Complainant

Respondent

Anonymised Parties

A minor/next friend

Educational Establishment

Representatives

Maggie Kelleher-Byrne, O’Flynn Exhams LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00063951-001

04/06/2024

The Complainant attends a school under the patronage of the Respondent.  An incident occurred on 24/04/2024 involving the Complainant.  Following this an ES. 1 form was sent to the Respondent on 24/4/2024.  This was replied to by the Respondent using the ES.2 form on 23/05/2024.  The Complainant then submitted a complaint to the WRC on 04/06/2024.

The Complainant gave evidence on affirmation.  He provided details of the incident which occurred on 24/04/2024.  He was subjected to physical abuse by another pupil.  This involved kicking him and taking his shoe. and when he reported this to the teacher she turned on him and grabbed his wrist.  The Complainant felt that he was assaulted during this interaction with the teacher.  He was then directed to leave the classroom and report to the year head. The Complainant believes that he was treated less favourably due to his disability which he confirmed is autism.  It was confirmed at the hearing that he was diagnosed with autism when he was a very young child.

The Complainant was cross examined on behalf of the Respondent.  He confirmed that he had read the ES.1 form.  He stated that he understood that discrimination meant that someone was being favoured over someone else.    The Complainant was asked how this applied to the incident he had described.  He stated that he was assaulted by the teacher and he believes that by being assaulted he was being treated less favourably.

It was put to the Complainant that if the incident involved an assault this would be a criminal matter and also a Garda matter,  and not a WRC matter. 

The Complainant stated that at the time of the incident he tried to explain to the teacher what the other student did to him but the teacher did not listen to him.  He explained that the other student kicked his chair.  The Complainant also confirmed that there was some verbal abuse as other students were talking about him and calling him names.

The Complainant was asked would he or another person  have been treated differently if they did not have autism.  He confirmed that they would.  He explained that at time of the incident the teacher ignored him as she was at the computer and not watching the class.  The Complainant was asked when did the teacher grab his wrist.  He explained that as the teacher thought that he had thrown the shoe in the bin she came up to him and grabbed his wrist. 

In a closing submission on behalf of the Complainant it was submitted that a fair investigation should have been conducted at the time of the incident.  Both students should have been dealt with in a similar manner.  The Complainant was discriminated against as he did not receive fair treatment.

The Respondent is an educational establishment within the definition of Section 7 of the Equal Status Acts 2000-2018. It is not disputed that the Complainant is a student at a school under the patronage of the Respondent and that he has a disability, autism.

Ms A gave evidence on oath.  She gave evidence that she has been a teacher for 18 years.  On the day of the incident the usual teacher was not available and she was providing teaching cover.  She decided that the class would watch  a film which was part of the Junior Cycle English curriculum.  The Complainant came in late to the class and shoved another student’s desk.  She asked him  to leave the other student alone.  The Complainant was on the floor and she asked him repeatedly to get up.  During this time the Complainant was pulling the other student’s leg and he removed his shoe and put it in the bin. The Complainant refused to remove the other student’s shoe from the bin and eventually he got it and threw it in the air.  At that stage she asked him to leave the room and she asked a Special Needs Assistant (SNA) to escort the Complainant to the year head.

Ms A stated that she was based at a table near the window.  She could not have been on the computer as this was showing the film for the class.  Ms A confirmed that the Complainant was treated the same as any other student who would have behaved in a similar way.

Ms A confirmed that there was never any physical contact with the Complainant.  She was never close enough to him.  Ms A stated that she never grabbed the Complainant’s wrist during this time.

In response to a question from the Adjudication Officer Ms A confirmed that she knew the Complainant and she had no previous incidents involving him.

Ms A was cross examined by the Complainant.  She was asked why she did not send the other student out of the class.  She explained that the reason was because that student did not take things or throw things.  Ms A was asked why she was not supervising the class and spending time on the computer.  Ms A stated that it was incorrect to say that she was on the computer.  She was not as this computer was playing the film which the class were watching.

In a closing submission on behalf of the Respondent it was submitted that the hearing heard the account of the incident given by the Complainant and the account given by Ms A.

The Respondent refutes that the Complainant was assaulted.  This is a serious allegation.

The Complainant was behaving in a certain way and this was treated in line with and in accordance with the relevant Code of Behaviour which applies to all students. Any other student behaving in a similar manner would have been treated in the same way.

In accordance with Section 21 of the Equal Status Act 2000 (as amended) an individual may seek redress in respect of any prohibited conduct that has been directed against him or her by referring a case to the Workplace Relations Commission. Prior to making such a referral there is a requirement that the Complainant shall have already notified the Respondent in writing (Form ES. 1) of the nature of the allegation and the intention to seek such redress if not satisfied with the Respondent’s response. This notice in writing shall be brought within two months of the alleged prohibited conduct or the last instance of same.

A Respondent may choose to reply with an explanation for the treatment by returning the attached ES. 2 Form.

The Respondent was notified by the Complainant’s next friend on 24/04/2024 and this included the ES. 2 form.    The Respondent replied to this form by way of ES.2 form dated 23/05/2024. The Complainant’s next friend submitted the complaint to the WRC on 04/06/2024.

I am satisfied that the Complainant has complied with the relevant notification requirements as provided for in Section 21(2)(a) of the Acts.  Accordingly, I find that I have jurisdiction to investigate the complaint of discrimination in this case.

The issue for decision by me is, whether or not the Respondent discriminated against the Complainant on the disability ground as provided for in sections 3(2) of the Equal Status Acts, 2000-2015. In reaching my decision, I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the hearing.

The Relevant Law

The Equal Status Act 2000-2015 (the “ESA”) as amended prohibits discrimination in the provision of goods and services, accommodation and education.  It covers the ten protected grounds of gender, marital status, family status, age, disability, sexual orientation, race, religion, membership of the Traveller Community and housing assistance (only as regards the provision of accommodation). 

I reference the definition of discrimination provided in section 3 of the ESA as follows:

Discrimination (general).

3.—(1) For the purposes of this Act discrimination shall be taken to occur—

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B),(in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) where a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

Or

(c) where an apparently neutral provision would put a person] referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”.

The Complainant has submitted his complaint on ground of disability.  It is not in dispute that the Complainant has a disability within the meaning of Section 2 of the ESA.    I am satisfied the Respondent is an educational establishment within the definition of Section 7 of the ESA.    

Section 5 of the ESA provides clear direction against prohibited conduct as follows:

“5. – (1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”

The Burden of Proof

Section 38A of the ESA sets out the burden of proof as follows:

Burden of proof.

38A.—(1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the Respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director of the Workplace Relations Commission under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the Respondent to prove the contrary”.

Section 38A of the Acts sets out the burden of proof which applies to a claim of discrimination under the Equal Status Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred.  It is only where such a prima facie case of discrimination has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.  Accordingly, the Complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the Respondent to rebut the presumption of discrimination.

This requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him.   If the Complainant succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary.  The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. 

In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant.  It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”. 

The Court continued; “It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment”.

In deciding whether the Complainant has established a prima facie case the focus is on the Complainant’s own evidence. In his direct evidence he describes that he was asked by a teacher to leave the classroom after an incident involving another student.  The Complainant’s evidence was that he was grabbed by the teacher, and this was considered an assault.  The evidence of Ms A, the teacher, is that no such physical contact took place and that she followed the relevant code when dealing with this incident.  The same would have applied to any other student.

I accept that the incident was distressing for the Complainant.  However, the Respondent’s teacher was the person in charge, and it was her responsibility to deal with the situation based on her experience and knowledge of the Code of Behaviour.

There was no evidence that there was any action, language or behaviour which could be construed as being discriminatory in nature. I find no evidence that the way the incident was manged could be attributable to the Complainant’s disability.

Based on the evidence I find that the Complainant has not established a prima facie case upon which discrimination can be inferred based on the disability ground. 

In accordance with Section 25(4) of the Equal Status Acts, I have concluded the investigation and I find that the Complainant has failed to establish a prima facie case of discrimination on the ground of disability in terms of sections 3(1), 3(2)(g) and 5(1) of the Equal Status Acts.  Accordingly, this complaint fails.

Discrimination.  Disability ground.