Cahill v The Minister for Education and Science

• Jurisdiction: Ireland
• Judge: Ms. Justice Laffoy,Mr. Justice John MacMenamin,Mr. Justice O'Donnell
• Judgment Date: 24 May 2017
• Neutral Citation: [2017] IESC 29
• Court: Supreme Court
• Docket Number: [S.C. No. 246 of 2010],Appeal No. 246/2010
• Date: 24 May 2017

[2017] IESC 29

THE SUPREME COURT

O'Donnell Donal J.

Laffoy J.

MacMenamin J.

Denham C.J.

O'Donnell Donal J.

MacMenamin J.

Laffoy J.

Dunne J.

Appeal No. 246/2010

Between/

Kim Cahill

Appellant

AND

The Minister for Education and Science

Respondent

Unlawful discrimination – Disability – Equality – Appellant claiming she was the subject of discrimination on grounds of disability – Whether High Court erred on issues of law in finding that there had been no unlawful discrimination

Facts: The appellant, Ms Cahill, claimed she was the subject of discrimination on grounds of disability, in breach of ss. 3 and 4 of the Equal Status Act 2000. Ms Cahill encountered problems in undertaking her leaving certificate examination in the year 2001. She applied to the respondent, the Minister for Education and Science, for what is termed "reasonable accommodation" in certain language subjects, by reason of her dyslexia. She contended on appeal to the Supreme Court that the measures adopted by the respondent were discriminatory and unlawful, and that the Circuit Court, on the Minister's appeal from the Equality Tribunal, and the High Court on her appeal from the Circuit Court decision, erred on issues of law in finding there had been no such unlawful discrimination.

Held by MacMenamin J, Deham CJ and Dunne J concurring, that the judgment of the Circuit Court and the High Court did contain a degree of erroneous "judicial review" terminology. However, MacMenamin J held that this did not affect the Circuit judge's s. 3(1) findings of fact, which were sustainable. Insofar as the High Court judgment gave support to incorrect "judicial review terminology", MacMenamin J would set those observations aside. MacMenamin J concluded that the Circuit Court judge erred in his findings regarding s. 4(5) of the Act and that the High Court erred in affirming those findings. MacMenamin J held that the confined nature of the case, as it was initiated, did not allow for any "procedural" findings under s. 4(1) of the Act. MacMenamin J held that they did allow for compatible findings under s. 3(1) to the effect that there had been no unlawful discrimination, and that, in the substantive sense, the Department had done all that was reasonable in accommodation, accompanied by annotation. Had there been procedural findings under s. 4(1), MacMenamin J held that it was arguable that the Department would have been entitled to rely on s. 5(2)(h) of the Act as a defence. MacMenamin J therefore upheld the decisions of the Circuit Court and High Court in relation to the forms of order made under s. 3(1) and s. 4(1).

MacMenamin J held that the appeal should be dismissed. Laffoy J and O'Donnell J also handed down judgments in the matter.

Appeal dismissed.

Judgment of Mr. Justice O'Donnell delivered the 24th of May, 2017.

1 I agree with all my colleagues that the appeal in this case must be dismissed. My reasons for doing so are that I am in full agreement with the judgment of Laffoy J. In the concurring judgment MacMenamin J. delivers, he canvasses a number of interesting issues, admittedly obiter, as to law, and at some remove from the factual controversy which was the subject matter of these proceedings. He considers that a potential case might have been made as to the procedures followed by the Department in this case and accordingly offers some views on the interpretation of sections 4 and 5(2)(h) of the Equal Status Act 2000, for the purpose of developing and clarifying the law for the future. Since I have reservations about the developments suggested and indeed as to whether clarity would ensue, I set out my own necessarily tentative views on what is suggested.

2 The decision of this Court in Stokes v. Christian Brothers Schools [2015] I.E.S.C 13, means that the decision of the High Court on an appeal on a point of law from the decision of the Circuit Court, itself a full appeal from the decision of the Equality Officer under the 2000 Act, may yet be appealed to the Supreme Court. In the aftermath the amendment to Article 34 of the Constitution, such an appeal will now lie to the Court of Appeal, with the possibility of appeal to this Court pursuant to Article 34.5.3o if a point of law of general public importance is disclosed, or it is otherwise in the interests of justice that such an appeal should be brought. This is a very elongated and expensive chain of appellate review which is somewhat at odds with the subject matter of the Act. The Equal Status Act of 2000, is an ambitious piece of social legislation targeted at a range of discriminations which may occur in fields other than employment. I do not doubt the real injury and damage that can be caused by such discrimination, or indeed the desirability of having an authoritative determination that such discrimination has occurred, but it is surely unsatisfactory if that requires the considerable time and expense (and risk of costs) that occurred in this case. What is required, is cheap, expeditious and sensitive enforcement at an administrative level, together with the possibility of binding review at an appellate level when important issues of law arise. The Act is on any view highly complex. It involves some difficult concepts, and delphic phraseology and it is inevitable that guidance will be required from the Superior Courts. However some steps from the appellate chain which currently exist could be removed without loss, which might also mean that the issue could be finally determined, within some reasonable timescale from the events in question. However, one other consequence of this very extended chain of appeal is that it is unlikely that questions of interpretation will reach this Court for some time. Accordingly, I think it is necessary to offer some views on the matters thoughtfully canvassed by MacMenamin J., particularly since I have reservations about the view expressed, and the indeed the utility of the exercise.

3 Reduced to the minimum, as I understand it, MacMenamin J. agrees that on the issues raised in this appeal, the appellant's appeal (supported and in effect, run by the Equality Authority) must fail. He considers that the practice of annotating the Leaving Certificate in a case where a waiver has been granted on core aspects of the examination is neither a discrimination on grounds of disability prohibited by sections 3 and 5 of the Act, nor a breach of the extended concept of discrimination in the case of disability, which is prohibited by s.4. However, after a review of the evidence he concludes there was potential for a different or broader case to be initiated pursuant to s.4 of the Act. If so a 'very arguable case might have been made under s.4(1) of the Act, on the basis that procedurally the Department had failed to all that was reasonable'. However, it was also strongly arguable that any procedural 'missteps' would have been defensible pursuant to s.5(2)(h) of the Act because the Department was treating the appellant differently by providing a service for the principal purposes of which was promoting a bona fide purpose and in a bona fide manner the special interests of the person in that category. Accordingly any such claim, if made, might well have failed. In offering these necessarily tentative views, observations are also made as to the approach to interpretation of the Act.

4 These observations represent a further turn in a case which has already had a number of detours. To explain my reluctance to follow the interesting path which MacMenamin J. suggests, it is necessary to set out, in the briefest detail, the development of the proceedings.

5 This case is focused upon events which occurred many years ago, and in particular on the 15th August, 2001, when Kim Cahill obtained her Leaving Certificate results and experienced the upset which she described in her evidence in the Circuit Court. In common with I think every person who has dealt with this case, I sympathise with Ms. Cahill for that unpleasant experience. I respect both her determination in pursuing her studies and career, and the tenacity with which her cause was urged by her parents. In such a situation parents are not required to be concerned with broader questions of educational policy or equity to other students: they are entitled to press their own child's case. Their behaviour deserves understanding, and if necessary indulgence. In these proceedings the only question is the legality of the actions of the Department of Education. In that respect however, I think it is sufficient to say that if Ms. Cahill attended school on the 15th August, 2001, unaware of the fact that she had been granted a waiver for the grammar and spelling aspects of three examinations, and that her formal Leaving Certificate would be annotated, then, at least, that is something which cannot be laid at the door of the Department, or indeed redressed in these proceedings. The issue with which this case is concerned is not so much the events of that day, but rather the legality of the provision of the notation with the waiver.

6 In hindsight, it is perhaps possible to see that this was by no means an easy issue to deal with when it arose. The Leaving Certificate 2001, was the first examination in which the departmental guidelines were in operation. Furthermore, the Equal Status Act of 2000, was only a year in operation. On any view, the question of the waiver and the accompanying notation were far from the clearest case of discrimination whether on grounds of disability or otherwise. In addition to the question of the interests of a person suffering from a disability, in this case mild dyslexia, the issue plainly also raised difficult questions of educational equity and the integrity of a nationwide examination system which is a key component of access to third level education, and indeed employment. What made this case more difficult...