Case Number: ADJ-00021398. Workplace Relations Commission

• Judgment Date: 26 October 2022
• Year: 2022
• Hearing Date: 05 October 2022
• Docket Number: ADJ-00021398
• Date: 26 October 2022
• Court: Workplace Relations Commission
• Respondent: Primary School

Procedure:

In accordance with Section 25 of the Equal Status Act, 2000 following 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. This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designated the Workplace Relations Commission as a body empowered to hold remote hearings. The Complainant’s mother took the proceedings on behalf of the Complainant. The hearing was held over three days and extensive documentation and submissions were received from both sides.

It was the Complainant’s position that the parties should be identified. The Respondent submitted that giving the circumstances that the Complainant was a minor, and that sensitive issues were involved, the Adjudicator should take heed of recent Circuit Court appeals under the Equal Status Act whereby the Court deemed such decisions to be anonymised in order to ultimately protect the child. I am satisfied that the special circumstances of this case allow me to anonymise this decision therefore I deem that the identities of the respective parties should not be disclosed.

On a preliminary point as referred to in the Respondent’s original written submission, it was submitted that the Complaint form had in effect not been filled in a proper manner. The Respondent argued that the Complainant's parents did not tick any one of the protected grounds on the Complaint form. It was the Respondent’s position that the claim has not been properly instituted and should be struck out.

It has long been established that the complaint from is not a legally binding document. I am satisfied from the narrative of the form, as well as the issues identified in the exchange of ES.1 and ES.2 forms, that the Respondent was fully aware of the complaint made against it at the relevant time and therefore not prejudiced. I deem the complaint to have been properly submitted.

Background:

The Complainant was born with Down Syndrome and the National Educational Psychological Service (NEPS) report that her intellectual ability falls toward the upper end of the moderate range of general learning disabilities. She was a pupil of the Respondent School at the material time. She started in Junior Infants in September 2016 and was taken out of the school by her parents in April 2019, at 1st class. The Complaint under the Equal Status Act 2000-2015 (the Acts) was submitted on the Complainant’s behalf by her mother. The Complainant submits that she was discriminated against by the Respondent in denying her reasonable accommodation for her disability and also denying her access to education, contrary to the Acts. The Respondent submits that the school provided the best educational service available to the Complainant in light of the resources that were available to it. The Respondent submits that the Complainant was not discriminated against in breach of the Acts. It was accepted by the Respondent that the Complainant had a disability as defined under the Acts.

Summary of Complainant’s Case:

Summary of the evidence of the Special Needs Assistant (SNA): The SNA appeared on foot of a summons requested by the Complainant’s representative which I issued in advance of the hearing. The SNA gave evidence under affirmation. The SNA worked under the instruction of the Class Teacher. Her role was to look after the general care and hygiene of the Complainant. She understood the child to have Down Syndrome and multiple disabilities, including hearing loss. She described the Complainant as being easily distracted, easily tired and restless but that she never experienced aggression from the Complainant She relayed an incident in junior infants’ class on 22 February 2016 when the Complainant knocked over a tin of crayons and did not receive a reward of “Golden Time” which meant the Complainant had to stay in the classroom until the crayons were picked up. The Complainant said sorry to the teacher, but the SNA felt it was handled badly. The SNA became concerned in 2017 when she was instructed by the Principal not to speak to the Complainant’s parents. She had never encountered a request like this before. Photographs were exhibited, in evidence, of a foyer area in the school, outside of the classroom and in front of the Principal’s office where the witness (the SNA) was told to take the Complainant when she was disruptive. She gave evidence that she spent an inordinate amount of time in effect teaching the Complainant, which was not her job, in the designated foyer space. She stated that communication with the Class Teacher was very difficult to the point she felt that there was no meaningful interaction with her (the SNA). She received an unfavourable reaction when she questioned the teaching method particularly the decision to move the Complainant to the foyer space for most of the day. She felt she had no voice in the school and that it seemed that it was better to do your work and keep your head down. There were two inspections from the Department of Education where she was requested to bring the Complainant back from the foyer into the classroom for the duration of the inspections. A new timetable was introduced in January 2019 but there was no improvement in the interaction with the Class Teacher and she found herself continually doing most of the teaching work with the Complainant. Cross-Examination: In cross examination the witness did accept that the Complainant had complex needs, especially speech and language difficulties. Regarding non-contact with the parents, Counsel put it to the witness that the Principal will say that such communication is best coming from the Class Teacher so as to avoid confusion. The witness did accept that the school was stuck for resources in that the learning space/foyer was the only option when the Complainant was out of the classroom. Summary of the evidence of the Deputy Principal. The witness appeared on foot of a summons requested by the Complainant’s representative which I issued in advance of the hearing. She had no recall of an offer of support from Down Syndrome Ireland in the teaching of the Complainant. She considered this a matter for the Principal. She recalled a meeting with the Complainant’s mother during 1st class term where the mother was seeking reassurance that the school was doing the best it could. She said that the Principal came up with the idea of the foyer as a learning space. She considered this a bright and warm place. The witness could not confirm that the decision to allocate a learning space to the Complainant was not communicated to the parents. The witness recalled meeting with a representative from NEPS on 19 December 2018, together with the mother of the Complainant, as well as others. It was brought to her attention by Counsel for the Complainant that the NEPS representative had noted that “the goal should be to maximise inclusion where possible”. She did not accept that 60 minutes in the classroom out of a total of 240 minutes per day signalled that the Complainant was excluded more than she should have been. She said that there were kids, other than the Complainant, who had special needs. She believed that the concerns of the SNA were more to do with her own personal unhappiness in the school as distinct from concerns for the Complainant. Counsel for the Respondent chose not to cross examine the witness. Summary of the evidence of the Complainant’s mother: Respondent counsel objected to the giving of evidence by the witness on the basis that she considered it hearsay in that the mother was not involved in the teaching of the child and any evidence that would be given should be regarded as hearsay . I overruled the objection on the basis that the mother was in fact prosecuting the complaint on behalf of her daughter and furthermore the evidence thus far suggested that the mother had an interaction with the Respondent on a number of relevant issues. The witness said that the class teacher did not engage with her in February 2016 when she heard about the punishment of a loss of ‘Golden Time’ for the Complainant when she had knocked a box of crayons to the floor. Her husband and herself met with the Principal and the Class Teacher on 16 March 2016 when she requested the school that more leeway and consideration would be given to the Complainant because of her Down Syndrome and learning disabilities. However, it was the school’s position that she be treated like every other pupil and the Principal reminded the parents in a follow up meeting that they had signed a code...