Case Number: DEC-S2018-018. Workplace Relations Commission

• Judgment Date: 01 September 2018
• Year: 2018
• Docket Number: DEC-S2018-018
• Court: Workplace Relations Commission
• Parties: A student and her mother (Represented by Desmond Ryan, BL instructed by the Irish Human Rights and Equality Commission) v A secondary school (Represented by Rosemary Mallon, BL instructed by Mason ...

EQUAL STATUS ACTS DECISION NO. DEC-S2018-018 PARTIES A student and her mother (Represented by Desmond Ryan, BL instructed by the Irish Human Rights and Equality Commission) Complainants AND A secondary school (Represented by Rosemary Mallon, BL instructed by Mason Hayes & Curran Solicitors) Respondent

File reference: ES/2014/0084, ES/2014/0160 & ES/2014/0161 Date of issue: 21st September, 2018

Introduction:

1. 1. On the 12th May and 8th July 2014, three complaints were referred to the Equality Tribunal/Workplace Relations Commission against the same respondent. Two complaints are in the name of the complainant and one in the name of her mother. The complaint of the 12th May asserts that the respondent discriminated against the complainant and failed to provide her with reasonable accommodation (ES/2014/0084). An ES1 form was sent on the 19th March 2014 and the respondent replied on the 16th April 2014. A second complaint of discrimination and failure to provide reasonable accommodation (ES/2014/0161) was submitted on the 8th July 2014. This followed an ES1 form of the 28th May 2014, to which the respondent also replied to. The complainant’s mother submitted a complaint of discrimination by association and victimisation (ES/2014/0160).

1. 1. On the 13th January 2016, in accordance with his powers under section 25 of the Equal Status Acts, the Director General of the Workplace Relations Commission delegated the case to me, Kevin Baneham, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under section 25 of the Acts, on which date my investigation commenced. In accordance with section 25(1) and as part of my investigation I proceeded to a hearing on six separate dates.

1. 1. Desmond Ryan, BL instructed by the Irish Human Rights and Equality Commission represented the complainant and her mother. Rosemary Mallon, BL instructed by Mason Hayes & Curran represented the respondent. The complainant’s mother and the chartered psychologist gave evidence for the complainant. The principal, the special needs coordinator and the SNA gave evidence for the respondent. The senior NEPS psychologist and the NEPS Regional Director attended pursuant to section 34 of the Equal Status Act.

1. 1. This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.

THE COMPLAINANT’S CASE

2. The evidence of the complainant and her mother:

2.1 The complainant submitted two complaints of discrimination on grounds of her disability against the respondent, her former school. Her mother’s complaint is one of victimisation and discrimination by association. The complaints were dealt with together and heard over several days. The complainant’s mother attended the hearing to speak on her daughter’s behalf and on her own behalf.

2.2 The complainant’s mother outlined that her daughter was now 20 years of age and attending the services of a group affiliated to the Health Service Executive. She was engaging in various socialisation tasks with a view of doing a PLC course. She said that the complainant had diagnoses of Attention deficit hyperactivity disorder (ADHD), Oppositional Defiant Disorder (ODD), Asperger’s Syndrome and anxiety. Her disability had come to light in primary school. She described her daughter as being giddy during her first year in school but she was taken aback when the primary school principal contacted her at the end of second year to say that her daughter would be held back a year. The primary school principal raised her daughter’s behaviour. At this time, her daughter’s sibling was in the same primary school. This sibling has Down’s Syndrome and the primary school principal was not supportive of her. The complainant’s mother transferred the complainant to a local, smaller primary school, but moved her again after a parent complained about the time and attention demanded by her daughter. The complainant completed her primary education at an Educate Together in a neighbouring county.

2.3 The complainant’s mother explained that her six children all went to the respondent secondary school. Her youngest daughter was still a student in the school. It was important for the complainant to have the same opportunity with the respondent, in particular as it was a good school and very much part of the local community. She said that the then Principal (referred to in this report as the Former Principal) was very supportive as was a named SENO. The Former Principal established the autism unit, which opened the year the complainant joined the school. The Former Principal liaised with the Educate Together in order to plan her joining the school.

The complainant’s first year

2.4 The complainant’s mother outlined that from day one her daughter was less favourably treated by the respondent. The complainant was asked not to attend school until the teacher assigned to the autism unit commenced employment with the respondent. No alternative teacher was offered and the complainant only started in school when this teacher was available. The complainant’s mother complained to the special needs coordinator and asked that her daughter commence on the same day as everyone else. The complainant started in school on the 5th October 2009. By this time, the former principal had left the school and was replaced by the current Principal. The complainant’s mother described her daughter’s first year as a negative experience. She spent the year being taught in a small room, with the teacher and a Special Needs Assistant. Her classes would only last a short time and her mother had to remain on the school grounds to collect her daughter at very short notice. Her daughter could not socialise with her peers. The complainant’s mother said that she had to bring and collect her daughter from this small classroom every day. She was asked to attend every day as an SNA. While she was not happy with these arrangements, she hoped that they would improve over time. She raised her concerns at the regular Individual Education Plan (‘IEP’) meetings, at which the special needs coordinator also attended. She also complained that the complainant was never allowed to be without an adult accompanying her, for example an SNA walking with her in the corridor.

2.5 The complainant’s mother said that there were attempts by the respondent to integrate her daughter into the school. The respondent over-exaggerated and over-reacted to a series of incidents involving the complainant. The over-reaction involved punishing the complainant for everything that happened. The complainant was a “taught spring” and the respondent added to the pressure on her. The respondent did not engage positively or provide a holistic environment for the complainant. The complainant knew she was an outsider. She asked where the other autism teacher and students were in the unit and why she did not spend time in a mainstream setting.

2.6 While she was acting as an SNA, the complainant’s mother witnessed the event of the 24th September 2010. She accompanied her daughter to an outside education facility where she had a maths class. Her daughter passed a comment about younger children close-by. The complainant’s mother described this session as a great success but she learnt that her daughter was suspended for one week. The complainant’s mother challenged the Principal about the suspension and he relented. Her daughter was then permitted to attend school. She commented that the respondent continued to refer...