Judgment of Mr. Justice John MacMenamin dated the 24th day of May, 2017
Introduction
1. This matter comes before the Court by way of an appeal on points of law brought pursuant to s.28 of the Equal Status Act, 2000. The appellant, Ms. Kim Cahill, claims 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 is dyslexic. She was diagnosed with the condition in 6th class in primary school. She encountered problems in undertaking her leaving certificate examination in the year 2001. She applied to the respondent for what is termed “reasonable accommodation” in certain language subjects, by reason of her dyslexia. She contends 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. While the questions which arise for determination are purely legal, it is necessary to recollect that, at the centre of this case, there was a young person, now an adult, who, because of her medical condition, encountered difficulties in undertaking examinations which other students did not, and do not face. Although there have been almost 20 days of hearings at all levels, and the events in question occurred long ago, the issues still have great significance, as they touch on how this Act should be interpreted in regard to people with disabilities.
2. One of the many ironies in this appeal is that the issues now discussed, in fact arose as a result of the respondent Minister, (otherwise “the Department”), embarking on a number of policy initiatives during the 1990’s. These measures were actually aimed at assisting students undertaking examinations who suffered from learning disabilities. What occurred in this case must, therefore, be seen in the light of the fact that the Department sought to introduce forms of what is called “accommodation” for such exam candidates. The controversy lies in the manner in which this was done: specifically, by placing indications or “annotations” on such a candidates leaving certificate, which conveyed they had not been examined on core elements of certain subjects.
3. The central event in this case can be simply conveyed. It was that, when Ms. Cahill received her leaving certificate it was accompanied by these “annotations”, which indicated that she had not been examined in core elements of three language subjects, Irish, English and French. Ms. Cahill and her parents considered that this stigmatised her disability as a result of her dyslexia condition. The appellant complained to the Equality Tribunal, submitting that this discrimination arose from her disability, and was in breach of ss.3 and 4 of the Equal Status Act, 2000, which prohibits forms of discrimination. The Equality Tribunal conducted a careful hearing, and issued a determination in her favour. Thereafter, the matter was appealed to the Circuit Court where the Minister succeeded in the appeal, then to the High Court on points of law, where the decision again went in favour of the Minister, and, ultimately, to this Court.
4. It is doubtful if any person wants to bring upon themselves the significant invasion of privacy, which goes with high-profile litigation. The task of this Court is to address the points of law which are raised on the appellant’s behalf. This is not in any sense, to set Ms. Cahill’s personal concerns to one side. But the question which must be addressed is whether the courts which previously dealt with the matter correctly addressed the points of law now raised on the appellant’s behalf in this appeal now brought by the Workplace Relations Commission, as statutory successor to the Equality Tribunal. It is said these mis-direction on law in these aspects have hindered these agencies in their work on other investigations
The Procedural Background
5. The complaint to the Equality Tribunal was set out in an ‘ODE.15’ form. This was a notification under the Equal Status Act, 2000 regarding an alleged act of discrimination. There Ms. Cahill claimed that she had been discriminated against on the grounds of disability, as medically defined. She wrote that she suffered from dyslexia, and had sought to have a reasonable accommodation applied to her leaving certificate examination to facilitate her in performing at her potential level. The complaint form sets out that she wished to maintain the privacy and confidentiality of her condition, which had been denied to her by the annotations. The appellant contended that the Minister had stipulated that her leaving certificate must be “annotated”, and that her examination results had been “influenced” by the “reasonable accommodation”. She described the annotation as private, and serving no educational purpose, and requiring her to explain her medical condition in the future to future employers, thereby placing her at a life-long disadvantage.
6. This complaint form which set the parameters for all the lengthy proceedings which followed. The oral hearings which took place, both before the Equality Tribunal, and before the Circuit Court, can only ultimately be seen within the boundaries of the case that was advanced at the outset. It is, perhaps, unfortunate that this highly technical case was begun in a somewhat informal way, as it narrowed the issues. The case was initiated by Ms. Cahill and her father, only a short time after the passage of the Equal Status Act, 2000, at a time when the jurisprudence had not evolved in the way it has subsequently. Consequently, although certain observations are made in this judgment as to how I conceive the scope of s.4 of the Act, these must be seen as being obiter, to a degree with the benefit of hindsight, and in the light of the jurisprudence as it now stands. No blame attaches to the lawyers, or the Equality Tribunal, or the appellant for this happenstance. But the consequence of this is that it is simply not now open to this Court to review the parameters of the evidence, or review the facts as established.
7. The proceedings should now be described in more detail. The appeal is brought against a judgment and order of the High Court, (de Valera J.), (“the High Court judge”), delivered on the 11th June, 2010. There, he dismissed Ms. Cahill’s appeal under s.28 of the Equal Status Act, 2000 (“the Act”). What was before that judge was, in turn, an appeal against a judgment and order of His Honour Judge Anthony Hunt, then a judge of the Circuit Court (“the Circuit Court judge”), made on the 19th October, 2007. The Circuit Court judge allowed the Minister’s appeal against the decision and recommendation in Ms. Cahill’s favour, made on the 3rd November, 2006 by the Equality Officer in the Equality Tribunal. The Equality Officer, in a comprehensive determination, criticised the respondent’s procedures in annotating the leaving certificate, and held this was an unlawful discrimination, in breach of s.3(1) of the Equal Status Act, 2000.
8. At one level, the case concerned the respondent’s ‘annotations’ of her Irish, English and French results. At another level, the case might be characterised as raising other issues as to the maintenance of the integrity of an important, nationally organised, examination, in the face of the appellant’s contention that such examinations are actually inappropriate for candidates who have her condition. Again, while this appeal is confined to issues of law, it is necessary, unusually, to set out the facts in some detail. This is because a further question arising is whether, even if there were errors of law in the Circuit and High Courts, such errors should alter the outcome of the case.
9. This judgment considers the following:
• The factual background, including the evidence adduced in the Circuit Court.
• Grounds of Appeal
• Jurisdiction of this Court
• Interpretation of ss.3 to 5 of the Act
• The issues raised under s.3(1) of the Act and conclusions thereon, including the interpretation by the courts of ‘less favourable treatment’.
• The conclusions reached under s.3(1) of the Act
• Observations on the confines of the case as initiated.
• Observations on the interpretation of s.4 of the Act.
• The significance of the terms ‘impossible’ or ‘unduly difficult’ under s.4(1). The meaning of the term ‘without prejudice’ in s.4(5) of the Act.
• s.5 Issues: Specifically, whether, if there had been discrimination, it would be saved by s.5(2)(h) of the Act.
• Conclusion
10. Among the questions to be considered are, whether, under s.3(1), the appellant was treated “less favourably” by reason of her disability; whether, in other circumstances, there might arguably have been the potential for a different or broader case initiated under s.4(1) of the Act; and the potential application of s.5(2)(h) of the Act of 2000. It is common ground that the condition of dyslexia constitutes a “disability”, as defined under the Equal Status Act, 2000. In unusual circumstances, the Minister’s officials in the Department made special arrangements for what are termed “accommodations” for Ms. Cahill’s leaving certificate in the year 2001.
The Factual Background: The Evidence in the Circuit Court
11. From the time of her diagnosis onwards, the appellant made efforts to address the problems she encountered in reading and learning. She went to tutors who taught her ways of dealing with the condition. A psychological assessment showed that she was a person whom psychologists grade as being of “superior” intelligence, that is, a person of high I.Q. In general, such a person might not encounter great difficulty in dealing with examinations. But, unfortunately, the condition of dyslexia poses real challenges especially in language subjects. Kim Cahill was no exception. She was diagnosed as being “mildly dyslexic”. This meant there was a disparity of a year and a half between her intellectual functioning and her comparatively rather lower reading age.
12. The causes of dyslexia are uncertain. It is sometimes called “the hidden disability”. Many experts now are of the view that it is a medical, neurological, condition, related to the way in which the brain processes information, decodes written words, or deciphers language. The condition is seen as ‘medical’, with a consequent emphasis on “diagnosis” and “treatment”. Another view, now less favoured, was that the condition should be viewed as an “educational” and “social” in nature. This latter approach might necessitate recognition that some children learn in a different manner from others, and require different types of support in order to achieve their full learning potential. This divergence of viewpoint may have created uncertainties in the past as to how examiners should approach these issues. Perhaps these difficulties in categorisation, or definition, underlie some of the problems which the Department encountered. One complex question which arises is, whether a student has a specific learning difficulty, or simply has different levels of intellectual functioning regarding, for example, cognition and writing skills? At what point does the disparity become a disability? Occasionally, too, there appear to be candidates who dislike, or have problems with, a particular language subject, and thereafter claim dyslexia. While the appellant’s condition is mild, there was no question that her condition was real.
The Departmental Circulars
13. Institutional recognition of the problems encountered by dyslexic students evolved over a period of years. There was also new thinking on students with more profound learning difficulties. The Department first began to address the issue in the early 1990’s. As a first step, it issued a circular in 1994. This was intended to address issues faced by candidates who either had a physical disability, including visual and hearing impairments, or a specific learning difficulty. It provided for a wide range of arrangements, including readers, modified question papers, Braille translations, enlarged print, low vision aids, a special room, a different time, or having the script corrected by a designated examiner. There was to be allowance for extra time where the candidate needed the help of a scribe, would otherwise be unable to make adequate use of the mechanical aids provided for recording the answers, or where the candidate was visually impaired. The circular also provided for an appeals mechanism.
14. The Department later set up an expert study group, which issued a discussion paper in May, 1999. The expert group furnished a formal report to the Minister of the day. After consideration, the Department issued two circulars in April and November of the year 2000 (S38/00 and S70/00 respectively). The latter circular, S70/00, had the rather ungainly title of “Information Note Regarding the Scheme of Reasonable Accommodations, which will apply at the 2001 Certificate Examinations”. Insofar as relevant to this case, this set out that, as and from the year 2001, candidates might obtain a waiver of a core element of a subject, even where their learning difficulties were not severe enough to warrant the grant of the full range of facilities, such as a tape recorder, a spell-check computer, or a scribe. This waiver, or “accommodation” might be given in relation to the assessment of grammar and punctuation in language subjects. Decisions in such cases were to be determined on the basis of evidence submitted to the Department with an application form. The form was to set out the special requirements of the candidate in question. There was to be independent verification. The circular stated explicitly that where waiver arrangements were granted, the candidate would have his/her grade determined on the balance of the work on the subject.
Accommodation and Annotation
15. But accommodation came with the proviso that the results would be accompanied by an explanatory ‘annotation’ on the certificate, to the effect that all elements of the language subjects in question had been assessed - except the spelling and grammar elements. The issues in this case stem from an apparently rigid adherence to the circular, and the Department’s procedure.
16. The departmental records show that Kim Cahill actually did receive a degree of accommodation in her junior certificate. An allowance was made then for faulty punctuation and grammar; if an examiner encountered difficulties with her scripts, it was to be referred to an advisory examiner more experienced in this field.
17. In the year 2000, the question arose as to the accommodation which Kim would receive for her leaving certificate in 2001. She was assessed by Patricia Timoney, a psychologist, on 23rd March, 2000. The school obtained an application form for accommodation in November, 2000. As both parents were obviously concerned about Kim’s situation, Mary Cahill, Kim’s mother, counter-signed this “S.A./1/2001” application form. The remainder of the form was, apparently, completed later by a teacher in Kim’s school. But, when Mary Cahill counter-signed the form on the 29th November, 2000, she was not aware of what was to be put in the remainder of the form. The “reasonable accommodation” sought in the application was very generalised. What was proposed was a “reader”, or a “special centre”, or “maybe” extra time. The evidence before the Circuit judge was to the effect that what Kim’s father, at least, really had in mind was that his daughter would be given extra time for some of her examination subjects. The application form was accompanied by Ms. Timoney’s report attesting to Kim’s condition. At a time when she was aged 17 years and 3 months, her basic reading was assessed at 15 years and 6 months, her comprehension age at greater than 17 years, and her spelling age at 16 years and 3 months.
18. In Spring 2001, Mr. Paddy O’Dwyer, a senior psychologist attached to the National Educational Psychological Service (NEPS), assessed Kim in her school situation on behalf of the Department. Mr. O’Dwyer, accepted that there was a discrepancy between Kim’s assessed cognitive ability, and her attainments in reading, but he found her reading skills, although lower than her cognitive ability, nonetheless fell within the average range. He concluded that her spelling, grammar and written work were at an acceptable level, and this was manifested in the written examples she provided.
19. It appears that, subsequently, there were a number of misunderstandings and miscommunications. A letter written to Kim’s school by one official, on the 15th March, 2001, was, in hindsight, seen by the Department itself as being capable of conveying that Kim would actually receive some extension of time, in accordance with the earlier circular (S40/94). But, in fact, the Department’s actual official view was that that the circular dealt with visually impaired candidates. Later, on the 23rd March, 2001, the Department wrote out again, seeking to remove any misunderstanding. The letter sought to make it clear that Kim would not receive any accommodation at all. Having stated that “Kim’s learning difficulties do not warrant special arrangements”, the letter went on to state that examiners would be under instructions to ensure that the candidate would get full credit for work done, and that arrangements would be made, if necessary, to use an advisory examiner, in the case of difficulties in reading.
20. What happened in the weeks that followed is not entirely clear. It seems that two months elapsed before Kim’s father, Mr. Niall Cahill became fully aware that it might still be possible for candidates to receive the “newly introduced” spelling and grammar waiver, which was to be effected during the marking process. By then, much time had passed. The examinations were about to begin. Mr. Cahill’s appeal against the decision of the 23rd March, dated the 28th May, 2001, conveyed an express request for special consideration for his daughter. This was on the basis that neither she, nor her parents, had previously been aware that there could be an appeal as to whether consideration might be available for her particular difficulties with spelling and grammar. The Department’s appeals committee met and considered the matter quickly. The appeal was refused. On the following day, the adverse outcome of the appeal, as it transpired later based on incomplete documentation, was conveyed by Kim’s school to her father. The appellant sat and completed her leaving certificate examination. It remains unclear why she could not have been granted extra time in the form of a departmental decision made well prior to the examination. But this is not the true focus of the case.
The Flawed Appeals Procedure
21. Mr. Cahill and the school became concerned as to whether the Appeals Committee had acted with full information. They obtained the Appeals Committee documentation from the Department. By this time, Kim had completed her leaving certificate, under the impression she was not to receive any accommodation. The Department then accepted there had been flaws in the appeals procedure. Judging from the documents in the case, it seems that these procedural flaws were quite significant. The Appeal Committee members were apparently not furnished with part of the relevant documentation on Kim’s case. The appeal was re-assessed, and the decision, perhaps a very pragmatic one, was made to grant a waiver. The respondent’s written submissions put the matter delphically: the decision was made “on balance”. It is not unfair to now conclude that in general, the papers in the case indicate some degree of official confusion, even within the Department and among its advisers, as to precisely what criteria should apply in making these decisions.
The Granting of a Waiver Accompanied by Annotation
22. On the 5th July, 2001, the Department notified Mr. Cahill that Kim would receive a spelling and grammar waiver, and that she would be treated as a candidate with a disability warranting such accommodation. But, Mr. Cahill was reminded that the waiver would be accompanied by an explanatory annotation on the examination results, which would include details of the accommodation, and the fact that adjustments had been made. This could not have been entirely new information to him, as the Department was repeating what had been said in the circular of November, 2000, which the Cahills had seen. Mr. Cahill remained dissatisfied as to the procedure and any possible annotation. He considered it discriminatory and invasive of Kim’s privacy. He continued his challenges.
Further Challenges
23. On the 1st August, 2001, Niall Cahill appealed against the inclusion of any explanatory note or annotation. Time was then short. The results were due out on 15th August. On the 13th August, 2001, the appeals committee upheld the inclusion of the explanatory annotations in Kim’s case. There was a further flurry of emails. The results were issued on 15th August. Subsequent to this, Mr. Cahill sought information from the Department about its powers and duties under Data Protection Acts. He contended the Department was not entitled either to maintain data regarding his daughter’s medical condition, or to issue a leaving certificate which might indicate the nature of that condition. Clearly, he was understandably protective of his daughter’s rights of privacy. But the Circuit Court judgment sets out a difficulty. No matter what form of accommodation was granted, it was inevitable that it would be noticed by others.
Results Day
24. The leaving certificate results day is now a recognised rite of passage in the educational life of this country. What happens in each secondary school on that day receives near-saturation coverage in all forms of the media. It is inevitable that, on the day, all candidates will share news of their results with their fellow students, and especially whether they obtained sufficient points to pursue their chosen third level courses.
25. But, in Kim Cahill’s case, the preliminary notification she received contained the three annotations in Irish, English and French. In themselves, these were enough to trigger questions from fellow students on the day. Her ‘official’ leaving certificate contained annotations on the front, referring to explanations on the back, setting out her results.
26. The unfortunate fact is that Kim Cahill had not been aware of any possibility of annotations on results day. She had no knowledge of what was contained in the November, 2000 circular, nor of her parents’ subsequent correspondence from the Department. She testified later that when she opened her results envelope in school she was shocked to find the stars or annotations on her preliminary results, with explanations on the reverse side. She had not expected this. All results were handed round from one student to another. The appellant felt that she “stood out”, and had been made the subject of discrimination, on the basis that she had obtained something quite different from the other candidates. While some school friends had been aware of her condition, others were not. She felt her privacy had been invaded by the addition of these annotations. She told the Circuit judge later that what was supposed to have been a great day, turning into one of disappointment, “the most embarrassing day of her life”. It ended up with her feeling “interrogated” by others.
27. Even at this remove, it is hard not to feel sympathy for a young person who felt she had been entirely undeservedly singled out, on a memorable day, through no fault of her own. In fact, however, even prior to the leaving certificate, Ms. Cahill had been accepted for entry to DCU, subject to obtaining a somewhat lower level of points than would otherwise have been required. She undertook a third level degree course in communications, and then obtained a higher diploma in music technology. In DCU she was given a wide range of accommodations, without any annotation on her results. She obtained employment and had a full life. There was no evidence, at any stage, that any potential employer ever asked about the annotations, or that she had suffered some financial detriment as a result of them.
28. In hindsight, one might infer that, actually, the accommodation granted was a pragmatic and ad hoc solution to a situation where, perhaps, the prospect of litigation loomed, in the light of the flawed appeals procedure. But one unavoidable fact is that, when Kim’s father applied on her behalf in May, 2001, the only accommodation apparently available was for grammar and punctuation, which would lead to annotation.
29. There are a number of further features which require emphasis. The broad thrust of Kim Cahill’s own evidence has already been outlined. Her credibility was not challenged at first instance or on the appeal of the Circuit Court. Mr. Cahill, in evidence, laid great emphasis on his belief that the condition of dyslexia was a private ‘medical’ matter, and that the Department had no right to publish material of this sort on a leaving certificate, or otherwise. He was critical of the original application which the school submitted on the 29th November, 2000. He believed that Kim did not require a ‘reader’, or a ‘special centre’, but rather extra examination time. He accepted he would not have discussed the information he had received from the Department regarding the presence of annotations with Kim. He raised doubts as to the Department’s concerns regarding the integrity of the leaving certificate, in light of the fact that candidates who undertook the examination through the Irish language received bonus points, although this was not recorded or annotated in their leaving certificates.
30. Much of the evidence in the appeal to the Circuit Court focused on whether the ‘link’ between accommodation and annotation was necessary. In finding for the appellant, the Equality Officer had laid much emphasis on two points. First, she had commented adversely on the non-annotation (i.e. failure to note) of the “Irish bonus” in the case of candidates who undertook examinations through Irish. She felt it gave such candidates an advantage. In her view, this undermined the Department’s entire case based on the integrity of the examination. Second, she pointed out that the Department had not adduced sufficient evidence to establish that, what she called the “bundling”, or linkage, of an accommodation and annotation, was objectively justified. The Department sought to address these issues in the appeal before the Circuit judge. It is necessary first to summarise the balance of the appellant’s case.
Dr. Niall Shevlin’s Evidence
31. Ms. Cahill had just one expert witness in the Circuit Court. He was Dr. Niall Shevlin, Head of the School of Education in Trinity College Dublin. Dr. Shevlin accepted that the form of accommodation made available by the Department was common in a number of foreign jurisdictions. He acknowledged that the maintenance and integrity of the national examination process was, in itself, an important principle. However, he did not feel that the accommodation which was applicable compromised the objective measurement of intellectual abilities. Rather, he felt the process of assessment of ability was actually enhanced by an accommodation, in that it gave disadvantaged candidates an opportunity to demonstrate their capabilities. He did not “quite accept” that a non-annotated leaving certificate would be misleading to a reader, such as a potential employer. He did, however, acknowledge that it would be reasonable to indicate the absence of assessment of a core element of an examination, although he was concerned about the consequences of this. He also accepted that spelling, punctuation and grammar were an essential part of the assessment process.
32. Dr. Shevlin made clear that, in his view, extra time would have been a preferable outcome. He referred to a 1998 study that showed extra time was beneficial to the demonstration of knowledge by students with dyslexia. There is no doubt that the question of extra time was part of the evidence in the case However, that simple point appears to have become submerged in other, broader issues later described. But, as the Circuit judge pointed out in his careful and humane judgment, Dr. Shevlin never actually identified how, by adopting some different approach, the Department could have accommodated Ms. Cahill’s needs, without that fact becoming more widely known. Even an extension of time, or placing her in a separate room would inevitably become obvious to fellow students and be open to comment. But, at no stage, did Dr. Shevlin controvert any of the Department’s expert evidence described below. The entire thrust of this expert evidence was that internationally and across many jurisdictions, accommodation was always accompanied by annotation.
The Department’s Evidence in the Circuit Court
33. For the appeal the Department had assembled a range of witnesses to remedy any deficits there had been before the Equality Officer. Mr. Aidan Farrell, the Director of Operations in the State Examinations Commission, testified that it was a “fundamental principle” of the accommodation scheme, that annotation must follow if there was any change in the nature of the examination itself, or how a candidate undertook that examination. This principle was drawn from the guidance devised by the 1999 expert advisory group, which had concluded that the integrity of the examination required that if any element of an examination was waived, or not met, there must be annotation.
34. Mr. Farrell disputed that the “Irish bonus” created an unfair advantage. He pointed out that, in that situation, the nature of the examination itself did not change. He did, however, accept that a candidate who undertook subjects in the examination through the Irish language did enjoy a competitive advantage. However, he considered that position more analogous to the distinction between a dyslexic candidate, on the one hand, and an unsighted candidate, on the other. In the latter case, the unsighted candidate who undertook the examination using Braille, did not have his or her papers annotated, because, in fact, the nature of the examination itself did not alter. Other officials testified regarding departmental procedures. But it is important to point out, albeit with the benefit of hindsight, the real focus of the appeal was on the annotation, rather than any other aspect of the Department’s engagement with the appellant.
The Expert Evidence
35. The Department called three expert witnesses in the Circuit Court. Each of these directly addressed the question of linkage between accommodation and annotation. The Circuit judge found their evidence coercive on this issue. These witnesses were Dr. Jeffrey Braden, Professor of Psychology attached to North Carolina State University; Dr. John Eikin, a consultant educational psychologist, and expert in dyslexia, who lectured in education at Queen’s University Belfast, and Mr. Nicholas Peacey, Equal Opportunities Manager at the British Qualifications & Curriculum Authority.
Professor Braden’s Evidence
36. Professor Braden testified he had close experience of the examination procedures adopted in the case of dyslexic candidates in seven different countries. He considered that the Department had been consistent with international standards in its approach to linking accommodation and annotation. He described the Department’s accommodation scheme as having been framed and worded in exactly the same manner as in other jurisdictions. In his view, anything less would have been inappropriate, as it would have required the ‘end user’ of a certificate to engage in guesswork.
37. The witness testified that society’s recognition of forms of disability had evolved, and that the earlier stages of “secrecy”, followed by “paternalism” had now given way to a situation where, nowadays, advocacy groups were of the view that disabilities should be perceived as a part of life, utterly removed from any sense of shame, secrecy or privacy. He believed that the appellant had been “poorly served” by the notion that she should keep her dyslexia a secret from others, and by the fact that she had not been told that there would be annotations on her examination certificate. He testified that, in the seven countries with which he was most familiar, the appellant would not have been granted extra time, or indeed any accommodation. This finding was not contradicted by a testimony from the appellant’s side. Professor Braden concluded that, in extending the facility, the Department had been “unusually generous”.
38. There were other parts of his evidence less favourable to the Department. The witness was critical of the fact that, at the time Kim undertook the examination, there was uncertainty as to whether she would be granted an accommodation at all, and if so, what form this would take. He thought this factor could have had a bearing on the effectiveness of any accommodation given; in that a candidate who knew of the existence of a waiver would do better. These points are considered in the consideration of s.4 of the Act later in this judgment.
Dr. John Eikin’s Evidence
39. Dr. Eikin testified that the accommodation provided to the appellant would not have been available to her in Northern Ireland either. She would not have qualified for an ‘extra-time’ accommodation, as her reading and spelling results were higher than the threshold for granting such a facility there. In fact, he said she would not have received any accommodation at all in Northern Ireland.
Mr. Nicholas Peacey
40. For his part, Mr. Peacey described what he saw as the “necessary” balance between making reasonable accommodation, as against possible perceptions that such accommodations might be actually unfair to other candidates. Such an outcome, he thought, might properly lead to questions about the integrity of an examination itself. He, too, considered the Department’s approach on accommodation as having been ‘generous’ in Kim’s case. He referred to reports from dyslexia advocacy organisations, which had expressed concern that too many people were receiving extra time as an accommodation, based on a not-always-reliable, diagnosis of dyslexia.
41. The Circuit Court judge’s conclusions are dealt with later in the consideration of the application of the provisions. In brief, he reversed the Equality Officer’s determination, and held there had been no discrimination under s.3(1) of the Act, and that s.4 questions did not, therefore, arise.
Observations on the Grounds of Appeal
42. The precise issues raised in the appeal are outlined in the consideration of ss. 3 and 4 of the Act. But that it is worthwhile commenting that both the Notice of Appeal, (and the submissions made on both sides), revealed the extent to which there were subtexts in this appeal which divided the parties, as much as any question of legal interpretation. The appellant’s case advanced much broader and far-reaching propositions than would normally be found in litigation of this type especially in appeal on points of law. Her main contention was, in fact, that a standardised ‘high stakes’ examination, such as the leaving certificate, was inherently discriminatory in the case of dyslexia. This part of her case is put forward at the level of principle. This aspect of the appellant’s challenge can best be understood by a passage now quoted from the written submissions:
“In applying standardised testing to a student with dyslexia, the respondent (Minister) insists on testing disability and not ability. Throughout this case the appellant has relied on an extract from the Do No Harm - High Stakes Testing & Students with Learning Disabilities (Disability Rights Advocates, California 2001 …), which summarises the position as follows:
“Test publishers often have not conducted adequate research on how accommodations affect test validity. As a result, test publishers label a number of accommodations as “non-standard,” or “modifications,” often because it is not clear how they affect test validity. Schools may withhold the benefits of doing well on a standardized exam from a student who uses a non-standard accommodation. However, penalizing a student for using a non-standard accommodation is comparable to not allowing them to participate in the test at all. It is unfair and discriminatory to penalize a student with a disability for using a needed accommodation on an assessment simply because the test publisher has not conducted the necessary research about the effect of the particular accommodation on the test.”
The standardised tests have not been developed with the needs of the disabled student in mind.”
Dr. Braden testified that these views were an ‘outlier’ not representative of the academic consensus. There was strong expert evidence before the Circuit Court that the Department’s approach had been generous; that Ms. Cahill would not have been granted any accommodation in many other jurisdictions; and that internationally, when accommodation is granted, it is always accompanied by annotations. The Circuit Court judge observed it was “a constant through time and through all jurisdictions”.
Jurisdiction of this Court
43. The jurisdiction of this Court under s.28 of the Act was addressed in Stokes v. CPS Clonmel & The Equality Authority [2015] ELR 113. There, Clarke J. described this form of appeal as being limited in nature, confined to points of law. Clarke J. approved principles applicable to the scope of such appeals as summarised by McKechnie J. in Dealy v. Information Commissioner [2001] 3 IR 439, which concerned an appeal under s.42 of the Freedom of Information Act, 1997. As was pointed out in Dealy, a court considering such an appeal cannot set aside findings of primary fact, unless there was no evidence to support such findings; the Court ought not to set aside inferences drawn from such facts, unless such inferences are ones which no reasonable decision-making body could arrive at; but may reverse wrong inferences, if these were based on an interpretation of documents, and finally, should set aside the decision taken by a decision-making body, if there is an erroneous view of the law. The documents and correspondence in this case paint rather a clear picture as to how the appeals procedure was flawed, and convey, to some degree, the manner in which the Department sought to deal with the problem by granting an accommodation with the annotation.
Interpretation of ss. 3 to 5
44. It is now necessary to address the question of interpretation of the three sections in question.
45. The Act of 2000 is not always easy to construe. However, its long title conveys clearly that the statute was intended to be a statute “to promote equality”, to “prohibit types of discrimination”, and to provide mechanisms for the investigation of, and “remedying”, certain acts of discrimination, and other lawful activities. To my mind, this recital can only lead to the conclusion that the provisions in question must, under the constitutional provision referred to, be treated as being elements of remedial social legislation. Being remedial in nature therefore, the Court is permitted to adopt a broad generous, purposive approach, in order to identify and give effect to the plain intention of the Oireachtas. (See Dodd on Statutory Interpretation in Ireland 2008, Tottel para. 6.52; Bank of Ireland v. Purcell [1989] I.R. 327; Gooden v. St. Otteran’s Hospital [2005] 3 I.R. 617, and High Court judgment in G v. Department of Social Protection [2015] 7 JIC 074, of O’Malley J.). However, as O’Malley J. pointed out in the G case, to adopt such an approach is not to elevate any of the provisions into an “all but constitutional level”, nor can the interpretation go beyond the scope of the Act, as set out in the long title. Counsel for the Minister submits that a purposive interpretation should be adopted by a court only in circumstances where a provision is “obscure”, or “ambiguous”. (See s.5(1)(a) of the Interpretation Act, 2005). However, in fact, the Act of 2005 sets out that a purposive interpretation is open to a court in circumstances where a literal interpretation would, inter alia, “fail to reflect the plain intention of the Oireachtas” (see s.5(1)(b) of the Interpretation Act, 2005). In my view, the remedial intent is discernible from the Act itself; any other approach to these sections would not reflect the intention of the legislature. The issue is, to my mind, fundamentally important; how such ‘disability legislation’ is interpreted has been debated in many common law jurisdictions.
46. I take the view that the range of matters dealt with in ss.3 to 5 of the Act may be distinguished from those dealt with by this Court in Equality Authority v. Portmarnock Golf Club [2010] ILRM 237, where the majority of this Court looked to literal meanings of ss. 8 and 9 of the Act of 2000. In dealing with the quite radical consequences of a finding that a club was a discriminatory club on the grounds of gender, Denham J. and Fennelly J., however, in the minority, considered both the literal and broader, purposive interpretations. In Portmarnock the constitutional point of reference was the constitutional right of freedom of association. By contrast the constitutional ‘point of reference’ which bears most on the provisions here, is the pledge of equality as human persons before the law, contained in Article 40.1 of the Constitution, which guarantee, subject to the proviso contained in the same Article, that the value of equality protected shall not be held to mean that the State shall not, in its enactments, have due regard to differences of capacity, physical and moral, and of social function.
47. A further point of reference is Article 40.3 of the Constitution, which requires the State, in its laws, to respect, and “as far as practicable”, to defend and vindicate the personal rights of a citizen. These personal rights, of course, include those enshrined in Article 40.1 of the Constitution. The term “practicable” must inform the way in which the words “all that is reasonable”, as deployed by the drafter in s.4(1) of the Act of 2000, should be interpreted.
Section 3
48. Section 3(1) of the Act is framed in general terms. It provides:
“For the purposes of this Act discrimination shall be taken to occur where -
(a) on any of the grounds specified in subsection (2) (in this Act referred to as “the discriminatory grounds”) which exists at present or previously existed but no longer exists or may exist in the future, or which is imputed to the person concerned, a person is treated less favourably than another person is, has been or would be treated…”. (emphasis added)
49. I pause here to emphasise that this case concerns an allegation of direct discrimination. It is, therefore, unnecessary to deal with s.3(1)(c), which prohibits indirect discrimination, that is, a situation where an apparently neutral provision puts a person in an identified category at a particular disadvantage, compared with other persons, unless the provisions is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary. No such case is made.
50. Returning then to direct discrimination, s.3(2) provides for what are discriminatory grounds as between any two persons, that is, a comparator. It does so in the following terms, insofar as material:
“2. As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:
…
(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),
…”.
51. The issues raised in the appeal under s.3(1) are, in summary:
• Whether annotation which followed accommodation constituted, not only different treatment, but also “less favourable treatment”, and
• Whether “less favourable treatment” denoted treatment that arose due to a whim, caprice, unreasonableness, bad faith, illegality, irrationality, or out of direct or indirect prejudice against the disabled. (Hereafter, I will refer to the terms italicised against the second bullet point as the “judicial review criteria” issue.)
The Circuit Court held, on the evidence, and the High Court upheld, the conclusion that there had been no direct discrimination; that there had been differing treatment, but not ‘less favourable treatment’; and that the appellant had not established she had been treated ‘less favourably’ than any comparator. The High Court upheld the Circuit Court decision that the treatment in question was not caused by disability, but rather by the Department’s reasonable concern to maintain the integrity of the examination system. Thus, even if there had been a difference in treatment, it was not on the ground of disability, which would have been prohibited under s.3(2)(g) (above). But, counsel for the appellant submits that, in assessing whether there was ‘less favourable treatment’, the Circuit Court adopted what can be characterised as ‘Keegan’ “judicial review” terminology in identifying the test.
Conclusions under Section 3(1)
Whether annotation which followed accommodation constituted “less favourable treatment”?
52. It is next necessary to further consider the extent to which the Circuit Court findings were findings of fact. The Circuit Court judge accepted that the appellant had been treated differently by reason of the insertion of the notations on her certificate. But, he concluded, this “different treatment” was not synonymous with “less favourable treatment”, and that the appellant was not treated “less favourably” within the meaning of s.3(1). He entirely accepted the Department’s expert evidence. In fact, there was no contrary evidence on the key point of “annotations” linkage. The judge commented that Dr. Shevlin had not actually proposed any realistic alternative to the arrangement. He concluded that the sole issue which arose for him was as to whether annotations amounted to “less favourable” treatment of the appellant, when contrasted with comparator examination candidates, that is to say, candidates without the same disability. He accepted, as a fact, that there had been different treatment. But, he held the annotation occurred not as a result of disability, but rather because a core element of the examination had been exempted. He held that no annotation took place where a candidate who had a disability did not receive an exemption. He found that the evidence established that the annotation took place to maintain the integrity of the examination process.
53. In accepting the Department’s expert evidence on the need for linkage between accommodation and waiver, the judge noted that no alternative to the Department’s approach had been suggested which would protect the integrity of the leaving certificate examination. Each of his findings were based on cogent evidence. In fact, the evidence before him on the issue was not only clear, it was coercive. There was nothing in the appellant’s evidence to even put the matter in issue. Consequently, even if, as I would hold below, the Circuit judge may have deployed some inappropriate terminology on occasion, one cannot say that the outcome would have been different had different phraseology been used in the judgment. These were fact issues. The only matters now in question in this appeal are whether there were errors in law. I do not think these factual findings could be disturbed.
Less Favourable Treatment and ‘Judicial Review’ Phraseology
54. It cannot be denied that, in the course of his judgment, the Circuit Court judge did, on occasion, use language which might be seen as being that of judicial review. He asked himself whether the treatment of the appellant was based on “whim”, “caprice”, or “unreasonableness”. There is nothing in s.3 of the Act, or elsewhere, to suggest that the question of ‘less favourable treatment’ is to be tested against something tantamount to the very high judicial review standard. But to my mind, these observations were not germane to the true factual issues which the Circuit judge was addressing. Such terminology would not be consistent with a purposive, broad, generous approach to interpreting the Act. The protection against discrimination provided for under the section is wide-ranging, as is clear from the wording of the section itself. But ultimately these were factual issues.
55. In this context, it was submitted on behalf of the appellant that a court should look to the personal impact of the annotations on the appellant. Even adopting a broad approach to interpretation, I cannot accept this proposition. The import of s.3 cannot be seen as providing protection which goes so far as to assessing the “potential impact or effect of the treatment on the individual”, without more. A purposive approach can only go as far as the long title permits. No provision of the Act can be
Interpreted in so protean and subjective a manner, with the statutory consequence of identifying an individual subjective effect on one person, as a defining factor as to whether there has been discrimination.
56. In summary, in my opinion, some confusion was created by the usage of the terminology which is redolent of judicial review. I do not think this is the correct test. But this did not affect the judge’s factual findings under s.3(1) and s.3(2)(g).
Section 4: Preliminary Observations
57. It is now necessary to revert to a point made briefly at the outset of this judgment. Some of the observations which follow must be seen as obiter dicta. This is for the reason that the parameters of the case were already firmly identified by the time the ODE 15 form was submitted to the Equality Tribunal. Those same parameters were observed throughout the Equality Tribunal hearing, and in the Circuit Court. To my mind, they cannot now be revisited. This was the case the appellant wanted to make. It would be procedurally unfair to now seek to revisit the facts of this case, in circumstances where there would be no opportunity for examination or cross-examination, or testing the evidence, in light of new and different parameters. It would also now be meaningless to remit the case. But it is an inescapable fact that the case was, on instructions run throughout on the basis of the annotation actually contained on the appellant’s leaving certificate. The evidence before the Equality Tribunal, and the Circuit Court, did not explore other terrain. Specifically, the evidence did not address the nature, extent and, be it said, unsatisfactory and unreasonable confusion in the engagement between the appellant and the respondent. Even had there been such exploration, as is pointed out later, I consider that it is probable the Department would have been entitled to rely on the provisions of s.5(2)(h) of the Act of 2000. Whether this was the intent of the legislature is another matter.
58. Section 4 is framed in specific terms, and addresses only disability. The Circuit Court judge correctly pointed out that it is to be read independently of section 3. Section 4(1) identifies one particular form of discrimination. In my view, a finding of ‘no discrimination’ on grounds of disability under s.3(2)(g) will not, therefore, always or inevitably lead to a determination of ‘no discrimination’ under s.4(1). This is because s.4(1) not only contains a ‘substantive’ aspect, overlapping at times with s.3(2)(g), but also has a ‘procedural’ dimension, that is one based on the question whether a respondent did “all that is reasonable” procedurally, as well as in substance. The duty addressed under s.4 differs from that under s.3, in that s.4 deals with obligations to adjust rules or standards, or policies, to meet the specific needs of people who are covered by a protected ground: in this case, disability. The question then arises, how this affects this appeal? Insofar as relevant, s.4 provides:
“4(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.
(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination.
…
(5) This section is without prejudice to the provisions of sections 7 (2)(a), 9(a) and 15(2)(g) of the Education Act, 1998 , in so far as they relate to functions of the Minister for Education and Science, recognised schools and boards of management in regard to students with a disability.”
59. As the determination on s.3 was held to be decisive, the Circuit Court Judge added, obiter, that, even if his findings under s.3 were incorrect, the appellant’s treatment constituted “reasonable accommodation” under s.4(1). However, the judge expressed considerable doubts as to whether a claim was even admissible under s.4. He was persuaded by the submissions that the Minister was, by virtue of s.4(5) of the Act, exempt from the provisions of the Act as a whole. In this I think he was led into error by the Minister’s submissions.
60. It is, of course, not unreasonable to conclude, as does Laffoy J., in her judgment that the accommodation and annotation together can be seen as being a reasonable accommodation. But where the difference might lie in another case is whether a respondent did ‘all that was reasonable’, this may involve a broader inquiry.
The Interpretation of Section 4(1)
61. I now seek to identify what, in my view, should be the nature and scope of a broad interpretation of s.4(1).
62. One starts with the actual wording of s.4(1). The Circuit Court and High Court dealt with s.4(1) as a question of “reasonable accommodation”. That is not the test set by the words of the section. In fact, the section requires a respondent to do “all that is reasonable” to accommodate the needs of a person with a disability by providing special treatment or facilities, with the proviso that, if without such treatment or facilities, it would be impossible or unduly difficult for the person to avail himself or herself of the service. The appellant submits that, in an examination context, the purpose of such reasonable accommodation is not to confer an unequal advantage on a person with a disability, but rather to require the adjustment of the “modalities of the examination”, to enable ability to be accurately needed and measured, regardless of whether the student has a disability or not. It is hard not to interpret this as a contention that the entire system should be entirely changed for dyslexic candidates. That would not be consistent with the findings of fact.
63. The purely legal question, however, is, how should the term “all that is reasonable” be interpreted? In general, the term ‘reasonable’ here has two aspects. First, it must contain a ‘substantial’, or proportional, component sometimes, as in s.4(2), involving consideration of the cost element, (which does not arise in this case), but, second, there must be a procedural aspect where the focus should be on the engagement between the process provider, and the recipient. These are objective tests. (cf. Walsh, Equal Status Act, 2000 - 2011, Blackhall Publishing 2012, p.220).
64. Some assistance as to the interpretation of both the substantial and procedural meanings of the term ‘reasonable’ can be obtained from the approach adopted by the Courts of England and Wales in relation to the, admittedly rather different, U.K. Disability Discrimination Act, 1995. There, albeit in a different legislative framework, the courts have had to consider what are “reasonable adjustments”, and have concluded that the duty to make such adjustments can impose positive obligations on service providers to take action to modify tangible and intangible barriers to equal participation for disabled people, in those areas of life covered by the Act in question. I would agree with this approach.
65. In Roads v. Central Trains [2004] EWCA Civ 1541, Sedley LJ. In the Court of Appeal stated that the policy of the U.K. Act, was not a “minimalist policy of simply ensuring that some access is available to the disabled: it is, so far as reasonably practicable, to approximate the access enjoyed by disabled persons to that enjoyed by the rest of the public.” (para. 30). This approach was reflected by the then House of Lords in Archibald v. Fife Council [2004] UKHL 32, where Baroness Hale of Richmond held that the duty under the same Act was to “take such steps as it is reasonable, in all the circumstances of the case, for the employer to have to take”. She went on:
“to the extent that the duty to make reasonable adjustments requires it, the employer is not only permitted but obliged to treat a disabled person more favourably than others.”
66. When the provision speaks of “all that is reasonable”, that which is necessary and practicable in order to achieve substantive or procedural equality, the fact that rights are engaged, does not mean that the criteria to be applied are those which classically arise in judicial review proceedings. The position is, rather, that, as a first step, the words of the provision should be broadly interpreted in light of the values contained in Article 40.1, asking the question, what are the ‘needs’ that are necessary to achieve equality in the case of a person with a disability. But, that is only a first step. In enjoining a service provider to do all that is reasonable, the provision imposes positive obligations to remove tangible and intangible barriers to disabled persons. The words all and everything are, I believe, synonymous terms in this respect. What is in question here is not a simple common law ‘duty of care’, ‘balancing’ exercise, as to what is “reasonable”, but rather one where the balance is significantly tilted in order, where necessary, to impose positive obligations to ensure that all practicable steps are taken. This is different from refraining or abstaining from doing something. The legislative object therein should be seen as to do everything that is reasonable and practicable, both procedurally, and in substance, ensures the treatment of a person with a disability is placed at the same level as a person without a disability. The obligation is not, therefore, simply to refrain from certain actions, but, where necessary, to engage in positive action. In colloquial terms, it can impose a duty to “go the extra mile”.
67. But here it is necessary to bear in mind the nature of this case the appellant wished to make. The case focused, almost entirely, on the leaving certificate day and the notation. There is a question whether there was ‘notification’ of results as well as the ‘official’ leaving certificate. This was in dispute. The Circuit judge did observe, entirely correctly, insofar as there might have been an annotation on the notification received by candidates, rather than on the leaving certificate itself there could have been no rationale for it. But as he correctly pointed out, this was not the issue to be decided. But, it is clear the case did not involve the Department’s procedural engagement with the appellant - a broader scope of inquiry than simply considering the annotations. In my view this is what the Act requires.
The Equality Officer’s finding of impossible or unduly difficult under Section 4(1)
68. In considering s.4(5) it is necessary to revert to the Tribunal findings. The Equality Officer held against the appellant in her claim on section 4(1). The Officer concluded that the fact that the appellant had undertaken the examination showed that, in the words of s.4(1), it was not “impossible or unduly difficult” for the appellant to avail herself of the service. But, the Equality Officer did not have the advantage of hearing Professor Braden’s evidence, expressing concern as to the “uncertainty”, as to whether the appellant would be granted an accommodation, and if so, what form it would take. He thought this factor could have had a bearing on the effectiveness of an accommodation given. Nor did the Department’s flawed procedures come in for detailed analysis. But to my mind, even on the information she had, the officer erred in her finding. The critical word here must be “unduly”. It, too, is to be associated with the words, contained in the section, “all that is reasonable to accommodate the needs of a person with a disability.” The fact that the appellant was actually able to undertake the examination does not mean that it had made “unduly difficult” for her. In fact she had to undertake it when it had been made unduly difficulty for her.
69. In truth, there were real procedural inconsistencies in the Department’s position. First, it considered the appellant was ineligible for any accommodation. But, against this, she was ultimately granted an accommodation, in circumstances where such a facility could only be consistent with a finding of disability. A second difficulty is that the most obvious form of facility was ‘extra time’. This was the very facility which she was not granted. Instead she was given a ‘post hoc’ grammar and punctuation waiver, which came after the leaving certificate. Additionally, there was Dr. Braden’s evidence that, insofar as any such accommodation facility was available in the United States, candidates would have good notice thereof, that is upwards of 2 to 3 months. There was clearly a degree of departmental confusion about criteria for accommodation in both the correspondence and reports. Seen in this light, one can only conclude that the Department’s engagement, although undoubtedly well intentioned, was unsatisfactory. Had it been part of the case from the very beginning, one can now observe, albeit with the benefit of hindsight, that 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 do all that was reasonable.
The meaning of “without prejudice” as contained in s.4(5) of the Act
70. Although the Circuit Court observations in relation to s.4 were obiter, both the Circuit Court and High Court concluded that s.4(5) of the Act would have operated so as to exempt the Minister from the scope of the Act. This would have impacted upon the Minister’s discretion under s.7(1) of the Education Act, 1998, in providing for students with a disability, or other special educational needs, from the operation of s.4(1) of the Act. In my view, these findings contain a real misconception as to the meaning of the words ‘without prejudice’ in this setting. I am in agreement with Laffoy J., that this was an erroneous interpretation, which would effectively exempt the Minister from any liability under the Act, or from any duty to provide educational services under his control. It would follow that a failure to provide basic equipment necessary for a child to access learning, such as a hearing aid, or a Braille machine, could not be challenged as a breach of a duty to provide reasonable accommodation. Such an exemption would dramatically curtail the effectiveness of the Act of 2000 in protecting against discrimination in education. It would surely be unthinkable that a child requiring a basic piece of equipment to access educational facilities available to other non-disabled students, would be excluded from the remit of the Act, and the remedies that would follow under the Act, and its successors. This simply could not have been the intention of the legislature when enacting s.4(5). If it was intended, one would expect such exemption to be carefully set out in precise terms. Section 4(5) does not, in fact, deal with exemptions at all. Instead, it states that what is provided for “without prejudice”, in the sense of not derogating from ministerial functions and duties enumerated elsewhere. In fact, s.4(5) must bear the alternative, and entirely more likely, interpretation, that it is to be viewed as supplementing, rather than subtracting from, the protections imposed by the Act. I do not think it necessary to engage in a point by point analysis of the provisions of s.7, s.9 or s.15(2) of the Education Act. Each provision creates a duty on the respondent. The point is clear from the intend of the Act of 2000.
The Section 5 Issue
71. As this judgment seeks to explain, s.3 and s.4 may be read very largely independently of each other. In doing so, one gives effect to a generous interpretation of the Act. But, even if one proceeded upon the hypothetical, “procedural” case under s.4(1), it seems to me there is another issue. Section 5 is contained in Part 2 of the Act, headed “Discrimination Related Activities”. Insofar as relevant, this section provides:
The section is not at all easy to interpret. But, as I read the provision, taking the words both from s.5(1) and 5(2)(h), its effect is that a person shall not discriminate in providing a service if that service can be availed of only by a section of the public, but that there shall be no discrimination in the case of differences of treatment of persons in a category in the case of services provided for the purpose of promoting for a bona fide purpose, and in a bona fide manner, the special interests of persons in that category, to the extent that (such) differences in treatment are reasonably necessary.
72. Even had a case been advanced on the “procedural” aspect of s.4, it seems to me that s.52(h) might have presented difficulties to the appellant. While it is unnecessary to make a determination on the issue, it is arguable that, even adopting a broad interpretation, the Department’s ‘procedural mis-steps’ would have been defensible by virtue of s.5(2)(h), on the basis that the Department was “treating the appellant differently”, because it was “providing a service” to her; that “the principal purpose” of the Department’s actions was “to promote in a bona fide manner” the interests of the appellant, who was a member of that “category of persons”; and that the “differences in treatment” were “reasonably necessary” to “promote her special interests”. Perhaps the legislative intention was different, but, if so, it is very hard to discern another meaning. It is not easy to discern how even the broadest and most generous interpretation of the words, (or even the narrowest interpretation), could resolve this difficulty. As this is, in any case, hypothesis, one need go no further. I would reserve my opinion on this question to an appropriate case.
Conclusion
73. It is not hard to understand the appellant’s concern that the annotation contained on her leaving certificate creates a form of ‘stigma’, as she described it. However, as this judgment seeks to explain, cases must be decided on evidence, and the way the case is presented to the Court. The evidence before the Circuit Court on the key issue was, to my mind, coercive; it went only one way. It established that annotation always accompanied a form of accommodation. The judge was entitled to find that this treatment did not occur because of disability. As explained in this judgment, I take the view that the sections in question should be given a broad and generous interpretation. Such a form of interpretation has been used for the last quarter of a century by the Equality Tribunal, and its successor, the Workplace Relations Commission, which has brought the appeal to this Court in order to clarify the law. It seems to me that such an approach is not only well established, but it is the one which under the Constitution gives life and true effect to the legislative intent which is so clearly expressed in the long title of the Act. This was the intent of the legislation. I do not see the task of interpretation in this case as being a matter of giving literal effect to the words. It seems to me that the subject matter of the Act requires the courts to deal with the issue of interpretation here as having a high status, because of the very fact that what is in question is the right of everyone to be treated equally as human persons and not to be subject to these forms of discrimination. What is in question is not a series of common law definitions, as for example, with the purpose of identifying categories of offences; it is, rather, a series of provisions designed to ensure equal opportunity to all individuals whether or not they have a disability.
74. For the reasons set out I consider the appeal must be dismissed, albeit for the reasons which I have set out. I conclude that the judgment of the Circuit Court and the High Court did contain a degree of erroneous “judicial review” terminology. However, I consider this did not affect the Circuit judge’s s.3(1) findings of fact, which were sustainable. These were upheld in the High Court. Insofar as the High Court judgment gave support to incorrect ‘judicial review terminology’, I would set those observations aside. I conclude that the Circuit Court judge erred in his findings regarding s.4(5) of the Act. The High Court erred in affirming these findings also. The confined nature of the case, as it was initiated, does not allow for any ‘procedural’ findings under s.4(1) of the Act. They do, however, 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), it is arguable that the Department would have been entitled to rely on s.5(2)(h) of the Act as a defence. I would, therefore, uphold 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).
75. The Superior Courts only occasionally have had the opportunity of addressing these fundamentally important issues. The law in this case is in a state of development. I would hope that further opportunities to clarify that law will present themselves in the near future. Insofar as the appeal has had the effect of clarifying the law it must represent a vindication, although perhaps a limited one, for the appellant.
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] IESC 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 again, was that what was in issue here was not a question of access to the service being provided on grounds of disability where the ability or disability can be seen as an access skill. Rather, it concerned an examination in which three subjects sought to assess in certain respects, reading, spelling and grammar ability. This is something which, in the language of the expert evidence adduced in the Circuit Court, was a target skill rather than an access skill. The same requirement which may pose a difficulty for a person with a disability may accordingly be discriminatory if the ability/disability in question is an access skill issue, but not necessarily if it is a bona fide target skill being tested, and measured.
7 The Equality Officer approached the novel and difficult issue in this case in an admirably structured way. She first identified the question, helpfully in my view, as a bundling issue: namely, the fact that the waiver (which was sought) could not be obtained without the notation (which was not). This was not simply issue raised in a complaint drafted by lay people in ODEI 5 and encountering these concepts for the first time: it was rather the specific complaint made in the formal complaint ODEI 2 which was completed for the appellant by the Equality Authority. That is not surprising; the complaint here had always been that the notation stigmatised persons suffering from dyslexia, and who had received a waiver. That issue has always been the central issue in this case.
8 The Equality Officer concluded that the practice of notation did not constitute a breach of s.4 of the Act. This is because she did not consider that it made it either impossible or unduly difficult to access the service being offered, namely the Leaving Certificate. She considered however that prima facie the practice constituted a differentiation based on grounds of disability prohibited under s.3(2)(g) and s.5 of the Act, and that accordingly the onus shifted to the Department of Education to demonstrate that such differentiation was not discriminatory but rather pursued a legitimate non-discriminatory aim. The Equality Officer considered that sufficient evidence had not been adduced to rebut this prima facie case. She did not consider that such discrimination was saved by s.5(2)(h) of the Act, nor insofar as it was relevant, did she consider that s.4(5) of the Act could permit the practice. On this basis the Equality Officer awarded compensation of €6,000 and directed the Department to issue a fresh Leaving Certificate free of the notation and to formally investigate the feasibility of creating and implementing a system of individually suited accommodation or group of accommodations to meet the needs of each particular student. Furthermore, the current range of accommodation already available was to be continued. Giving the finding of discrimination in relation to a practice adopted after expert review, and the extensive directions given with ramifications for the examination system, it is perhaps unsurprising that the Department appealed to the Circuit Court.
Observations on the Equality Officer’s Determination.
9 With the clarity of hindsight, it is possible to take issue with the conclusion of discrimination arrived by the Equality Officer. In the first place, once the question of the Irish bonus receded from this case, as it did, then it is difficult to identify a precise comparator by reference to whom it can be said the appellant was being treated less favourably. Everyone who received a waiver from any aspect of the exam also received the notation. While it was true that a person who received the notation was being treated differently from the many students who did not, it could not be said that they were in precisely the same situation, because the candidate whose Leaving Certificate was not annotated, had not received any waiver. The question of even prima facie discrimination was difficult at a minimum. On the other side of the equation, there was already substantial evidence in the shape of an independent and expert report to the Minister, which provided an educational, and non-discriminatory, justification for the practice of notation. It is apparent therefore, that at a minimum the Equality Officer’s decision was a strict and perhaps demanding one. However, in any event it is not necessary to consider if it was justifiable on the evidence then available, since the evidence changed significantly in the Circuit Court, and the new evidence comprehensively supplied any possible defect. In my view however, even if the conclusion of discrimination was questionable, the Equality Officer dealt with the difficult case, the complex legislation and the comprehensive and vigorous arguments in a well structured way.
Appeal to the Circuit Court
10 It is difficult in my view at least to overstate the comprehensive way in which the factual issue was addressed and resolved in the Circuit Court. The Department of Education sought to address the evidential deficit determined by the Equality Officer by producing an impressive array of expert witnesses from this jurisdiction, Great Britain, Northern Ireland, and the USA. That evidence, which was not seriously challenged or contradicted, established two matters: first that the approach of the Department of Education, in compliance with the advice of the Expert Group to provide that when an aspect of an examination was being waived and not examined upon, that that matter should be the subject of notation, represented not merely a permissible approach, but in many ways the state of the art, at least at that time, in educational thinking; second, that the appellant would not have been entitled to or received any accommodation in any other comparable regime. The Circuit Court judge accepted this evidence, which effectively determined the case. Indeed this might have been an end to the matter, but the judge went further, and in addition found that insomuch as s.4 was applicable, s.4(5) was defence to any claim, and similarly s.5(2)(h) provided a defence to any contention of discrimination, and finally that reasonableness, and the question of less favourable treatment, meant that there should be some reasoned determination and that the treatment should not be the result of caprice, unreasonableness, bad faith, or direct or indirect prejudice. This language has been aptly described as a quasi judicial review test since it approximates to a test for rationality of decision making. While the evidential matters were almost beyond contest, particularly in an appeal on a point of law, these latter conclusions would have much greater significance beyond the resolution of this case, since they addressed matters of general interpretation of the Act. Whether for that reason or otherwise, the matter was appealed on a point of law to the High Court, which in the event endorsed the conclusion of the Circuit Court. A further appeal was then brought to this Court.
11 In the event I understand that it is agreed by this Court, that the bundling of the notation with the waiver does not breach s.3 or s.4 of the Act. Furthermore, it is agreed that neither the s.3 prohibition of unfavourable treatment, nor the s.4 requirement to do all that is reasonable so that it is not impossible or unduly difficult to access a service for a person under a disability, is to be judged by the judicial review standard of rationality or prejudice, whim or caprice. Furthermore, it is agreed that s.4(5) does not apply to provide a special defence in the context of any educational issue. All of this will I hope bring some clarity to the law in important respects. If this had been the conclusion at either Equality Officer or Circuit Court level, it is conceivable the issue would have gone no further.
12 For my part, I would hesitate to go further and consider whether, if a procedural case could be established, that would potentially breach the s.4 obligation, but nevertheless be protected by s.5(2)(h). Self-evidently, such a case was never made, as to fact or law in either of the two full oral hearings before the Equality Officer or the Circuit Court, and was not canvassed on appeal to the High Court. Accordingly, evidence was not addressed to the issue and as importantly no opportunity was given to challenge evidence, explain it or if necessary contradict any such case. It follows therefore that no findings have been made on the matter by any primary fact finder. It is not normally open to this Court to seek to review transcripts of evidence addressed to a different issue and then make its own findings or conclusions, even tentatively expressed. Furthermore, the fact that no case was made of procedural misstep or mishap, is entirely understandable. It is hard to see how that would particularly benefit the appellant, if it left intact, as it must, the finding that it was permissible to note the Leaving Certificate, once the waiver had been granted. Finally, and in any event, if it was indeed possible to draw such inferences from the evidence which had not been directed to this issue, I would for my own part be slow to impute motives to the Department, to suggest official confusion within the Department, or still less to criticise the Department for adherence to the circular. On that latter point, it is easy to imagine an opposite criticism being made had the Department departed from the circular, itself produced following expert advice. In any event, no such complaint was made. The criticism by the appellant and the Equality Authority was directed to the circular itself, and the policy of bundling notation with the waiver rather, than the manner of compliance with that policy. Finally and in any event, I also think that it would be at least as plausible to interpret the evidence as civil servants following expert advice, and in this case, going to some considerable lengths both to permit representations and appeals outside the time limits established, and to deal with them at sometimes very short notice. I also consider that the evident difficulties with this approach to the evidence are compounded rather than reduced by expressing any views on such matters even in a guarded way. Whether the conclusions are tentative or trenchant, the institution and the individuals concerned have not had the opportunity of responding.
13 Accordingly I regard this approach to the facts of the case which were never in issue, as an inherently unsatisfactory basis for a consideration of important issues of law. This leads to the further difficulty, that these matters were not the subject of legal argument in this or any other court or tribunal. This is particularly significant since the tentative conclusions suggested by MacMenamin J., would point to a probable prima facie breach of s.4, and a possible defence under s.5(2)(h). These are conclusions which run almost directly counter to the reasoning of the Equality Officer and provide yet a further novel interpretation of the Act, which is not conducive to clarity or certainty. Unless I was convinced that the interpretation proposed was clear beyond argument, I would be slow to support it whether expressly, or by silence.
14 I am not so convinced. Since we are deep into the realms of speculation and hypothesis, I believe it serves no purpose in debating the matters at length, and outside the context of a specific factual and legal dispute. Accordingly I would make some limited observations only.
15 At this stage, and acknowledging that it is a matter which would require detailed argument, I confess that I am doubtful that either s.4 or s.5(2)(h) can be read as suggested. I do not think that the interpretation is in truth assisted by seeking points of reference in the Constitution. In any event, I would not consider that the test set out in s.4 of “all that is reasonable” is analogous to the Article 40.3.1º language of “as far as practicable”. One test enquires whether something is feasible: the other whether even if feasible, it is reasonable. Furthermore, I do not think that any purposive reading of the legislation can, or should, convert the test of all that is reasonable to accommodate the needs of a person with a disability without which it would be impossible or unduly difficult to avail of the service, into a more open-ended obligation to go the extra mile. If however, such an obligation can be deduced, and was possibly breached in this case by the procedures followed (and I am agnostic about each step in this reasoning) then, again, I would prefer the approach of the Equality Officer to the interpretation of s.5(2)(h). While I acknowledge that this is a difficult section, I do not think it provides immunity from scrutiny for anything done for the ostensible purpose of promoting the special interest of a group or person under a disability. Instead, I would be inclined to read s.5(2)(h) as limited to exempting provisions which would otherwise be considered discriminatory because they favour a group or person. Obviously any question of the practical application of such a section would be fraught with significant interpretive issues, and indeed questions of constitutional consistency. But the focus of this (hypothetical) case, is not the measures adopted to provide for the interests of a particular group (in this case the waiver of a portion of the examination in favour of those suffering a learning disability), but the procedures whereby this measure was made available. If such procedures did truly fall short of all that is reasonable without which it is impossible or unduly difficult to access a service and for that reason fall foul of s.4, then s.5(2)(h) would not, in my view, avail the Department. However, these considerations reside very much in the realm of conjecture, and must await detailed consideration in an appropriate case. For the moment I prefer to rest my decision in this case on my agreement with the judgment delivered by Ms. Justice Laffoy.
Judgment of Ms. Justice Laffoy delivered on the 24th day of May, 2017
Factual and procedural background in outline
1. The proceedings at the root of this appeal were proceedings commenced in December 2006 in the Dublin Circuit Court by the Respondent on this appeal (the Minister) by way of an appeal under s. 28 of the Equal Status Act 2000 (the Act of 2000) against the decision of an Equality Officer of the Equality Tribunal (the Tribunal) in favour of the Appellant on this appeal. The decision of the Tribunal (DEC - S2006 - 077), which was dated 3rd November, 2006, had related to two similar complaints brought by two individuals, one being the Appellant, who sat the Leaving Certificate examination in 2001. While the appeal to the Circuit Court related to both complaints by both individuals, who are referred to as “complainants” in the report of the Equality Officer and as “Claimants” in the judgment of the Circuit Court judge, the subsequent appeal to the High Court related only to the complaint of the Appellant and, accordingly, the background and the factual position will be outlined by reference to the claim of the Appellant.
2. It is common case that the Appellant is dyslexic and, as such, is a person with a disability within the meaning of the Act of 2000. In November, 2000 the principal of the Appellant’s school, with the Appellant’s mother’s consent to the Appellant being interviewed and assessed by a psychologist, completed an application form seeking on behalf of the Appellant special arrangements in the Leaving Certificate examination 2001 on the grounds of a specific learning difficulty. The special arrangements requested were set out on the form as: “a special centre”; “a reader”; and “maybe extra time”. That application was processed in the Minister's Department (the Department) and, ultimately, by letter dated 15th March, 2001, the principal of the Appellant’s school was notified by the Department that it was the opinion of the Department psychologist that the Appellant’s learning difficulties did not warrant special arrangements. On 28th May, 2001 the Appellant’s father appealed the decision of the Department on her behalf. By letter dated 30th May, 2001 the Appellant’s school was notified by the Department that the appeal in relation to reasonable accommodation on behalf of the Appellant was rejected by the Reasonable Accommodation Appeals Committee on 29th May, 2001.
3. After the Appellant sat the Leaving Certificate examination without being provided with any special facilities, her father, by letter dated 26th June, 2001 to the Department, indicated that he wished to appeal the decision recently made against the Appellant’s request for reasonable accommodation on the basis that the process and the outcome were fundamentally flawed, which was supported by the principal of the Appellant’s school by letter of 28th June, 2001. By letter dated 5th July, 2001 the Appellant’s father was notified by the Department that the Department proposed the following approach to the needs of the Appellant:
“A waiver in relation to assessment of spelling/grammar in language subjects.”
That was explained as meaning that the Appellant would have her grades in the language subjects being undertaken by her determined on the balance of the work in the subject, which would be regarded as 100% for assessment purpose. Taken on its own, that accommodation clearly was potentially of benefit to the Appellant. However, it was also stated in the letter that the grades obtained by the Appellant in any language subject taken by her would be accompanied by explanatory notes. In the case of English, the note would read:
“All parts of the examination in this subject were assessed except spelling and written punctuation elements.”
In the case of other language subjects, the explanatory note would be as follows:
“All parts of the examination in this subject were assessed except spelling and some grammatical elements.”
4. On 1st August, 2001 the Appellant’s father, on behalf of the Appellant, appealed the decision referred to in the letter of 5th July, 2001 that the Appellant’s Leaving Certificate would be “noted to the effect that her results were influenced by the reasonable accommodation which was granted”, which I understand to mean that he appealed so much of the decision in relation to the waiver as related to the inclusion of the explanatory notes. By letter dated 13th August, 2001, the Appellant’s father was informed by the Department that the appeal had been referred to the Independent Appeals Committee for consideration, which had decided to uphold the Department’s decision to include the explanatory notes.
5. On 15th August, 2001, the Leaving Certificate results for 2001 were released and the Appellant received “preliminary” results, which contained explanatory notes in the terms outlined above in relation to the following subjects: Irish, English and French. The actual Leaving Certificate subsequently issued to her on its face showed numeric codes in relation to Irish, English and French, which numeric codes were explained overleaf in the terms outlined above. On 24th August, 2001, the Appellant’s father, on her behalf, by way of Form ODEI 5, gave notice to the Minister of the complaint of discrimination by the Minister against her contrary to the provisions of the Act of 2000 which she intended making to the Office of the Director of Equality Investigations. The complaint, which ultimately came before the Equality Officer of the Tribunal, was on the basis that she had been discriminated against under the Act of 2000, in the words in the Appellant’s written submissions to this Court, “by the act of requiring annotation on her Leaving Certificate to flag the fact that she had received an accommodation”. The consequent alleged flagging of her disability was emphasised in the Form ODEI 5, where, having pointed out that the certificate had no purpose in relation to entry into third level education and stated that the only other purpose of the certificate “is to verify to employers claimed achievements in specified subjects”, it was alleged:
“The notation discriminates against me insofar as I will need to reveal and explain my medical condition together with justifying my results. This places me at a disadvantage. This disadvantage will be life-long.”
In the Form ODEI 2 dated 13th February, 2002 subsequently lodged by the Equality Authority on behalf of the Appellant, the Appellant’s complaint was outlined by reference to the Form ODEI 5. Thereafter the investigation of the Appellant’s complaint was in abeyance for some time and it was not until 26th April, 2005 that the Minister was notified that the Equality Officer had been assigned to investigate the complaint. Following the investigation, the decision of the Tribunal of 3rd November, 2006 was made. The essence of the complaint is set out in the Appellant’s written submissions as that -
“. . . the insertion of the notation is discriminatory contrary to ss. 3 and/or 5 of the Act of 2000 and . . . there had been a failure to provide reasonable accommodation to her as a person with a disability contrary to s. 4 of the Act of 2000”.
6. The decision of the Tribunal is a comprehensive document which at the outset summarises the Appellant’s complaint as that she alleged -
“. . . discrimination on the grounds of disability on the basis that the presence of a notation on her Certificate reveals the fact that she has a disability and requires her to explain and justify her results and places her at a disadvantage with regard to prospective employment.”
Following a thorough analysis of the facts, the submissions made on behalf of both complainants, who were represented by counsel on instructions from the Equality Authority, and on behalf of the Minister, and of the relevant statutory provisions, the Equality Officer made the following relevant findings:
(a) that the complainants had failed to established a prima facie case of discrimination in terms of s. 4 of the Act of 2000, having rejected an argument on behalf of the Minister that reasonable accommodation with respect to support services in education was precluded by subs. (5) of s. 4;
(b) that the Leaving Certificates, as issued, constituted less favourable treatment of the complainants when compared to others issued with Certificates without annotation, thus establishing a prima facie case of discrimination under s. 3 of the Act of 2000;
(c) that the Minister had failed to present any evidence in support of the assertion that the annotation was necessary to maintain the integrity of the certification process;
(d) that the Minister had failed to rebut the prima facie case of discrimination established under s. 3; and
(e) that s. 5(2)(h) did not, as argued by the Minister, provide a defence to the Minister.
The decision of the Equality Officer was expressed in the following terms:
“I find that the [Minister] has discriminated against the complainants in terms of Sections 3(1), 3(2)(g) in relation to provision of services in terms of Section 5(1) by annotating their Leaving Certificates with a reference to aspects of the courses not assessed.”
The Equality Officer then made an order in accordance with s. 27 of the Act of 2000, only two elements of which are of relevance for present purposes, namely:
7. The Minister appealed the decision of the Tribunal to the Circuit Court pursuant to s. 28 of the Act of 2000 seeking an order dismissing the complainants’ complaints against the Minister for discrimination under the Act of 2000. There was no cross-appeal by the complainants seeking to set aside the finding of the Equality Officer on the claim under s. 4. The appeal, which was by way of rehearing heard on oral evidence, was at hearing for eight days before His Honour Judge Hunt (the Circuit Court judge). Unlike the position adopted by the Minister at the Tribunal hearing, which is reflected in the linked findings of the Equality Officer referred to at (c) and (d) in the next preceding paragraph, as will be outlined later, there was adduced on behalf of the Minister in the Circuit Court a considerable body of evidence of experts from other jurisdictions on the proper methodology for addressing the problems to which the complainants’ complaints against the Minister gave rise. The judgment of the Circuit Court judge, which will be considered in detail later, was delivered on the ninth day of the Circuit Court hearing, that is to say, 19th October, 2007. The outcome was that the appeal was allowed and the decision of the Tribunal was set aside.
8. The Appellant then appealed to the High Court on a point of law pursuant to s. 28 of the Act of 2000. That appeal was heard by de Valera J. (the High Court judge), who delivered judgment on 11th June, 2010. The outcome was that the appeal to the High Court was dismissed and the order of the Circuit Court was affirmed.
9. This appeal is an appeal from the judgment of the High Court judge and the order of the High Court.
10. As happened throughout the Court process, the Appellant was represented on this appeal by a legal team assigned by the Irish Human Rights and Equality Commission (the Commission), the successor of the Equality Authority. The points of law raised on this appeal, which primarily relate to the proper construction of provisions of the Act of 2000, are undoubtedly important points of law and it is wholly understandable that the Commission should assist the Appellant to pursue the appeal. While, in arguing the Appellant’s case, counsel emphasised the embarrassment and distress caused to the Appellant by the presence of the annotation on the Appellant’s Leaving Certificate results, in relation to which one cannot but be sympathetic, it is some relief that, as this Court was informed by counsel for the Appellant, she graduated from Dublin City University, she is now in employment and she is the mother of a number of children.
11. Nonetheless, this Court has to consider and, where necessary, to determine the important issues of law raised on the appeal, in particular, in relation to the proper construction and application of the relevant provisions of the Act of 2000. Before considering the judgment of the Circuit Court and the judgment of the High Court, it is of assistance to outline the relevant provisions of the Act of 2000. In so doing, the provisions as originally enacted and excluding any post-2000 amendments will be set out.
Relevant provisions of the Act of 2000
Section 2
12. In the interpretation section in the Act of 2000, s. 2, the expression “discriminate” is defined as meaning “to discriminate within the meaning of s. 3(1) or 4(1)”.
Section 3
13. Section 3 gives a meaning to “discrimination” in general across a broad spectrum of grounds, as distinct from s. 4, which gives the expression a meaning in the specific context of the disability ground. Sub-section (1) of s. 3, insofar as is relevant for present purposes, as originally enacted, provided:
“For the purposes of this Act, discrimination shall be taken to occur where -
(a) on any of the grounds specified in subsection (2) (in this Act referred to as ‘the discriminatory grounds’) which exists at present or previously existed but no longer exists or may exist in the future, or which is imputed to the person concerned, a person is treated less favourably than another person is, has been or would be treated . . .”
Of the discriminatory grounds “as between any two persons” which were listed and described in subs. (2) as originally enacted, the Appellant invoked only one ground. She invoked the ground of disability from the outset, which is described in para. (g) of subs. (2), which stipulates -
“that one is a person with a disability and the other either is not or is a person with a different disability (the ‘disability ground’)”.
The Appellant’s case is that the Minister discriminated against the Appellant in terms of s. 3(1) by reference to s. 3(2)(g) by treating her less favourably than another person. For completeness, it is appropriate to record that, while counsel for the Appellant made it clear that the Appellant is relying only on direct discrimination as defined in s. 3(1)(a) and is not relying on indirect discrimination as defined in s. 3(1)(c), counsel for the Minister invoked para. (c) of s. 3(1) in response to the Appellant’s claim based on discrimination under s. 3(1). However, in view of the fact that counsel for the Appellant emphatically disavowed reliance on s. 3(1)(c), it is unnecessary to quote it in its original form, which, of course, has been substituted by various enactments since 2000.
Section 4
14. Section 4 separately elaborates on the meaning of “discrimination” in the specific context of disability. Section 4(1), which, in my view, is the provision which is most relevant to the Appellant’s complaint, having regard to the factual and procedural background which has been outlined, in the context of her application for redress under s. 21 of the Act of 2000, as originally enacted provided and still provides:
“For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.”
It is common case that, as regards the Leaving Certificate examination and, in particular, the certification of the results thereof, the Minister is a “provider of a service” within the meaning of s. 4, the service being the certification of educational accomplishment by examination at the end of the secondary school cycle. The Appellant’s case is that the Appellant was discriminated against by reason of the failure of the Minister to provide reasonable accommodation in accordance with s. 4(1). Section 4(1) must be read in conjunction with s. 4(2), which as originally enacted provided and still provides:
“A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.”
15. As regards the Appellant’s reliance on s. 4(1), the Minister’s first point in response is that it is not open to the Appellant to invoke s. 4(1) because of subs. (5) of s. 4 which provides:
“This section is without prejudice to the provisions of sections 7(2)(a), 9(a) and 15(2)(g) of the Education Act, 1998 , in so far as they relate to functions of the Minister . . ., recognised schools and boards of management in regard to students with a disability.”
For the purpose of interpreting subs. (5) it is helpful to quote one of the provisions referred to in it, namely, s. 7(2)(a) of the Education Act 1998 (the Act of 1998). Section 7(1) sets out in broad terms the functions of the Minister under the Act of 1998, the first function being to ensure that there is made available to each person resident in the State, including a person with a disability, support services. Sub-section (2) then provides as follows:
“Without prejudice to the generality of subsection (1), each of the following shall be a function of the Minister:
(a) to provide funding to each recognised school and centre for education and to provide support services to recognised schools, centres for education, students, including students who have a disability or who have other special educational needs, and their parents, as the Minister considers appropriate and in accordance with this Act; . . .”.
The expression “support services” is defined in s. 2 of the Act of 1998 as including a wide range of services, including examinations provided for in Part VIII of the Act of 1998, which include the Leaving Certificate examination. The other provisions of the Act of 1998 referred to in subs. (5), s. 9(a) and s. 15(2)(g), relate to schools and to boards of management.
Section 5
16. Section 5(1) of the Act of 2000, which prohibits discrimination, inter alia, in the provision of a service, and which has not been amended, provides:
“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.”
However, subs. (2) of s. 5 in its original form went on to provide that subs. (1) “shall not apply in respect of” matters outlined at paras. (a) to (l) inclusive in that sub-section, para. (h) being invoked by the Minister for present purposes. Paragraph (h), which has not been amended, specifies -
“differences in the treatment of persons in a category of persons in respect of services that are provided for the principal purpose of promoting, for a bona fide purpose and in a bona fide manner, the special interests of persons in that category to the extent that the differences in treatment are reasonably necessary to promote those special interests, . . .”
The position of the Minister is that para. (h) of subs. (2) operates to exempt from the prohibition contained in subs. (1) positive discrimination provided for the special interests of persons with a disability and, significantly, that it disapplies the operation of subs. (1) against the Minister in this case.
Enforcement provisions
17. The enforcement provisions are contained in Part III of the Act of 2000. For present purposes it is only necessary to refer to s. 21 and s. 28. Section 21 in its original form provided as follows:
“A person who claims that prohibitive conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director”.
The Director was defined as the Director of Equality Investigations. That is the process which the Appellant’s father initiated in this case in August 2001. Section 28(1) provides for an appeal against the decision on such application to the Circuit Court. In this case, the Minister’s appeal to the Circuit Court against the decision of the Tribunal was brought under s. 28. Section 28(3) provides:
“No further appeal lies, other than an appeal to the High Court on a point of law.”
It has been held by this Court in Stokes v. Christian Brothers High School Clonmel [2015] 2 I.R. 509 (the Stokes case) that an appeal does lie to this Court from an appeal to the High Court under s. 28(3) of the Act of 2000.
Interpretation of the Act of 2000
18. The long title to the Act of 2000 describes it as an “Act to promote equality and prohibit types of discrimination . . .”. Counsel for the Minister do not dispute that the Act of 2000, as a remedial statute, is to be purposively interpreted, but submit that it is only if the meaning of a particular provision is ambiguous or if an absurd result would follow that any departure from the literal approach to interpretation should be taken, citing Equality Authority v. Portmarnock Golf Club [2010] 1 IR 671.
The function of the Court on an appeal under s. 28(3)
19. An important aspect of the Stokes case is that the function of the Court on an appeal under s. 28(3) is considered in the judgment of Clarke J., where it is explained as follows (at para. 6.11):
“On the other hand, there are important features of s. 28(3) of the 2000 Act which need to be considered. The first is that it is clear that the subsection is intended to permit only a limited form of appeal. The appeal is one ‘on a point of law’. That is terminology which has been used to limit many forms of statutory appeal to, and within, the courts. . . . The principles applicable to the scope of such appeals have been summarised by McKechnie J. in . . . Deely v. . . . Information Commissioner [2001] 3 IR 439, which concerned an appeal under s. 42 of the Freedom of Information Act, 1997, where he said at p. 452:
‘There is no doubt but that when a court is considering only a point of law, whether by way of a restricted appeal or via a case stated, the distinction in my view being irrelevant, it is, in accordance with established principles, confined as to its remit, in the manner following: -
(a) it cannot set aside findings of primary fact unless there is no evidence to support such findings;
(b) it ought not to set aside inferences drawn from such facts unless such inferences were ones which no reasonable decision making body could draw;
(c) it can however, reverse such inferences, if the same were based on the interpretation of documents and should do so if incorrect; and finally;
(d) if the conclusion reached by such bodies shows that they have taken an erroneous view of the law, then that also is a ground for setting aside the resulting decision . . .’”
It is not disputed by the Appellant that the foregoing principles apply to this appeal, as was submitted on behalf of the Minister.
Identification of issues of law on the appeal
20. An unusual feature of this appeal is that it is contended on behalf of the Appellant that on the appeal to the High Court reasoned findings of law were not made by the High Court judge in relation to the points of law which came before him and that, in relation to what is characterised as the “key question”, that is to say, what is “reasonable accommodation” within the meaning of s. 4 of the Act of 2000, he failed entirely to give that provision any real or proper meaning. Arising from those contentions, on the appeal to this Court all of the grounds of appeal which had been advanced before the High Court are repeated in the notice of appeal, with some additional grounds addressing the approach of the High Court judge in relation to the meaning of “reasonable” for the purposes of s. 4. Accordingly, even though this is an appeal from the judgment and order of the High Court, I have come to the conclusion that, in the interests of clarity and with the objective of identifying the issues on a point or points of law which this Court has to determine and the order in which they should be determined, the proper course is, insofar as is necessary, to outline -
(a) the judgment of the Circuit Court judge, with particular reference to the identification of the issues by him, his consideration of ss. 3, 4 and 5 of the Act of 2000 and the outcome of the appeal,
(b) the grounds of appeal advanced on the appeal to the High Court,
(c) the judgment of the High Court judge, and
(d) the additional grounds advanced on this appeal.
The issues which counsel for the parties submit require to be addressed by this Court will then be outlined, following which the issues which I consider the Court should determine will be identified, as will the order in which they will be addressed in this judgment.
Circuit Court judgment
Identification of issues
21. As noted earlier, the hearing of the appeal from the Tribunal in the Circuit Court was on oral evidence and it is clear that a very considerable amount of evidence was adduced in the Circuit Court which had not been presented to the Equality Officer. In his judgment, the Circuit Court judge helpfully summarised the evidence. He then identified what he considered to be the net issue, stating (at p. 82):
“The net issue in this case is as to whether the grant by the Department of an exemption from assessment in the core element or elements of a subject in the Leaving Certificate examination, coupled with the inclusion on the resulting certificate of an explanatory note describing the elements not assessed constitutes, in the case of a person with a disability, prohibited discrimination against that person contrary to the provisions of the . . . Act of 2000.”
The Circuit Court judge then went on to address that issue sequentially by reference to ss. 3, 4 and 5 of the Act of 2000.
Section 3
22. In relation to the application of s. 3, having stated that the Claimants relied upon an alleged breach of s. 3(2)(g) based on less favourable treatment between the Claimants, as persons with a disability, and those with either no disability or with a different disability, the Circuit Court judge stated (at p. 84):
“I am prepared to accept that the Claimants were treated differently as persons with a disability when annotation was placed on their certificates in the circumstances outlined above, and that a difference arises in relation to persons who sat the same examination but who did not suffer from the same disability.”
He identified the sole issue arising as whether that treatment amounted to -
“. . . ‘less favourable’ treatment of the Claimants when contrasted with the comparator exam candidates, that is those examination candidates without the same disability.”
That issue was addressed in two paragraphs, which are quoted in the High Court judgment, in which the Circuit Court judge stated (at p. 85 and 86):
“In my view, different treatment is not synonymous with ‘less favourable’ treatment. If different treatment is what is prohibited by the legislation then it would have expressly said so. The question that I have to ask myself is, can it be said that the different treatment consisting of the application of a statement of fact, that essential portions of the examination were not undertaken, means that the treatment is ‘less favourable’?
Having considered the matter at length, I do not think that this can be the case. The objective of equality cannot be served by pretending that different things are the same. It seems to me that the object of equality is served by the prevention of discrimination, and by mandating and directing the taking of all reasonable steps to ensure that the fact of disability does not prevent a disabled person from participating in all aspects of social, economic and educational life.”
Having stated that “[n]o notations take place in relation to a disabled candidate, where the consideration afforded . . . does not involve the exemption of a core element of the subject”, the Circuit Court judge then expressed the view that it could not be said that the annotations arose “solely because of the existence of disability”. Rather they arose “out of concern as to the integrity of the examination”.
23. In that context, the Circuit Court judge then addressed a particular matter which has been raised throughout the process, which, to some extent, is a “red herring” in the context of the task of this Court, but, nonetheless, it is appropriate to advert to. He stated (at p. 87):
“I accept that the Department has a genuine concern as to the integrity of the examination. I think the integrity of the examination is not served by the failure to notate in relation to the case of a candidate who receives what has been referred to in shorthand terms as ‘the Irish bonus’. However that fact does not seem to me to take away from or affect my conclusion one way or the other in relation to the particular system of notation and exemption which has been impugned by the Claimants in this case.”
Earlier, in the course of summarising the evidence of one of the witnesses called on behalf of the Minister, Aidan Farrell, the Director of Operations in the State Examinations Commission, the “Irish bonus” was explained as the awarding of bonus marks to a candidate who chose to undergo an examination in a State examination through the medium of Irish. The Circuit Court judge recorded that Mr. Farrell’s evidence was that the notation was not needed because the nature of the examination was not changed when the candidate was answering through Irish, unless to do so he or she also had a reasonable accommodation exemption. The Circuit Court judge then made the following observations, which, although not having a bearing on the outcome of this appeal, are worthy of repetition, (at p. 50):
“. . . it may be that such cases are not notated because there is no accommodation sought, but it seems to me that if integrity is at the forefront of the Department’s considerations, that there should be a change in the notation system in respect of those Irish candidates, but that may be work for another day.”
Indeed, it is “work for another day”, but it is, nonetheless, a matter which it is appropriate to bring to the Minister’s attention.
24. Returning to the Circuit Court judge’s consideration of s. 3, he recorded that the evidence before the Circuit Court disclosed that the system of exemption and annotation in issue on the appeal was “in accordance with universal international practice” and that there was no evidence anywhere of a system which permitted an exemption without notation. Having expressed the view that “the legislation” did not prohibit what was done in the Claimants’ cases, that is to say, the granting of the exemption coupled with the annotation, in a passage referred to, and in part quoted, by the High Court judge, he went on to state (at p. 87 and 88):
“Less favourable treatment connotes treatment that arises due to a preference, and a preference arising on the basis of a whim, a caprice, unreasonableness, bad faith, illogicality, irrationality, out of direct or indirect prejudice against the disabled. I cannot find any element of these types of considerations in the treatment afforded in this case.
It seems to me that the system arose out of a considered rational and reasonable process. Nor in the overall sense do I find that there was less favourable treatment accorded to each of the Claimants in this case, when viewed against the relevant comparators. As I have said, I take an overall view of the treatment afforded to the two Claimants, on the one hand, and to exam candidates undergoing the same examination with no disability, on the other.”
It is important to emphasise that those observations were made in the context of the application of s. 3(1) to the Claimants, not the application of s. 4(1).
25. The Circuit Court judge then outlined the basis on which he had reached the foregoing conclusions. First, he observed that the end user of a certificate is entitled to know whether all parts of the examination have been performed. Secondly, he observed that, if apprehended discrimination of the type suggested by the Claimants was actually established in any particular case, the subject of the discrimination would have ready and immediate remedies available under the suite of equality legislation which is now part of the law of this country. Thirdly, the Claimants had taken too negative a view of the possible effect of the annotations and, in particular, of the issue of forced disclosure. Having referred to the evidence before him as to the difficulties that might be engendered by non-disclosure, he stated that he accepted that disclosure is generally beneficial to both the individual and to the public generally and he further stated that he did not accept the argument that “forced disclosure” was an unlawful discrimination against the Claimants.
Section 4
26. In relation to the application of s. 4, the Circuit Court judge’s opening observations (at p. 92) were that he had considerable doubts as to whether or not the claims of the Claimants before him were admissible under s. 4, having regard to subs. (5) of s. 4 and s. 7 of the Act of 1998, each of which provisions he quoted. He continued (at p. 93):
“It seems to me that that in fact serves to exempt the Minister in relation to the exercise of her discretion in providing for students with a disability or other special educational needs from the operation of s. 4(1) of the Act [of 2000].”
Accordingly, he overruled the finding of the Equality Officer in relation to the application of s. 4(5). However, stating that the point had not been very strongly argued and lest he was incorrect in holding that s. 4(1) should not be considered, he went on to “deal with whether or not the system in question in fact falls foul of the provisions of s. 4(1)”. The position of the Appellant on this appeal is that the core of this appeal is the Circuit Court judge’s consideration of whether the provision of an exemption coupled with an annotation was in fact “reasonable accommodation” under s. 4(1) because, it is asserted, he defined the notion of reasonable accommodation in a very limited manner.
27. In his consideration of s. 4(1), the Circuit Court judge stated (at p. 94) that the sole issue was “whether the system of waiver or notation constitutes a refusal to provide a ‘reasonable accommodation’ in respect of the Claimants’ needs”. Having stated that “the reasonableness of these accommodations” falls to be judged “by reference to the content and context in which they were provided” and also that “the concept of reasonableness in providing accommodation does not command the Minister to reach a standard of perfection, but rather leaves to the Minister a measure of discretion or appreciation in deciding how these obligations are to be discharged”, he went on to explain the meaning of “reasonableness” in that context, stating (at p. 95):
“I believe that reasonableness implies that whatever decision is reached by the Minister, it must be based on the application of reason to the evidence and information available to those charged with devising a reasonable scheme of accommodations. Such a decision must not be at variance with reason or common sense. It should not be based on irrelevant considerations nor should it be directed to an improper purpose.”
28. Having rejected the arguments advanced by the Claimants that the requirement of the Act of 2000 could only be met by providing accommodation in all cases, including those where exemptions are granted in relation to the core element, without any subsequent annotation, and having once again alluded to the evidence of expert witnesses called on behalf of the Minister, the Circuit Court judge stated (at p. 96 and 97):
“. . . I believe that the decision was based on a reasoned and reasonable process, wherein all of the arguments and evidence on both sides of the issue were canvassed.
I also believe that the system of waiver and notation is a reasonable response by the Department to the needs in question. I am fortified in this conclusion by the evidence of international practice given by the aforementioned witnesses, and their conclusion in a general sense rather than in the sense referred to in the section, that the approach of the Department was a reasonable or generous approach, as it was described by one witness.
I do not think that it would be reasonable to require the Department to provide waivers without annotation in the light of the evidence given to me on this point; that this has not been done anywhere else in the world.”
Section 5
29. The Circuit Court judge’s opening observation (at p. 99) in relation to s. 5(1) was that, in the light of his findings in relation to s. 3 and s. 4, he did not find that there was any breach of the prohibition contained in s. 5(1). However, once again, lest he was wrong on that, he went on to state that he believed that the system adopted by the Department would be saved by an application of the provision in s. 5(2)(h), which he stated “exempts” s. 5(1) -
“. . . from application to differences in treatment provided for the principal purpose of promoting a bona fide purpose in a bona fide manner the special interests of a category of persons.”
He stated that “that is exactly what the Department attempted to do in this case for a bona fide purpose, being the accommodation of dyslexic candidates, in a bona fide manner”. He specifically stated that he wanted “to place on record” that, if he was wrong in finding that there was an absence of discrimination in relation to s. 5, he would regard subs. (2) “as exempting the Department in the matter”. Accordingly, once again, he overruled the Equality Officer, who had concluded that s. 5(2)(h) did not provide a defence for the Minister.
Outcome of appeal
30. For the foregoing reasons, the Circuit Court judge said that the challenge to the impugned system was unsuccessful. He allowed the appeals and he set aside the awards of the Equality Officer on both claims. In the order of the Circuit Court made on 19th October, 2007 it was ordered that the decision of the Tribunal be set aside.
Grounds of appeal from Circuit Court to High Court
31. The solicitor for the Equality Authority on 26th October, 2007 filed an appeal on behalf of the Appellant to the High Court from so much of the judgment of the Circuit Court judge as construed ss. 3, 4 and 5 of the Act of 2000, it being asserted that the Circuit Court judge erred on five grounds.
32. The first error asserted was in relation to the interpretation and application of the concept of “less favourable treatment”, obviously referring to s. 3 of the Act of 2000, it being asserted that the Circuit Court judge erred in law in concluding that:
(a) candidates who receive an exemption are treated differently but not less favourably than those who did not, by virtue of the consequent annotation of their certificates of results;
(b) the said different treatment is not prohibited under the Act of 2000; and
(c) less favourable treatment connotes treatment that arises due to preference, and a preference arising on the basis of a whim, a caprice, unreasonableness, bad faith, illogicality, irrationality, out of direct or indirect prejudice against the disabled.
33. Secondly, it was asserted that the Circuit Court judge erred in the interpretation and application of s. 4(5) of the Act of 2000, in construing that provision in such a manner as to exempt the Minister, in relation to the exercise of her discretion in providing for students with a disability or other special education needs, from the operation of s. 4(1) of the Act of 2000.
34. Thirdly, it was asserted that the Circuit Court judge erred in the interpretation and application of the concept of “reasonable accommodation” within the meaning of the Act of 2000, obviously referring to s. 4(1), in concluding that:
(a) the system of waiver or notation does not constitute a refusal or failure to provide a reasonable accommodation in respect of the Appellant’s needs;
(b) the reasonableness of the accommodations falls to be judged by reference to the content and context in which they were provided and require that whatever decision is reached by the Minister, it must be based on the application of reason to the evidence and information available to those charged with devising a reasonable scheme of accommodation;
(c) the test of what constitutes “reasonable accommodation” is whether it is at variance with reason and common sense, based on irrelevant considerations or directed to an improper purpose;
(d) the decision to annotate constitutes a “reasonable accommodation” because it was based on a reasoned and reasonable process, wherein all of the arguments and the evidence on both sides of the issue were canvassed;
(e) it would not be reasonable to require the Department to provide waivers with annotation in the light of the evidence on this point.
35. The fourth error asserted was that, in addressing the substance of s. 4, the Circuit Court judge fell into error in equating “reasonable” with the “reasonableness” test in administrative law.
36. Fifthly, it was asserted that the Circuit Court judge misinterpreted the true meaning and effect of s. 5(2)(h) of the Act of 2000 and erred in law in concluding that the system adopted by the Minister would be saved by an application of that provision, thereby exempting s. 5(1) from application to differences in treatment provided for the principal purpose of promoting, for a bona fide purpose in a bona fide manner, the special interests of a category of persons.
The judgment of the High Court
37. In his judgment, the High Court judge outlined the submissions made in the High Court on behalf of both the Appellant and the Minister. He referred to the grounds of appeal advanced on behalf of the Appellant. In doing so (at p. 6 and 7) he did not list the fourth ground outlined earlier as to the “reasonable” test. However, he did refer to it later (at p. 8). He also quoted the relevant provisions of the Act of 2000.
38. The High Court judge set out his decision (at p. 18 et seq.) in very general terms and without specifically distinguishing the issues he addressed by reference to the relevant provisions of the Act of 2000. He saw his task as having to determine -
“. . . whether the appellant in this case was entitled to an exemption without annotation or whether the granting of the exemption, with annotation, was a breach of the Act.”
It is only fair to record that immediately preceding that statement he recognised that the issue he had to determine was whether the system of providing the exemption coupled with the annotation -
“. . . amounts to ‘unfavourable treatment’ (sic) of those students who seek and obtain such exemptions or whether it amounts to a failure to provide ‘reasonable accommodation’ for such students.”
Thus, he implicitly recognised the distinction between s. 3(1) and s. 4(1).
39. However, counsel for the Appellant argue that the High Court judge’s approach to the whole question of discrimination against the Appellant was from the perspective of the integrity of the examination system and that such was his approach from the outset because, after having identified his task, he stated (at p. 18):
“However, it appears to me, on the basis of the evidence, that one cannot have an exemption of the type sought and obtained by the appellant in this case without some indication that such an exemption has been given. Such a scenario would be unacceptable.”
The High Court judge went on to state that no legal system anywhere in the world, according to the evidence, considers some form of accommodation without some indication of the accommodation having been made.
40. Indeed, the main thrust of what follows over the next two pages of the judgment is similar. For instance, it is stated (at p. 19):
“Not to have mentioned that an accommodation of the type granted here was given could adversely affect the integrity of the Leaving Certificate examination process. The accommodation granted in this case was, in all the circumstances, a reasonable accommodation and it follows that an annotation to reflect that accommodation was also reasonable. Moreover, it was necessary that the reputation of the examination be preserved.”
That passage also highlights another argument which is advanced on behalf of the Appellant. It is argued that the High Court judge did not explain what he meant by the term “reasonable” in the particular contexts in which he used it in the judgment. It is suggested that the logic and rationale of his approach, other than to rely on the need to protect the integrity of the examination process, is difficult to identify. The High Court judge did, however, point out (at p. 20) that the Appellant’s level of attainment in the spelling and punctuation elements of English and the spelling and grammar elements of her other language subjects had not been tested at Leaving Certificate level. Having noted that there were a wide range of accommodations available in the Leaving Certificate examination to a person with dyslexia, including, for example, the use of a word processor, he stated:
“The nature of an accommodation in any given case is important in terms of whether or not annotation will be required in the resulting certificate. Some accommodations will require annotations and others will not. That is not discriminatory, that is a matter of common sense and a reasonable approach to take to the issue of accommodation generally.”
41. Later, having reiterated his view that the annotation was reasonable, particularly in the light of the internationally recognised practice in the area, the High Court judge stated (at p. 21) that, in reaching that conclusion he had regard to the extensive case law relied on by the Appellant on the constitutional protection of equality of rights. He continued:
“Nowhere in that case law is there any suggestion to the effect that equality rights must be absolutely guaranteed without limitation in the name of reasonableness even in cases where the requirements of reason and common sense require the taking of some action which may not be to the complete satisfaction of the person asserting them, in this matter the plaintiff. It appears to me to be a question of balance and that the contention advanced on the part of the appellant invites the Court to embrace an unreasonable definition of ‘reasonable accommodation’ which tips the balance too far in favour of the appellant to the detriment of other parties with a legitimate interest in the fair and equitable administration of the Leaving Certificate examination.”
In the succeeding paragraph, the High Court judge once again emphasised that:
“. . . any absence of notation of an accommodation having been made which resulted in certain matters not being assessed would call the integrity of the examination into question.”
At the end of that paragraph he stated that “. . . the practice of annotation operated by the Department . . . is reasonable in this regard”, again, as counsel for the Appellant submit, without explaining what he meant by reasonable in this particular context.
42. In the penultimate paragraph of the judgment, the High Court judge stated (at p. 22 and 23):
“I am satisfied that the respondent acted at all times in accordance with international best standards in the annotation of the appellant's Leaving Certificate and that any failure to record an accommodation that alters the assessment of fundamental elements of a subject would adversely affect the integrity of the testing process - it would essentially defeat the purpose of having examinations in the first place. I am equally satisfied that the learned Circuit Court Judge did not err in law in his thorough assessment of the meaning of ‘less favourable treatment’ or in any other respect as advanced on behalf of the appellant and I accept the respondent's contention that [the Circuit Court judge] applied the correct test under s. 3 [of the Act of 2000].”
The reference to s. 3 at the end of that passage is the only reference to a section of the Act of 2000 in the decision segment (i.e. p. 18 et seq.) of the judgment. In particular, there is no mention of s. 4, although whether there was provision of “reasonable accommodation” was considered earlier, as has been outlined.
43. Counsel for the Appellant point to the words “in any other respect” in the last sentence in the quotation in the next preceding paragraph as suggesting that the High Court judge was upholding the decision of the Circuit Court judge in relation to the grounds of appeal secondly (the application of s. 4(5)) and fifthly (the effect of s. 5(2)(h)) referred to earlier, neither of which was addressed in the High Court judgment. In general, I think the submission of counsel for the Appellant that the judgment of the High Court does not identify the precise ambit and scope of the legal tests, which it was found the Circuit Court judge had properly applied, is correct.
Grounds advanced on the appeal to this Court
44. In the circumstances commented on in the next preceding paragraph, I am satisfied that counsel for the Appellant are justified in pursuing on this appeal all of the grounds of appeal which they pursued in the High Court. In the notice of appeal filed on behalf of the Appellant on the appeal to this Court, the Appellant elaborated to some extent on the grounds advanced on the appeal to the High Court, by and large, attacking the High Court judge’s broad acceptance of the determinations of the Circuit Court judge, which it is contended is erroneous. There is one additional ground on the application of s. 4 of the Act of 2000, which relates specifically to what is stated in the judgment of the High Court. It is asserted that, from the endorsement by the trial judge of the decision of the Circuit Court and his repeated reference to “reason and commonsense”, the High Court judge wrongly applied the same administrative law type reasonableness standard to the determination of whether “reasonable accommodation” had been provided to the Appellant as it is asserted the Circuit Court judge had wrongly applied.
Issues
45. Emphasising the importance that the true meaning and effect of ss. 3, 4 and 5 of the Act of 2000 be established authoritatively, and suggesting that the interpretation of those provisions by the Circuit Court, as affirmed by the High Court, severely curtails the scope and effectiveness of the protection against discrimination provided in Irish law in a manner which is unwarranted by the statutory language and context, and having regard to the fact that the legislation was introduced against the background of a strong constitutional protection of equality rights, counsel for the Appellant list four legal issues of concern on the appeal. These are:
(a) the proper interpretation of “less favourable treatment” under s. 3 (the section 3 issue);
(b) the scope of the substantive protections available in the duty to provide “reasonable accommodation” under s. 4(1) (the section 4(1) issue);
(c) whether the Minister is exempt from the obligation to provide reasonable accommodation by virtue of s. 4(5) (the section 4(5) issue); and
(d) whether the Minister, as the provider of a service to the public, is exempt from the obligation of non-discrimination under s. 5(1) by reason of s. 5(2)(h) (the section 5 issue).
46. It is instructive to outline at this juncture the answers which counsel for the Appellant advocate that the Court should give to each of those issues in their written submissions. They are:
(a) as regards the section 3 issue, that it should be construed as protecting not only against less favourable treatment which is motivated by “improper” considerations, but also as protecting against the effect or impact of a policy, however well-meaning or intentioned;
(b) as regards the section 4(1) issue, that the protection provided by section 4(1) is substantive and cannot properly be equated with the requirements of reasonableness in an administrative law context but derives more from principles of constitutional law and the duty to vindicate fundamental rights and to protect against unjust attack;
(c) as regards the section 4(5) issue, that the sub-section does not have the effect of exempting the Minister from the requirements to provide reasonable accommodation; and
(d) as regards the section 5 issue, that section 5(2)(h) should be interpreted as having the effect that, in cases where positive discrimination occurs for a bona fide purpose, those who do not fall into the category benefiting cannot complain of discrimination.
47. It is hardly necessary to observe that this judgment is not intended to be a treatise on the general interpretation and application of ss. 3, 4 and 5 of the Act of 2000. Rather, it is limited, as is appropriate, to the application of those provisions and of the legal principles relevant to the matters in dispute between the Appellant and the Minister, which from the outset, as is clear from the Form ODEI 5, was that the annotation of the certificate to disclose the existence of the waiver was discriminatory. Accordingly, I propose considering the issues in the following order:
The rationale of considering the section 4(5) issue first is obvious: if section 4(5) is applicable, it is not necessary to consider the section 4(1) issue. Similarly, if the prohibition in section 5(1) is disapplied by virtue of section 5(2)(h), it is not necessary to consider whether there has been discrimination within the meaning of either section 3(1) or section 4(1). However, section 5(2)(h) must be construed in the context of section 3 and section 4. Therefore, notwithstanding that it will not be possible to come to a definitive conclusion as to the application of s. 5(2)(h) at that stage, it is useful to consider the basis of the Minister’s reliance on section 5(2)(h) before considering the section 4(1) issue and the section 3 issue.
Section 4(5) issue
48. It is very difficult to understand why the Minister has continued on this appeal to persist in the argument, which at the first stage in the process had been rejected by the Equality Officer although upheld by the Circuit Court judge on the appeal to the Circuit Court, that subs. (5) of s. 4 precludes the Appellant from invoking against the Minister in this case an allegation of discrimination pursuant to subs. (1) of s. 4, when it is glaringly obvious that the Minister, in so doing, is misinterpreting the meaning of the words “without prejudice to” in subs. (5) of s. 4.
49. Although I do not propose engaging in one controversy which has arisen from the respective submissions of the parties, that is to say, whether s. 7 of the Act of 1998 imposes positive duties on the Minister, I consider that, in general, the interpretation of, and the explanation of the necessity for, subs. (5) as suggested by counsel for the Appellant are correct. It is submitted that the fact that subs. (5) is expressed to be “without prejudice” to s. 7(2)(a) of the Act of 1998 is intended to reflect that s. 4 does not dilute the functions of the Minister specified in s. 7(2)(a). To illustrate the point, it is noted that there is nothing similar to what is described as the “nominal cost” threshold provided for in s. 4(2) available under s. 7(2)(a). As I understand the submission made on behalf of the Appellant, it is that the inclusion of subs. (5) in s. 4 was to obviate any uncertainty as to the Minister’s function under s. 7(2)(a) of the Act of 1998 to provide support services to, inter alia, students who have a disability and, in particular, any uncertainty which might arise by reason of the existence of the “nominal cost” threshold provided for in subs. (2) of s. 4 in relation to subs. (1) of s. 4.
50. While agreeing with the Appellant’s reasoning, it seems to me that a much simpler approach to the proper interpretation of subs. (5) is open, that is to say, to identify the plain meaning of the words “without prejudice to” in subs. (5). The Oxford Dictionary of English (http://www.oxforddictionaries.com/) defines “without prejudice” as meaning “without detriment to any existing right or claim”. What subs. (5) says is that s. 4, including subs. (2), is not to be read as being prejudicial or detrimental to the rights and claims of beneficiaries of the exercise of the statutory functions of the Minister, or of recognised schools and boards of management as specified in the provisions of the Act of 1998 identified in subs. (5).
51. In short, the Appellant is not precluded from invoking the provisions of s. 4 by reason of the existence of subs. (5) of s. 4 and the Minister is not exempt from the obligation to provide reasonable accommodation in compliance with subs. (1) of s. 4.
Section 5 issue
52. Probably one should not be surprised that at this appeal stage, which is the fourth stage in a process which has been ongoing for almost sixteen years, sight may be lost of the nature of the claim at the heart of the proceedings. The Appellant’s claim to the Tribunal was for redress on the basis that prohibited conduct had been directed against her by the Minister. The alleged prohibited conduct was conduct prohibited by s. 5(1) of the Act of 2000 which mandates that a person shall not discriminate, inter alia, in providing a service. As has been pointed out earlier, in the Act of 2000 “discriminate” is defined as discriminating within the meaning of s. 3(1) or s. 4(1). As counsel for the Minister correctly point out, s. 4 does not constitute a separate prohibition on discrimination in addition to that provided by s. 5(1), and the same applies to s. 3. Both of those sections define the scope of the meaning of to “discriminate”. Accordingly, in order to determine what is prohibited by s. 5(1), it is necessary to apply the provisions of either or both of s. 3(1) and s. 4(1). Even if it is determined that there has been conduct which amounts to discrimination under s. 3(1) or s. 4(1), the prohibition under s. 5(1) will not apply if the conduct or activity comes within any of the twelve types of conduct itemised in s. 5(2) in its original form. The Minister’s position is that what is alleged by the Appellant in this case to constitute discrimination comes within paragraph (h) of s. 5(2), which has been quoted earlier, and, accordingly, s. 5(1) is disapplied. Crucial to that contention is the argument that the special treatment which the Appellant received, comprising the waiver coupled with the annotation, which it is suggested are inextricably linked, was for the principal purpose of promoting the special interests of a person with a disability, namely, the Appellant, for a bona fide purpose and in a bona fide manner.
53. The “differences in treatment” envisaged in paragraph (h) of s. 5(2) are obviously acts of bona fide positive discrimination. As a general proposition, there is logic in bona fide positive discrimination not being prohibited in an equality status context. Counsel for the Appellant interpret the effect of the finding of the Circuit Court, which was affirmed by the High Court, as that a provision designed to allow differential treatment to promote the special interests of a category of persons, which it is assumed would normally be likely to be the subject of discrimination, may be relied upon to discriminate against the very category of persons whose interests the action was designed to promote, which they suggest is inherently illogical. They suggest that a more straightforward reading of s. 5(2)(h) would be to the effect that, in cases where positive discrimination occurs for a bona fide purpose, those who do not fall into the category of persons benefiting cannot complain of discrimination, which is an attractive proposition.
54. However, the real controversy between the Appellant and the Minister on the application of s. 5 by reference to s. 4 and s. 3 is whether the waiver and the annotation are inextricably linked. The position of the Appellant is that it is not the accommodation, that is to say, the waiver, which is challenged but the annotation and the fact that one is not available without the other. The whole thrust of the Appellant’s case is that what is required is a waiver without annotation and that the inclusion of the annotation is discriminatory. While it is acknowledged that the waiver benefits the student, the Appellant’s contention is that the annotation provides no benefit and is not a preferential treatment of a type which s. 5(2)(h) was designed to exempt from the application of s. 5(1). The position of the Minister in response is that the Appellant’s argument has no logic because the service being provided by the Minister is the assessment of the educational achievement and the certification of the result and that, absent an annotation, a waiver of portion of the examination would be the equivalent of certifying achievement across the entire portion of the syllabus. Further, counsel for the Minister argue against the contention that the annotation provides no benefit to the Appellant and, in support of that argument, they resort to the expert evidence given in the Circuit Court that secrecy and hiding of a disability is not in the best interests of a person with dyslexia, which evidence was accepted by the Circuit Court judge.
55. Of course, the controversy between the Minister and the Appellant as to whether or not the waiver and the annotation are inextricably linked primarily arises on the application of s. 4(1) and s. 3(1) in determining whether the Minister has discriminated against the Appellant. If the Minister did not discriminate against the Appellant within the meaning of either s. 4(1) or s. 3(1), then s. 5(1) has no application and the question of the disapplication of s. 5(1) by s. 5(2)(h) does not arise. However, even at this juncture, a rather peculiar, but obviously unintentional, aspect of the Minister’s reliance on s. 5(2)(h) and on the decisions of the Circuit Court and the High Court on its application is discernible in certain interesting observations in the leading academic commentary on the Act of 2000, Walsh on Equal Status Acts 2000 - 2011 (Blackhall Publishing, 2012), on the decisions at the earlier stages in these proceedings, that is to say, the decision of the Equality Officer and the decisions of the Circuit Court and the High Court on appeal. To put those observations in perspective, it is useful to refer to what is stated by the author in relation to the decisions in addressing the scope of the Act of 2000 and, in particular, in analysing s. 5(2)(h). It is stated (at p. 72):
“The Tribunal found that the annotation was discriminatory; the reasonable accommodation afforded students through a grammar waiver in some subjects was not preferential treatment or positive action but simply a non-discrimination measure. Neither the waiver nor the annotation could be regarded as promoting the special interests of the students. However, on the appeal the Circuit Court found that the system was designed to promote those interests as envisaged under section 5(2)(h). The matter subsequently came before the High Court which found that the Circuit Court had applied the law correctly in arriving at its decision but did not specifically address the meaning of section 5(2)(h).”
56. The interesting observations to which reference is made in the next preceding paragraph are to be found in the later analysis by the author of the decisions of the Circuit Court and the High Court in the context of the meaning of “reasonable accommodation” in s. 4, including the finding of the Circuit Court judge that, even if there had been discrimination, the provision in s. 5(2)(h) would have exempted the Department’s system from the general prohibition on discrimination. As a preamble to the following analysis of the decisions of the Circuit Court and the High Court, it is stated (at p. 247) that this case illustrates the courts’ approach to the boundary between reasonable accommodation and an impermissible form of positive discrimination. It is stated that, in effect, the Circuit Court suggests that failing to annotate would confer an unfair advantage on the Claimants. As regards the decision of the High Court, it is stated that the High Court judge distinguished between various forms of reasonable accommodation afforded to students sitting state examinations. Some accommodations, such as granting a student additional time or enabling the use of assistive technology, would not require annotation because they would not affect the assessment of a fundamental skill such as spelling, grammar and punctuation. However, the annotation in this case was a necessary consequence of the waiver. Further, the High Court judge had regard to internationally recognised practice, and case law from other countries, which led to his conclusion that the annotation was not discriminatory, but was a measure that was required to preserve the integrity of the examination. The author then makes the following observations on the basis of the foregoing analysis (at p. 247):
“The net effect of the litigation is that the system of annotating Leaving Certificates to signal that a grammar waiver was applied should not be regarded as reasonable accommodation as provided for under the [Act of 2000]. Failure to comply with the section 4 duty is expressly defined as a form of discrimination, and so ought not to be seen as a ‘special’ or exceptional measure to which conditions may be attached.”
While I have some misgivings about the first sentence in that quotation, the second sentence is of interest, as is what follows it.
57. Apparently, in support of what is stated in the second sentence, the author then goes on to quote from a document referred to as “European Commission, 2009a, p. 27”, the title of which is given (at p. 360) as “International Perspectives on Positive Action Measures: A Comparative Analysis in the European Union, Canada, the United States and South Africa” (Luxembourg: Office for Official Publications of the European Communities). The passage quoted, omitting footnotes, is as follows:
“At first glance it may seem that the obligation to provide for a ‘reasonable accommodation’ is a particular form of positive action, as it provides for ‘advantages’ to individuals who fall within the group of persons with a disability. However, this impression is misleading and the obligation to provide for a reasonable accommodation can better be characterised as a particular kind of non-discrimination legislative provision, related to, but not synonymous with, the established forms of direct and indirect discrimination . . .”
The footnotes disclose that the reference to “reasonable accommodation” in that passage is to reasonable accommodation as provided for in, inter alia, Article 5 of Directive 2000/78/EC, which is quoted later. That analysis of Article 5, in my view, is equally applicable to the implied obligation to provide for reasonable accommodation in s. 4(1) of the Act of 2000, which may be properly characterised as a particular kind of non-discrimination legislative provision.
58. Those observations highlight something of an absurdity in the Minister’s invocation of s. 5(2)(h) to disapply s. 5(1). The kernel of the Minister’s answer to the Appellant’s claim that she was discriminated against is that there has been no breach by the Minister, as the provider of a service, of the obligation imposed by s. 4 of the Act of 2000 for avoiding discriminating, that is to say, to do all that is reasonable to accommodate the needs of the Appellant as a dyslexic person in relation to the Leaving Certificate examination and the certification of the result thereof, which it is contended the Minister did in giving the Appellant the waiver coupled with the annotation in relation to the language subjects. Accordingly, the Minister’s position is that he is not liable for the form of discrimination which would arise from the failure to comply with that obligation imposed by s. 4(1). If the Minister is correct that the action of giving the Appellant the waiver coupled with the annotation has avoided liability to the Appellant for the form of discrimination legislated for in s. 4(1), it is difficult to see how it could be argued that the Oireachtas intended that the same action would give rise to an exemption in favour of the service provider by reference to s. 5(2)(h) from the prohibition on discrimination in s. 5(1), given that the necessity for such exemption, presumably, is premised on the understanding that without it there would be prohibited discrimination by the Minister.
59. While, of course, the Minister is in the position of having to answer a claim by the Appellant that she has been discriminated against within the meaning of both s. 4(1) and s. 3(1) by the Minister, as the provider of a service to her, and while s. 4(1) applies only to discrimination on the ground of disability, whereas s. 3 applies to discrimination more generally, but, significantly, the Appellant only relies on the disability ground, having regard to the kernel of the Minister’s defence to the Appellant’s claim as outlined earlier, that there has been no failure on the part of the Minister to comply with the requirement provided for in s. 4(1), it seems to me that the Minister’s invocation of s. 5(2)(h), which is based on the assumption that there has been discrimination, is misconceived. Therefore, I consider that the proper course is to consider the application of s. 4(1) and s. 3(1) without expressing any definitive view on the effect of s. 5(2)(h) generally.
60. I propose to consider the application of s. 4(1) next. As s. 4(1) specifically addresses discrimination on the ground of disability, which is the ground relied on by the Appellant in invoking s. 3(1), it seems logical to consider it before considering the more general meaning of discrimination on a range of grounds, including the disability ground, in s. 3(1).
Section 4(1) issue
61. It will be recalled that the Appellant contends that both the Circuit Court judge and the High Court judge applied the wrong test in the application of s. 4(1), it being contended that at both levels the administrative law reasonableness standard was wrongly applied to determine whether reasonable accommodation had been provided to the Appellant in accordance with s. 4(1). The position of the Minister is that, in advancing that argument, the Appellant mischaracterises what happened at both levels in the courts below. It is submitted that the Circuit Court judge correctly posited a test which required a balancing exercise and a judgment on the facts of the particular case as to whether reasonable accommodation was provided. Further, it is submitted that the legal test thus applied is correct in law. While some of the observations of the Circuit Court judge quoted earlier are resonant of the judicial review reasonableness test, what is of more relevance for consideration now is what each side submits as to the proper construction of s. 4(1) and how that is reflected in the judgments of the Circuit Court and the High Court.
62. In their submissions, counsel on both sides have endeavoured to assist the Court in the task of interpreting s. 4(1) and its application to the facts in this case by reference to European Union law, international law and authorities from other jurisdictions.
63. Both sides refer the Court to Directive 2000/78/EC, which is known as the Framework Employment Directive. Counsel on each side referred to Article 5 thereof, which sets out the concept of reasonable accommodation and provides:
“In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.”
64. The Court is also referred by both sides to the United Nations Convention on the Rights of Persons with Disabilities (the UN Convention), which was ratified by the European Union on 23rd December, 2010, but has not yet been ratified in this jurisdiction, although the intention of the Government as originally outlined was to put the legislation to ratify it before the Oireachtas before the end of 2016. In fact, when on 20th December, 2016 the Disability (Miscellaneous Provisions) Bill 2016 was published by the Minister for Justice and Equality, it was announced by the Minister that its primary purpose is to address the remaining legislative barriers to Ireland’s ratification of the UN Convention. That Bill is still winding its way through the Oireachtas, although the Government’s commitment to ratification of the UN Convention is consistently made clear. The UN Convention provides for reasonable accommodation, which is defined as -
“. . . necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.”
65. There is obviously a degree of similarity between s. 4(1), on the one hand, and Article 5 and the definition of reasonable accommodation in the UN Convention, on the other hand, but there are also differences. For example, the relevant requirement of reasonable accommodation or necessary and appropriate adjustments is imposed in different contexts in that, in the case of Article 5, it is in the context of employment, whereas, in the case of the application of s. 4(1) on this appeal, it is in the context of the provision of a service. Another difference is the express reference in Article 5 to “disproportionate burden” and in the UN Convention to “disproportionate or undue burden”, whereas the only express qualification on s. 4(1) which points to a burden on the service provider is s. 4(2), which merely limits the burden by providing for a “nominal cost” threshold. However, the primary issue which arises on the application of s. 4(1) in any case is what is the correct interpretation of the requirement to do “all that is reasonable” to accommodate the needs of the disabled person in the circumstances outlined in the sub-section. That the service provider is only required to do “all that is reasonable”, in my view, imports the concept of proportionality into s. 4(1), subject, however, to the cost limitation in s. 4(2) and subject also to the provision of special treatment or facilities being expressly limited to enabling the disabled person to avail of the service or to do so without undue difficulty.
66. Counsel for the Minister place particular emphasis on a relatively recent judgment of the Court of Justice of the European Union (CJEU) in Joined Cases C - 335/11 and C - 337/11, Ring and Skoube Werge v. Dansk almennyttight Boligselskab EU: C: 2013: 222 (the Ring and Skoube Werge case), in which requests for a preliminary ruling in the interpretation of certain articles of the Framework Employment Directive, including Article 5, were addressed. In a judgment delivered on 11th April, 2013, the CJEU ruled that, as the UN Convention is an international agreement concluded by the European Union, it is binding on all institutions and all European Union law, including the Framework Employment Directive, must be interpreted as far as possible consistently with the UN Convention. Having quoted the definition of “reasonable accommodation” in the UN Convention, the Court stated (at paras. 53 and 54):
“It follows that that provision prescribes a broad definition of the concept of ‘reasonable accommodation’. . . .
Thus, with respect to Directive 2000/78, that concept must be understood as referring to the elimination of the various barriers that hinder the full and effective participation of persons with disabilities in professional life on an equal basis with other workers.”
However, the Court pointed out that, in accordance with Article 5 of the Directive quoted earlier, the accommodations which persons with disabilities are entitled to must be reasonable, in that they must not constitute a disproportionate burden on the employer.
67. Counsel for the Minister suggest that the decision of the CJEU should be of assistance to this Court in interpreting the concept of reasonable accommodation in s. 4(1). It is submitted that any interpretation which draws down concepts of reasonable accommodation at European Union level must also draw down the balancing provisions, which provide for weighing of measures to reasonably accommodate those with disabilities with the policy of the Member States, the protection of rights and freedoms of others and the ability of the person upon whom the obligation is imposed to meet it. It is emphasised that, although this Court is urged on behalf of the Appellant to apply European Union and international human rights norms to produce a purposive approach to the interpretation of reasonable accommodation, in the Appellant’s submissions there is no reference to the balancing approach which is part and parcel of European Union and international law.
68. It is submitted on behalf of the Appellant that the Court might derive some assistance as to the correct approach to the substantive protection available under s. 4(1) from the approach adopted by the courts in the United Kingdom in relation to the obligation to make “reasonable adjustments” under the Disability Discrimination Act, 1995 (the UK Act of 1995). I propose only considering the one decision of the House of Lords which is cited: Archibald v. Fife Council [2004] 4 All ER 303 (the Archibald case). The matter before the House of Lords in that case concerned the proper construction of certain provisions of the UK Act of 1995 which dealt with discrimination in employment. Section 5 identified, in the words of Baroness Hale of Richmond, two sorts of discrimination. Section 5(1) dealt with less favourable treatment for a reason related to the person’s disability, where the employer could not show that the treatment in question was justified. Section 5(2) identified as discrimination the failure of an employer to comply with “a section 6 duty imposed on him in relation to the disabled person” to make adjustments, where he could not show that the failure to comply with the duty was justified. Section 6 was a fairly comprehensive provision. Sub-section (1) provided that, where any arrangements made by or on behalf of an employer placed the disabled person at a substantial disadvantage in comparison with persons who were not disabled, it was “the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements . . . having that effect”. Examples of the steps which an employer might have to take were set out in subs. (3), which included “transferring him to fill an existing vacancy”. Sub-section (4) itemised a number of factors to which regard should be had in determining whether it was reasonable for the employer to have to take a particular step. The factors included the extent to which it was practicable for the employer to take the step, the financial and other costs which would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of his activities. Sub-section (7) provided:
“Subject to the provisions of this section, nothing in this Part is to be taken to require an employer to treat a disabled person more favourably than he treats or would treat others.”
69. When the Archibald case was before it, the United Kingdom Employment Tribunal relied on s. 6(7) as being applicable and ignored the fact that it was prefaced by the words, “Subject to the provisions of this section . . .” and concluded that the employer, Fife Council, was not in breach of its duty. The House of Lords allowed Mrs. Archibald’s appeal and the case was remitted to the Employment Tribunal so that it could consider whether Fife Council had fulfilled its s. 6(1) duty to Ms. Archibald. While the provisions of s. 5(2) and s. 6 which were under consideration by the House of Lords, in broad terms are analogous to s. 4 of the Act of 2000, the provisions of s. 6 of the United Kingdom statute were much more instructive as to what would constitute “such steps as it is reasonable . . . to take” than the provisions of s. 4 of the Act of 2000 are as regards what constitutes “all that is reasonable to accommodate the needs of a person with a disability” in the circumstances addressed in s. 4(1). The factual basis of the Archibald case was totally dissimilar to the factual basis of this case. Not only was it concerned with treatment of an employee by an employer, but the complaint arose when Mrs. Archibald, as a result of a complication during minor surgery, could no longer carry out the job of road sweeper, which she held with Fife Council. She sought redeployment to a higher grade but failed to obtain any post and was eventually dismissed on the grounds of incapacity.
70. The foregoing rather long outline of the facts and legislation at issue in the Archibald case is necessary to get a perspective of the relevance or otherwise to the determination of the s. 4(1) issue by this Court of the passages from the speech of Baroness Hale on which counsel for the Appellant relies. Having outlined the provisions of s. 6, Baroness Hale, in a sentence which is relied on by counsel for the Appellant, stated (at para. 65):
“The duty is to take such steps as it is reasonable in all the circumstances of the case for the employer to have to take.”
Having considered further the provisions of s. 6, Baroness Hale addressed the misapplication by the Employment Tribunal of subs. (7) of s. 6. It had ignored the words by which subs. (7) was prefaced, “Subject to the provisions of this section”, and it relied solely on the remainder of the sub-section. Baroness Hale then (at para. 68) stated the correct position, in a passage on which the Appellant also relies, as follows:
“. . . to the extent that the duty to make reasonable adjustments requires it, the employer is not only permitted but obliged to treat a disabled person more favourably than others.”
71. Because of the specificity of the statutory provisions under consideration in the Archibald case and, in particular, the specificity in relation to the interaction of the two sorts of discrimination, I do not find the decision in the Archibald case to be of any particular relevance or assistance in determining the s. 4(1) issue. As I understand the purpose behind citing the Archibald case and, in particular, the last passage from the speech of Baroness Hale quoted in the next preceding paragraph, and other authorities of the courts of the United Kingdom cited by counsel for the Appellant, it is to support the submission that, under U.K. law, it is not simply open to the employer in making a reasonable adjustment to treat a disabled person more favourably than others, but it is required to do so and, accordingly, that a high threshold is set for the employer. It is submitted that, by analogy, the same applies to the provision of reasonable accommodation in accordance with s. 4(1) in this jurisdiction, in that it must be construed as creating a duty on the part of the service provider to proactively and positively promote accessibility to the service. Taking a realistic view of its provisions, I consider that the opportunity to do “all that is reasonable to accommodate the needs of a person with disability”, in other words, to provide special treatment or facilities to meet the circumstances outlined, under the Act of 2000 is not merely permissive, but, in reality, by implication imposes an obligation on the service provider, but only to the extent expressly provided for in s. 4(1), that is to say, to provide special treatment or facilities for the purposes outlined in s. 4(1). If the service provider is to avoid discriminating, it must not refuse or fail to do “all that is reasonable to accommodate the needs of a person with disability” in accordance with s. 4(1). It is prohibited from discriminating by virtue of s. 5(1) and, if it breaches that provision, it may face a claim for redress in accordance with s. 21. The crucial question, however, is, if, as in this case, the claim for redress is based on alleged discrimination within the meaning of s. 4(1), what is the service provider required to do to meet the requirement of doing “all that is reasonable to accommodate” as provided for in s. 4(1). That is a matter of construction of s. 4(1) in the context of the Act of 2000 as a whole. The rest of the Act of 2000, with the exception of subs. (2) of s. 4, which points to cost being a factor to which regard may be had, gives little or no guidance as to how the parameters of “all that is reasonable to accommodate” the needs of a disabled person by providing special treatment or facilities for the purposes outlined in s. 4(1) are to be identified, either in general or in relation to a particular factual situation.
72. Before considering the proper interpretation of s. 4(1) and its application to the Appellant’s circumstances, the basis of the Appellant’s claim against the Minister that she had been discriminated against must be emphasised again. Her claim, from the outset, as expressed in the notification to the Minister dated 24th August, 2001 (on Form ODEI 5), was that the annotation discriminated against her. The issue, on the application of s. 4(1) is whether, having granted the waiver but by the annotation noting on the certificate that it had been granted, the Minister in July and August 2001 did all that was reasonable to enable the Appellant to avail of the service, that is to say, to obtain the result of her participation in the Leaving Certificate appropriate to her needs having regard to her disability.
73. As a matter of interpretation, I consider that s. 4(1) is clear and unambiguous. The standard of reasonableness which is at the heart of s. 4(1), as has already been noted, in my view, imports the concept of proportionality. It envisages that a balance is to be maintained between the needs of the disabled person and how those needs are met by the provision of special treatment or facilities to the extent necessary to enable the disabled person to avail of the service, or to do so, without undue difficulty, on the one hand, and the effect of such provision on the service provider in the overall context of the position of the service provider, as the provider of the service, on the other hand. The interest of a third party vis-à-vis the service provider may be a relevant factor, even though it is not spelt out in s. 4, or, indeed, in Article 5 of the Framework Employment Directive or in the definition in the UN Convention. As regards s. 4(1), that is because the expectations or entitlements of the third party, for example, an end user of the action which constitutes the special treatment, may impose a burden on the service provider. Having regard to the nature of the Appellant’s complaint from the outset with particular reference to Form ODEI 5 in the situation envisaged therein, the end user might be an employer who is relying on the Leaving Certificate submitted by the Appellant in connection with an application for an employment position as evidence of her capability for the position. In that type of situation, the burden on the Minister would be to ensure that the prospective employer was not misled, by reason of the contents of the Leaving Certificate issued by the Minister, as to the capability of the Appellant for the position being applied for. In weighing the balance, as in every context in which reasonableness is deployed to delimit an obligation, an objective standard must be applied.
74. In this case, the Appellant’s needs arising from her disability were primarily addressed by the Minister in the treatment of her performance in relation to the three subjects, English, Irish and French, in the examination, in that she got the benefit of the waiver, which unquestionably was a significant benefit to her. Her complaint is that the annotation on the certificate discriminated against her and, in the Form ODEI 5, the basis of the complaint was that the annotation would reveal her disability, which is a private matter. As against that, the position of the Minister, as outlined earlier in considering the s. 5 issue, is that the waiver and the annotation are inextricably linked. Whether or not, as a matter of fact, the waiver coupled with the annotation, as distinct from the waiver on its own, meets the proportionality test inherent in the obligation to do all that is reasonable to meet the needs of a dyslexic student participating in a State examination falls to be considered in accordance with the evidence which was before the Circuit Court.
75. To put the s. 4(1) issue in chronological perspective, the evidence before the Circuit Court established that the use of the waiver and annotation accommodation was introduced by the Minister for the Leaving Certificate examination in 2000, and continued in 2001, following receipt by the Minister in January 2000 of a report from the Expert Advisory Group on Certificate Examinations entitled “Arrangements for the Assessment of Candidates with Special Needs in Certificate Examinations”. That report, which has been relied upon by the Minister throughout this process, proposed certain principles on which provision of arrangements for candidates with special needs might be based. One such proposal was that when an element or elements of an examination have been waived, so that the purpose of the examination regarding that element or elements has not been met, or the method of the examination has been significantly altered, this should be indicated by the presence of an explanatory note on the candidate’s certificate of results. Reflecting that principle, the following recommendation on treatment and reporting of candidate performance was made in the report:
“It should be noted on certificates of results if an element or elements of an examination have been omitted or the method of examining has been altered in a substantial way.”
That recommendation was the subject of in-depth analysis by the expert witnesses who testified in the Circuit Court.
76. The grounds on which the Appellant contends that the Circuit Court judge erred in the application of s. 4(1) is that he applied the wrong test, the administrative law type reasonable standard, in determining whether “reasonable accommodation” had been provided by the Minister. Moreover, by and large, the grounds on which it is suggested that the High Court judge misinterpreted and misapplied the concept of “reasonable accommodation” is also based on the suggestion that he applied the wrong test. It is undoubtedly the case that, in the analysis of the application of s. 4(1) in the judgment of the Circuit Court, terminology is used, for example, references to “irrelevant considerations” and “an improper purpose”, which is common in an assessment by a court in judicial review proceedings of an administrative act or decision which it is contended is invalid. Notwithstanding that, it seems to me that the practical approach for this Court to adopt is to endeavour to ascertain from his judgment on what basis the Circuit Court judge concluded on the facts that the Minister did all that was reasonable to accommodate the needs of the Appellant, and, in particular, whether his conclusion as to the reasonableness of the Minister’s actions was reached by applying the proper test on the basis of balancing the respective positions of the Appellant and the Minister. Certain aspects of the judgment of the Circuit Court suggest that it was, many of which have been alluded to in outlining the judgment earlier.
77. First, the Circuit Court judge alluded to the fact that the annotation had been done out of concern as to the integrity of the examination, albeit that he did so in the context of the application of s. 3(1). Further, as quoted earlier, in the context of his observations on “the Irish bonus”, he accepted that the Minister’s Department had a genuine concern over the integrity of the examination. Secondly, in interpreting subs. (1) of s. 4, he stated that “reasonable” was not defined in s. 4, save that subs. (2) “provides some assistance in discerning the possible ambit of the phrase”. However, as regards “the costs of accommodation provided in the education sphere”, he proceeded on the assumption that “such expenditure could well be regarded as nominal”. It was at that stage that he stated that “the reasonableness of these accommodations fall to be judged by reference to the content and context in which they were provided”. Thirdly, having referred to “the evidence relating to the process by which the system of accommodation was devised”, with particular reference to the three independent experts who had given evidence on behalf of the Minister, he expressed the belief that the decision of the Minister was based “on a reasoned and reasonable process”, wherein all the arguments and evidence on both sides of the issue were canvassed. He also expressed the belief that “the system of waiver and annotation is a reasonable response by the Department to the needs in question”. In that context he again referred to the evidence of the independent experts on international practice and their conclusions that the approach of the Department was a reasonable approach. Finally, he expressed the view that the Claimants were requiring that the Minister would go beyond the concept of what constitutes a reasonable accommodation in seeking an exemption or waiver without annotation. He referred to the evidence of the only independent expert witness called on behalf of the Appellant, Dr. Michael Shevlin, whom he described as “the Head of the School of Education in Trinity College”. In relation to Dr. Shevlin’s evidence, the Circuit Court judge stated (at p. 99):
“His evidence went no further than to express concerns about the consequences of annotation and he did not specify an alternative, nor indeed did he go so far as to characterise the overall system adopted by the Department as unreasonable.”
78. In the light of the support which the Circuit Court judge found in the evidence of the independent expert witnesses called on behalf of the Minister for his conclusion that the system of waiver and annotation was a reasonable response by the Minister to the needs of dyslexics, it is appropriate to briefly outline the Circuit Court judge’s account of the evidence of the independent witnesses, who testified on behalf of the Minister. However, it must be acknowledged that brevity does not do justice to the force of the testimony.
79. In relation to the evidence of Dr. Jeffrey Braden, Professor of Psychology attached to North Carolina State University, the Circuit Court judge recorded (at p. 62) that, in relation to the Appellant, Dr. Braden had testified, having referred to the reports upon which she was granted the waiver, that he felt that he would not have done so and he described the provision of the waiver in favour of the Appellant as “an unusually generous effort to accommodate” her. That is alluded to by way of explanation of the reference by the Circuit Court judge in the passage quoted earlier (at para. 28) to the approach of the Department as being “a reasonable or generous approach, as it was described by one witness”. Recording (at p. 58) Dr. Braden’s analysis of the principles enunciated by the Expert Advisory Group in 2000 with reference to annotation following a waiver, the Circuit Court judge stated that his evidence was that waiver of what he referred to as “target skills”, meaning skills that are intended to be measured by assessment, expressly included in the syllabus “carried an obligation to notate under national and international standards”. Further, Dr. Braden was of the opinion that the annotations used by the Department on the Leaving Certificate were worded exactly as in similar situations in other jurisdictions. His view was that the Department had it “just right”.
80. Another witness called on behalf of the Minister, Nicholas Peacey, an expert from England involved in examinations and assessments, was recorded by the Circuit Court judge (at p. 80) as also having characterised the approach of the Department to granting of waivers in the particular cases at issue “as being generous”. Earlier, (at p. 78) it is recorded that Mr. Peacey testified that annotation should inevitably follow in circumstances where exemptions were given in relation to spelling, punctuation and grammar, which were very much part of the construct of English and other languages, and that the relationship between the annotation and the alteration of the test construct is absolutely constant across all jurisdictions known to him, including England, Wales, Scotland and Northern Ireland. It is recorded in the judgment (at p. 81) that Mr. Peacey, in cross-examination, maintained that the annotation was of great significance to the integrity of the examination system.
81. The remaining expert witness who testified on behalf of the Minister, Dr. John Eakin, who was described as a Chartered Educational Psychologist at Queen’s University, Belfast, with particular expertise in the area of dyslexia, is recorded (at p. 69) by the Circuit Court judge as having testified that, in general, in relation to the system of waiver and annotation adopted by the Department, he felt that it was reasonable from the perspective of his experience.
82. The purpose of outlining the foregoing features of the judgment of the Circuit Court judge and the evidence to which he pointed as supporting his conclusion that the system of waiver and annotation was a reasonable response to the needs of the Appellant, is to assess whether, notwithstanding other terminology used by him in considering the application of s. 4(1), he applied the correct test and his finding was supported by evidence. I consider that it has been illustrated that the Circuit Court judge applied what I consider to be the correct legal test, the proportionality test or balancing exercise conducted by applying an objective standard, in determining whether, in providing the waiver to the Appellant coupled with the annotation, the Minister had done all that was reasonable to accommodate the needs of the Appellant in accordance with s. 4(1), while protecting the integrity of the State examination system. Further, it has been illustrated that there was evidence to support his conclusion. Therefore, the Appellant has not established any error in law on the part of the Circuit Court judge in the application of s. 4(1), so that the determination of the Circuit Court judge that no discrimination had been established by reference to that provision was correct and was properly upheld by the High Court judge.
83. A feature of the process leading to this appeal to which counsel for the Minister direct this Court’s attention is that at no stage in the process had it been established that the Minister failed to do all that is reasonable to accommodate the needs of the Appellant in accordance with s. 4(1). It is pointed out that the Tribunal determined that point against the Appellant. As recorded earlier, the finding of the Equality Officer in favour of the Complainants was based on discrimination by reference to s. 3(1) and s. 3(2)(g) and the Equality Officer found that the complainants had failed to establish a prima facie case of discrimination in terms of section 4 of the Act of 2000. Moreover, it is pointed out on behalf of the Minister that there was no appeal against the determination of the Equality Officer to the Circuit Court by either of the Claimants. However, even though the Minister pursued the section 4(5) issue in both the Circuit Court and the High Court, it was obviously argued on behalf of the Minister at both levels that the Minister had not failed to provide reasonable accommodation in accordance with s. 4(1) and the Minister succeeded on the argument at both levels.
Section 3 issue
84. As already noted, there are two separate and distinct sources of the meaning of “discriminate” for the purposes of the application of the provisions of the Act of 2000, s. 3(1) being one source and s. 4(1) being the other source. As observed earlier, I consider that s. 4(1) is the provision, and, thus, the source which is most relevant to the nature of the Appellant’s complaint that prohibited conduct was directed against her, which is the ultimate basis of these proceedings. Applying s. 4(1) to the Appellant’s complaint that she has been discriminated against, the question which arises by reference to the wording of s. 4(1) is whether there has been a failure on the part of the Minister to do all that is reasonable to accommodate the needs of the Appellant by providing special treatment in the form of the waiver coupled with the annotation. Having analysed s. 4(1) in the context of the factual circumstances as considered at Circuit Court level, I have concluded that the Circuit Court judge was correct in finding, as was upheld by the High Court, that the action of the Minister constituted reasonable accommodation within the meaning of s. 4(1), and, accordingly, that there had not been discrimination on the part of the Minister within the meaning of s. 4(1).
85. Turning to s. 3(1), and bearing in mind that the only discriminatory ground on which it is contended that the Appellant was treated less favourably than another person is the disability ground set out in s. 3(2)(g) and not any of the other grounds itemised in s. 3(2), in essence the Appellant’s case based on s. 3 is that discrimination occurred because she was treated less favourably than a person not disabled or with a different disability. While s. 3(1) and s. 4(1) provide separate and distinct meanings of “discriminate”, those meanings combine to give rise to a prohibition on discrimination in providing a service under s. 5(1). Accordingly, in my view, the definitions must be construed, and the prohibition applied, so as to avoid any inconsistency or repugnancy within s. 5(1).
86. Given that, on a plain reading of the words of s. 4(1), a failure by the service provider to do all that is reasonable to accommodate the needs of the disabled person by providing special facilities amounts to discrimination, it is an implicit corollary that, if the service provider has done all that is reasonable to accommodate the needs of the disabled person in question as specified, there is no discrimination under s. 4(1). Therefore, in interpreting s. 5(1) as a whole by reference to both s. 4(1) and s. 3(1), one must ask whether the Oireachtas intended that, if a complainant is relying solely on the disability ground in invoking s. 3(1), and the service provider has done all that is reasonable to accommodate the needs of the disabled complainant within the terms of s. 4(1), so that there is no discrimination under that provision, the application of s. 5 by reference to s. 3(1) could be open to a finding that there was discrimination under s. 3(1), in circumstances where the basis of the complaint under both s. 4(1) and s. 3(1) is precisely the same.
87. Therefore, having regard to the nature of the Appellant’s complaint and its factual underlay, one must ask to what extent it is appropriate, or indeed necessary, to consider whether there has been discrimination by the Minister within the meaning of s. 3(1). The Oireachtas having expressly addressed in s. 4(1) the particular type of circumstance which has formed the basis of the Appellant’s complaint and her claim under the Act of 2000, in my view, the proper conclusion is that what the Oireachtas intended in enacting s. 4(1) is that, once it is determined in such circumstances that there is no discrimination on the application of the provisions of s. 4(1), and the only basis for a claim that there has been discrimination under s. 3(1) is on the disability ground, a finding could not be made that there has been a breach of s. 5(1). The rationale for that conclusion is that the Oireachtas, in enacting s. 4(1) and in imposing by implication the obligation to provide reasonable accommodation in the particular circumstances, in the words of the EU Commission quoted earlier (at para. 57) was creating “a particular kind of non-discrimination legislative provision”. In so doing, it was marking a particular clearly defined circumstance, that is to say, where there was compliance with the obligation under s. 4(1), as not consituting discrimination. Accordingly, where, as here, s. 3(1) is invoked and only the disability ground is relied on by the complainant, an interpretation of ss. 3(1), 4(1) and 5(1) as a whole, applying the principle of consistency, must lead to the conclusion that the finding that there was no discrimination under s. 4(1) by reason of compliance with the obligation thereby imposed precludes the existence of discrimination under s. 3(1).
88. While on this appeal the parties did not address the interaction between s. 4(1) and s. 3(1) which has been analysed in the preceding paragraphs, there was some discussion about the interaction of the two provisions before the Equality Officer, which she considered in the decision (at p. 26). Her conclusion was that the two provisions are quite different. In particular, she concluded that compliance with s. 4 did not provide “a get-out-of-jail-free card with regard to any less favourable treatments arising under Section 3”. That prompts consideration of the basis on which the Appellant contends that she was “treated less favourably” within the meaning of s. 3(1)(a) and, in particular, whether it is any different from the basis on which she contends that the Minister did not do all that was reasonable to accommodate her needs in accordance with s. 4(1). That exercise has to be undertaken against the background that the Appellant’s focus in relation to the s. 3 issue on this appeal was on the grounds on which it is contended that both of the lower courts erred in the application of s. 3(1).
89. The grounds on which it is contended by the Appellant that the Circuit Court judge erred in law, and that the High Court judge erred in upholding his decision, on the application of s. 3(1), have been outlined earlier (at para. 32), by reference to the appeal to the High Court. In relation to the ground referred to at (c) in para. 32, the position of the Minister is that the Appellant mischaracterises the interpretation of less favourable treatment by the Circuit Court judge as being solely confined to a preference arising on the basis of a whim, a caprice, unreasonableness and the other factors mentioned. It is submitted that the interpretation of less favourable treatment applied by the Circuit Court judge, and upheld by the High Court judge, was based firstly on a distinction between different treatment and discriminatory treatment, which, as reflected in the grounds set out at (a) and (b) in para. 32, is asserted by the Appellant to be erroneous. It is also suggested on behalf of the Minister that the interpretation by the trial judge is in line with settled law at national level and at European Union level, reference being made to the decision of the CJEU in the Ring and Skoube Werge case.
90. Underlying those grounds relied on by the Appellant, which the Minister argued should be rejected as not being sustainable, on this appeal are certain controversies between the Appellant and the Minister which emerge from their respective submissions in relation to the interpretation of s. 3(1) and its application to the Appellant’s situation. For instance, it is submitted on behalf of the Appellant that central to an assessment of whether discrimination is taken to have occurred in accordance with s. 3 is the impact on the person of the measure in question and not the fact that the treatment is the same as that afforded or meted out to others. The position of the Minister is that, in the context of the Act of 2000, it is only indirect discrimination, which is not at issue here, which is concerned with adverse impact.
91. Another argument advanced on behalf of the Appellant is based on the proposition that the Leaving Certificate is a “standardized” test. The substance of the argument is that the standardized tests used by the Minister have not been developed with the needs of the disabled student in mind. It is suggested that to make a standardized examination system fair, the Leaving Certificate being such a standardized examination, the examination or the conditions in which the examination is taken must be adapted to the situation so that, in reality, the barrier to measuring the student’s ability is removed or reduced. Further, it is suggested that were the accommodation properly effected then there would be no need to annotate the results because the test results would properly measure ability. It is suggested that the need for annotation on the grounds advanced by the Minister only exists if there has been no “reasonable accommodation” in the first instance. However, as the Court has determined, by reference to the basis of the Appellant’s complaint of discrimination, that the Minister did all that is reasonable to accommodate the needs of the Appellant in accordance with s. 4(1), there is inherent in that argument a basic proposition which is contrary to the finding already made on the s. 4(1) issue, that the Circuit Court did not err in finding, and that the High Court did not err in upholding the finding, that the Minister did all that was reasonable to comply with the obligations implicitly created by s. 4(1). Apart from that, the position of the Minister is that the Leaving Certificate is not a standardized test and that evidence was given to that effect in the Circuit Court. It is not necessary to express any view on that proposition.
92. It is also argued on behalf of the Appellant that the placing of the annotation on the certificate of the results of the examination perpetrates a whole new act of discrimination, in that her certificate is defaced and her achievements demeaned and, further, that her right of privacy is not protected in a like manner with other students and a signal has been sent to the world at large that she is disabled. The accommodation provided by the Minister for the needs of the Appellant, which the Court has held meets the requirement to do all that is reasonable in accordance with s. 4(1) so as to avoid discrimination, encompasses the annotation, and, as has been submitted on behalf of the Minister and was established on the evidence in the Circuit Court, both the waiver and the annotation are necessarily inextricably linked in meeting the proportionality requirement in accordance with s. 4(1). Once again, inherent in the Appellant’s argument is a proposition which contradicts the finding already made on the application of s. 4(1).
93. It must be acknowledged that outlining those controversies is largely a theoretical exercise. As regards the situation which prevailed in 2001, when the Appellant sat the Leaving Certificate examination, it is contended on her behalf that the failure to provide an examination system which permitted the ability of a disabled person, such as the Appellant, to be measured in comparison to others without reference, through the medium of the annotation, to his or her disability was discriminatory. That factual matter, of course, forms the basis of the Appellant’s contention that the only accommodation provided by the Minister to the Appellant was not “reasonable accommodation” within the meaning of s. 4 of the Act of 2000. It also forms the basis of the claim that the Appellant was treated less favourably within the meaning of s. 3(1) and thus discriminated against. Because, in reality, the foundation of the Appellant’s case from the outset and at each of the three procedural levels before this appeal that she was discriminated against within the meaning of s. 3(1) is fundamentally the same as the foundation of her case that there was a failure on the part of the Minister to do all that was reasonable to accommodate the needs of the Appellant in accordance with s. 4(1), it cannot form the basis of a finding of discrimination at variance with the finding on the section 4(1) issue, so as to give rise to a breach of the prohibition in s. 5(1). Although the position of the Minister on this appeal is that the Circuit Court judge was correct in law and on the facts in finding, as was upheld by the High Court judge, that there was no less favourable treatment of the Appellant within the meaning of s. 3(1), for the foregoing reason, in my view, the s. 3 issue does not fall for further consideration on this appeal.
94. In summary, the basis of the Appellant’s case that she was discriminated against within the meaning of s. 4(1), that the waiver coupled with the annotation on the Leaving Certificate did not amount to compliance by the Minister with the obligation of doing all that was reasonable to accommodate her needs as a disabled person, being in essence the basis of her claim that she was discriminated within the meaning of s. 3(1) on the disability ground, in that she was treated less favourably than another person whose Leaving Certificate was not so annotated, having regard to the finding on this appeal that such action on the part of the Minister was not discrimination within the meaning of s. 4(1), as a matter of construction of s. 3, s. 4 and s. 5 of the Act of 2000 as a whole, the conclusion must be that the action was not discrimination within the meaning of s. 3(1) so as to give rise to breach by the Minister of the prohibition prescribed in s. 5(1).
Summary of conclusions
95. Sub-section (5) of s. 4 of the Act of 2000, on the proper construction of s. 4, does not preclude the Appellant from invoking subs. (1) of s. 4 and from contending that she was discriminated against by the Minister on the ground that he failed to do all that was reasonable to accommodate her needs as a person with a disability in the assessment of her accomplishment in the Leaving Certificate examination by providing to her, by way of special treatment, the waiver coupled with the annotation. In short, the Appellant’s submission that s. 4(5) does not exempt the Minister from the obligation implicitly imposed under s. 4(1) is correct.
96. In finding that the Minister had not failed to do all that was reasonable to accommodate the needs of the Appellant by the provision of that special treatment, the waiver coupled with the annotation, so that the Appellant had not been discriminated against within the meaning of s. 4(1) of the Act of 2000, neither the Equality Officer, the Circuit Court judge nor the High Court judge erred. Therefore, as regards the Appellant’s claim that prohibited conduct, being discrimination within the meaning of s. 4(1), had been directed against her in contravention of s. 5 of the Act of 2000, that claim fails.
97. Having found that the basis of the Appellant’s claim, in reliance solely on the disability ground identified in s. 3(2)(g), that she was treated less favourably than another candidate in the Leaving Certificate examination, so as to be discriminated against within the meaning of s. 3(1) of the Act of 2000 is that the special treatment, that is to say the waiver, she received, unlike the position of another candidate, was annotated on the Leaving Certificate, which, in essence, is the same as the basis of her claim that she had been discriminated against in accordance with s. 4(1), a finding that the action of the Minister in awarding the waiver but coupled with the annotation constituted discrimination within the meaning of s. 3(1) would be clearly at variance and inconsistent with the finding that such action did not constitute discrimination within the meaning of s. 4(1). Accordingly, as a matter of construction and application of s. 3, s. 4 and s. 5 of the Act of 2000 as a whole to the Appellant’s complaint, it must be concluded that there was not discrimination within the meaning of s. 3(1) on the part of the Minister contrary to s. 5(1).
98. While I have considered it unnecessary to express any definitive view on the meaning or effect of s. 5(2)(h) of the Act of 2000 generally, having found that the Minister has not discriminated against the Appellant either within the meaning of s. 3(1) or s. 4(1) so that there has been no breach of the prohibition contained in s. 5, the issue of the disapplication of s. 5(1) does not arise.
Order
99. Accordingly, it is proposed that there be an order that the appeal be dismissed.
Concurring judgment
100. I agree with the concurring judgment delivered in this matter by O'Donnell J.
