Thursday 22 February 2018

High court rejects Leaving Cert student's claim she was discriminated against because of her dyslexia

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Aodhan O'Faolain

A woman who alleged, as a student with dyslexia, she was discriminated against because special explanatory notes were attached to her Leaving Certificate has lost her Supreme Court appeal over the rejection of her claims.

The notes stated Kim Cahill was not assessed on spelling and grammatical elements of language subjects.

Her case involved interpretation of discrimination provisions of the Equal Status Act 2000 in relation to provision of education services here.

Before she sat the Leaving in 2001, Ms Cahill asked for, and got, an exemption from assessment in relation to spelling and grammar elements of language subjects and her Certificate stated she received those exemptions.

The Equality Tribunal upheld her complaint the annotations effectively labelled her as disabled and directed the Minister for Education to pay compensation of €6,000 to her, and to another student who made a similar complaint. The Minister was also directed to issue both students with new Leaving Certificates without the notations.

The Minister successfully appealed to the Circuit Civil Court in 2007 and the High Court in 2010 rejected Ms Cahill's appeal against that decision. The Minister denied discrimination and argued deletion of the notation from Ms Cahill's certificate would constitute a misrepresentation to employers or others relying on it and call the integrity of the exam into question.

Ms Cahill's appeal to the Supreme Court was run by lawyers assigned by the Irish Human Rights and Equality Commission, successor to the Equality Authority. Ms Cahill, who has since graduated from Dublin City University and is employed and a mother, was in court on Wednesday when all five judges dismissed the appeal. Costs issues will be addressed later.

In her judgment, Ms Justice Mary Laffoy said important legal issues raised concerned the proper construction and application of provisions of the Equal Status Act 2000, particularly Sections 3, 4 and 5, all concerning discrimination.

Section 3 generally defines discrimination, Section 4 addresses its meaning in the context of a disability ground and Section 5 prohibits disscrimination on grounds including in providing a service.

The basis of Ms Cahill's case was she was discriminated against within the meaning of Section 4.1 and the notes attached to her Leaving, plus the waiver relating to spelling and grammar assessment, did not meet the Minister's obligation to accommodate her needs as a disabled person. She alleged she was treated less favourably than another student whose Leaving Cert was not annotated.

The judge held there was no error in findings that, as a result of the waiver and annotation, the Minister had not failed to do all that was reasonable to accommodate Ms Cahill's needs and she had not been discriminated against.

There was no discrimination, within the meaning of Section 3.1 or Section 4.1 contrary to Section 5, on the Minister's part, she ruled.

The Chief Justice, Ms Justice Susan Denham, Mr Justice Donal O'Donnell and Ms Justice Elizabeth Dunne agreed with Ms Justice Laffoy.

In his judgment, Mr Justice John MacMenamin said, while it was not hard to understand Ms Cahill's concern the annotation creates a form of "stigma", cases must be decided on evidence.

The evidence here was "all one way", established, where accommodation is provided internationally, it is "always" accompanied by some form of annotation.

While he considered the Circuit Court and High Court had erred in their findings concerning Section 4.5, this case allowed for compatible findings under Section 3.1 there was no unlawful discrimination and, in the substantive sense, the Department did all that was reasonable in "accommodation", accompanied by annotation

Because the relevant law is in a stage of development and the appeal has clarified it, that "must represent a vindication, although perhaps a limited one", for Ms Cahill, he added.

Mr Justice O'Donnell expressed reservations about Mr Justice MacMenamim's view whether a potential other case may have been made concerning the procedures followed by the Department and said he was concerned whether the relevant provisions of the 2000 Act - Sections 4 and 5.2.h - could be read as suggested in order to make such a case.

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