be made aware that these are [the Complainant’s] work”.
Despite agreeing to this option, the Complainant refused to communicate with anyone but one member of the group and would not share files with anyone but that member, which prohibited collaboration and any prospect of teamwork. There were problems with the quality of the Complainant's work, as sent to the group member, due to issues with compression of the files. The Complainant disregarded a document with instructions on compressing the files, as sent by the group member with whom the Complainant was communicating, which further delayed matters. The Complainant was also reluctant to share her files with the group for the purpose of testing their integration into the project, and had problems running the app, which a group member helped her resolve. Those issues were noted by BB, as the group ‘s supervisor, as problems with the quality of the Complainant’s contributions to the project and the standard of her technical knowledge. During final proof reading and finalisation of the project, the Complainant continued to refuse to work collaboratively, removing suggested “edits” and recommendations of other group members from a shared "document for errors", and inserting her own recommendations instead. As the project was a group project, this collaborative review process was advocated by BB. The Complainant also raised an issue with BB about the fact that all group members were proof reading the project and that the "error document” was being worked on collaboratively.
At no time did BB witness or observe any actions from the other members of the group that she considered to be tantamount to bullying.
Assessment of the final project
The Learning Outcomes for the final project include:
(a) "provide an opportunity to build teamwork skills"; and
(b) “provide an opportunity for each student to demonstrate and showcase their individual skills”.
The Module Descriptor's "Learning Aims" also confirm that "[t]he aim of the project is to provide a framework for students to work together as a single team" and "...the goal of this project is to promote teamwork".
On 30th May 2018, the Complainant sought confirmation from BB as to how the final project would be marked, and BB replied on the same date stating:
“Appropriate supervisors will be assigned once the groups meet and firm up their ideas. All marks in [named university] are individual marks. In practice members of the groups usually get the same marks but there have been exceptions".
The individual assessment of each student’s work on and contribution to the final project was also reiterated by DD in his emails to the group (including the Complainant) of 16th August 2018 and 28th August 2018.
The Respondent accepts that, prior to the date for submission of the project, there was some confusion arising from oral communication between the Course Director and the Complainant as to whether the project would be marked on an individual or group basis. The Complainant was informed that this was an unintentional miscommunication, and on 10th September 2018, the Course Director emailed the Complainant clarifying the position, as follows:
“…[t]o be clear, all students are marked the same way and all marks are individual marks. It is absolutely not the case that some students’ marks are considered collaborative marks and others individual. All students’ work is discussed and marked individually at the Exam Board meeting.
The Course Handbook (which is given to all candidates on the course) is correct that the “80% of the mark for the final project will be awarded to each student’s individual contribution to the collaborative final project."
The Respondent denies that this was discrimination, a failure to provide reasonable accommodations, or victimisation.
The Complainant acknowledges in her reply to the Respondent’s Form ES2, undated, that the Course Handbook confirms the project mark was on an individual basis.
The formal examination of the final project took place on 3rd September 2018 and was conducted in accordance with the Respondent's Course Handbook, taking into account the reasonable accommodations agreed with the Complainant. The formal examination compromised of the Complainant giving a presentation on the project, at which an external examiner was present. The Complainant was also required to report her individual contributions through the Individual Report, and at the end of the team presentation, (accommodations which were provided by DD). The projects were also showcased on 1st and 2nd September 2018 (over a weekend) and, during that time, the external examiner was present, reviewing and testing the projects.
The determination as to individual grades, including the Complainant's grade, for the final project, was made by a Board of Examiners on 4th September 2018. The external examiner was also present at this meeting and the Complainant's mark and group project was discussed at some length. The Complainant’s LENS report was also discussed prior to determining the final mark and the Examination Board agreed the structure of the collaboration for the final project, namely small teams, was compatible with the LENS report recommendations.
The Complainant was notified on 5th September 2018 that she had failed the final project. As a result, the Complainant was awarded a postgraduate diploma rather than a Masters of Science degree (“an MSc degree”).
On 20th October 2018, the Complainant appealed "the award of a lower degree”, which the Respondent understands is a reference to the award of a postgraduate diploma rather than a MSc degree on the grounds that her case was "not adequately covered by the ordinary regulations of the University" and was “based on a claim that the regulations of the University were not properly applied" to her case. The remedy sought by the Complainant was noted as "re-examination of project or supplemental assessment".
The appeal was considered by the Dean of Graduate Studies, and on 24th October 2018, the Complainant was advised by way of letter that “there are no grounds raised in your appeal document for sustaining your appeal and it is, accordingly, rejected”. Dealing with the issues raised in the Complainant’s appeal, the Dean noted as follows:
“…In your case a LENS report was prepared, and the school worked with the disability officer in providing supports for you… I am satisfied that all reasonable accommodations recommended by the disability officer were agreed and indeed that the school and the course director were in regular contact with the Disability Officer in this regard. For this reason, I conclude that there is simply no evidence of any kind of discrimination based on disability nor could your appeal be sustained on these grounds."
“Under university rules, it is not possible to appeal in relation to negligent supervision of a project or dissertation or thesis following submission thereof. In other words, your appeal cannot be sustained on this basis. On the other hand, I have read a great deal of correspondence from you and your supervision and for the avoidance of doubt, (and whereas for the reasons mentioned above, this is not germane to the appeal) it is my view that there is absolutely no evidence of any deficiencies in supervision - rather the supervisor's attention to you and her efforts to respond to your voluminous correspondence seems, in my view, to be considerably above the standard that one might reasonably expect from a supervisor of a dissertation/project component of a taught masters course."
(c) Misinformation in relation to whether an individual mark would be awarded for the project
“I note that you were unintentionally misinformed as to the fact that the project would be marked on an individual rather than a group basis. I further note, however, that this misinformation was given to you shortly before the project was due to be submitted (and indeed that the correct information was contained in the course handbook that had been available since the previous September). I note further that your submissions do not contain any indication of how you would have approached the project differently in the final couple of days had the correct information in the course handbook been reaffirmed by the course director on that occasion. In particular, there is no evidence that what the course director said shortly prior to submission of the project somehow contributed to you failing the project component of the course nor that, had the correct information (that had always been available to you) been reaffirmed, your approach over the final couple of days could have 'saved' your project. For these reasons, and whereas I accept that you were given misinformation on this occasion, I do not find that you suffered any discernible harm as a result. Thus, the appeal cannot be sustained on this basis".
(d) Resubmission of Project
"...the course handbook states that students who fail one or more modules can sit a supplementary examination or complete a supplementary assessment. The rules in fact refer only to taught modules and not to the dissertation/project component of the course and thus have no bearing on your appeal."
(e) Challenging the Mark itself
“I make no judgment on this because it is simply not a basis on which an appeal can be heard…for the avoidance of doubt, there is no evidence in your appeal statement that the mark you received was, demonstrably, unjust.”
(f) Alleged non-examination of your Project
“…all projects were carefully considered by the external examiner over [the] three-day period. Furthermore, the actual determination of your grade was made by a board of examiners on September 4 at an exam board...The external examiner was present at this meeting, and, your mark and your group project received lengthy discussion.
For this reason I have no doubt that your project and your role in it received details and appropriate consideration by the exam board and by the external examiner nor do you present any evidence to the contrary save your mistaken view that the only occasion that the external examiner could have looked at the projects was on the designated exam day….there is simply no evidence that there were any flaws in the exam process that would cast any kind of doubt on the reliability of the grade you were awarded still less that you had been the victim of any injustice or breach of fair procedures. That being the case, your appeal cannot be sustained on this basis."
THE COMPLAINANT HAS NOT ESTABLISHED A PRIMA FACIE CASE
The Respondent relies on Section 38A(1) of the Equal Status Acts and notes that this provision is analogous to Section 85A of the Employment Equality Acts 1998 – 2015.
In that regard the Respondent cites Cork City Council v McCarthy EDA21/2008 and Melbury Developments Ltd v Valpeters  ELR 64.
The Complainant, in her claim form, has set out five alleged discriminatory acts, four of which relate to the final project, as follows:
(a) The allegation that the Complainant “[d]id not receive reasonable accommodations in terms of being placed in a group that was appropriate for me as a student with a disability despite requesting this from supervisor and being informed that my circumstances would be taken into account";
(b) An alleged lack of “supports in dealing with the project group, and assignment extensions”;
(c) “How [her] summer project mark was decided;" and
(d) The refusal of her appeal on 24th October 2018 to “have [her] project remarked or to submit another form of assessment”.
It is submitted that the Complainant has failed to produce evidence to support these assertions and therefore has failed to raise an inference of discrimination on the part of the Respondent. The Complainant is put to proof on the allegations of discrimination.
The fifth alleged discriminatory act relates to an unsupported assertion that “assignment extensions [were] denied by [the] course director on two separate occasions". The reason for the Course Director refusing an assignment extension on one occasion is set out above. The Complainant is put to proof on the allegation that a second assignment extension was not approved.
The Respondent notes that the Complainant asserts she was discriminated against “directly and indirectly” in her complaint form but does not set out the basis upon which she has been indirectly discriminated against. For the avoidance of doubt, the Respondent strenuously denies any allegation of direct or indirect discrimination.
The Complainant repeatedly refers to the Respondent’s refusal to “remark” her contribution to the final project or allow her to “redo” the final project in her complaint form and supporting documentation. It is submitted that the issue is not that the Complainant feels she was discriminated against during the provision of the Respondent’s services, but that the Complainant did not receive the grade she wanted in the final project. The Respondent takes allegations of discrimination extremely seriously.
The Complainant was provided with a myriad of accommodations while undertaking the Course, over and above those provided for in the LENS report, and this is addressed further below. The Complainant has failed to identify any further accommodations that could have been made. The only purported reasonable accommodation contended for by the Complainant is placing the Complainant in a group of students chosen by the Complainant, which would have been contrary to the interests of those students, and which was not identified as a reasonable accommodation for the Complainant.
The final project was marked by a Board of Examiners and an external examiner. The Complainant has failed to provide evidence of flaws in the exam process that would give rise to an inference of discrimination.
The Complainant has also failed to demonstrate that or how, in the refusal of her appeal, she was treated differently to someone who does not have a disability or has a different disability.
It is submitted that the Complainant’s claim is misconceived in this regard. With respect, the WRC is not an appropriate forum thorough which the Complainant can seek to have her project “remarked”.
THE RESPONDENT HAS COMPLIED WITH ITS LEGAL OBLIGATION TO MAKE REASONABLE ACCOMMODATIONS
The Respondent submits that it has taken multiple steps to accommodate the Complainant during her studies, far greater than the legal obligation placed on the Respondent to provide special treatment or facilities, without which it would be impossible or unduly difficult for the Complainant to avail of the Respondent’s service.
The reasonable accommodations provided include:
1. Arranging for a Needs Assessment to be undertaken by a Senior Disability Officer on 10th October 2017 and subsequent review on 12th December 2017;
2. Provision of a Disability Service Learning Educational Needs Summary ("LENS") to the Respondent's Disability Liaison Officer, School of Computer Science Administrator and Complainant's tutors, setting out accommodations as agreed by the Complainant;
3. Implementation of all accommodations as set out in the LENS report including:
(a) Frequent communication by the Disability Liaison Officer with the School of Computer Science, on behalf of the Complainant;
(b) Circulation of the LENS report on 28th December 2017, on a confidential basis, to all relevant staff within the School of Computer Science, to ensure awareness of accommodations to be provided to the Complainant;
(c) Referral to an Assistive Technology officer to discuss the Complainant's use of Assistive Technology during the Course;
(d) Library supports, including an additional book allowance;
(e) A designated respite space in the Arts Block for the Complainant;
(f) Agreed extra time for examinations of 10 minutes per hour;
(g) Provision of a low distraction venue ("LDV") for examinations;
(h) Allowing the Complainant to record lecturers;
(i) Where possible, the provision of annotated reading lists;
(j) Provision of lecture notes to the Complainant in advance of lectures;
(k) Flexibility of attendance as appropriate to facilitate the Complainant’s attendance at medical appointments;
(l) Alternative assessment of the Complainant in place of presentations and active class participation within "full class" situations including allowing the Complainant to email presentations accompanied by a voice recording;
4. Provision of accommodation in a [named] Hall, a residence usually reserved for new entrants to the Respondent University;
5. Permitting the Complainant to work remotely during the final project, an accommodation that is not provided to other students on the Course due to the requirement to reside “in or near [the Respondent’s location]” during their studies as outlined in the Respondent's Calendar and the course objective of developing team building skills, as set out in the Respondent’s Course Handbook;
6. Granting the Complainant various extensions to deadlines for submitting assignments and projects for the Course, as appropriate;
7. An unprecedented arrangement whereby the group's supervisor, BB, attended weekly group meetings following a request by the Complainant for same, and was copied in to all relevant group emails;
8. Eight Disability Officer Meetings/ Occupational Therapy Meetings with a Senior Occupational Therapist, aimed at supporting the Complainant throughout her studies and implementing reasonable accommodations within her course;
9. A meeting with the Disability Liaison Officer to discuss reasonable accommodations that could be implemented to assist the Complainant;
10. A meeting with the Associate Director of Teaching and Learning (Postgraduate), DD, to discuss means by which the Respondent could assist the Complainant in completing the final project;
11. An Assistive Technology Meeting with YY Assistive Technology Officer/ Disability Officer to discuss the Complainant's use of Assistive Technology during the course;
12. A supporting memorandum to the Complainant’s application to the Student Assistance Fund, prepared and submitted by XY; and
13. Approximately 80 email contacts between the Complainant and the Respondent's staff in relation to the Complainant's work and accommodations to be made, over the course of the academic year. The respondent exhibited XY’s record of those communications with the Complainant.
The Complainant acknowledges in her reply to the Respondent’s Form ES2, undated, that she had been provided with "supports" by the Respondent’s disability service. The Complainant also acknowledges that she “did receive extensions on deadlines for some assignments”.
The Complainant at no time raised an issue with her ability to avail herself of the Respondent’s service due to her disability. It is submitted that there are no further accommodations that the Respondent could have made and without which it would have been “impossible or unduly difficult” for the Complainant to avail of the Respondent's service.
In her complaint form, the Complainant states that she has been "victimised by the University, namely the Dean of Graduate Studies for making a complaint of discrimination within my appeal form".
It is unclear which of the grounds or acts the Complainant seeks to rely on as set out at section 3(2)(j). In any event, the Complainant has failed to establish that she has been treated less favourably than a person who had not taken one of the acts set out at section 3(2)(j).
The Respondent denies that victimisation has occurred, as alleged by the Complainant or at all. The Respondent's agents, including the Dean of Graduate Studies, were proactive, sensitive and professional in their dealings with the Complainant, all of which is already described in detail above. In dealing with the Complainant’s appeal the Dean complied at all times with the Respondent’s procedure for academic appeals, considered each issue raised by the Complainant, and provided a comprehensive response to the Complainant on each ground of appeal. No basis for a claim of victimisation has been made out in the Complainant's complaint form or supporting statement.
THE RESPONDENT HAS TAKEN REASONABLE STEPS TO PREVENT DISCRIMINATION
The Respondent denies that the Complainant was discriminated against by reason of her disability or victimised under the Equal Status Acts. However, without prejudice to the above, the Respondent notes that Section 42(3) of the Equal Status Acts state that:
“In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—
(a) from doing that act, or
(b) from doing in the course of his or her employment acts of that description.”
The Respondent operates strict policies on discrimination, which are in place to prevent its employees committing discriminatory acts, at work or elsewhere, including the following which specifically relate to students with disabilities:
1. Equality Policy;
2. Code of Practice for Students with Disabilities];
3. Dignity and Respect Policy;
4. Accessible Information Policy and Guidelines, which all staff are expected to implement in their communications (documents, webpages, presentations, etc.);
5. Reasonable Accommodation Policy for Students with Disabilities;
6. University Policy on Universal Access;
7. Web Accessibility Guidelines;
8. Guidance on Admissions for Applicants with a Disability;
9. Disability Awareness Booklet - Information for staff on supporting students;
10. Relevant publications for liaison officer and tutors;
11. [The Respondent’s] Inclusive Curriculum, which provides a detailed practical guide to presenting information in an accessible way, as well as guidelines on teaching, assessment and supervision;
12. [The Respondent’s] Strategic Plan (2014-2019), which contains strategic objectives relating specifically to people with disabilities, namely "promoting the employment of people with disabilities, improving their retention and recognizing their contributions" and "further developing our supports and training through projects like [named project]";
As is clear from the facts in this case, the Respondent also operates a Disability Service, which aims to develop clear and effective support systems at all stages in the student journey from university entrance to graduation to employment. The Respondent also has an Equality Officer and Access Officer, appointed under the Disability Act 2005, and the Respondent's by laws and the Respondent’s Calendar provide for the consideration of the level and types of support put in place for students, in conjunction with the Respondent's Disability Service, where issues arise in relation to a student who is known to have a disability.
It is submitted that the Respondent has at all time taken reasonably practicable steps to prevent its employees from discriminating against students with a disability.
The Respondent submits that the Complainant has failed to adduce any evidence whatsoever to support her claims or to establish a prima facie case of direct or indirect discrimination on the ground of disability (or any other protected ground) and/or that she was subjected to victimisation by the Respondent. It is further submitted that the Respondent has more than complied with its obligation to make reasonable accommodations and the Complainant has failed to adduce any evidence to the contrary. In addition, the Respondent has facilitated numerous “extra” requests by the Complainant during the provision of services to the Complainant, over and above the reasonable accommodations made. The complaint relates to the Complainant's dissatisfaction with her final project mark. Any claim of discrimination under the Equal Status Acts is misconceived. In the circumstances, the Respondent respectfully requests that the Adjudication Officer make a finding that no discrimination and/or victimisation has occurred and that no redress is ordered in favour of the Complainant.
A number of witnesses gave evidence at the hearing. For the purposes of this decision their evidence will be summarised and limited to the information relevant to this decision.
The Dean of Graduate Studies
The Dean outlined the arrangements in relation to the LENS report. He noted that various accommodations are arranged bearing in mind the needs of a particular student, the needs of other students and the academic integrity of the course. He noted that some 1000 students are registered with its disability service and acknowledged that there are some limitations in terms of its capacity.
The Dean outlined also the assessment details of the final project and exhibited relevant documents. He also described the appeals process within the Respondent and he described in detail the Complainant’s appeal. The relevant report was exhibited at the hearing. He noted that he considered all documents from the Complainant while making his decision.
The Dean noted that the Respondent has a supervision policy and the level of supervision in this case was in excess of what would be expected.
While the Dean noted that the Complainant was unintentionally misinformed as to the marks for the summer project, he pointed out that this misinformation was provided to the Complainant shortly before the submission of the project. The correct information was contained in the course handbook. There was no indication of how the Complainant would have approached the project differently in the final days had the Course Director confirmed the correct marking information.
The Dean said that he is qualified in the area of law, he is well aware of the Respondent’s obligations and buys into it. He has done everything to assist students with disabilities.
Disability Officer & Occupational Therapist, XY
XY outlined in detail the workings of the LENS. He noted that the needs assessment is reviewed based on a discussion with a student. XY pointed out that a non-standard report could take longer to finalise. In Complainant’s case the needs related mainly to participation in large groups, presentations and flexibility of deadlines. He had many discussions with lecturers in that regard. He was satisfied that the accommodations identified were provided. XY noted that although the LENS report was not finalised until December 2017 the Respondent engaged from October in every request made. XY noted that there was a high level of contact via email with the Complainant.
He acknowledged that two extensions were not granted to the Complainant but rationale was provided for same.
In cross-examination, XY confirmed that he made contact with the Course Director in relation to the marking of the project. However, he pointed out that as he has nothing to do with marking, he was not completely aware of the assessment marking. He confirmed that he took upon himself to implement and contact the relevant lecturers in respect of the accommodations required by the Complainant before the LENS report was finalised. In relation to the group issues, XY replied that he requested the Complainant to be more involved and speak with BB. He noted that a phone call was made to BB and she started attending the group meetings. He noted that he rarely deals with the student’s lecturers directly but as part of the LENS report he agreed to facilitate the Complainant in that regard (e.g. requests for extensions were dealt through him).
Course Director, HH
HH said that he spoke with the Complainant at the beginning of the second week of the course. The Complainant mentioned the reasonable accommodation she required. He acknowledged that he was a little surprised as the course had already started, and it would have been better to have a document in place in advance. He engaged with the Disability Service over the next weeks to clarify what it was that needed to be put in place. He noted that the course required a lot of presentations, teamwork etc. but he believes that the Respondent achieved the accommodation that was required. He confirmed that in the interim, when the LENS report was being completed the requested accommodation was provided.
He acknowledged that a request for extension of time was refused twice. The decision was made on the basis that such an extension would give the Complainant an advantage and would compromise the course.
Regarding the group project, HH explained the process the Respondent engaged in in order to agree the teams. The skills and the interest of all students were considered while also trying to take into account personal preferences. HH noted that the LENS report did not mention any problem with teamwork. Nevertheless, the Respondent tried to accommodate the Complainant’s request.
HH acknowledged that he miscommunicated to the Complainant and other students how the marking of the project worked. He clarified that when the matter came to his attention, he contacted XY and informed him of same. They agreed that telling the student at this stage (Friday, when the presentation was on Monday morning) could affect the student’s preparation and well-being when no support would be available over the weekend. He clarified that each student was considered individually, and the Complainant was not singled out. He noted that the course handbook is clear and correct on the marking.
When asked by the Complainant, HH confirmed that it is challenging to mark team projects, he said that the system might not be perfect, but it is the best they have.
Course Supervisor, BB
BB said that the Complainant asked her about the formulation of the groups. She brought the Complainant’s request to the table and it turned out that one of the students she wanted to work with had the same interest. BB felt that it is a win-win situation. The project started in or around early June and in early July the Complainant informed the Respondent that she no longer resides in the Respondent’s location. BB was concerned but the Complainant assured her that she would stay in regular contact.
In respect of the allegation of mistreatment by other students, BB said that she did witness some frustration because of the communication problems. She spoke with all the students and explained that there is a need for collaboration. She had numerous meetings, more day to day discussions and a lot of correspondence, more than normally would be the case. She brought the matter to the attention of the Course Director and the Director of Graduate Studies.
BB said that the Complainant asked her to meet before each meeting and leave together but, on reflection, she thought that it would be inappropriate as she needed to remain impartial.
BB said that towards the end of the project, communication broke down and it was agreed that the Complainant would deliver her part of the project and it would be integrated. As any feedback upset the Complainant, BB reverted to making improvement rather than criticising, but the Complainant did not take it well and it was counterproductive.
BB said that she made it clear to the Complainant that all marks are individual. She sent an email to the Complainant clarifying the matter on 20th May 2018. She emphasised that all students are marked in the same way.
BB said that she was present during the presentation as one of the examiners, but she confirmed that it is not always possible to speak to all students as it is a very busy day. She was sure that the external examiner was there.
In relation to the email correspondence from the Complainant’s mother, BB noted that she communicates with an adult child.
BB said that she went out of her way to support the Complainant without putting other students into disadvantage.
In cross-examination BB confirmed that when informed that the Complainant moved back home she did not inform her that it could be a reason for her failing the project. She said that at the time she thought the Complainant may need home support. BB said that there was lack of collaboration on the Complainant’s part. She would not make any changes until it was discussed at a meeting. At this stage there were only three weeks to the submission date and there would be a gap of even five days between meetings.
Associate Director of Teaching and Learning (Postgraduate), DD
DD said that he was asked to step in regarding the group issues. He arranged a meeting with the Complainant and her Disability Officer. He also met individually with each of the team members and the Supervisor. An email summarising the meetings was sent to the Complainant on 16th August 2018.
He confirmed that each individual was assessed in respect of their contribution and the same procedure was followed for each student.
In cross-examination, DD confirmed that he told the Complainant not to worry about her work being left out as the team mark would be shared. He confirmed that it was decided and email to that effect was sent to the students, that the students are encouraged to report any work that did not make it to the final presented project through the Individual Report. At the end of Team Presentation, each member of the team would be asked to state any individual contribution beyond what was already presented by the team. The Complainant argued that this was not implemented on the exam day.
Findings and Conclusions:
The dispute concerns a claim by the Complainant that she was directly and indirectly discriminated against by the Respondent on the disability ground in terms of Section 3(2)(g) and 4(1) contrary to Section 7(2) of those Acts in relation to the provision of special facilities to accommodate her participation in a third level course of education.
The Complainant also claims that she was subjected to victimisation contrary to Section 3(2)(j) of the Acts.
The Adjudication 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 she can rely in asserting that prohibited conduct has occurred in relation to her. 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.
It was not disputed between the parties that the Complainant suffers from Obsessive Compulsive Disorder with significant anxiety and I am therefore satisfied that she is a person with a disability within the meaning of section 2(1) of the Equal Status Acts.
The Respondent is an educational establishment as per Section 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.”
The Respondent is therefore subject to Section 7(2) of the Equal Status Acts, which states that:
“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”
Section 4 of the Equal Status Acts states as follows:
"(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 difficulty 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 provisions contained within this section of the Acts require the Respondent to do "all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities". Therefore, in the context of the present complaint, the Respondent is obliged under Section 4 of the Acts to show that it did everything it could reasonably do to accommodate the needs of the Complainant, as a person with a disability, by providing special treatment or facilities in terms of facilitating her access to and participation in the third level course which she undertook during the academic year 2017/2018.
The questions which I must decide in the present case is whether or not the Respondent failed in its obligation to provide the Complainant with special treatment or facilities within the meaning of Section 4 of the Acts and contrary to Section 7(2) to facilitate her participation in the course which she had enrolled during the academic year 2017/18 and whether or note the Complainant was victimised.
The Complainant has claimed that the Respondent discriminated against her directly and indirectly by failing to provide adequate measures and facilities to accommodate her specific disability, and more specifically, in terms of
· Being placed in a group that was appropriate for her;
· Lack of support in dealing with the project group;
· Unfair and unjust marking of the summer project;
· Assignment extensions denied on two occasions (mid-October 2017 and mid-May 2018);
· The refusal of her appeal on 24th October 2018 to have her project remarked or to submit another form of assessment.
In respect of the latter one, the Complainant also contends that she was victimised by the Respondent for making a complaint in respect of the alleged discrimination.
The Respondent denies the claim that it failed to provide reasonable accommodation to the Complainant and contends that it provided a wide range of special facilities and measures in order to accommodate her disability and thereby facilitate her participation and ultimate completion of the course.
In considering this issue, I have taken note of the special facilities and measures which the Respondent contends that it provided for the Complainant in order to facilitate her participation in the course which are detailed in the Respondent’s submission.
I accept the Respondent's evidence that the abovementioned special facilities and accommodations were made available to the Complainant, as a person with a disability, in order to facilitate her participation in the course of study. However, the Complainant has argued that the aforementioned accommodations which the Respondent put in place were not adequate or sufficient to accommodate her specific disability.
In considering reasonable accommodation under Section 4 of the Equal Status Acts, I note that, in a Circuit Court appeal from a decision of the Equality Tribunal in the case of Deans -v- Dublin City Council, Hunt J. considered the concept of reasonableness in the context of that Section of the Act. Hunt J. stated: “… reasonableness must be judged according to the context of the individual case…….. The City Council is entitled to bear in mind all the extensive and considerable social, legal and policy considerations …… and they are indeed relevant to the decision as to what is reasonable in the particular case…. The Housing authority is not obliged to submit to every wish expressed by a disabled person in the context of an application for facilities..... All that it is commanded to do by the equality legislation is to devise a “reasonable” solution to a problem, not to achieve perfection and not to give in to every demand that is made of it”
In considering whether or not the Respondent has failed in its obligations to provide reasonable accommodation in the circumstances of the present case, I have taken into consideration the comments of Hunt J. that a service provider is not obliged to submit to every wish expressed by a disabled person nor is it obliged to achieve perfection in terms of the provision of special measures or facilities.
Assignment extensions denied on two occasions 19th October 2017 and 23rd May 2018 and being placed in a group that was appropriate for her.
The Complainant argues that the Respondent failed to reasonably accommodate her when denying an extension of time in respect of two projects, on 19th October 2017 and on 23rd May 2018. The Complainant also submits that she was placed in a group which was not appropriate for her. The decision on group formation was made on 29th May 2018.
I note that the Complainant submitted her claim to the WRC on 21st January 2019. Therefore, the cognisable period is from 22nd July 2018 to 21st January 2019. The question arises whether the events of October 2017 and May 2018 relate to continuing or ongoing discrimination with the most recent incident taking place on 24th October 2018.
Sections 77(5) and 77(6) A of the Employment Equality Act, 1998 to 2015 state as follows:
77(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.
(b) On application by a complainant the Director General of the Workplace Relations Commissioner Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a)shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.
(6A) For the purposes of this section —
I am guided by the Labour Court Determination EDA 179 Dunnes Stores v Breda Mulholland which states as follows:
“It is settled law that in order for the alleged acts of discrimination to be considered by the Court as representing a continuum of discrimination it is necessary to establish that acts of discrimination have actually occurred within the cognisable period set down by the Act for the making of a complaint”.
The Court also stated that:
“Only if such acts of discrimination are found to have occurred in that period, can the Court consider whether Acts outside the cognisable period can be considered as part of a continuum of discrimination.”
Thus having regard to the above and the circumstances of this case I will look firstly at the alleged incidents of discrimination alleged to have taken place within the cognisable six month period of the complaint and, if I find that such incident/s amount to discrimination I would then be in a position to extend my investigation to include the investigation of allegations outside the six month relevant period.
Lack of support in dealing with the project group
Throughout the summer project which was completed on 3rd September 2018 the Complainant raised various issues in respect of her interactions with the group members. These included complaints that the group members were not keeping her informed of the decisions made, that there were communication problems, that the group criticises her without sufficient reasons and changes her work without any discussions. The Complainant argues that the Respondent’s failure to address these adequately amounts to discrimination and failure to provide her with reasonable accommodation.
I note that at the adjudication hearing, the Complainant confirmed to the Adjudication Officer that, while she felt that the group “ganged up” against her, their behaviour was not linked in any way to the Complainant’s disability.
I note that the LENS report does not include any reference to the Complainant’s participation in groups. In that regards, I note that the Complainant had ample opportunity to review, clarify and amend the report.
Moreover, I note that in her email of 29th September 2017 to the Course Director, the Complainant confirmed that she is “more than happy to work collaboratively in groups”.
I also note the attempts made by the Respondent to resolve the difficulties which arose between the group and the Complainant, following the Complainant’s requests including increased level of supervision and involvement of the Respondent’s staff to the extend probably much greater than it would ordinarily be the case.
Unfair and unjust marking of the summer project
The Complainant argues that she was singled out her project was marked individually and differently to all other students on the course.
The refusal of her appeal on 24th October 2018 to have her project remarked or to submit another form of assessment.
I have carefully read the Complainant’s appeal letter and the subsequent response of the Dean of Graduate Studies.
The Dean replies in detail to the Complainant’s appeal and addresses each of the points raised. Having reviewed both documents and in the absence of any clarity on the part of the Complainant as to on what basis she believes she was discriminated against I am not satisfied that the decision to reject the Complainant’s appeal was in any way discriminatory and that she was treated less favourably than a person with no or with a different disability would have been treated in that regard.
Having regard to the totality of the evidence adduced, I am not satisfied that the Complainant has presented any evidence from which I could conclude that she was treated less favourably than another student with a different or with no disability would have been treated in similar circumstance in terms of the accommodations offered to her. I am satisfied that the Respondent did, in fact put in place a wide range of special measures and facilities to accommodate the Complainant, as a person with a disability, in order to facilitate her participation and completion of the course of study which she had undertaken and did not fail in its obligation under section 4 of the Equal Status Acts to do all that was reasonable to accommodate the needs of the Complainant as a person with a disability, in the circumstances of the present case, by providing special measures or facilities.
I find that the Complainant has failed to establish a prima facie case of discriminatory treatment within the meaning of the Equal Status Acts.
Accordingly, as I found that no incident of discrimination has taken place in the cognisable six-month period between 22nd July 2018 and 21st January 2019, I am not in a position to extend my investigation to include the investigation of allegations outside the six month relevant period.
The final element of the complaint that I must address relates to the Complainant’s claim that she was subjected to victimisation by the Respondent within the meaning of Section 3(2)(j) of the Equal Status Acts. The term "victimisation" is defined within section 3(2)(j) of the Equal Status Acts as meaning:
(j) that one—
(i) has in good faith applied for any determination or redress provided for in Part II or III,
(ii) has attended as a witness before the Authority, the adjudication officeror a court in connection with any inquiry or proceedings under this Act,
(iii) has given evidence in any criminal proceedings under this Act,
(iv) has opposed by lawful means an act which is unlawful under this Act, or
(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv),
and the other has not (the “victimisation ground”)
It is therefore clear that victimisation within the meaning of the Equal Status Acts takes place when a person is treated adversely because they have tried to enforce rights under equality legislation or to support someone else doing so.
The Complainant submits that the Respondent rejected her appeal, and this was as a result of her making a complaint of discrimination within the appeal form. The Respondent rejects the claim of victimisation.
The Complainant lists a number of matters within the appeal letter. In respect of the matter of her disability, she outlines in detail her concerns on respect of her disability and the accommodations throughout the academic year. She then moves on to the matter of misinformation in terms of marking of the project, the role of the Supervisor, BB who, the Complainant claims “did not carry out her duty of care to me as a student with a disability”, the placement in the groupand the alleged lack of support in dealing with the group.
Having considered the evidence adduced, I prefer the Respondent’s evidence on this issue, and I accept that the Respondent acted in accordance with its normal procedures in considering the Complainant’s appeal. I am satisfied that I have not been presented with any evidence from which I could reasonably conclude that the appeal process conducted by the Dean was in any way flawed and that the alleged treatment of the Complainant in relation to the manner in which this matter was dealt with by the Respondent could be construed as victimisation within the meaning of Section 3(2)(j) of the Equal Status Acts. Accordingly, I find that the Complainant has failed to establish a prima facie case of victimisation within the meaning of Section 3(2)(j) of the Equal Status Acts.
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
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 Acts.
I find that the Complainant has failed to establish a prima facie case of victimisation in terms of Section 3(2)(j) of the Acts.
Accordingly, I find that the complaint is not well founded.
Dated: 12th November 2019
Workplace Relations Commission Adjudication Officer:
Disability discrimination- no prima facie case established