Education & Disability Discrimination
Discrimination on the ‘disability ground’ occurs where there is less favourable treatment of one person compared to another person because one has a disability and the other has not, or the other has a different disability.
‘Disability’ is defined broadly to includes, physical, intellectual, learning, cognitive, emotional or medical conditions.
An educational establishment shall not discriminate on the grounds of disability in relation to:
- the admission or the terms or conditions of admission;
- the access of any student to any course, facility or benefit;
- any other term or condition of participation; or
- the expulsion of a student or other sanction.
What is meant by an educational establishment?
Educational establishments include pre-school services, primary or post-primary schools, adult, continuing or further education and university or other third level institutions. They include public and private educational establishments.
How can I access education with a disability? Reasonable accommodation
Reasonable accommodation for people with disabilities in educational establishments
Discrimination by an educational establishment, (for the purposes of the Equal Status Acts) includes a refusal to provide a service or a failure by the service provider to do all that is reasonable to accommodate the needs of an individual with a disability by providing appropriate treatment or facilities, if without such accommodation/s it would be either impossible or unfairly difficult for the individual to avail of the service.
There are limits to this obligation, and it is not required where it would give rise to a cost, other than a nominal cost, to the provider of the service in question. In this regard, the organisation should take account of the following:
- The financial and other costs entailed;
- The size and resources of the organisation; and
- The possibility of obtaining grants from the State.
For an educational establishment to rely on the above in its refusal to provide reasonable accommodation, they must be in a position to demonstrate that they carried out an assessment in terms of whether reasonable accommodation could be provided.
Reasonable accommodation does not mean that an educational establishment must facilitate an individual with a disability in a particular way or as the individual requests.
An educational establishment must offer practical and reasonable changes that will allow a person with a disability to access or participate on an equal basis than others.
In relation to educational establishments, the Equal Status Acts provide that it will not be discrimination, where compliance with the Equal Status Acts (in relation to reasonably accommodating students with a disability) would by virtue of the disability make it impossible or would have a serious detrimental effect on the provision by an educational establishment of its services to other students.
Can I bring my assistance dog?
Public and private service providers - for example in educational establishments, on transport - must do all that is reasonable to accommodate people with disabilities to use their assistance, or guide, dogs.
The Workplace Relations Commission (WRC) considered reasonable accommodation and assistance dogs in the complaint: A mother (on behalf of her son) v A national school (S2016-048).
This complaint concerned a schools refusal to allow one of its pupil’s, who had a disability, to bring his assistance dog to school with him.
The WRC found there was an obligation on the school to provide reasonable accommodation to the pupil in these specific circumstances and that its refusal to do so was in breach of the Equal Status Acts.
What positive actions can educational establishments take?
The Equal Status Acts allows for preferential treatment or positive measures which are legitimately intended to cater to the special needs of persons, or a category of persons, who because of their circumstances, may require facilities, arrangements services or assistance not required by persons who do not have those special needs.
Example This may involve promoting the involvement of persons with disabilities within certain training or education programmes or subsidies to students from a particular protected ground.
To successfully validate and warrant a positive action measure, the educational establishment must be able to demonstrate:
- a special need;
- that the positive action measure implemented addresses this need; and
- that the individuals benefiting from the positive action measure, require facilities, arrangements services or assistance not required by persons who do not have this need.
Also, the Equal Status Acts allows for positive action measures in relation to specific groups. Section 16 (1) provides that for the purpose of the Equal Status Acts it does not constitute discrimination in the provision of goods and services, to impose or maintain a reasonable preferential fee, charge or rate in respect of anything offered or provided to a person with a disability.
It is important to note that the Equal Status Acts do not place an obligation on educational establishments to take positive measures or cater for individual special needs.
Failure by an educational establishment to provide positive action measures cannot be used as a basis for a discrimination claim.
However, the implementation of positive action measures may constitute a defence for service providers (including education establishments) facing discrimination allegations, under the Equal Status Acts.
Can schools admit based on a students' connection to the school?
The Admission to Schools Act provides that a school shall not, when deciding on an application to the school, or when placing a student on a waiting list for admission to the school, consider or take into account a student’s connection to the school by virtue of a member of his or her family attending or having previously attended the school.
However, the law also sets out an exception to this rule in cases of:
- a sibling of the student concerned attending or having attended the school, or
- a parent or grandparent of the student concerned having previously attended the school, provided the maximum number of places filled pursuant to that criterion does not exceed 25 per cent of the available places as set out in the school’s annual admission notice for the school year concerned.
Is harassment at school considered discrimination?
Harassment
The Equal Status Acts prohibit harassment in educational establishments.
Under the Equal Status Acts, a person who is responsible for the operation of an educational establishment, shall not allow another person, who has a right to be present or avail of the services being offered, to suffer harassment.
The Equal Status Acts define harassment as any form of unwanted conduct related to the discriminatory grounds,
- being conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
- this unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
The Equal Status Acts also prohibit a person in authority harassing a student or prospective student, at a school.
A person who is responsible for the operation of an educational establishment should take steps as are reasonably practicable to prevent the harassment. It can serve as a defence for the person who is responsible for the operation of an educational establishment to show that they took reasonably practicable step to prevent the harassment.
The existence of a policy in relation to harassment, which has been effectively communicated to all individuals present can provide a defence for the person who is responsible for the operation of an educational establishment, even where a perpetrator has been found guilty of the harassment.
However, if the person who is responsible for the operation of an educational establishment did not take reasonably practicable steps to prevent the harassment (e.g. the absence of a policy regarding harassment) it will make it difficult, if not impossible, for the person who is responsible for the operation of an educational establishment to avoid liability for the harassment.
What's covered?
The Equal Status Acts 2000–2018:
- promote equality;
- prohibit certain kinds of discrimination (with some exemptions) across a number of specified grounds;
- prohibit sexual harassment and harassment across a number of specified grounds(Age, Civil Status, Disability, Family Status, Gender, Membership of the Traveller Community, Race, Religion, Sexual Orientation);
- prohibit victimisation;
- require reasonable accommodation of people with disabilities;
- allow a broad range of positive action measures.
The Equal Status Acts also implement the following two EU Directives – the Race Directive and the Gender Goods and Services Directive.
How do I know if I’m being unfavourably treated?
Different types of discrimination are prohibited under the Equal Status Acts , these include:
Direct discrimination
This is defined as the treatment of a person in a less favourable way than another person who is in a comparable situation, because they differ on any of the nine grounds described above. This is a difference which:
- exists;
- existed but no longer exists;
- may exist in the future; or
- is imputed to the person concerned (this occurs where a person is labelled as differing under the specified grounds even though this is not the case).
Discrimination by association
This occurs when a person who associates with another person is treated less favourably because that other person differs under any of the specified grounds.
Indirect discrimination
This happens where an apparently neutral provision, criterion or practice which appears unproblematic at first sight, puts a person who differs under any of the specified grounds at a
particular disadvantage, compared with another person. This provision, criterion or practice will not amount to discrimination where it is demonstrated that:
- the provision, criterion or practice is objectively justified by a legitimate aim; and
- the means of achieving that aim are appropriate; and
- the means of achieving that aim are necessary.
Procuring discrimination
It is an offence under the Equal Status Acts to procure or attempt to procure another person to engage in discrimination, harassment or sexual harassment.
What responsibilities do service providers have?
Positive action
The Equal Status Acts allow for taking of positive measures (or preferential treatment) which are legitimately intended to:
- promote equality of opportunity for disadvantaged persons;
- cater for the special needs of persons, or a category of persons who because of their circumstances, may require facilities, arrangements, services or assistance.
In addition, the Equal Status Acts allow for the imposition of a reasonable preferential fee, charge or rate in respect of anything offered or provided in respect of families, married couples, older or younger persons, or persons with a disability.
Vicarious liability
Employers are liable for discriminatory acts of an employee in the course of his or her employment.
It is not a defence if the act was done without the employer’s knowledge or approval unless they can prove that they took reasonably practicable steps to prevent the conduct.
It is a defence if an employer can show that reasonable practicable steps were taken to prevent the employee from doing the act, or acts of that description.
Anything done by a person as agent for another person, with the authority (whether express or implied) of that other person shall be treated as if it was done by that other person.
What can I do if I’m being harassed or sexually harassed?
Harassment and sexual harassment
Sexual harassment and harassment in the provision of goods and services is prohibited. A person (‘the harasser’) shall not harass or sexually harass another person (‘the victim’) who seeks to use goods or services provided by the harasser.
What is harassment and sexual harassment?
Harassment is any form of unwanted conduct related to any of the specified grounds. Sexual harassment is any form of unwanted verbal, nonverbal or physical conduct of a sexual nature.
In both cases, it is conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
In both cases, the unwanted conduct may include acts, requests, spoken words, gestures or the production, display or circulation of written words, emails and social media, text messages, pictures, or other material.
A person’s rejection of, or submission to, sexual or other harassment may not be used by any other person as a basis for a decision affecting that person.
Who is a responsible person?
A person who is responsible for the operation of any place where goods, facilities or services are offered to the public is defined as a ‘responsible person’.
The ‘responsible person’ must ensure that any person who has a right to be there, is not sexually harassed or harassed. It shall be a defence for the responsible person to prove that he or she took steps as are ‘reasonably practicable’ to prevent the sexual harassment or harassment for occurring.
What if I am retaliated against for making a complaint?
Victimisation
It is victimisation if a person is threatened or treated badly because they make a complaint about discrimination in relation to the provision of goods and services. Victimisation is against the law.
For example, it is victimisation if you are threatened or treated badly because:
- you make a complaint of discrimination against a service provider;
- you have been involved in a discrimination case at the Workplace Relations Commission;
- you helped someone else to make a claim;
- you were involved as a witness in a discrimination case at the Workplace Relations Commission;
- you have taken a discrimination claim to court;
- you have told a service provider that you intend to do any of the things mentioned in this list.
What's not covered?
There are several significant exemptions that apply to people who attend at, or are in charge of, educational establishments.
These exemptions should be read restrictively and should not be allowed to restrict unduly the general prohibition on discrimination.
Exemption on the disability ground
Exemption on the disability ground
Difference in treatment on the disability ground is permitted to the extent that compliance with any of its provisions in relation to a student with a disability would, by virtue of the disability make it impossible, or have a seriously detrimental effect on, the provision by an educational establishment of its services to other students.
Exemption on the gender, age or disability grounds
Difference in treatment on the gender, age or, disability grounds in relation to the provision or organisation of
sporting facilities or sporting events is permitted to the extent that the differences are reasonably necessary having regard to the nature of the facilities or events.
Exemption on gender and religion grounds
Institutions providing religious training to ministers of a particular religion may admit students of only one gender or religious belief.
General exemptions relating to universities, third level or adult educational institutions
Scholarships and other assistance
The Equal Status Acts allow for universities, or higher level institutions to offer assistance to particular categories of persons, by way of sponsorships, scholarships, bursaries or other awards which are justifiable, having regard to traditional and historical considerations.
Foreign exchange
In relation to the allocation of places, universities or other higher-level institutions can select particular students to take part in exchanges with universities outside the jurisdiction.
Other general exemptions
Action required by or under law
A general exemption provides that nothing in the Equal Status Acts shall prohibit the taking of any action that is required under:
- statutory provision or court order;
- any act done or measure adopted by the EU; or
- any international treaty which imposes an obligation on the State.
Only actions that are mandatory are covered. Where the measure leaves some discretion the anti-discriminationn provisions do apply.
Certain nationals of other countries
Public authorities can treat certain nationals of other countries differently, on the basis of their nationality, who are outside the State or unlawfully present in it (for the purposes of the Immigration Act 2004) or in accordance with any provision or condition made by or under any enactment, and arising from his or her entry to or residence in the State.
Risk of criminal or disorderly conduct
A provider of goods or services, or a person providing accommodation or related services, can refuse a service or accommodation to a person if a reasonable individual, having the knowledge and experience of the provider, would form the belief that the provision of service or accommodation to
the customer would produce a substantial risk of criminal or disorderly conduct or behaviour, or damage to property in or around the area where the service or accommodation is provided.
Clinical judgment
Treating a person differently does not constitute discrimination where a person is treated differently solely in the exercise of a clinical judgement in connection with a diagnosis of illness or her/his medical treatment.
Capacity to enter into a contract
Treating a person differently does not constitute discrimination if a person is incapable of entering into an enforceable contract or, is incapable of giving informed consent and for that reason the treatment is reasonable.
Case Studies
Attending pre-school with a disability
| Case | A Complainant v. a Preschool Provider |
|---|---|
| Topic | The complainant, a four-year old boy with a physical disability, was refused admission to a preschool to participate in the ECCE free pre-school year. The preschool refused to make inquiries into whether the reasonable accommodation required to support him could be obtained through AIM funding (i.e. State funding aimed to ensure children with disabilities can participate in the ECCE year). |
| Outcome | The complaint was resolved through mediation. The terms of the mediation settlement included a written apology to the young boy and his mother, and a payment of €2,000 to the child. In addition, the preschool undertook to make changes to improve the equality and inclusion infrastructure of their business model. This included a commitment to engage in the AIM model on a case-by-case basis; development and publication of an Inclusion and Diversity Model; and the provision of equality and diversity training to all current and future staff. It was also agreed that the Commission would contact ECCE and AIM stakeholders to highlight the legal requirements under the Equal Status Acts. regarding the provision of reasonable accommodation to children with disabilities in preschool settings. |
| Law | ESA |
| Year | 2018 |
Sitting school exams with a disability
| Case | Kim Cahill v. Minister for Education and Science |
|---|---|
| Topic | The Commission provided legal representation to Kim Cahill in her appeal to the Supreme Court. This case focused in particular on the scope of the duty to make reasonable accommodation for persons with disabilities. Kim Cahill sat her Leaving Certificate in 2001 and obtained an exemption solely on the assessment of spelling and grammar elements of language subjects due to her dyslexia. However, when her Leaving Certificate was issued, it carried an explanatory note stating that certain parts of the exam had not been assessed, revealing her disability. She perceived this both as discriminatory less favourable treatment, and a failure to make reasonable accommodation. |
| Outcome | The Equality Tribunal upheld Ms. Cahill’s original complaint and directed that the Minister pay €6,000. However, this decision was subsequently appealed, through the Circuit Court and the High Court, to the Supreme Court. The Supreme Court handed down judgment on 24 May 2017 which clarified the duty to provide reasonable accommodation under the ESA and held that the Minister for Education and Science is subject to the requirement to provide reasonable accommodation in the delivery of educational services under the Education Act 1998. The Supreme Court found that, on the evidence, there had been no breach of the duty and recognised the great effort involved in bringing forward what it described as “these fundamentally important issues". |
| Law | ESA |
| Year | 2017 |
Search database for more case studies
What's next?
Make a complaint to the Workplace Relations Commission
The Workplace Relations Commission (WRC) is the body that hears discrimination complaints under Ireland’s equality laws. The WRC deals with both employment and service/goods related claims. There is no fee to bring a case to the WRC and complaints can be made online.
Learn more about the WRC process
Contact us
We, the Irish Human Rights and Equality Commission, have a statutory role to fight discrimination and provide information on equality and human rights in Ireland. Please note however that we are not a court and we do not decide on discrimination claims.
Learn more about how to contact us
Contact another organisation
You may find that another organisation could better help you with your issue.
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Employment rights / Equal treatment in services
Workplace Relations Commission
Information and Customer Services (ICS), formerly known as Workplace Relations Customer Services, is responsible for the provision of information relating to employment rights, equality and industrial relations matters by means of a telephone call-in service manned by experienced Information OfficersInformation and Customer Services
Workplace Relations Commission
O’Brien Road
Carlow
R93 E920
Phone: 059 9178990 | Lo-call: 1890 80 80 90 * (09.30 - 17.00, Monday to Friday)
Web: https://www.workplacerelations.ie/en/contact_us/contact-details/
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Unfair treatment by a public body
Office of the Ombudsman
The Office of the Ombudsman examines complaints about the administrative actions of Government Departments; the Health Service Executive; local authorities and various other State agencies. Complaints can be made in relation to a wide range of issues, such as entitlement to public services, taxation, housing, education and social welfare.Office of the Ombudsman
18 Lower Leeson Street
Dublin 2
D02 HE97 -
Complaints about schools
Ombudsman for Children’s Office
The Ombudsman for Children’s Office may investigate a complaint made by a child and a young person under the age of 18, or a family member, or a professional, who has dealings with the child or person under the age of 18. The bodies that may be investigated by the Ombudsman for Children include Government Departments, the HSE, schools, and public hospitals. For more information, you may wish to access the following link: Making a complaint to the Ombudsman for Children’s Office. The Ombudsman for Children can investigate complaints relating to the administrative actions of a school recognised by the Department of Education and Skills provided the complainant has firstly and fully followed the school’s complaints procedures. You can access more information regarding school complaints at the following link: Complaints about schools.Ombudsman for Children’s Office
Millennium House
52-56 Great Strand Street
Dublin 1 -
Complaints about schools
Ombudsman for Children’s Office
The Ombudsman for Children’s Office may investigate a complaint made by a child and a young person under the age of 18, or a family member, or a professional, who has dealings with the child or person under the age of 18. The bodies that may be investigated by the Ombudsman for Children include Government Departments, the HSE, schools, and public hospitals. For more information, you may wish to access the following link: Making a complaint to the Ombudsman for Children’s Office. The Ombudsman for Children can investigate complaints relating to the administrative actions of a school recognised by the Department of Education and Skills provided the complainant has firstly and fully followed the school’s complaints procedures. You can access more information regarding school complaints at the following link: Complaints about schools.Ombudsman for Children’s Office
Millennium House
52-56 Great Strand Street
Dublin 1 -
Children with special educational needs
National Council for Special Education
The National Council for Special Education (NCSE) was set up to improve the delivery of education services to persons with special educational needs arising from disabilities with particular emphasis on children. The Council was first established as an independent statutory body by order of the Minister for Education and Science in December 2003. For more information, you may wish to access the following link: Contact the NCSE.National Council for Special Education
1-2 Mill St
Trim
Co MeathPhone: 046 948 6400 (General line) | 046 948 6432 (Local NSCE services)
Web: www.ncse.ie
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Rights of people with disabilities
National Advocacy Service for People with Disabilities
The National Advocacy Service (NAS) provides an independent, confidential and free, representative advocacy service. NAS has a particular remit for people with disabilities who are isolated from their community and services, have communication differences, are inappropriately accommodated, live in residential services, attend day services and have limited informal or natural supports. For more information, you can access the NAS website at the following link: National Advocacy Service for People with DisabilitiesNational Advocacy Service for People with Disabilities
National Office,
C/O Citizens Information Board
George's Quay House
43 Townsend Street
Dublin 2
D02 VK65Email: info@advocacy.ie
Phone: 0761 07 3000
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Employment of people with disabilities
Employer Disability Information
The purpose of the Employer Disability Information service is to provide employers with an expert peer source of advice and information on employing staff with disabilities. The service is managed by a consortium of employer organisations - Chambers Ireland, IBEC and ISME and is funded through the NDA, as part of the comprehensive employment strategy for people with disabilities For more information, you may wish to visit the Employer Disability Information website. The website outlines the range of supports, schemes and guidelines available for employers when recruiting or retaining employees who have a disability.Employer Disability Information
17 Kildare Street,
Dublin,
IrelandEmail: info@employerdisabilityinfo.ie
Phone: +353 1 676 2014
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Disability rights
Disability Federation of Ireland
DFI's vision is an Ireland where people with disabilities and disabling conditions are fully included and enabled to reach their full potential.Fumbally Court
Fumbally Ln
The Liberties
Dublin 8Phone: (01) 454 7978
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Disability rights
National Disability Authority
The National Disability Authority (NDA) is the independent statutory body that provides information and advice to the Government on policy and practice relevant to the lives of persons with disabilities.25 Clyde Rd
Ballsbridge
Dublin, D04 E409 -
Intellectual disability
Inclusion Ireland
Inclusion Ireland champions the rights of people with an intellectual disability in Ireland through securing the full implementation of the United Nations Convention on the Rights of People with Disabilities (UNCRPD).Inclusion Ireland
Unit C2, The Steelworks,
Foley Street,
Dublin 1 -
Independent living for people with disabilities
Independent Living Movement
Independent Living Movement aims to ensure that disabled people achieve Independent Living Choice and control over their lives and full Participation in society as equal citizens.Independent Living Movement,
Carmichael House, Brunswick St N,
Dublin 7 -
Community law and mediation
Community Law & Mediation
Community Law & Mediation is a community law centre which provides free legal advice, advocacy and mediation and education services.Northside Civic Centre, Bunratty Road, Coolock, Dublin 17, Ireland
Tel: (01) 847 7804
Email: info@communitylawandmediation.ie
Community Law & Mediation Limerick
Limerick Social Service Centre, Henry Street, Limerick, Ireland
Tel: (061) 536 100
Email: limerick@communitylawandmediation.iePhone: (01) 847 7804
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Legal advice
Free Legal Advice Centres
The Free Legal Advice Centre (FLAC) provide confidential, basic legal advice for free and in person across all areas of law. FLAC offers a network of advice clinics around Ireland and you may be able to identify the most suitable one at the following link: Legal Advice Clinic.Free Legal Advice Centres,
13 Lower Dorset Street,
Dublin 1,
Ireland
Phone: Lo-Call: 1890 350 250
Web: https://www.flac.ie/
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Legal aid
The Legal Aid Board
The Legal Aid Board is the statutory, independent body responsible for the provision of civil legal aid and advice to persons of modest means. Legal advice is any oral or written advice given by a solicitor or barrister, including writing letters and negotiations. Legal aid is representation by a solicitor or barrister in court proceedings. The Legal Aid Board has a number of centers across the country, and the best way to find the one most convenient to you is to contact the Legal Aid Board directly. -
Citizen's Information Centres
Citizen's Information
Citizens Information Centres (CICs) provide free, impartial information, advice and advocacy from more than 215 locations around the country.Find a Citizens Information Centre
https://centres.citizensinformation.ie/Phone: 0761 07 4000
Browse the database of organisations working on human rights and equality issues in Ireland.