Judgment
Title: | Cahill -v- The Minister for Education and Science |
Neutral Citation: | [2017] IESC 29 |
Supreme Court Record Number: | 246/2010 |
High Court Record Number: | 2007 258 CA |
Date of Delivery: | 05/24/2017 |
Court: | Supreme Court |
Composition of Court: | Denham C.J., O'Donnell Donal J., MacMenamin J., Laffoy J., Dunne J. |
Judgment by: | Laffoy J. |
Status: | Approved |
Result: | Appeal dismissed |
Details: | Judgments also by O'Donnell J and Laffoy J.
Dunne J concurred with order in MacMenamin J judgment. |
| Judgments by | Link to Judgment | Concurring | O'Donnell Donal J. | | Laffoy J., Dunne J. | MacMenamin J. | | Denham C.J. | Laffoy J. | | O'Donnell Donal J., Dunne J. | |
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THE SUPREME COURT[Appeal No. 246/2010]
Denham C.J.
O’Donnell J.
MacMenamin J.
Laffoy J.
Dunne J.
BETWEEN
KIM CAHILL
APPELLANT
AND
THE MINISTER FOR EDUCATION AND SCIENCE
RESPONDENT
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 I.R. 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 I.R. 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.