IESC 29 · Supreme Court

THE SUPREME COURT

[Appeal No. 246/10]

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 Mr. Justice John MacMenamin dated the 24th day of May, 2017

Introduction

1. This matter comes before the Court by way of an appeal on points of law brought pursuant to s.28 of the Equal Status Act, 2000.

The appellant, Ms. Kim Cahill, claims she was the subject of discrimination on grounds of disability, in breach of ss. 3 and 4 of the

Equal Status Act, 2000. Ms. Cahill is dyslexic. She was diagnosed with the condition in 6th class in primary school. She encountered

problems in undertaking her leaving certificate examination in the year 2001. She applied to the respondent for what is termed

“reasonable accommodation” in certain language subjects, by reason of her dyslexia. She contends the measures adopted by the

respondent were discriminatory and unlawful, and that the Circuit Court, on the Minister’s appeal from the Equality Tribunal, and the

High Court on her appeal from the Circuit Court decision, erred on issues of law in finding there had been no such unlawful

discrimination. While the questions which arise for determination are purely legal, it is necessary to recollect that, at the centre of

this case, there was a young person, now an adult, who, because of her medical condition, encountered difficulties in undertaking

examinations which other students did not, and do not face. Although there have been almost 20 days of hearings at all levels, and

the events in question occurred long ago, the issues still have great significance, as they touch on how this Act should be interpreted

in regard to people with disabilities.

2. One of the many ironies in this appeal is that the issues now discussed, in fact arose as a result of the respondent Minister,

(otherwise “the Department”), embarking on a number of policy initiatives during the 1990’s. These measures were actually aimed at

assisting students undertaking examinations who suffered from learning disabilities. What occurred in this case must, therefore, be

seen in the light of the fact that the Department sought to introduce forms of what is called “accommodation” for such exam

candidates. The controversy lies in the manner in which this was done: specifically, by placing indications or “annotations” on such a

candidates leaving certificate, which conveyed they had not been examined on core elements of certain subjects.

3. The central event in this case can be simply conveyed. It was that, when Ms. Cahill received her leaving certificate it was

accompanied by these “annotations”, which indicated that she had not been examined in core elements of three language subjects,

Irish, English and French. Ms. Cahill and her parents considered that this stigmatised her disability as a result of her dyslexia condition.

The appellant complained to the Equality Tribunal, submitting that this discrimination arose from her disability, and was in breach of

ss.3 and 4 of the Equal Status Act, 2000, which prohibits forms of discrimination. The Equality Tribunal conducted a careful hearing,

and issued a determination in her favour. Thereafter, the matter was appealed to the Circuit Court where the Minister succeeded in

the appeal, then to the High Court on points of law, where the decision again went in favour of the Minister, and, ultimately, to this

Court.

4. It is doubtful if any person wants to bring upon themselves the significant invasion of privacy, which goes with high-profile

litigation. The task of this Court is to address the points of law which are raised on the appellant’s behalf. This is not in any sense, to

set Ms. Cahill’s personal concerns to one side. But the question which must be addressed is whether the courts which previously dealt

with the matter correctly addressed the points of law now raised on the appellant’s behalf in this appeal now brought by the

Workplace Relations Commission, as statutory successor to the Equality Tribunal. It is said these mis-direction on law in these

aspects have hindered these agencies in their work on other investigations

The Procedural Background

5. The complaint to the Equality Tribunal was set out in an ‘ODE.15’ form. This was a notification under the Equal Status Act, 2000

regarding an alleged act of discrimination. There Ms. Cahill claimed that she had been discriminated against on the grounds of

disability, as medically defined. She wrote that she suffered from dyslexia, and had sought to have a reasonable accommodation

applied to her leaving certificate examination to facilitate her in performing at her potential level. The complaint form sets out that

she wished to maintain the privacy and confidentiality of her condition, which had been denied to her by the annotations. The

appellant contended that the Minister had stipulated that her leaving certificate must be “annotated”, and that her examination

results had been “influenced” by the “reasonable accommodation”. She described the annotation as private, and serving no

educational purpose, and requiring her to explain her medical condition in the future to future employers, thereby placing her at a life-

long disadvantage.

6. This complaint form which set the parameters for all the lengthy proceedings which followed. The oral hearings which took place,

both before the Equality Tribunal, and before the Circuit Court, can only ultimately be seen within the boundaries of the case that

was advanced at the outset. It is, perhaps, unfortunate that this highly technical case was begun in a somewhat informal way, as it

narrowed the issues. The case was initiated by Ms. Cahill and her father, only a short time after the passage of the Equal Status Act,

2000, at a time when the jurisprudence had not evolved in the way it has subsequently. Consequently, although certain observations

are made in this judgment as to how I conceive the scope of s.4 of the Act, these must be seen as being obiter, to a degree with the

benefit of hindsight, and in the light of the jurisprudence as it now stands. No blame attaches to the lawyers, or the Equality Tribunal,

or the appellant for this happenstance. But the consequence of this is that it is simply not now open to this Court to review the

parameters of the evidence, or review the facts as established.

7. The proceedings should now be described in more detail. The appeal is brought against a judgment and order of the High Court, (de

Valera J.), (“the High Court judge”), delivered on the 11th June, 2010. There, he dismissed Ms. Cahill’s appeal under s.28 of the Equal

Status Act, 2000 (“the Act”). What was before that judge was, in turn, an appeal against a judgment and order of His Honour Judge

Anthony Hunt, then a judge of the Circuit Court (“the Circuit Court judge”), made on the 19th October, 2007. The Circuit Court judge

allowed the Minister’s appeal against the decision and recommendation in Ms. Cahill’s favour, made on the 3rd November, 2006 by the

Equality Officer in the Equality Tribunal. The Equality Officer, in a comprehensive determination, criticised the respondent’s procedures

in annotating the leaving certificate, and held this was an unlawful discrimination, in breach of s.3(1) of the Equal Status Act, 2000.

8. At one level, the case concerned the respondent’s ‘annotations’ of her Irish, English and French results. At another level, the case

might be characterised as raising other issues as to the maintenance of the integrity of an important, nationally organised,

examination, in the face of the appellant’s contention that such examinations are actually inappropriate for candidates who have her

condition. Again, while this appeal is confined to issues of law, it is necessary, unusually, to set out the facts in some detail. This is

because a further question arising is whether, even if there were errors of law in the Circuit and High Courts, such errors should alter

the outcome of the case.

9. This judgment considers the following:

• The factual background, including the evidence adduced in the Circuit Court.

• Grounds of Appeal

• Jurisdiction of this Court

• Interpretation of ss.3 to 5 of the Act

• The issues raised under s.3(1) of the Act and conclusions thereon, including the interpretation by the courts of ‘less

favourable treatment’.

• The conclusions reached under s.3(1) of the Act

• Observations on the confines of the case as initiated.

• Observations on the interpretation of s.4 of the Act.

• The significance of the terms ‘impossible’ or ‘unduly difficult’ under s.4(1). The meaning of the term ‘without prejudice’ in

s.4(5) of the Act.

• s.5 Issues: Specifically, whether, if there had been discrimination, it would be saved by s.5(2)(h) of the Act.

• Conclusion

10. Among the questions to be considered are, whether, under s.3(1), the appellant was treated “less favourably” by reason of her

disability; whether, in other circumstances, there might arguably have been the potential for a different or broader case initiated

under s.4(1) of the Act; and the potential application of s.5(2)(h) of the Act of 2000. It is common ground that the condition of

dyslexia constitutes a “disability”, as defined under the Equal Status Act, 2000. In unusual circumstances, the Minister’s officials in

the Department made special arrangements for what are termed “accommodations” for Ms. Cahill’s leaving certificate in the year

2001.

The Factual Background: The Evidence in the Circuit Court

11. From the time of her diagnosis onwards, the appellant made efforts to address the problems she encountered in reading and

learning. She went to tutors who taught her ways of dealing with the condition. A psychological assessment showed that she was a

person whom psychologists grade as being of “superior” intelligence, that is, a person of high I.Q. In general, such a person might not

encounter great difficulty in dealing with examinations. But, unfortunately, the condition of dyslexia poses real challenges especially in

language subjects. Kim Cahill was no exception. She was diagnosed as being “mildly dyslexic”. This meant there was a disparity of a

year and a half between her intellectual functioning and her comparatively rather lower reading age.

12. The causes of dyslexia are uncertain. It is sometimes called “the hidden disability”. Many experts now are of the view that it is a

medical, neurological, condition, related to the way in which the brain processes information, decodes written words, or deciphers

language. The condition is seen as ‘medical’, with a consequent emphasis on “diagnosis” and “treatment”. Another view, now less

favoured, was that the condition should be viewed as an “educational” and “social” in nature. This latter approach might necessitate

recognition that some children learn in a different manner from others, and require different types of support in order to achieve their

full learning potential. This divergence of viewpoint may have created uncertainties in the past as to how examiners should approach

these issues. Perhaps these difficulties in categorisation, or definition, underlie some of the problems which the Department

encountered. One complex question which arises is, whether a student has a specific learning difficulty, or simply has different levels

of intellectual functioning regarding, for example, cognition and writing skills? At what point does the disparity become a disability?

Occasionally, too, there appear to be candidates who dislike, or have problems with, a particular language subject, and thereafter

claim dyslexia. While the appellant’s condition is mild, there was no question that her condition was real.

The Departmental Circulars

13. Institutional recognition of the problems encountered by dyslexic students evolved over a period of years. There was also new

thinking on students with more profound learning difficulties. The Department first began to address the issue in the early 1990’s. As a

first step, it issued a circular in 1994. This was intended to address issues faced by candidates who either had a physical disability,

including visual and hearing impairments, or a specific learning difficulty. It provided for a wide range of arrangements, including

readers, modified question papers, Braille translations, enlarged print, low vision aids, a special room, a different time, or having the

script corrected by a designated examiner. There was to be allowance for extra time where the candidate needed the help of a

scribe, would otherwise be unable to make adequate use of the mechanical aids provided for recording the answers, or where the

candidate was visually impaired. The circular also provided for an appeals mechanism.

14. The Department later set up an expert study group, which issued a discussion paper in May, 1999. The expert group furnished a

formal report to the Minister of the day. After consideration, the Department issued two circulars in April and November of the year

2000 (S38/00 and S70/00 respectively). The latter circular, S70/00, had the rather ungainly title of “Information Note Regarding the

Scheme of Reasonable Accommodations, which will apply at the 2001 Certificate Examinations”. Insofar as relevant to this case, this

set out that, as and from the year 2001, candidates might obtain a waiver of a core element of a subject, even where their learning

difficulties were not severe enough to warrant the grant of the full range of facilities, such as a tape recorder, a spell-check

computer, or a scribe. This waiver, or “accommodation” might be given in relation to the assessment of grammar and punctuation in

language subjects. Decisions in such cases were to be determined on the basis of evidence submitted to the Department with an

application form. The form was to set out the special requirements of the candidate in question. There was to be independent

verification. The circular stated explicitly that where waiver arrangements were granted, the candidate would have his/her grade

determined on the balance of the work on the subject.

Accommodation and Annotation

15. But accommodation came with the proviso that the results would be accompanied by an explanatory ‘annotation’ on the

certificate, to the effect that all elements of the language subjects in question had been assessed - except the spelling and grammar

elements. The issues in this case stem from an apparently rigid adherence to the circular, and the Department’s procedure.

16. The departmental records show that Kim Cahill actually did receive a degree of accommodation in her junior certificate. An

allowance was made then for faulty punctuation and grammar; if an examiner encountered difficulties with her scripts, it was to be

referred to an advisory examiner more experienced in this field.

17. In the year 2000, the question arose as to the accommodation which Kim would receive for her leaving certificate in 2001. She

was assessed by Patricia Timoney, a psychologist, on 23rd March, 2000. The school obtained an application form for accommodation

in November, 2000. As both parents were obviously concerned about Kim’s situation, Mary Cahill, Kim’s mother, counter-signed this

“S.A./1/2001” application form. The remainder of the form was, apparently, completed later by a teacher in Kim’s school. But, when

Mary Cahill counter-signed the form on the 29th November, 2000, she was not aware of what was to be put in the remainder of the

form. The “reasonable accommodation” sought in the application was very generalised. What was proposed was a “reader”, or a

“special centre”, or “maybe” extra time. The evidence before the Circuit judge was to the effect that what Kim’s father, at least,

really had in mind was that his daughter would be given extra time for some of her examination subjects. The application form was

accompanied by Ms. Timoney’s report attesting to Kim’s condition. At a time when she was aged 17 years and 3 months, her basic

reading was assessed at 15 years and 6 months, her comprehension age at greater than 17 years, and her spelling age at 16 years

and 3 months.

18. In Spring 2001, Mr. Paddy O’Dwyer, a senior psychologist attached to the National Educational Psychological Service (NEPS),

assessed Kim in her school situation on behalf of the Department. Mr. O’Dwyer, accepted that there was a discrepancy between Kim’s

assessed cognitive ability, and her attainments in reading, but he found her reading skills, although lower than her cognitive ability,

nonetheless fell within the average range. He concluded that her spelling, grammar and written work were at an acceptable level, and

this was manifested in the written examples she provided.

19. It appears that, subsequently, there were a number of misunderstandings and miscommunications. A letter written to Kim’s school

by one official, on the 15th March, 2001, was, in hindsight, seen by the Department itself as being capable of conveying that Kim

would actually receive some extension of time, in accordance with the earlier circular (S40/94). But, in fact, the Department’s actual

official view was that that the circular dealt with visually impaired candidates. Later, on the 23rd March, 2001, the Department wrote

out again, seeking to remove any misunderstanding. The letter sought to make it clear that Kim would not receive any accommodation

at all. Having stated that “Kim’s learning difficulties do not warrant special arrangements”, the letter went on to state that

examiners would be under instructions to ensure that the candidate would get full credit for work done, and that arrangements would

be made, if necessary, to use an advisory examiner, in the case of difficulties in reading.

20. What happened in the weeks that followed is not entirely clear. It seems that two months elapsed before Kim’s father, Mr. Niall

Cahill became fully aware that it might still be possible for candidates to receive the “newly introduced” spelling and grammar waiver,

which was to be effected during the marking process. By then, much time had passed. The examinations were about to begin. Mr.

Cahill’s appeal against the decision of the 23rd March, dated the 28th May, 2001, conveyed an express request for special

consideration for his daughter. This was on the basis that neither she, nor her parents, had previously been aware that there could

be an appeal as to whether consideration might be available for her particular difficulties with spelling and grammar. The Department’s

appeals committee met and considered the matter quickly. The appeal was refused. On the following day, the adverse outcome of the

appeal, as it transpired later based on incomplete documentation, was conveyed by Kim’s school to her father. The appellant sat and

completed her leaving certificate examination. It remains unclear why she could not have been granted extra time in the form of a

departmental decision made well prior to the examination. But this is not the true focus of the case.

The Flawed Appeals Procedure

21. Mr. Cahill and the school became concerned as to whether the Appeals Committee had acted with full information. They obtained

the Appeals Committee documentation from the Department. By this time, Kim had completed her leaving certificate, under the

impression she was not to receive any accommodation. The Department then accepted there had been flaws in the appeals

procedure. Judging from the documents in the case, it seems that these procedural flaws were quite significant. The Appeal

Committee members were apparently not furnished with part of the relevant documentation on Kim’s case. The appeal was re-

assessed, and the decision, perhaps a very pragmatic one, was made to grant a waiver. The respondent’s written submissions put the

matter delphically: the decision was made “on balance”. It is not unfair to now conclude that in general, the papers in the case

indicate some degree of official confusion, even within the Department and among its advisers, as to precisely what criteria should

apply in making these decisions.

The Granting of a Waiver Accompanied by Annotation

22. On the 5th July, 2001, the Department notified Mr. Cahill that Kim would receive a spelling and grammar waiver, and that she

would be treated as a candidate with a disability warranting such accommodation. But, Mr. Cahill was reminded that the waiver would

be accompanied by an explanatory annotation on the examination results, which would include details of the accommodation, and the

fact that adjustments had been made. This could not have been entirely new information to him, as the Department was repeating

what had been said in the circular of November, 2000, which the Cahills had seen. Mr. Cahill remained dissatisfied as to the procedure

and any possible annotation. He considered it discriminatory and invasive of Kim’s privacy. He continued his challenges.

Further Challenges

23. On the 1st August, 2001, Niall Cahill appealed against the inclusion of any explanatory note or annotation. Time was then short.

The results were due out on 15th August. On the 13th August, 2001, the appeals committee upheld the inclusion of the explanatory

annotations in Kim’s case. There was a further flurry of emails. The results were issued on 15th August. Subsequent to this, Mr. Cahill

sought information from the Department about its powers and duties under Data Protection Acts. He contended the Department was

not entitled either to maintain data regarding his daughter’s medical condition, or to issue a leaving certificate which might indicate

the nature of that condition. Clearly, he was understandably protective of his daughter’s rights of privacy. But the Circuit Court

judgment sets out a difficulty. No matter what form of accommodation was granted, it was inevitable that it would be noticed by

others.

Results Day

24. The leaving certificate results day is now a recognised rite of passage in the educational life of this country. What happens in

each secondary school on that day receives near-saturation coverage in all forms of the media. It is inevitable that, on the day, all

candidates will share news of their results with their fellow students, and especially whether they obtained sufficient points to pursue

their chosen third level courses.

25. But, in Kim Cahill’s case, the preliminary notification she received contained the three annotations in Irish, English and French. In

themselves, these were enough to trigger questions from fellow students on the day. Her ‘official’ leaving certificate contained

annotations on the front, referring to explanations on the back, setting out her results.

26. The unfortunate fact is that Kim Cahill had not been aware of any possibility of annotations on results day. She had no knowledge

of what was contained in the November, 2000 circular, nor of her parents’ subsequent correspondence from the Department. She

testified later that when she opened her results envelope in school she was shocked to find the stars or annotations on her

preliminary results, with explanations on the reverse side. She had not expected this. All results were handed round from one student

to another. The appellant felt that she “stood out”, and had been made the subject of discrimination, on the basis that she had

obtained something quite different from the other candidates. While some school friends had been aware of her condition, others were

not. She felt her privacy had been invaded by the addition of these annotations. She told the Circuit judge later that what was

supposed to have been a great day, turning into one of disappointment, “the most embarrassing day of her life”. It ended up with

her feeling “interrogated” by others.

27. Even at this remove, it is hard not to feel sympathy for a young person who felt she had been entirely undeservedly singled out,

on a memorable day, through no fault of her own. In fact, however, even prior to the leaving certificate, Ms. Cahill had been

accepted for entry to DCU, subject to obtaining a somewhat lower level of points than would otherwise have been required. She

undertook a third level degree course in communications, and then obtained a higher diploma in music technology. In DCU she was

given a wide range of accommodations, without any annotation on her results. She obtained employment and had a full life. There

was no evidence, at any stage, that any potential employer ever asked about the annotations, or that she had suffered some

financial detriment as a result of them.

28. In hindsight, one might infer that, actually, the accommodation granted was a pragmatic and ad hoc solution to a situation where,

perhaps, the prospect of litigation loomed, in the light of the flawed appeals procedure. But one unavoidable fact is that, when Kim’s

father applied on her behalf in May, 2001, the only accommodation apparently available was for grammar and punctuation, which

would lead to annotation.

29. There are a number of further features which require emphasis. The broad thrust of Kim Cahill’s own evidence has already been

outlined. Her credibility was not challenged at first instance or on the appeal of the Circuit Court. Mr. Cahill, in evidence, laid great

emphasis on his belief that the condition of dyslexia was a private ‘medical’ matter, and that the Department had no right to publish

material of this sort on a leaving certificate, or otherwise. He was critical of the original application which the school submitted on the

29th November, 2000. He believed that Kim did not require a ‘reader’, or a ‘special centre’, but rather extra examination time. He

accepted he would not have discussed the information he had received from the Department regarding the presence of annotations

with Kim. He raised doubts as to the Department’s concerns regarding the integrity of the leaving certificate, in light of the fact that

candidates who undertook the examination through the Irish language received bonus points, although this was not recorded or

annotated in their leaving certificates.

30. Much of the evidence in the appeal to the Circuit Court focused on whether the ‘link’ between accommodation and annotation

was necessary. In finding for the appellant, the Equality Officer had laid much emphasis on two points. First, she had commented

adversely on the non-annotation (i.e. failure to note) of the “Irish bonus” in the case of candidates who undertook examinations

through Irish. She felt it gave such candidates an advantage. In her view, this undermined the Department’s entire case based on the

integrity of the examination. Second, she pointed out that the Department had not adduced sufficient evidence to establish that,

what she called the “bundling”, or linkage, of an accommodation and annotation, was objectively justified. The Department sought to

address these issues in the appeal before the Circuit judge. It is necessary first to summarise the balance of the appellant’s case.

Dr. Niall Shevlin’s Evidence

31. Ms. Cahill had just one expert witness in the Circuit Court. He was Dr. Niall Shevlin, Head of the School of Education in Trinity

College Dublin. Dr. Shevlin accepted that the form of accommodation made available by the Department was common in a number of

foreign jurisdictions. He acknowledged that the maintenance and integrity of the national examination process was, in itself, an

important principle. However, he did not feel that the accommodation which was applicable compromised the objective measurement

of intellectual abilities. Rather, he felt the process of assessment of ability was actually enhanced by an accommodation, in that it

gave disadvantaged candidates an opportunity to demonstrate their capabilities. He did not “quite accept” that a non-annotated

leaving certificate would be misleading to a reader, such as a potential employer. He did, however, acknowledge that it would be

reasonable to indicate the absence of assessment of a core element of an examination, although he was concerned about the

consequences of this. He also accepted that spelling, punctuation and grammar were an essential part of the assessment process.

32. Dr. Shevlin made clear that, in his view, extra time would have been a preferable outcome. He referred to a 1998 study that

showed extra time was beneficial to the demonstration of knowledge by students with dyslexia. There is no doubt that the question

of extra time was part of the evidence in the case However, that simple point appears to have become submerged in other, broader

issues later described. But, as the Circuit judge pointed out in his careful and humane judgment, Dr. Shevlin never actually identified

how, by adopting some different approach, the Department could have accommodated Ms. Cahill’s needs, without that fact becoming

more widely known. Even an extension of time, or placing her in a separate room would inevitably become obvious to fellow students

and be open to comment. But, at no stage, did Dr. Shevlin controvert any of the Department’s expert evidence described below. The

entire thrust of this expert evidence was that internationally and across many jurisdictions, accommodation was always accompanied

by annotation.

The Department’s Evidence in the Circuit Court

33. For the appeal the Department had assembled a range of witnesses to remedy any deficits there had been before the Equality

Officer. Mr. Aidan Farrell, the Director of Operations in the State Examinations Commission, testified that it was a “fundamental

principle” of the accommodation scheme, that annotation must follow if there was any change in the nature of the examination itself,

or how a candidate undertook that examination. This principle was drawn from the guidance devised by the 1999 expert advisory

group, which had concluded that the integrity of the examination required that if any element of an examination was waived, or not

met, there must be annotation.

34. Mr. Farrell disputed that the “Irish bonus” created an unfair advantage. He pointed out that, in that situation, the nature of the

examination itself did not change. He did, however, accept that a candidate who undertook subjects in the examination through the

Irish language did enjoy a competitive advantage. However, he considered that position more analogous to the distinction between a

dyslexic candidate, on the one hand, and an unsighted candidate, on the other. In the latter case, the unsighted candidate who

undertook the examination using Braille, did not have his or her papers annotated, because, in fact, the nature of the examination

itself did not alter. Other officials testified regarding departmental procedures. But it is important to point out, albeit with the benefit

of hindsight, the real focus of the appeal was on the annotation, rather than any other aspect of the Department’s engagement with

the appellant.

The Expert Evidence

35. The Department called three expert witnesses in the Circuit Court. Each of these directly addressed the question of linkage

between accommodation and annotation. The Circuit judge found their evidence coercive on this issue. These witnesses were Dr.

Jeffrey Braden, Professor of Psychology attached to North Carolina State University; Dr. John Eikin, a consultant educational

psychologist, and expert in dyslexia, who lectured in education at Queen’s University Belfast, and Mr. Nicholas Peacey, Equal

Opportunities Manager at the British Qualifications & Curriculum Authority.

Professor Braden’s Evidence

36. Professor Braden testified he had close experience of the examination procedures adopted in the case of dyslexic candidates in

seven different countries. He considered that the Department had been consistent with international standards in its approach to

linking accommodation and annotation. He described the Department’s accommodation scheme as having been framed and worded in

exactly the same manner as in other jurisdictions. In his view, anything less would have been inappropriate, as it would have required

the ‘end user’ of a certificate to engage in guesswork.

37. The witness testified that society’s recognition of forms of disability had evolved, and that the earlier stages of “secrecy”,

followed by “paternalism” had now given way to a situation where, nowadays, advocacy groups were of the view that disabilities

should be perceived as a part of life, utterly removed from any sense of shame, secrecy or privacy. He believed that the appellant

had been “poorly served” by the notion that she should keep her dyslexia a secret from others, and by the fact that she had not

been told that there would be annotations on her examination certificate. He testified that, in the seven countries with which he was

most familiar, the appellant would not have been granted extra time, or indeed any accommodation. This finding was not contradicted

by a testimony from the appellant’s side. Professor Braden concluded that, in extending the facility, the Department had been

“unusually generous”.

38. There were other parts of his evidence less favourable to the Department. The witness was critical of the fact that, at the time

Kim undertook the examination, there was uncertainty as to whether she would be granted an accommodation at all, and if so, what

form this would take. He thought this factor could have had a bearing on the effectiveness of any accommodation given; in that a

candidate who knew of the existence of a waiver would do better. These points are considered in the consideration of s.4 of the Act

later in this judgment.

Dr. John Eikin’s Evidence

39. Dr. Eikin testified that the accommodation provided to the appellant would not have been available to her in Northern Ireland

either. She would not have qualified for an ‘extra-time’ accommodation, as her reading and spelling results were higher than the

threshold for granting such a facility there. In fact, he said she would not have received any accommodation at all in Northern

Ireland.

Mr. Nicholas Peacey

40. For his part, Mr. Peacey described what he saw as the “necessary” balance between making reasonable accommodation, as

against possible perceptions that such accommodations might be actually unfair to other candidates. Such an outcome, he thought,

might properly lead to questions about the integrity of an examination itself. He, too, considered the Department’s approach on

accommodation as having been ‘generous’ in Kim’s case. He referred to reports from dyslexia advocacy organisations, which had

expressed concern that too many people were receiving extra time as an accommodation, based on a not-always-reliable, diagnosis

of dyslexia.

41. The Circuit Court judge’s conclusions are dealt with later in the consideration of the application of the provisions. In brief, he

reversed the Equality Officer’s determination, and held there had been no discrimination under s.3(1) of the Act, and that s.4

questions did not, therefore, arise.

Observations on the Grounds of Appeal

42. The precise issues raised in the appeal are outlined in the consideration of ss. 3 and 4 of the Act. But that it is worthwhile

commenting that both the Notice of Appeal, (and the submissions made on both sides), revealed the extent to which there were

subtexts in this appeal which divided the parties, as much as any question of legal interpretation. The appellant’s case advanced

much broader and far-reaching propositions than would normally be found in litigation of this type especially in appeal on points of

law. Her main contention was, in fact, that a standardised ‘high stakes’ examination, such as the leaving certificate, was inherently

discriminatory in the case of dyslexia. This part of her case is put forward at the level of principle. This aspect of the appellant’s

challenge can best be understood by a passage now quoted from the written submissions:

“In applying standardised testing to a student with dyslexia, the respondent (Minister) insists on testing disability and not

ability. Throughout this case the appellant has relied on an extract from the Do No Harm – High Stakes Testing &

Students with Learning Disabilities (Disability Rights Advocates, California 2001 …), which summarises the position as

follows:

“Test publishers often have not conducted adequate research on how accommodations affect test validity. As a

result, test publishers label a number of accommodations as “non-standard,” or “modifications,” often because it is

not clear how they affect test validity. Schools may withhold the benefits of doing well on a standardized exam

from a student who uses a non-standard accommodation. However, penalizing a student for using a non-standard

accommodation is comparable to not allowing them to participate in the test at all. It is unfair and discriminatory

to penalize a student with a disability for using a needed accommodation on an assessment simply because the

test publisher has not conducted the necessary research about the effect of the particular accommodation on the

test.”

The standardised tests have not been developed with the needs of the disabled student in mind.”

Dr. Braden testified that these views were an ‘outlier’ not representative of the academic consensus. There was strong expert

evidence before the Circuit Court that the Department’s approach had been generous; that Ms. Cahill would not have been granted

any accommodation in many other jurisdictions; and that internationally, when accommodation is granted, it is always accompanied

by annotations. The Circuit Court judge observed it was “a constant through time and through all jurisdictions”.

Jurisdiction of this Court

43. The jurisdiction of this Court under s.28 of the Act was addressed in Stokes v. CPS Clonmel & The Equality Authority [2015] ELR

113. There, Clarke J. described this form of appeal as being limited in nature, confined to points of law. Clarke J. approved principles

applicable to the scope of such appeals as summarised by McKechnie J. in Dealy v. Information Commissioner [2001] 3 I.R. 439,

which concerned an appeal under s.42 of the Freedom of Information Act, 1997. As was pointed out in Dealy, a court considering

such an appeal cannot set aside findings of primary fact, unless there was no evidence to support such findings; the Court ought not

to set aside inferences drawn from such facts, unless such inferences are ones which no reasonable decision-making body could

arrive at; but may reverse wrong inferences, if these were based on an interpretation of documents, and finally, should set aside the

decision taken by a decision-making body, if there is an erroneous view of the law. The documents and correspondence in this case

paint rather a clear picture as to how the appeals procedure was flawed, and convey, to some degree, the manner in which the

Department sought to deal with the problem by granting an accommodation with the annotation.

Interpretation of ss. 3 to 5

44. It is now necessary to address the question of interpretation of the three sections in question.

45. The Act of 2000 is not always easy to construe. However, its long title conveys clearly that the statute was intended to be a

statute “to promote equality”, to “prohibit types of discrimination”, and to provide mechanisms for the investigation of, and

“remedying”, certain acts of discrimination, and other lawful activities. To my mind, this recital can only lead to the conclusion that

the provisions in question must, under the constitutional provision referred to, be treated as being elements of remedial social

legislation. Being remedial in nature therefore, the Court is permitted to adopt a broad generous, purposive approach, in order to

identify and give effect to the plain intention of the Oireachtas. (See Dodd on Statutory Interpretation in Ireland 2008, Tottel para.

6.52; Bank of Ireland v. Purcell [1989] I.R. 327; Gooden v. St. Otteran’s Hospital [2005] 3 I.R. 617, and High Court judgment in G v.

Department of Social Protection [2015] 7 JIC 074, of O’Malley J.). However, as O’Malley J. pointed out in the G case, to adopt such

an approach is not to elevate any of the provisions into an “all but constitutional level”, nor can the interpretation go beyond the

scope of the Act, as set out in the long title. Counsel for the Minister submits that a purposive interpretation should be adopted by a

court only in circumstances where a provision is “obscure”, or “ambiguous”. (See s.5(1)(a) of the Interpretation Act, 2005). However,

in fact, the Act of 2005 sets out that a purposive interpretation is open to a court in circumstances where a literal interpretation

would, inter alia, “fail to reflect the plain intention of the Oireachtas” (see s.5(1)(b) of the Interpretation Act, 2005). In my view, the

remedial intent is discernible from the Act itself; any other approach to these sections would not reflect the intention of the

legislature. The issue is, to my mind, fundamentally important; how such ‘disability legislation’ is interpreted has been debated in many

common law jurisdictions.

46. I take the view that the range of matters dealt with in ss.3 to 5 of the Act may be distinguished from those dealt with by this

Court in Equality Authority v. Portmarnock Golf Club [2010] ILRM 237, where the majority of this Court looked to literal meanings of

ss. 8 and 9 of the Act of 2000. In dealing with the quite radical consequences of a finding that a club was a discriminatory club on

the grounds of gender, Denham J. and Fennelly J., however, in the minority, considered both the literal and broader, purposive

interpretations. In Portmarnock the constitutional point of reference was the constitutional right of freedom of association. By

contrast the constitutional ‘point of reference’ which bears most on the provisions here, is the pledge of equality as human persons

before the law, contained in Article 40.1 of the Constitution, which guarantee, subject to the proviso contained in the same Article,

that the value of equality protected shall not be held to mean that the State shall not, in its enactments, have due regard to

differences of capacity, physical and moral, and of social function.

47. A further point of reference is Article 40.3 of the Constitution, which requires the State, in its laws, to respect, and “as far as

practicable”, to defend and vindicate the personal rights of a citizen. These personal rights, of course, include those enshrined in

Article 40.1 of the Constitution. The term “practicable” must inform the way in which the words “all that is reasonable”, as deployed

by the drafter in s.4(1) of the Act of 2000, should be interpreted.

Section 3

48. Section 3(1) of the Act is framed in general terms. It provides:

“For the purposes of this Act discrimination shall be taken to occur where –

(a) on any of the grounds specified in subsection (2) (in this Act referred to as “the discriminatory grounds”) which

exists at present or previously existed but no longer exists or may exist in the future, or which is imputed to the person

concerned, a person is treated less favourably than another person is, has been or would be treated…”. (emphasis

added)

49. I pause here to emphasise that this case concerns an allegation of direct discrimination. It is, therefore, unnecessary to deal with

s.3(1)(c), which prohibits indirect discrimination, that is, a situation where an apparently neutral provision puts a person in an

identified category at a particular disadvantage, compared with other persons, unless the provisions is objectively justified by a

legitimate aim, and the means of achieving that aim are appropriate and necessary. No such case is made.

50. Returning then to direct discrimination, s.3(2) provides for what are discriminatory grounds as between any two persons, that is,

a comparator. It does so in the following terms, insofar as material:

“2. As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of

this Act) are:

…

(g) that one is a person with a disability and the other either is not or is a person with a different disability (the

“disability ground”),

…”.

51. The issues raised in the appeal under s.3(1) are, in summary:

• Whether annotation which followed accommodation constituted, not only different treatment, but also “less favourable

treatment”, and

• Whether “less favourable treatment” denoted treatment that arose due to a whim, caprice, unreasonableness, bad

faith, illegality, irrationality, or out of direct or indirect prejudice against the disabled. (Hereafter, I will refer to the terms

italicised against the second bullet point as the “judicial review criteria” issue.)

The Circuit Court held, on the evidence, and the High Court upheld, the conclusion that there had been no direct discrimination; that

there had been differing treatment, but not ‘less favourable treatment’; and that the appellant had not established she had been

treated ‘less favourably’ than any comparator. The High Court upheld the Circuit Court decision that the treatment in question was

not caused by disability, but rather by the Department’s reasonable concern to maintain the integrity of the examination system.

Thus, even if there had been a difference in treatment, it was not on the ground of disability, which would have been prohibited under

s.3(2)(g) (above). But, counsel for the appellant submits that, in assessing whether there was ‘less favourable treatment’, the Circuit

Court adopted what can be characterised as ‘Keegan’ “judicial review” terminology in identifying the test.

Conclusions under Section 3(1)

Whether annotation which followed accommodation constituted “less favourable treatment”?

52. It is next necessary to further consider the extent to which the Circuit Court findings were findings of fact. The Circuit Court

judge accepted that the appellant had been treated differently by reason of the insertion of the notations on her certificate. But, he

concluded, this “different treatment” was not synonymous with “less favourable treatment”, and that the appellant was not treated

“less favourably” within the meaning of s.3(1). He entirely accepted the Department’s expert evidence. In fact, there was no contrary

evidence on the key point of “annotations” linkage. The judge commented that Dr. Shevlin had not actually proposed any realistic

alternative to the arrangement. He concluded that the sole issue which arose for him was as to whether annotations amounted to

“less favourable” treatment of the appellant, when contrasted with comparator examination candidates, that is to say, candidates

without the same disability. He accepted, as a fact, that there had been different treatment. But, he held the annotation occurred

not as a result of disability, but rather because a core element of the examination had been exempted. He held that no annotation

took place where a candidate who had a disability did not receive an exemption. He found that the evidence established that the

annotation took place to maintain the integrity of the examination process.

53. In accepting the Department’s expert evidence on the need for linkage between accommodation and waiver, the judge noted that

no alternative to the Department’s approach had been suggested which would protect the integrity of the leaving certificate

examination. Each of his findings were based on cogent evidence. In fact, the evidence before him on the issue was not only clear, it

was coercive. There was nothing in the appellant’s evidence to even put the matter in issue. Consequently, even if, as I would hold

below, the Circuit judge may have deployed some inappropriate terminology on occasion, one cannot say that the outcome would

have been different had different phraseology been used in the judgment. These were fact issues. The only matters now in question

in this appeal are whether there were errors in law. I do not think these factual findings could be disturbed.

Less Favourable Treatment and ‘Judicial Review’ Phraseology

54. It cannot be denied that, in the course of his judgment, the Circuit Court judge did, on occasion, use language which might be

seen as being that of judicial review. He asked himself whether the treatment of the appellant was based on “whim”, “caprice”, or

“unreasonableness”. There is nothing in s.3 of the Act, or elsewhere, to suggest that the question of ‘less favourable treatment’ is to

be tested against something tantamount to the very high judicial review standard. But to my mind, these observations were not

germane to the true factual issues which the Circuit judge was addressing. Such terminology would not be consistent with a

purposive, broad, generous approach to interpreting the Act. The protection against discrimination provided for under the section is

wide-ranging, as is clear from the wording of the section itself. But ultimately these were factual issues.

55. In this context, it was submitted on behalf of the appellant that a court should look to the personal impact of the annotations on

the appellant. Even adopting a broad approach to interpretation, I cannot accept this proposition. The import of s.3 cannot be seen

as providing protection which goes so far as to assessing the “potential impact or effect of the treatment on the individual”, without

more. A purposive approach can only go as far as the long title permits. No provision of the Act can be

Interpreted in so protean and subjective a manner, with the statutory consequence of identifying an individual subjective effect on

one person, as a defining factor as to whether there has been discrimination.

56. In summary, in my opinion, some confusion was created by the usage of the terminology which is redolent of judicial review. I do

not think this is the correct test. But this did not affect the judge’s factual findings under s.3(1) and s.3(2)(g).

Section 4: Preliminary Observations

57. It is now necessary to revert to a point made briefly at the outset of this judgment. Some of the observations which follow must

be seen as obiter dicta. This is for the reason that the parameters of the case were already firmly identified by the time the ODE 15

form was submitted to the Equality Tribunal. Those same parameters were observed throughout the Equality Tribunal hearing, and in

the Circuit Court. To my mind, they cannot now be revisited. This was the case the appellant wanted to make. It would be

procedurally unfair to now seek to revisit the facts of this case, in circumstances where there would be no opportunity for

examination or cross-examination, or testing the evidence, in light of new and different parameters. It would also now be meaningless

to remit the case. But it is an inescapable fact that the case was, on instructions run throughout on the basis of the annotation

actually contained on the appellant’s leaving certificate. The evidence before the Equality Tribunal, and the Circuit Court, did not

explore other terrain. Specifically, the evidence did not address the nature, extent and, be it said, unsatisfactory and unreasonable

confusion in the engagement between the appellant and the respondent. Even had there been such exploration, as is pointed out

later, I consider that it is probable the Department would have been entitled to rely on the provisions of s.5(2)(h) of the Act of 2000.

Whether this was the intent of the legislature is another matter.

58. Section 4 is framed in specific terms, and addresses only disability. The Circuit Court judge correctly pointed out that it is to be

read independently of section 3. Section 4(1) identifies one particular form of discrimination. In my view, a finding of ‘no discrimination’

on grounds of disability under s.3(2)(g) will not, therefore, always or inevitably lead to a determination of ‘no discrimination’ under

s.4(1). This is because s.4(1) not only contains a ‘substantive’ aspect, overlapping at times with s.3(2)(g), but also has a ‘procedural’

dimension, that is one based on the question whether a respondent did “all that is reasonable” procedurally, as well as in substance.

The duty addressed under s.4 differs from that under s.3, in that s.4 deals with obligations to adjust rules or standards, or policies, to

meet the specific needs of people who are covered by a protected ground: in this case, disability. The question then arises, how this

affects this appeal? Insofar as relevant, s.4 provides:

“4(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is

reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if

without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or

herself of the service.

(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed

reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in

question.

(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute

discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that

person would not constitute discrimination.

…

(5) This section is without prejudice to the provisions of sections 7 (2)(a), 9(a) and 15(2)(g) of the Education Act,

1998 , in so far as they relate to functions of the Minister for Education and Science, recognised schools and boards of

management in regard to students with a disability.”

59. As the determination on s.3 was held to be decisive, the Circuit Court Judge added, obiter, that, even if his findings under s.3

were incorrect, the appellant’s treatment constituted “reasonable accommodation” under s.4(1). However, the judge expressed

considerable doubts as to whether a claim was even admissible under s.4. He was persuaded by the submissions that the Minister

was, by virtue of s.4(5) of the Act, exempt from the provisions of the Act as a whole. In this I think he was led into error by the

Minister’s submissions.

60. It is, of course, not unreasonable to conclude, as does Laffoy J., in her judgment that the accommodation and annotation

together can be seen as being a reasonable accommodation. But where the difference might lie in another case is whether a

respondent did ‘all that was reasonable’, this may involve a broader inquiry.

The Interpretation of Section 4(1)

61. I now seek to identify what, in my view, should be the nature and scope of a broad interpretation of s.4(1).

62. One starts with the actual wording of s.4(1). The Circuit Court and High Court dealt with s.4(1) as a question of “reasonable

accommodation”. That is not the test set by the words of the section. In fact, the section requires a respondent to do “all that is

reasonable” to accommodate the needs of a person with a disability by providing special treatment or facilities, with the proviso that,

if without such treatment or facilities, it would be impossible or unduly difficult for the person to avail himself or herself of the service.

The appellant submits that, in an examination context, the purpose of such reasonable accommodation is not to confer an unequal

advantage on a person with a disability, but rather to require the adjustment of the “modalities of the examination”, to enable ability

to be accurately needed and measured, regardless of whether the student has a disability or not. It is hard not to interpret this as a

contention that the entire system should be entirely changed for dyslexic candidates. That would not be consistent with the findings

of fact.

63. The purely legal question, however, is, how should the term “all that is reasonable” be interpreted? In general, the term

‘reasonable’ here has two aspects. First, it must contain a ‘substantial’, or proportional, component sometimes, as in s.4(2), involving

consideration of the cost element, (which does not arise in this case), but, second, there must be a procedural aspect where the

focus should be on the engagement between the process provider, and the recipient. These are objective tests. (cf. Walsh, Equal

Status Act, 2000 – 2011, Blackhall Publishing 2012, p.220).

64. Some assistance as to the interpretation of both the substantial and procedural meanings of the term ‘reasonable’ can be

obtained from the approach adopted by the Courts of England and Wales in relation to the, admittedly rather different, U.K. Disability

Discrimination Act, 1995. There, albeit in a different legislative framework, the courts have had to consider what are “reasonable

adjustments”, and have concluded that the duty to make such adjustments can impose positive obligations on service providers to

take action to modify tangible and intangible barriers to equal participation for disabled people, in those areas of life covered by the

Act in question. I would agree with this approach.

65. In Roads v. Central Trains [2004] EWCA Civ. 1541, Sedley LJ. In the Court of Appeal stated that the policy of the U.K. Act, was

not a “minimalist policy of simply ensuring that some access is available to the disabled: it is, so far as reasonably practicable, to

approximate the access enjoyed by disabled persons to that enjoyed by the rest of the public.” (para. 30). This approach was

reflected by the then House of Lords in Archibald v. Fife Council [2004] UKHL 32, where Baroness Hale of Richmond held that the duty

under the same Act was to “take such steps as it is reasonable, in all the circumstances of the case, for the employer to have to

take”. She went on:

“to the extent that the duty to make reasonable adjustments requires it, the employer is not only permitted but obliged

to treat a disabled person more favourably than others.”

66. When the provision speaks of “all that is reasonable”, that which is necessary and practicable in order to achieve substantive or

procedural equality, the fact that rights are engaged, does not mean that the criteria to be applied are those which classically arise in

judicial review proceedings. The position is, rather, that, as a first step, the words of the provision should be broadly interpreted in

light of the values contained in Article 40.1, asking the question, what are the ‘needs’ that are necessary to achieve equality in the

case of a person with a disability. But, that is only a first step. In enjoining a service provider to do all that is reasonable, the

provision imposes positive obligations to remove tangible and intangible barriers to disabled persons. The words all and everything are,

I believe, synonymous terms in this respect. What is in question here is not a simple common law ‘duty of care’, ‘balancing’ exercise,

as to what is “reasonable”, but rather one where the balance is significantly tilted in order, where necessary, to impose positive

obligations to ensure that all practicable steps are taken. This is different from refraining or abstaining from doing something. The

legislative object therein should be seen as to do everything that is reasonable and practicable, both procedurally, and in substance,

ensures the treatment of a person with a disability is placed at the same level as a person without a disability. The obligation is not,

therefore, simply to refrain from certain actions, but, where necessary, to engage in positive action. In colloquial terms, it can impose

a duty to “go the extra mile”.

67. But here it is necessary to bear in mind the nature of this case the appellant wished to make. The case focused, almost entirely,

on the leaving certificate day and the notation. There is a question whether there was ‘notification’ of results as well as the ‘official’

leaving certificate. This was in dispute. The Circuit judge did observe, entirely correctly, insofar as there might have been an

annotation on the notification received by candidates, rather than on the leaving certificate itself there could have been no rationale

for it. But as he correctly pointed out, this was not the issue to be decided. But, it is clear the case did not involve the Department’s

procedural engagement with the appellant – a broader scope of inquiry than simply considering the annotations. In my view this is

what the Act requires.

The Equality Officer’s finding of impossible or unduly difficult under Section 4(1)

68. In considering s.4(5) it is necessary to revert to the Tribunal findings. The Equality Officer held against the appellant in her claim

on section 4(1). The Officer concluded that the fact that the appellant had undertaken the examination showed that, in the words of

s.4(1), it was not “impossible or unduly difficult” for the appellant to avail herself of the service. But, the Equality Officer did not have

the advantage of hearing Professor Braden’s evidence, expressing concern as to the “uncertainty”, as to whether the appellant would

be granted an accommodation, and if so, what form it would take. He thought this factor could have had a bearing on the

effectiveness of an accommodation given. Nor did the Department’s flawed procedures come in for detailed analysis. But to my mind,

even on the information she had, the officer erred in her finding. The critical word here must be “unduly”. It, too, is to be associated

with the words, contained in the section, “all that is reasonable to accommodate the needs of a person with a disability.” The fact

that the appellant was actually able to undertake the examination does not mean that it had made “unduly difficult” for her. In fact

she had to undertake it when it had been made unduly difficulty for her.

69. In truth, there were real procedural inconsistencies in the Department’s position. First, it considered the appellant was ineligible

for any accommodation. But, against this, she was ultimately granted an accommodation, in circumstances where such a facility could

only be consistent with a finding of disability. A second difficulty is that the most obvious form of facility was ‘extra time’. This was

the very facility which she was not granted. Instead she was given a ‘post hoc’ grammar and punctuation waiver, which came after

the leaving certificate. Additionally, there was Dr. Braden’s evidence that, insofar as any such accommodation facility was available in

the United States, candidates would have good notice thereof, that is upwards of 2 to 3 months. There was clearly a degree of

departmental confusion about criteria for accommodation in both the correspondence and reports. Seen in this light, one can only

conclude that the Department’s engagement, although undoubtedly well intentioned, was unsatisfactory. Had it been part of the case

from the very beginning, one can now observe, albeit with the benefit of hindsight, that a very arguable case might have been made

under s.4(1) of the Act, on the basis that, procedurally, the Department had failed to do all that was reasonable.

The meaning of “without prejudice” as contained in s.4(5) of the Act

70. Although the Circuit Court observations in relation to s.4 were obiter, both the Circuit Court and High Court concluded that s.4(5)

of the Act would have operated so as to exempt the Minister from the scope of the Act. This would have impacted upon the

Minister’s discretion under s.7(1) of the Education Act, 1998, in providing for students with a disability, or other special educational

needs, from the operation of s.4(1) of the Act. In my view, these findings contain a real misconception as to the meaning of the

words ‘without prejudice’ in this setting. I am in agreement with Laffoy J., that this was an erroneous interpretation, which would

effectively exempt the Minister from any liability under the Act, or from any duty to provide educational services under his control. It

would follow that a failure to provide basic equipment necessary for a child to access learning, such as a hearing aid, or a Braille

machine, could not be challenged as a breach of a duty to provide reasonable accommodation. Such an exemption would dramatically

curtail the effectiveness of the Act of 2000 in protecting against discrimination in education. It would surely be unthinkable that a

child requiring a basic piece of equipment to access educational facilities available to other non-disabled students, would be excluded

from the remit of the Act, and the remedies that would follow under the Act, and its successors. This simply could not have been the

intention of the legislature when enacting s.4(5). If it was intended, one would expect such exemption to be carefully set out in

precise terms. Section 4(5) does not, in fact, deal with exemptions at all. Instead, it states that what is provided for “without

prejudice”, in the sense of not derogating from ministerial functions and duties enumerated elsewhere. In fact, s.4(5) must bear the

alternative, and entirely more likely, interpretation, that it is to be viewed as supplementing, rather than subtracting from, the

protections imposed by the Act. I do not think it necessary to engage in a point by point analysis of the provisions of s.7, s.9 or

s.15(2) of the Education Act. Each provision creates a duty on the respondent. The point is clear from the intend of the Act of 2000.

The Section 5 Issue

71. As this judgment seeks to explain, s.3 and s.4 may be read very largely independently of each other. In doing so, one gives effect

to a generous interpretation of the Act. But, even if one proceeded upon the hypothetical, “procedural” case under s.4(1), it seems

to me there is another issue. Section 5 is contained in Part 2 of the Act, headed “Discrimination Related Activities”. Insofar as

relevant, this section provides:

“5(1) 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.

(2) Subsection (1) does not apply in respect of –

…

(h) 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. (Emphasis added)

The section is not at all easy to interpret. But, as I read the provision, taking the words both from s.5(1) and 5(2)(h), its effect is

that a person shall not discriminate in providing a service if that service can be availed of only by a section of the public, but that

there shall be no discrimination in the case of differences of treatment of persons in a category in the case of services provided for

the purpose of promoting for a bona fide purpose, and in a bona fide manner, the special interests of persons in that category, to the

extent that (such) differences in treatment are reasonably necessary.

72. Even had a case been advanced on the “procedural” aspect of s.4, it seems to me that s.52(h) might have presented difficulties

to the appellant. While it is unnecessary to make a determination on the issue, it is arguable that, even adopting a broad

interpretation, the Department’s ‘procedural mis-steps’ would have been defensible by virtue of s.5(2)(h), on the basis that the

Department was “treating the appellant differently”, because it was “providing a service” to her; that “the principal purpose” of the

Department’s actions was “to promote in a bona fide manner” the interests of the appellant, who was a member of that “category of

persons”; and that the “differences in treatment” were “reasonably necessary” to “promote her special interests”. Perhaps the

legislative intention was different, but, if so, it is very hard to discern another meaning. It is not easy to discern how even the

broadest and most generous interpretation of the words, (or even the narrowest interpretation), could resolve this difficulty. As this

is, in any case, hypothesis, one need go no further. I would reserve my opinion on this question to an appropriate case.

Conclusion

73. It is not hard to understand the appellant’s concern that the annotation contained on her leaving certificate creates a form of

‘stigma’, as she described it. However, as this judgment seeks to explain, cases must be decided on evidence, and the way the case

is presented to the Court. The evidence before the Circuit Court on the key issue was, to my mind, coercive; it went only one way. It

established that annotation always accompanied a form of accommodation. The judge was entitled to find that this treatment did not

occur because of disability. As explained in this judgment, I take the view that the sections in question should be given a broad and

generous interpretation. Such a form of interpretation has been used for the last quarter of a century by the Equality Tribunal, and its

successor, the Workplace Relations Commission, which has brought the appeal to this Court in order to clarify the law. It seems to me

that such an approach is not only well established, but it is the one which under the Constitution gives life and true effect to the

legislative intent which is so clearly expressed in the long title of the Act. This was the intent of the legislation. I do not see the task

of interpretation in this case as being a matter of giving literal effect to the words. It seems to me that the subject matter of the Act

requires the courts to deal with the issue of interpretation here as having a high status, because of the very fact that what is in

question is the right of everyone to be treated equally as human persons and not to be subject to these forms of discrimination. What

is in question is not a series of common law definitions, as for example, with the purpose of identifying categories of offences; it is,

rather, a series of provisions designed to ensure equal opportunity to all individuals whether or not they have a disability.

74. For the reasons set out I consider the appeal must be dismissed, albeit for the reasons which I have set out. I conclude that the

judgment of the Circuit Court and the High Court did contain a degree of erroneous “judicial review” terminology. However, I consider

this did not affect the Circuit judge’s s.3(1) findings of fact, which were sustainable. These were upheld in the High Court. Insofar as

the High Court judgment gave support to incorrect ‘judicial review terminology’, I would set those observations aside. I conclude that

the Circuit Court judge erred in his findings regarding s.4(5) of the Act. The High Court erred in affirming these findings also. The

confined nature of the case, as it was initiated, does not allow for any ‘procedural’ findings under s.4(1) of the Act. They do,

however, allow for compatible findings under s.3(1) to the effect that there had been no unlawful discrimination, and that, in the

substantive sense, the Department had done all that was reasonable in accommodation, accompanied by annotation. Had there been

procedural findings under s.4(1), it is arguable that the Department would have been entitled to rely on s.5(2)(h) of the Act as a

defence. I would, therefore, uphold the decisions of the Circuit Court and High Court in relation to the forms of order made under

s.3(1) and s.4(1).

75. The Superior Courts only occasionally have had the opportunity of addressing these fundamentally important issues. The law in

this case is in a state of development. I would hope that further opportunities to clarify that law will present themselves in the near

future. Insofar as the appeal has had the effect of clarifying the law it must represent a vindication, although perhaps a limited one,

for the appellant.