Case Number: DEC-S2012-012- Full Case Report. Equality Tribunal.

• Docket Number: DEC-S2012-012- Full Case Report
• Date: 01 April 2012
• Court: Equality Tribunal

The Equality Tribunal

Equal Status Acts, 2000 to 2008

Equality Officer Decision DEC-S2012-012

Parties

A Mother, on behalf of her Son
-v-

Board of Management of a Boys' National School
[Represented by P.J. O'Driscoll & Sons, Solicitors]

File Ref: ES/2009/0122
Date of Issue: 11 April 2012

Keywords: Equal Status - Disability - Direct discrimination - Failure to provide reasonable accommodation - Equal Status Acts 2000 to 2008, s. 4 (1) and 4 (2).

1. This complaint was referred to the Director of the Equality Tribunal on 27 November, 2009 under the Equal Status Acts, 2000-2008 (hereinafter "the Acts"). The respondent was notified of this complaint on 23 September, 2009. On 30 April, 2010 the Tribunal received a written submission from the complainant. A responding submission was received from the respondent on 21 June, 2010. As required by section 25(1) of the Acts and as part of my investigation, an oral hearing was held on 13 May, 2011 and both parties were in attendance.

2. Dispute

This dispute concerns a claim by the complainant, a mother on behalf of her son (hereinafter "the complainant") that he was discriminated against by the Board of Management of a Boys' National School (hereinafter "the respondent") on the disability ground in terms of section 3(2) (g) of the Acts contrary to section 7 of the Acts and by its refusal or failure to do all that is reasonable to accommodate his needs as a person with a disability, contrary to section 4(1) of the Acts.

3. Background

3.1 At the time of the alleged discrimination, the complainant was a pupil in sixth class of the respondent primary school, a mainstream national primary school for boys. He has the condition Down Syndrome with moderate learning difficulties and a speech impediment. The complainant has been a pupil in the respondent school for 9 years. The complainant states that he has always been made welcome by staff and students alike and has been treated as a valuable member of the school community. He has received a fully inclusive and integrated education, based on his Individual Education Plan (I.E.P.). He states that each and every teacher he has had prior to sixth year has enthusiastically adhered to his I.E.P. Throughout his time at school his father has been employed by the respondent as the complainant's special needs assistant (SNA) and has sat with him in class.

3.2 The complaint relates to how the complainant was treated in the first month of his sixth class, September 2009. During the fortnight 1st to 14th September 2009 the complainant's class were taught by a substitute teacher, a retired school principal, Mr S. During the second fortnight, 15 to 30 September 2009 the class were taught by the class teacher for the year, Ms S, until she went on sick leave and was replaced. Mr S is the father of Ms S.

4. Summary of complainant's case.

4.1 The complainant claims that the substitute teacher Mr S treated him less favourably than the other boys without a disability. In particular, no interaction of any kind occurred between Mr S and the complainant, according to his father who was his SNA. There was no allocation of teaching time to the complainant by Mr S. He was not issued with any school work for the day, there was no correction of any work in class, no homework was given, and there was no verbal address by Mr S to the complainant to during the two weeks Mr S was teaching. By comparison, all the other pupils received instruction, correction etc. in the relevant curriculum. The complainant believes it was because of his learning difficulties Mr S ignored him and was either unable or unwilling to educate him. No other child was ignored.

4.2 The complainant claims that Mr S also failed to make reasonable accommodation for his disability. On 11 September 2009 the complainant requested permission to go to the toilet. He approached Mr S and as he would speak more slowly than other pupils, he said "May, May, I, I... ..." and without being allowed finish his sentence, he was told by Mr S "Oh just go!" The complainant found this very humiliating in front of the class. Mr S was unwilling to give the complainant enough time to finish his sentence. Instead of recognising his speech difficulties, encouraging him to speak properly, and having the complainant formulate his request clearly, Mr S cut him short and dismissed him. No other pupils were treated in this way.

4.3 The complainant was not allowed to read aloud when the other boys were reading from their books. When the other boys had finished reading, Mr S asked "Did I miss anyone?" When the complainant stood up and went to the front of the class to read, Mr S told him "Sit down; the other boys were taking down their homework now". The complainant got very upset, replied "That's not fair!" and started to cry. This incident was witnessed by the complainant's father, his SNA. Another parent reported her son's account of the incident to the complainant's mother.

4.4 On 15 September the Class Teacher Ms S returned from maternity leave. The complainant states that there was no interaction between the teacher and the complainant all day, no class work or homework given to him. The teacher spoke to the complainant's father and said that she had seen an advert in the Examiner newspaper for a Special School and that his parents should make enquiries and perhaps think about sending him to the school for a day or two a week. The parents considered that the teacher was acting way beyond her remit and in suggesting that the complainant might attend another school for a certain time each week was to suit herself, not the child. Also Ms S asked his SNA to remove him from class for 30 minutes as she wanted to set a test for the other boys in the class. This had never happened before and was discriminatory.

4.5 On 17 September the complainant's father and SNA complained to the Principal about discrimination.

4.6 On 21 September the SNA was working on a one-to-one basis with the complainant at the back of the class. Ms S approached and said in an aggressive manner "I can't have this talking." So the SNA gave the complainant some non-verbal written work and sat him with the rest of the class where he normally did his writing. The teacher told him not to sit there but to return to the back of the class. The complainant's parents believe that this was discriminatory. Their son had always interacted verbally and quietly with his SNA in his class. This was part of his ongoing education as set out in his IEP. He had always sat with the other boys when writing.

On 22 September the class teacher, Ms S asked to speak to the SNA outside the classroom. She told him she could not teach in class because of the level of noise from the complainant and him. No previous teacher had mentioned there was a problem with the complainant and his SNA conversing.

On 24 September the complainant's parents made a formal complaint to the Board of Management on their son's behalf. Following the complaint their son received school work from Ms S on 28 September. This was the first time since 1 September that the class teacher or substitute had taken steps to teach him. Up until then the only teaching he had received was what the SNA had provided. The parents believe that the class teacher had a premeditated strategy to have their son removed from her class.

When asked what redress they sought the parents said that they wanted an admission that these things happened and shouldn't have happened and they want an apology.

Summary of respondent's case.

The allegations made by the complainant were fully and formally investigated by the Board of Management. The respondent denies any discrimination occurred. The complainant concluded his primary school education at the respondent in May 2011. He is a success story in terms of the mainstream education of a child with special needs. He was very well liked at the school. The complainant was one of 21 boys in sixth class with Ms S as class teacher. He was also allocated a full time SNA (his father) and a Resource Teacher (Ms R) who provided one-to-one teaching for 40 - 45 minutes every day. Ms R was absent from work for medical reasons during the three weeks of September 2009 that are the subject of the complaint.

During the first two weeks of September 2009 Ms S took pre-arranged parental leave. Mr S, Ms S's father, a retired primary school principal substituted for Ms S from 1 to 14 September 2009, inclusive, comprising 10 school days.

Ms S reported to work on Tuesday 15 September 2009 as arranged. Ms S was absent on 17 and 18 September 2009 for two days as her own child was hospitalised requiring her absence from work. Her father Mr S substituted for her on those days.

Allegations of discrimination against Mr S were made verbally to the school principal on 17 September 2009 by the complainant's SNA who was his father. The school principal enquired whether the complainant's father wanted him to investigate his allegations and the complainant's father replied that he did not require any steps to be taken as Ms S would be back and all would be fine.

Ms S taught the sixth class boys for a net four school days before a written...