Case Number: ADJ-00016788. Workplace Relations Commission.
| Docket Number | ADJ-00016788 |
| Hearing Date | 02 May 2019 |
| Date | 01 June 2019 |
| Year | 2019 |
| Court | Workplace Relations Commission |
| Parties | Primary school student v Primary School |
In accordance with Section 25 of the Equal Status Act, 2000 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
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The Complainant’s case was brought on his behalf by his father. He was not in attendance.
The Claimant was born in 2007. He has been diagnosed with attention deficit hyperactivity disorder (ADHD) and Oppositional Defiant Disorder (ODD). These disabilities were acknowledged by the Respondent.
He has a behavioural plan in place for his school attendance. This was agreed between his parents, the school, CAMHS and NEPS.
His claim was that he was discriminated against in relation to a school trip that he was not allowed to go on. His claim was that his disability was not accommodated for, despite the efforts of his parents to reach a suitable arrangement with the school in relation to the trip. He had issues in relation to the manner and timing of the communication to him of the decisions made by the Respondent.
I have anonymised the parties as the Claimant is a minor.
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The Claimant submitted that the Respondent made its decision on the school tour without any proper investigation as to the feasibility of his attendance or without exploring the options of his attendance as presented by his parents. He further submitted that, the Respondent did not reasonably accommodate his disability and it did not give him a right to reply to their decision.
The school trip was scheduled to take place on the 7th of June 2018. On the 6th of June 2018 his parents received a letter from the School Principal setting out that the Board of Management (BOM) had decided that it was in his best interest and in the interest of health and safety that he did not attend the school tour. This letter was handed to his mother after 12.00 noon by his SNA (Special Needs Assistant).
His parents submitted that this was to punish him for previous episodes of indiscipline which had been dealt with by the school.
At a meeting on the 30th of April 2018 with the Complainant’s health professionals, parents and School Principal, the school tour was raised for discussion. The Complainant’s father gave evidence on what occurred at this meeting. The Claimant disputed that the School Principal’s notes of the 30th of April were accurate about what was said regarding the school tour. His evidence was that he and his wife raised the issue of their son going on the tour. The reason they did so was because on the previous year, the Claimant didn’t go on the school tour as he was suspended. They accepted the as a fact, but they felt there was no reason why he shouldn’t go on the school tour this year. Their case was that they brought it up at the meeting “just to be sure”, but as far as they knew “he was going on the tour”. The evidence of the Claimants father was that the School Principal advised him at that meeting that the decision as to whether the Claimant would or would not go on the tour was to “go to the Board of Management”. A booking deposit had been paid for the tour. The Complainant’s case is that nothing was heard again until the afternoon of the 6th of June 2018 when a letter from the School principal was received by his parents.
The Claimant’s case is that they gave suggestions as to alternative accommodation that could have been provided, but they were rejected by the Respondent.
The Claimant’s father disputed that he refused to go by car with the Claimant to the tour venue. His evidence was that he was prepared to go by car or on the bus. As he doesn’t drive, the Claimant’s mother would have driven. He also referred to an option of an Uncle driving the Claimant to the tour venue.
The Claimant submitted that the late notification resulted in further distress to him.
A suggestion by the School Principal that the Claimant be taken to a local pet farm on his own with his SNA was rejected by his parents as they felt it would compound his sense of ostracisation from his fellow pupils and his feeling that he was being treated differently to other pupils by the teachers.
The Claimant set out that Section 9 of the Education Act 1998 went to the heart of the matter. He further relied upon Section 4 of the Equal Status Act 2000-2015 and the requirement to provide reasonable accommodation.
The school was identified as a service provider under Section 7 (2) (c) of the Equal Status Act. The Claimant relied on two cases for their submissions on reasonable accommodation: Deans –v- Dublin City Council Circuit Court unreported April 15, 2008 and Cahill –v- The Minister for Education and Science [2017] IESC29.
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Summary of Respondent’s Case:
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By way of background information, the Respondent gave a history of the Claimant’s violence and behavioural issues. The most recent incident took place on the 17th of April 2018 when the Claimant hit a fellow pupil and stamped on his glasses. He was suspended due to “premeditated threatening and violent behaviour towards a classmate and destruction of this classmate’s property. He caught his classmate in a headlock from behind, punched him into the stomach and then into the face knocking off his glasses. He then stamped on his glasses and broke them”.
He was suspended from school for three days which was extended to six days.
The Respondent explained that the letter inviting students on the school tour issued before the Claimant was suspended on the 17th of April 2018.
An emergency meeting was held by the Board of Management on the 25th of April 2018. A copy of the principal’s report for the meeting was produced to me. A copy of the minutes of the meeting were also produced. It was agreed at the Board of Management meeting that the Claimant should return to school the following morning but should be collected by his parents at 12pm to minimise the risk of another incident. Staff had identified after 12 noon as the riskiest part of his day, when his behaviour generally dis-improves as he wanted to go home.
The minutes of the meeting referred to
“……. concern was raised about whether the Claimant should attend the summer school tour. It was generally agreed that the presence of this pupil on the trip could pose a health and safety risk to other pupils. It was agreed that the BOM has a duty of care to all pupils and staff. It was generally agreed that the school tour is outside the scope of the specialised plan in place for the pupil as agreed by CAMHS, NEPS, parents and school.”
The School Principal informed the BOM meeting that the next CAMHS case meeting for the Claimant was on the 30th of April 2018.
The Respondent produced the Principal’s report to the Board of Management meeting 30th of May 2018 which referred to the School Principal having discussed the school tour with the Claimant’s teacher and SNA. The report noted
“both feel that he remains a flight risk and a behaviour risk especially with a change to his routine. They are not in favour of bringing the child on the school tour”.
The report goes on to state that when the parents were informed that the tour was in question at the CAHMS meeting of the 30th of April 2018, they were annoyed. They have proposed that Dad or an uncle could go with the child, but staff feel that there is too much risk to health and safety involved.
The School Principal gave evidence that at the meeting of the 30th April 2018 she informed the Claimant’s parents that the Board of Management was “not in favour of him attending the school tour”. She advised the Claimant’s parents that if they were unhappy with the decision, they (the parents) should send a formal letter of complaint to the Board of Management.
No letter of complaint was received by the Board of... |
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