IESC 29 · Supreme Court

THE SUPREME COURT

[Appeal No. 246/2010]

Denham C.J.

O’Donnell J.

MacMenamin J.

Laffoy J.

Dunne J.

BETWEEN

KIM CAHILL

APPELLANT

AND

THE MINISTER FOR EDUCATION AND SCIENCE

RESPONDENT

Judgment of Ms. Justice Laffoy delivered on the 24th day of May, 2017

Factual and procedural background in outline

1. The proceedings at the root of this appeal were proceedings commenced in December 2006 in the Dublin Circuit Court by the

Respondent on this appeal (the Minister) by way of an appeal under s. 28 of the Equal Status Act 2000 (the Act of 2000) against the

decision of an Equality Officer of the Equality Tribunal (the Tribunal) in favour of the Appellant on this appeal. The decision of the

Tribunal (DEC – S2006 – 077), which was dated 3rd November, 2006, had related to two similar complaints brought by two individuals,

one being the Appellant, who sat the Leaving Certificate examination in 2001. While the appeal to the Circuit Court related to both

complaints by both individuals, who are referred to as “complainants” in the report of the Equality Officer and as “Claimants” in the

judgment of the Circuit Court judge, the subsequent appeal to the High Court related only to the complaint of the Appellant and,

accordingly, the background and the factual position will be outlined by reference to the claim of the Appellant.

2. It is common case that the Appellant is dyslexic and, as such, is a person with a disability within the meaning of the Act of 2000.

In November, 2000 the principal of the Appellant’s school, with the Appellant’s mother’s consent to the Appellant being interviewed

and assessed by a psychologist, completed an application form seeking on behalf of the Appellant special arrangements in the Leaving

Certificate examination 2001 on the grounds of a specific learning difficulty. The special arrangements requested were set out on the

form as: “a special centre”; “a reader”; and “maybe extra time”. That application was processed in the Minister's Department (the

Department) and, ultimately, by letter dated 15th March, 2001, the principal of the Appellant’s school was notified by the Department

that it was the opinion of the Department psychologist that the Appellant’s learning difficulties did not warrant special arrangements.

On 28th May, 2001 the Appellant’s father appealed the decision of the Department on her behalf. By letter dated 30th May, 2001 the

Appellant’s school was notified by the Department that the appeal in relation to reasonable accommodation on behalf of the Appellant

was rejected by the Reasonable Accommodation Appeals Committee on 29th May, 2001.

3. After the Appellant sat the Leaving Certificate examination without being provided with any special facilities, her father, by letter

dated 26th June, 2001 to the Department, indicated that he wished to appeal the decision recently made against the Appellant’s

request for reasonable accommodation on the basis that the process and the outcome were fundamentally flawed, which was

supported by the principal of the Appellant’s school by letter of 28th June, 2001. By letter dated 5th July, 2001 the Appellant’s father

was notified by the Department that the Department proposed the following approach to the needs of the Appellant:

“A waiver in relation to assessment of spelling/grammar in language subjects.”

That was explained as meaning that the Appellant would have her grades in the language subjects being undertaken by her

determined on the balance of the work in the subject, which would be regarded as 100% for assessment purpose. Taken on its own,

that accommodation clearly was potentially of benefit to the Appellant. However, it was also stated in the letter that the grades

obtained by the Appellant in any language subject taken by her would be accompanied by explanatory notes. In the case of English,

the note would read:

“All parts of the examination in this subject were assessed except spelling and written punctuation elements.”

In the case of other language subjects, the explanatory note would be as follows:

“All parts of the examination in this subject were assessed except spelling and some grammatical elements.”

4. On 1st August, 2001 the Appellant’s father, on behalf of the Appellant, appealed the decision referred to in the letter of 5th July,

2001 that the Appellant’s Leaving Certificate would be “noted to the effect that her results were influenced by the reasonable

accommodation which was granted”, which I understand to mean that he appealed so much of the decision in relation to the waiver

as related to the inclusion of the explanatory notes. By letter dated 13th August, 2001, the Appellant’s father was informed by the

Department that the appeal had been referred to the Independent Appeals Committee for consideration, which had decided to uphold

the Department’s decision to include the explanatory notes.

5. On 15th August, 2001, the Leaving Certificate results for 2001 were released and the Appellant received “preliminary” results,

which contained explanatory notes in the terms outlined above in relation to the following subjects: Irish, English and French. The

actual Leaving Certificate subsequently issued to her on its face showed numeric codes in relation to Irish, English and French, which

numeric codes were explained overleaf in the terms outlined above. On 24th August, 2001, the Appellant’s father, on her behalf, by

way of Form ODEI 5, gave notice to the Minister of the complaint of discrimination by the Minister against her contrary to the

provisions of the Act of 2000 which she intended making to the Office of the Director of Equality Investigations. The complaint, which

ultimately came before the Equality Officer of the Tribunal, was on the basis that she had been discriminated against under the Act of

2000, in the words in the Appellant’s written submissions to this Court, “by the act of requiring annotation on her Leaving Certificate

to flag the fact that she had received an accommodation”. The consequent alleged flagging of her disability was emphasised in the

Form ODEI 5, where, having pointed out that the certificate had no purpose in relation to entry into third level education and stated

that the only other purpose of the certificate “is to verify to employers claimed achievements in specified subjects”, it was alleged:

“The notation discriminates against me insofar as I will need to reveal and explain my medical condition together with

justifying my results. This places me at a disadvantage. This disadvantage will be life-long.”

In the Form ODEI 2 dated 13th February, 2002 subsequently lodged by the Equality Authority on behalf of the Appellant, the

Appellant’s complaint was outlined by reference to the Form ODEI 5. Thereafter the investigation of the Appellant’s complaint was in

abeyance for some time and it was not until 26th April, 2005 that the Minister was notified that the Equality Officer had been

assigned to investigate the complaint. Following the investigation, the decision of the Tribunal of 3rd November, 2006 was made. The

essence of the complaint is set out in the Appellant’s written submissions as that –

“. . . the insertion of the notation is discriminatory contrary to ss. 3 and/or 5 of the Act of 2000 and . . . there had been

a failure to provide reasonable accommodation to her as a person with a disability contrary to s. 4 of the Act of 2000”.

6. The decision of the Tribunal is a comprehensive document which at the outset summarises the Appellant’s complaint as that she

alleged –

“. . . discrimination on the grounds of disability on the basis that the presence of a notation on her Certificate reveals the

fact that she has a disability and requires her to explain and justify her results and places her at a disadvantage with

regard to prospective employment.”

Following a thorough analysis of the facts, the submissions made on behalf of both complainants, who were represented by counsel

on instructions from the Equality Authority, and on behalf of the Minister, and of the relevant statutory provisions, the Equality Officer

made the following relevant findings:

(a) that the complainants had failed to established a prima facie case of discrimination in terms of s. 4 of the Act of

2000, having rejected an argument on behalf of the Minister that reasonable accommodation with respect to support

services in education was precluded by subs. (5) of s. 4;

(b) that the Leaving Certificates, as issued, constituted less favourable treatment of the complainants when compared to

others issued with Certificates without annotation, thus establishing a prima facie case of discrimination under s. 3 of the

Act of 2000;

(c) that the Minister had failed to present any evidence in support of the assertion that the annotation was necessary to

maintain the integrity of the certification process;

(d) that the Minister had failed to rebut the prima facie case of discrimination established under s. 3; and

(e) that s. 5(2)(h) did not, as argued by the Minister, provide a defence to the Minister.

The decision of the Equality Officer was expressed in the following terms:

“I find that the [Minister] has discriminated against the complainants in terms of Sections 3(1), 3(2)(g) in relation to

provision of services in terms of Section 5(1) by annotating their Leaving Certificates with a reference to aspects of the

courses not assessed.”

The Equality Officer then made an order in accordance with s. 27 of the Act of 2000, only two elements of which are of relevance for

present purposes, namely:

(i) that the Minister was directed to pay each of the complainants €6,000 as compensation for the discrimination; and

(ii) that the Minister was directed to issue new Leaving Certificates to the complainants “without the relevant notations”.

7. The Minister appealed the decision of the Tribunal to the Circuit Court pursuant to s. 28 of the Act of 2000 seeking an order

dismissing the complainants’ complaints against the Minister for discrimination under the Act of 2000. There was no cross-appeal by

the complainants seeking to set aside the finding of the Equality Officer on the claim under s. 4. The appeal, which was by way of

rehearing heard on oral evidence, was at hearing for eight days before His Honour Judge Hunt (the Circuit Court judge). Unlike the

position adopted by the Minister at the Tribunal hearing, which is reflected in the linked findings of the Equality Officer referred to at

(c) and (d) in the next preceding paragraph, as will be outlined later, there was adduced on behalf of the Minister in the Circuit Court

a considerable body of evidence of experts from other jurisdictions on the proper methodology for addressing the problems to which

the complainants’ complaints against the Minister gave rise. The judgment of the Circuit Court judge, which will be considered in detail

later, was delivered on the ninth day of the Circuit Court hearing, that is to say, 19th October, 2007. The outcome was that the

appeal was allowed and the decision of the Tribunal was set aside.

8. The Appellant then appealed to the High Court on a point of law pursuant to s. 28 of the Act of 2000. That appeal was heard by

de Valera J. (the High Court judge), who delivered judgment on 11th June, 2010. The outcome was that the appeal to the High Court

was dismissed and the order of the Circuit Court was affirmed.

9. This appeal is an appeal from the judgment of the High Court judge and the order of the High Court.

10. As happened throughout the Court process, the Appellant was represented on this appeal by a legal team assigned by the Irish

Human Rights and Equality Commission (the Commission), the successor of the Equality Authority. The points of law raised on this

appeal, which primarily relate to the proper construction of provisions of the Act of 2000, are undoubtedly important points of law and

it is wholly understandable that the Commission should assist the Appellant to pursue the appeal. While, in arguing the Appellant’s

case, counsel emphasised the embarrassment and distress caused to the Appellant by the presence of the annotation on the

Appellant’s Leaving Certificate results, in relation to which one cannot but be sympathetic, it is some relief that, as this Court was

informed by counsel for the Appellant, she graduated from Dublin City University, she is now in employment and she is the mother of a

number of children.

11. Nonetheless, this Court has to consider and, where necessary, to determine the important issues of law raised on the appeal, in

particular, in relation to the proper construction and application of the relevant provisions of the Act of 2000. Before considering the

judgment of the Circuit Court and the judgment of the High Court, it is of assistance to outline the relevant provisions of the Act of

2000. In so doing, the provisions as originally enacted and excluding any post-2000 amendments will be set out.

Relevant provisions of the Act of 2000

Section 2

12. In the interpretation section in the Act of 2000, s. 2, the expression “discriminate” is defined as meaning “to discriminate within

the meaning of s. 3(1) or 4(1)”.

Section 3

13. Section 3 gives a meaning to “discrimination” in general across a broad spectrum of grounds, as distinct from s. 4, which gives the

expression a meaning in the specific context of the disability ground. Sub-section (1) of s. 3, insofar as is relevant for present

purposes, as originally enacted, provided:

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

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

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

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

Of the discriminatory grounds “as between any two persons” which were listed and described in subs. (2) as originally enacted, the

Appellant invoked only one ground. She invoked the ground of disability from the outset, which is described in para. (g) of subs. (2),

which stipulates –

“that one is a person with a disability and the other either is not or is a person with a different disability (the ‘disability

ground’)”.

The Appellant’s case is that the Minister discriminated against the Appellant in terms of s. 3(1) by reference to s. 3(2)(g) by treating

her less favourably than another person. For completeness, it is appropriate to record that, while counsel for the Appellant made it

clear that the Appellant is relying only on direct discrimination as defined in s. 3(1)(a) and is not relying on indirect discrimination as

defined in s. 3(1)(c), counsel for the Minister invoked para. (c) of s. 3(1) in response to the Appellant’s claim based on discrimination

under s. 3(1). However, in view of the fact that counsel for the Appellant emphatically disavowed reliance on s. 3(1)(c), it is

unnecessary to quote it in its original form, which, of course, has been substituted by various enactments since 2000.

Section 4

14. Section 4 separately elaborates on the meaning of “discrimination” in the specific context of disability. Section 4(1), which, in my

view, is the provision which is most relevant to the Appellant’s complaint, having regard to the factual and procedural background

which has been outlined, in the context of her application for redress under s. 21 of the Act of 2000, as originally enacted provided

and still provides:

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

reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without

such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the

service.”

It is common case that, as regards the Leaving Certificate examination and, in particular, the certification of the results thereof, the

Minister is a “provider of a service” within the meaning of s. 4, the service being the certification of educational accomplishment by

examination at the end of the secondary school cycle. The Appellant’s case is that the Appellant was discriminated against by reason

of the failure of the Minister to provide reasonable accommodation in accordance with s. 4(1). Section 4(1) must be read in

conjunction with s. 4(2), which as originally enacted provided and still provides:

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

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

question.”

15. As regards the Appellant’s reliance on s. 4(1), the Minister’s first point in response is that it is not open to the Appellant to invoke

s. 4(1) because of subs. (5) of s. 4 which provides:

“This section is without prejudice to the provisions of sections 7(2)(a), 9(a) and 15(2)(g) of the Education Act, 1998 , in

so far as they relate to functions of the Minister . . ., recognised schools and boards of management in regard to

students with a disability.”

For the purpose of interpreting subs. (5) it is helpful to quote one of the provisions referred to in it, namely, s. 7(2)(a) of the

Education Act 1998 (the Act of 1998). Section 7(1) sets out in broad terms the functions of the Minister under the Act of 1998, the

first function being to ensure that there is made available to each person resident in the State, including a person with a disability,

support services. Sub-section (2) then provides as follows:

“Without prejudice to the generality of subsection (1), each of the following shall be a function of the Minister:

(a) to provide funding to each recognised school and centre for education and to provide support services to

recognised schools, centres for education, students, including students who have a disability or who have other

special educational needs, and their parents, as the Minister considers appropriate and in accordance with this Act;

. . .”.

The expression “support services” is defined in s. 2 of the Act of 1998 as including a wide range of services, including examinations

provided for in Part VIII of the Act of 1998, which include the Leaving Certificate examination. The other provisions of the Act of 1998

referred to in subs. (5), s. 9(a) and s. 15(2)(g), relate to schools and to boards of management.

Section 5

16. Section 5(1) of the Act of 2000, which prohibits discrimination, inter alia, in the provision of a service, and which has not been

amended, provides:

“A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a

service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be

availed of only by a section of the public.”

However, subs. (2) of s. 5 in its original form went on to provide that subs. (1) “shall not apply in respect of” matters outlined at

paras. (a) to (l) inclusive in that sub-section, para. (h) being invoked by the Minister for present purposes. Paragraph (h), which has

not been amended, specifies –

“differences in the treatment of persons in a category of persons in respect of services that are provided for the principal

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

to the extent that the differences in treatment are reasonably necessary to promote those special interests, . . .”

The position of the Minister is that para. (h) of subs. (2) operates to exempt from the prohibition contained in subs. (1) positive

discrimination provided for the special interests of persons with a disability and, significantly, that it disapplies the operation of subs.

(1) against the Minister in this case.

Enforcement provisions

17. The enforcement provisions are contained in Part III of the Act of 2000. For present purposes it is only necessary to refer to s. 21

and s. 28. Section 21 in its original form provided as follows:

“A person who claims that prohibitive conduct has been directed against him or her may, subject to this section, seek

redress by referring the case to the Director”.

The Director was defined as the Director of Equality Investigations. That is the process which the Appellant’s father initiated in this

case in August 2001. Section 28(1) provides for an appeal against the decision on such application to the Circuit Court. In this case,

the Minister’s appeal to the Circuit Court against the decision of the Tribunal was brought under s. 28. Section 28(3) provides:

“No further appeal lies, other than an appeal to the High Court on a point of law.”

It has been held by this Court in Stokes v. Christian Brothers High School Clonmel [2015] 2 I.R. 509 (the Stokes case) that an appeal

does lie to this Court from an appeal to the High Court under s. 28(3) of the Act of 2000.

Interpretation of the Act of 2000

18. The long title to the Act of 2000 describes it as an “Act to promote equality and prohibit types of discrimination . . .”. Counsel for

the Minister do not dispute that the Act of 2000, as a remedial statute, is to be purposively interpreted, but submit that it is only if

the meaning of a particular provision is ambiguous or if an absurd result would follow that any departure from the literal approach to

interpretation should be taken, citing Equality Authority v. Portmarnock Golf Club [2010] 1 I.R. 671.

The function of the Court on an appeal under s. 28(3)

19. An important aspect of the Stokes case is that the function of the Court on an appeal under s. 28(3) is considered in the

judgment of Clarke J., where it is explained as follows (at para. 6.11):

“On the other hand, there are important features of s. 28(3) of the 2000 Act which need to be considered. The first is

that it is clear that the subsection is intended to permit only a limited form of appeal. The appeal is one ‘on a point of

law’. That is terminology which has been used to limit many forms of statutory appeal to, and within, the courts. . . . The

principles applicable to the scope of such appeals have been summarised by McKechnie J. in . . . Deely v. . . . Information

Commissioner [2001] 3 I.R. 439, which concerned an appeal under s. 42 of the Freedom of Information Act, 1997, where

he said at p. 452:

‘There is no doubt but that when a court is considering only a point of law, whether by way of a restricted appeal

or via a case stated, the distinction in my view being irrelevant, it is, in accordance with established principles,

confined as to its remit, in the manner following: –

(a) it cannot set aside findings of primary fact unless there is no evidence to support such findings;

(b) it ought not to set aside inferences drawn from such facts unless such inferences were ones which

no reasonable decision making body could draw;

(c) it can however, reverse such inferences, if the same were based on the interpretation of documents

and should do so if incorrect; and finally;

(d) if the conclusion reached by such bodies shows that they have taken an erroneous view of the law,

then that also is a ground for setting aside the resulting decision . . .’”

It is not disputed by the Appellant that the foregoing principles apply to this appeal, as was submitted on behalf of the Minister.

Identification of issues of law on the appeal

20. An unusual feature of this appeal is that it is contended on behalf of the Appellant that on the appeal to the High Court reasoned

findings of law were not made by the High Court judge in relation to the points of law which came before him and that, in relation to

what is characterised as the “key question”, that is to say, what is “reasonable accommodation” within the meaning of s. 4 of the Act

of 2000, he failed entirely to give that provision any real or proper meaning. Arising from those contentions, on the appeal to this

Court all of the grounds of appeal which had been advanced before the High Court are repeated in the notice of appeal, with some

additional grounds addressing the approach of the High Court judge in relation to the meaning of “reasonable” for the purposes of s. 4.

Accordingly, even though this is an appeal from the judgment and order of the High Court, I have come to the conclusion that, in the

interests of clarity and with the objective of identifying the issues on a point or points of law which this Court has to determine and

the order in which they should be determined, the proper course is, insofar as is necessary, to outline –

(a) the judgment of the Circuit Court judge, with particular reference to the identification of the issues by him, his

consideration of ss. 3, 4 and 5 of the Act of 2000 and the outcome of the appeal,

(b) the grounds of appeal advanced on the appeal to the High Court,

(c) the judgment of the High Court judge, and

(d) the additional grounds advanced on this appeal.

The issues which counsel for the parties submit require to be addressed by this Court will then be outlined, following which the issues

which I consider the Court should determine will be identified, as will the order in which they will be addressed in this judgment.

Circuit Court judgment

Identification of issues

21. As noted earlier, the hearing of the appeal from the Tribunal in the Circuit Court was on oral evidence and it is clear that a very

considerable amount of evidence was adduced in the Circuit Court which had not been presented to the Equality Officer. In his

judgment, the Circuit Court judge helpfully summarised the evidence. He then identified what he considered to be the net issue,

stating (at p. 82):

“The net issue in this case is as to whether the grant by the Department of an exemption from assessment in the core

element or elements of a subject in the Leaving Certificate examination, coupled with the inclusion on the resulting

certificate of an explanatory note describing the elements not assessed constitutes, in the case of a person with a

disability, prohibited discrimination against that person contrary to the provisions of the . . . Act of 2000.”

The Circuit Court judge then went on to address that issue sequentially by reference to ss. 3, 4 and 5 of the Act of 2000.

Section 3

22. In relation to the application of s. 3, having stated that the Claimants relied upon an alleged breach of s. 3(2)(g) based on less

favourable treatment between the Claimants, as persons with a disability, and those with either no disability or with a different

disability, the Circuit Court judge stated (at p. 84):

“I am prepared to accept that the Claimants were treated differently as persons with a disability when annotation was

placed on their certificates in the circumstances outlined above, and that a difference arises in relation to persons who

sat the same examination but who did not suffer from the same disability.”

He identified the sole issue arising as whether that treatment amounted to –

“. . . ‘less favourable’ treatment of the Claimants when contrasted with the comparator exam candidates, that is those

examination candidates without the same disability.”

That issue was addressed in two paragraphs, which are quoted in the High Court judgment, in which the Circuit Court judge stated

(at p. 85 and 86):

“In my view, different treatment is not synonymous with ‘less favourable’ treatment. If different treatment is what is

prohibited by the legislation then it would have expressly said so. The question that I have to ask myself is, can it be said

that the different treatment consisting of the application of a statement of fact, that essential portions of the

examination were not undertaken, means that the treatment is ‘less favourable’?

Having considered the matter at length, I do not think that this can be the case. The objective of equality cannot be served by

pretending that different things are the same. It seems to me that the object of equality is served by the prevention of

discrimination, and by mandating and directing the taking of all reasonable steps to ensure that the fact of disability does not prevent

a disabled person from participating in all aspects of social, economic and educational life.”

Having stated that “[n]o notations take place in relation to a disabled candidate, where the consideration afforded . . . does not

involve the exemption of a core element of the subject”, the Circuit Court judge then expressed the view that it could not be said

that the annotations arose “solely because of the existence of disability”. Rather they arose “out of concern as to the integrity of the

examination”.

23. In that context, the Circuit Court judge then addressed a particular matter which has been raised throughout the process, which,

to some extent, is a “red herring” in the context of the task of this Court, but, nonetheless, it is appropriate to advert to. He stated

(at p. 87):

“I accept that the Department has a genuine concern as to the integrity of the examination. I think the integrity of the

examination is not served by the failure to notate in relation to the case of a candidate who receives what has been

referred to in shorthand terms as ‘the Irish bonus’. However that fact does not seem to me to take away from or affect

my conclusion one way or the other in relation to the particular system of notation and exemption which has been

impugned by the Claimants in this case.”

Earlier, in the course of summarising the evidence of one of the witnesses called on behalf of the Minister, Aidan Farrell, the Director

of Operations in the State Examinations Commission, the “Irish bonus” was explained as the awarding of bonus marks to a candidate

who chose to undergo an examination in a State examination through the medium of Irish. The Circuit Court judge recorded that Mr.

Farrell’s evidence was that the notation was not needed because the nature of the examination was not changed when the candidate

was answering through Irish, unless to do so he or she also had a reasonable accommodation exemption. The Circuit Court judge then

made the following observations, which, although not having a bearing on the outcome of this appeal, are worthy of repetition, (at p.

50):

“. . . it may be that such cases are not notated because there is no accommodation sought, but it seems to me that if

integrity is at the forefront of the Department’s considerations, that there should be a change in the notation system in

respect of those Irish candidates, but that may be work for another day.”

Indeed, it is “work for another day”, but it is, nonetheless, a matter which it is appropriate to bring to the Minister’s attention.

24. Returning to the Circuit Court judge’s consideration of s. 3, he recorded that the evidence before the Circuit Court disclosed that

the system of exemption and annotation in issue on the appeal was “in accordance with universal international practice” and that

there was no evidence anywhere of a system which permitted an exemption without notation. Having expressed the view that “the

legislation” did not prohibit what was done in the Claimants’ cases, that is to say, the granting of the exemption coupled with the

annotation, in a passage referred to, and in part quoted, by the High Court judge, he went on to state (at p. 87 and 88):

“Less favourable treatment connotes treatment that arises due to a preference, and a preference arising on the basis of

a whim, a caprice, unreasonableness, bad faith, illogicality, irrationality, out of direct or indirect prejudice against the

disabled. I cannot find any element of these types of considerations in the treatment afforded in this case.

It seems to me that the system arose out of a considered rational and reasonable process. Nor in the overall sense do I find that

there was less favourable treatment accorded to each of the Claimants in this case, when viewed against the relevant comparators.

As I have said, I take an overall view of the treatment afforded to the two Claimants, on the one hand, and to exam candidates

undergoing the same examination with no disability, on the other.”

It is important to emphasise that those observations were made in the context of the application of s. 3(1) to the Claimants, not the

application of s. 4(1).

25. The Circuit Court judge then outlined the basis on which he had reached the foregoing conclusions. First, he observed that the

end user of a certificate is entitled to know whether all parts of the examination have been performed. Secondly, he observed that, if

apprehended discrimination of the type suggested by the Claimants was actually established in any particular case, the subject of the

discrimination would have ready and immediate remedies available under the suite of equality legislation which is now part of the law

of this country. Thirdly, the Claimants had taken too negative a view of the possible effect of the annotations and, in particular, of

the issue of forced disclosure. Having referred to the evidence before him as to the difficulties that might be engendered by non-

disclosure, he stated that he accepted that disclosure is generally beneficial to both the individual and to the public generally and he

further stated that he did not accept the argument that “forced disclosure” was an unlawful discrimination against the Claimants.

Section 4

26. In relation to the application of s. 4, the Circuit Court judge’s opening observations (at p. 92) were that he had considerable

doubts as to whether or not the claims of the Claimants before him were admissible under s. 4, having regard to subs. (5) of s. 4 and

s. 7 of the Act of 1998, each of which provisions he quoted. He continued (at p. 93):

“It seems to me that that in fact serves to exempt the Minister in relation to the exercise of her discretion in providing for

students with a disability or other special educational needs from the operation of s. 4(1) of the Act [of 2000].”

Accordingly, he overruled the finding of the Equality Officer in relation to the application of s. 4(5). However, stating that the point

had not been very strongly argued and lest he was incorrect in holding that s. 4(1) should not be considered, he went on to “deal

with whether or not the system in question in fact falls foul of the provisions of s. 4(1)”. The position of the Appellant on this appeal

is that the core of this appeal is the Circuit Court judge’s consideration of whether the provision of an exemption coupled with an

annotation was in fact “reasonable accommodation” under s. 4(1) because, it is asserted, he defined the notion of reasonable

accommodation in a very limited manner.

27. In his consideration of s. 4(1), the Circuit Court judge stated (at p. 94) that the sole issue was “whether the system of waiver or

notation constitutes a refusal to provide a ‘reasonable accommodation’ in respect of the Claimants’ needs”. Having stated that “the

reasonableness of these accommodations” falls to be judged “by reference to the content and context in which they were provided”

and also that “the concept of reasonableness in providing accommodation does not command the Minister to reach a standard of

perfection, but rather leaves to the Minister a measure of discretion or appreciation in deciding how these obligations are to be

discharged”, he went on to explain the meaning of “reasonableness” in that context, stating (at p. 95):

“I believe that reasonableness implies that whatever decision is reached by the Minister, it must be based on the

application of reason to the evidence and information available to those charged with devising a reasonable scheme of

accommodations. Such a decision must not be at variance with reason or common sense. It should not be based on

irrelevant considerations nor should it be directed to an improper purpose.”

28. Having rejected the arguments advanced by the Claimants that the requirement of the Act of 2000 could only be met by providing

accommodation in all cases, including those where exemptions are granted in relation to the core element, without any subsequent

annotation, and having once again alluded to the evidence of expert witnesses called on behalf of the Minister, the Circuit Court

judge stated (at p. 96 and 97):

“. . . I believe that the decision was based on a reasoned and reasonable process, wherein all of the arguments and

evidence on both sides of the issue were canvassed.

I also believe that the system of waiver and notation is a reasonable response by the Department to the needs in question. I am

fortified in this conclusion by the evidence of international practice given by the aforementioned witnesses, and their conclusion in a

general sense rather than in the sense referred to in the section, that the approach of the Department was a reasonable or generous

approach, as it was described by one witness.

I do not think that it would be reasonable to require the Department to provide waivers without annotation in the light of the

evidence given to me on this point; that this has not been done anywhere else in the world.”

Section 5

29. The Circuit Court judge’s opening observation (at p. 99) in relation to s. 5(1) was that, in the light of his findings in relation to s.

3 and s. 4, he did not find that there was any breach of the prohibition contained in s. 5(1). However, once again, lest he was wrong

on that, he went on to state that he believed that the system adopted by the Department would be saved by an application of the

provision in s. 5(2)(h), which he stated “exempts” s. 5(1) –

“. . . from application to differences in treatment provided for the principal purpose of promoting a bona fide purpose in a

bona fide manner the special interests of a category of persons.”

He stated that “that is exactly what the Department attempted to do in this case for a bona fide purpose, being the accommodation

of dyslexic candidates, in a bona fide manner”. He specifically stated that he wanted “to place on record” that, if he was wrong in

finding that there was an absence of discrimination in relation to s. 5, he would regard subs. (2) “as exempting the Department in the

matter”. Accordingly, once again, he overruled the Equality Officer, who had concluded that s. 5(2)(h) did not provide a defence for

the Minister.

Outcome of appeal

30. For the foregoing reasons, the Circuit Court judge said that the challenge to the impugned system was unsuccessful. He allowed

the appeals and he set aside the awards of the Equality Officer on both claims. In the order of the Circuit Court made on 19th

October, 2007 it was ordered that the decision of the Tribunal be set aside.

Grounds of appeal from Circuit Court to High Court

31. The solicitor for the Equality Authority on 26th October, 2007 filed an appeal on behalf of the Appellant to the High Court from so

much of the judgment of the Circuit Court judge as construed ss. 3, 4 and 5 of the Act of 2000, it being asserted that the Circuit

Court judge erred on five grounds.

32. The first error asserted was in relation to the interpretation and application of the concept of “less favourable treatment”,

obviously referring to s. 3 of the Act of 2000, it being asserted that the Circuit Court judge erred in law in concluding that:

(a) candidates who receive an exemption are treated differently but not less favourably than those who did not, by virtue

of the consequent annotation of their certificates of results;

(b) the said different treatment is not prohibited under the Act of 2000; and

(c) less favourable treatment connotes treatment that arises due to preference, and a preference arising on the basis of

a whim, a caprice, unreasonableness, bad faith, illogicality, irrationality, out of direct or indirect prejudice against the

disabled.

33. Secondly, it was asserted that the Circuit Court judge erred in the interpretation and application of s. 4(5) of the Act of 2000, in

construing that provision in such a manner as to exempt the Minister, in relation to the exercise of her discretion in providing for

students with a disability or other special education needs, from the operation of s. 4(1) of the Act of 2000.

34. Thirdly, it was asserted that the Circuit Court judge erred in the interpretation and application of the concept of “reasonable

accommodation” within the meaning of the Act of 2000, obviously referring to s. 4(1), in concluding that:

(a) the system of waiver or notation does not constitute a refusal or failure to provide a reasonable accommodation in

respect of the Appellant’s needs;

(b) the reasonableness of the accommodations falls to be judged by reference to the content and context in which they

were provided and require that whatever decision is reached by the Minister, it must be based on the application of

reason to the evidence and information available to those charged with devising a reasonable scheme of accommodation;

(c) the test of what constitutes “reasonable accommodation” is whether it is at variance with reason and common sense,

based on irrelevant considerations or directed to an improper purpose;

(d) the decision to annotate constitutes a “reasonable accommodation” because it was based on a reasoned and

reasonable process, wherein all of the arguments and the evidence on both sides of the issue were canvassed;

(e) it would not be reasonable to require the Department to provide waivers with annotation in the light of the evidence

on this point.

35. The fourth error asserted was that, in addressing the substance of s. 4, the Circuit Court judge fell into error in equating

“reasonable” with the “reasonableness” test in administrative law.

36. Fifthly, it was asserted that the Circuit Court judge misinterpreted the true meaning and effect of s. 5(2)(h) of the Act of 2000

and erred in law in concluding that the system adopted by the Minister would be saved by an application of that provision, thereby

exempting s. 5(1) from application to differences in treatment provided for the principal purpose of promoting, for a bona fide purpose

in a bona fide manner, the special interests of a category of persons.

The judgment of the High Court

37. In his judgment, the High Court judge outlined the submissions made in the High Court on behalf of both the Appellant and the

Minister. He referred to the grounds of appeal advanced on behalf of the Appellant. In doing so (at p. 6 and 7) he did not list the

fourth ground outlined earlier as to the “reasonable” test. However, he did refer to it later (at p. 8). He also quoted the relevant

provisions of the Act of 2000.

38. The High Court judge set out his decision (at p. 18 et seq.) in very general terms and without specifically distinguishing the issues

he addressed by reference to the relevant provisions of the Act of 2000. He saw his task as having to determine –

“. . . whether the appellant in this case was entitled to an exemption without annotation or whether the granting of the

exemption, with annotation, was a breach of the Act.”

It is only fair to record that immediately preceding that statement he recognised that the issue he had to determine was whether the

system of providing the exemption coupled with the annotation –

“. . . amounts to ‘unfavourable treatment’ (sic) of those students who seek and obtain such exemptions or whether it

amounts to a failure to provide ‘reasonable accommodation’ for such students.”

Thus, he implicitly recognised the distinction between s. 3(1) and s. 4(1).

39. However, counsel for the Appellant argue that the High Court judge’s approach to the whole question of discrimination against the

Appellant was from the perspective of the integrity of the examination system and that such was his approach from the outset

because, after having identified his task, he stated (at p. 18):

“However, it appears to me, on the basis of the evidence, that one cannot have an exemption of the type sought and

obtained by the appellant in this case without some indication that such an exemption has been given. Such a scenario

would be unacceptable.”

The High Court judge went on to state that no legal system anywhere in the world, according to the evidence, considers some form

of accommodation without some indication of the accommodation having been made.

40. Indeed, the main thrust of what follows over the next two pages of the judgment is similar. For instance, it is stated (at p. 19):

“Not to have mentioned that an accommodation of the type granted here was given could adversely affect the integrity

of the Leaving Certificate examination process. The accommodation granted in this case was, in all the circumstances, a

reasonable accommodation and it follows that an annotation to reflect that accommodation was also reasonable.

Moreover, it was necessary that the reputation of the examination be preserved.”

That passage also highlights another argument which is advanced on behalf of the Appellant. It is argued that the High Court judge

did not explain what he meant by the term “reasonable” in the particular contexts in which he used it in the judgment. It is suggested

that the logic and rationale of his approach, other than to rely on the need to protect the integrity of the examination process, is

difficult to identify. The High Court judge did, however, point out (at p. 20) that the Appellant’s level of attainment in the spelling and

punctuation elements of English and the spelling and grammar elements of her other language subjects had not been tested at

Leaving Certificate level. Having noted that there were a wide range of accommodations available in the Leaving Certificate

examination to a person with dyslexia, including, for example, the use of a word processor, he stated:

“The nature of an accommodation in any given case is important in terms of whether or not annotation will be required in

the resulting certificate. Some accommodations will require annotations and others will not. That is not discriminatory,

that is a matter of common sense and a reasonable approach to take to the issue of accommodation generally.”

41. Later, having reiterated his view that the annotation was reasonable, particularly in the light of the internationally recognised

practice in the area, the High Court judge stated (at p. 21) that, in reaching that conclusion he had regard to the extensive case law

relied on by the Appellant on the constitutional protection of equality of rights. He continued:

“Nowhere in that case law is there any suggestion to the effect that equality rights must be absolutely guaranteed

without limitation in the name of reasonableness even in cases where the requirements of reason and common sense

require the taking of some action which may not be to the complete satisfaction of the person asserting them, in this

matter the plaintiff. It appears to me to be a question of balance and that the contention advanced on the part of the

appellant invites the Court to embrace an unreasonable definition of ‘reasonable accommodation’ which tips the balance

too far in favour of the appellant to the detriment of other parties with a legitimate interest in the fair and equitable

administration of the Leaving Certificate examination.”

In the succeeding paragraph, the High Court judge once again emphasised that:

“. . . any absence of notation of an accommodation having been made which resulted in certain matters not being

assessed would call the integrity of the examination into question.”

At the end of that paragraph he stated that “. . . the practice of annotation operated by the Department . . . is reasonable in this

regard”, again, as counsel for the Appellant submit, without explaining what he meant by reasonable in this particular context.

42. In the penultimate paragraph of the judgment, the High Court judge stated (at p. 22 and 23):

“I am satisfied that the respondent acted at all times in accordance with international best standards in the annotation of

the appellant's Leaving Certificate and that any failure to record an accommodation that alters the assessment of

fundamental elements of a subject would adversely affect the integrity of the testing process - it would essentially defeat

the purpose of having examinations in the first place. I am equally satisfied that the learned Circuit Court Judge did not

err in law in his thorough assessment of the meaning of ‘less favourable treatment’ or in any other respect as advanced

on behalf of the appellant and I accept the respondent's contention that [the Circuit Court judge] applied the correct

test under s. 3 [of the Act of 2000].”

The reference to s. 3 at the end of that passage is the only reference to a section of the Act of 2000 in the decision segment (i.e. p.

18 et seq.) of the judgment. In particular, there is no mention of s. 4, although whether there was provision of “reasonable

accommodation” was considered earlier, as has been outlined.

43. Counsel for the Appellant point to the words “in any other respect” in the last sentence in the quotation in the next preceding

paragraph as suggesting that the High Court judge was upholding the decision of the Circuit Court judge in relation to the grounds of

appeal secondly (the application of s. 4(5)) and fifthly (the effect of s. 5(2)(h)) referred to earlier, neither of which was addressed in

the High Court judgment. In general, I think the submission of counsel for the Appellant that the judgment of the High Court does not

identify the precise ambit and scope of the legal tests, which it was found the Circuit Court judge had properly applied, is correct.

Grounds advanced on the appeal to this Court

44. In the circumstances commented on in the next preceding paragraph, I am satisfied that counsel for the Appellant are justified in

pursuing on this appeal all of the grounds of appeal which they pursued in the High Court. In the notice of appeal filed on behalf of

the Appellant on the appeal to this Court, the Appellant elaborated to some extent on the grounds advanced on the appeal to the

High Court, by and large, attacking the High Court judge’s broad acceptance of the determinations of the Circuit Court judge, which it

is contended is erroneous. There is one additional ground on the application of s. 4 of the Act of 2000, which relates specifically to

what is stated in the judgment of the High Court. It is asserted that, from the endorsement by the trial judge of the decision of the

Circuit Court and his repeated reference to “reason and commonsense”, the High Court judge wrongly applied the same administrative

law type reasonableness standard to the determination of whether “reasonable accommodation” had been provided to the Appellant

as it is asserted the Circuit Court judge had wrongly applied.

Issues

45. Emphasising the importance that the true meaning and effect of ss. 3, 4 and 5 of the Act of 2000 be established authoritatively,

and suggesting that the interpretation of those provisions by the Circuit Court, as affirmed by the High Court, severely curtails the

scope and effectiveness of the protection against discrimination provided in Irish law in a manner which is unwarranted by the

statutory language and context, and having regard to the fact that the legislation was introduced against the background of a strong

constitutional protection of equality rights, counsel for the Appellant list four legal issues of concern on the appeal. These are:

(a) the proper interpretation of “less favourable treatment” under s. 3 (the section 3 issue);

(b) the scope of the substantive protections available in the duty to provide “reasonable accommodation” under s. 4(1)

(the section 4(1) issue);

(c) whether the Minister is exempt from the obligation to provide reasonable accommodation by virtue of s. 4(5) (the

section 4(5) issue); and

(d) whether the Minister, as the provider of a service to the public, is exempt from the obligation of non-discrimination

under s. 5(1) by reason of s. 5(2)(h) (the section 5 issue).

46. It is instructive to outline at this juncture the answers which counsel for the Appellant advocate that the Court should give to

each of those issues in their written submissions. They are:

(a) as regards the section 3 issue, that it should be construed as protecting not only against less favourable treatment

which is motivated by “improper” considerations, but also as protecting against the effect or impact of a policy, however

well-meaning or intentioned;

(b) as regards the section 4(1) issue, that the protection provided by section 4(1) is substantive and cannot properly be

equated with the requirements of reasonableness in an administrative law context but derives more from principles of

constitutional law and the duty to vindicate fundamental rights and to protect against unjust attack;

(c) as regards the section 4(5) issue, that the sub-section does not have the effect of exempting the Minister from the

requirements to provide reasonable accommodation; and

(d) as regards the section 5 issue, that section 5(2)(h) should be interpreted as having the effect that, in cases where

positive discrimination occurs for a bona fide purpose, those who do not fall into the category benefiting cannot complain

of discrimination.

47. It is hardly necessary to observe that this judgment is not intended to be a treatise on the general interpretation and application

of ss. 3, 4 and 5 of the Act of 2000. Rather, it is limited, as is appropriate, to the application of those provisions and of the legal

principles relevant to the matters in dispute between the Appellant and the Minister, which from the outset, as is clear from the Form

ODEI 5, was that the annotation of the certificate to disclose the existence of the waiver was discriminatory. Accordingly, I propose

considering the issues in the following order:

(a) the section 4(5) issue;

(b) the section 5 issue;

(c) the section 4(1) issue; and

(d) the section 3 issue.

The rationale of considering the section 4(5) issue first is obvious: if section 4(5) is applicable, it is not necessary to consider the

section 4(1) issue. Similarly, if the prohibition in section 5(1) is disapplied by virtue of section 5(2)(h), it is not necessary to consider

whether there has been discrimination within the meaning of either section 3(1) or section 4(1). However, section 5(2)(h) must be

construed in the context of section 3 and section 4. Therefore, notwithstanding that it will not be possible to come to a definitive

conclusion as to the application of s. 5(2)(h) at that stage, it is useful to consider the basis of the Minister’s reliance on section 5(2)

(h) before considering the section 4(1) issue and the section 3 issue.

Section 4(5) issue

48. It is very difficult to understand why the Minister has continued on this appeal to persist in the argument, which at the first stage

in the process had been rejected by the Equality Officer although upheld by the Circuit Court judge on the appeal to the Circuit Court,

that subs. (5) of s. 4 precludes the Appellant from invoking against the Minister in this case an allegation of discrimination pursuant to

subs. (1) of s. 4, when it is glaringly obvious that the Minister, in so doing, is misinterpreting the meaning of the words “without

prejudice to” in subs. (5) of s. 4.

49. Although I do not propose engaging in one controversy which has arisen from the respective submissions of the parties, that is to

say, whether s. 7 of the Act of 1998 imposes positive duties on the Minister, I consider that, in general, the interpretation of, and the

explanation of the necessity for, subs. (5) as suggested by counsel for the Appellant are correct. It is submitted that the fact that

subs. (5) is expressed to be “without prejudice” to s. 7(2)(a) of the Act of 1998 is intended to reflect that s. 4 does not dilute the

functions of the Minister specified in s. 7(2)(a). To illustrate the point, it is noted that there is nothing similar to what is described as

the “nominal cost” threshold provided for in s. 4(2) available under s. 7(2)(a). As I understand the submission made on behalf of the

Appellant, it is that the inclusion of subs. (5) in s. 4 was to obviate any uncertainty as to the Minister’s function under s. 7(2)(a) of

the Act of 1998 to provide support services to, inter alia, students who have a disability and, in particular, any uncertainty which

might arise by reason of the existence of the “nominal cost” threshold provided for in subs. (2) of s. 4 in relation to subs. (1) of s. 4.

50. While agreeing with the Appellant’s reasoning, it seems to me that a much simpler approach to the proper interpretation of subs.

(5) is open, that is to say, to identify the plain meaning of the words “without prejudice to” in subs. (5). The Oxford Dictionary of

English (http://www.oxforddictionaries.com/) defines “without prejudice” as meaning “without detriment to any existing right or

claim”. What subs. (5) says is that s. 4, including subs. (2), is not to be read as being prejudicial or detrimental to the rights and

claims of beneficiaries of the exercise of the statutory functions of the Minister, or of recognised schools and boards of management

as specified in the provisions of the Act of 1998 identified in subs. (5).

51. In short, the Appellant is not precluded from invoking the provisions of s. 4 by reason of the existence of subs. (5) of s. 4 and the

Minister is not exempt from the obligation to provide reasonable accommodation in compliance with subs. (1) of s. 4.

Section 5 issue

52. Probably one should not be surprised that at this appeal stage, which is the fourth stage in a process which has been ongoing for

almost sixteen years, sight may be lost of the nature of the claim at the heart of the proceedings. The Appellant’s claim to the

Tribunal was for redress on the basis that prohibited conduct had been directed against her by the Minister. The alleged prohibited

conduct was conduct prohibited by s. 5(1) of the Act of 2000 which mandates that a person shall not discriminate, inter alia, in

providing a service. As has been pointed out earlier, in the Act of 2000 “discriminate” is defined as discriminating within the meaning

of s. 3(1) or s. 4(1). As counsel for the Minister correctly point out, s. 4 does not constitute a separate prohibition on discrimination

in addition to that provided by s. 5(1), and the same applies to s. 3. Both of those sections define the scope of the meaning of to

“discriminate”. Accordingly, in order to determine what is prohibited by s. 5(1), it is necessary to apply the provisions of either or both

of s. 3(1) and s. 4(1). Even if it is determined that there has been conduct which amounts to discrimination under s. 3(1) or s. 4(1),

the prohibition under s. 5(1) will not apply if the conduct or activity comes within any of the twelve types of conduct itemised in s.

5(2) in its original form. The Minister’s position is that what is alleged by the Appellant in this case to constitute discrimination comes

within paragraph (h) of s. 5(2), which has been quoted earlier, and, accordingly, s. 5(1) is disapplied. Crucial to that contention is the

argument that the special treatment which the Appellant received, comprising the waiver coupled with the annotation, which it is

suggested are inextricably linked, was for the principal purpose of promoting the special interests of a person with a disability, namely,

the Appellant, for a bona fide purpose and in a bona fide manner.

53. The “differences in treatment” envisaged in paragraph (h) of s. 5(2) are obviously acts of bona fide positive discrimination. As a

general proposition, there is logic in bona fide positive discrimination not being prohibited in an equality status context. Counsel for

the Appellant interpret the effect of the finding of the Circuit Court, which was affirmed by the High Court, as that a provision

designed to allow differential treatment to promote the special interests of a category of persons, which it is assumed would normally

be likely to be the subject of discrimination, may be relied upon to discriminate against the very category of persons whose interests

the action was designed to promote, which they suggest is inherently illogical. They suggest that a more straightforward reading of s.

5(2)(h) would be to the effect that, in cases where positive discrimination occurs for a bona fide purpose, those who do not fall into

the category of persons benefiting cannot complain of discrimination, which is an attractive proposition.

54. However, the real controversy between the Appellant and the Minister on the application of s. 5 by reference to s. 4 and s. 3 is

whether the waiver and the annotation are inextricably linked. The position of the Appellant is that it is not the accommodation, that

is to say, the waiver, which is challenged but the annotation and the fact that one is not available without the other. The whole

thrust of the Appellant’s case is that what is required is a waiver without annotation and that the inclusion of the annotation is

discriminatory. While it is acknowledged that the waiver benefits the student, the Appellant’s contention is that the annotation

provides no benefit and is not a preferential treatment of a type which s. 5(2)(h) was designed to exempt from the application of s.

5(1). The position of the Minister in response is that the Appellant’s argument has no logic because the service being provided by the

Minister is the assessment of the educational achievement and the certification of the result and that, absent an annotation, a

waiver of portion of the examination would be the equivalent of certifying achievement across the entire portion of the syllabus.

Further, counsel for the Minister argue against the contention that the annotation provides no benefit to the Appellant and, in

support of that argument, they resort to the expert evidence given in the Circuit Court that secrecy and hiding of a disability is not in

the best interests of a person with dyslexia, which evidence was accepted by the Circuit Court judge.

55. Of course, the controversy between the Minister and the Appellant as to whether or not the waiver and the annotation are

inextricably linked primarily arises on the application of s. 4(1) and s. 3(1) in determining whether the Minister has discriminated

against the Appellant. If the Minister did not discriminate against the Appellant within the meaning of either s. 4(1) or s. 3(1), then s.

5(1) has no application and the question of the disapplication of s. 5(1) by s. 5(2)(h) does not arise. However, even at this juncture,

a rather peculiar, but obviously unintentional, aspect of the Minister’s reliance on s. 5(2)(h) and on the decisions of the Circuit Court

and the High Court on its application is discernible in certain interesting observations in the leading academic commentary on the Act

of 2000, Walsh on Equal Status Acts 2000 – 2011 (Blackhall Publishing, 2012), on the decisions at the earlier stages in these

proceedings, that is to say, the decision of the Equality Officer and the decisions of the Circuit Court and the High Court on appeal.

To put those observations in perspective, it is useful to refer to what is stated by the author in relation to the decisions in addressing

the scope of the Act of 2000 and, in particular, in analysing s. 5(2)(h). It is stated (at p. 72):

“The Tribunal found that the annotation was discriminatory; the reasonable accommodation afforded students through a

grammar waiver in some subjects was not preferential treatment or positive action but simply a non-discrimination

measure. Neither the waiver nor the annotation could be regarded as promoting the special interests of the students.

However, on the appeal the Circuit Court found that the system was designed to promote those interests as envisaged

under section 5(2)(h). The matter subsequently came before the High Court which found that the Circuit Court had

applied the law correctly in arriving at its decision but did not specifically address the meaning of section 5(2)(h).”

56. The interesting observations to which reference is made in the next preceding paragraph are to be found in the later analysis by

the author of the decisions of the Circuit Court and the High Court in the context of the meaning of “reasonable accommodation” in s.

4, including the finding of the Circuit Court judge that, even if there had been discrimination, the provision in s. 5(2)(h) would have

exempted the Department’s system from the general prohibition on discrimination. As a preamble to the following analysis of the

decisions of the Circuit Court and the High Court, it is stated (at p. 247) that this case illustrates the courts’ approach to the

boundary between reasonable accommodation and an impermissible form of positive discrimination. It is stated that, in effect, the

Circuit Court suggests that failing to annotate would confer an unfair advantage on the Claimants. As regards the decision of the High

Court, it is stated that the High Court judge distinguished between various forms of reasonable accommodation afforded to students

sitting state examinations. Some accommodations, such as granting a student additional time or enabling the use of assistive

technology, would not require annotation because they would not affect the assessment of a fundamental skill such as spelling,

grammar and punctuation. However, the annotation in this case was a necessary consequence of the waiver. Further, the High Court

judge had regard to internationally recognised practice, and case law from other countries, which led to his conclusion that the

annotation was not discriminatory, but was a measure that was required to preserve the integrity of the examination. The author

then makes the following observations on the basis of the foregoing analysis (at p. 247):

“The net effect of the litigation is that the system of annotating Leaving Certificates to signal that a grammar waiver was

applied should not be regarded as reasonable accommodation as provided for under the [Act of 2000]. Failure to comply

with the section 4 duty is expressly defined as a form of discrimination, and so ought not to be seen as a ‘special’ or

exceptional measure to which conditions may be attached.”

While I have some misgivings about the first sentence in that quotation, the second sentence is of interest, as is what follows it.

57. Apparently, in support of what is stated in the second sentence, the author then goes on to quote from a document referred to

as “European Commission, 2009a, p. 27”, the title of which is given (at p. 360) as “International Perspectives on Positive Action

Measures: A Comparative Analysis in the European Union, Canada, the United States and South Africa” (Luxembourg: Office for

Official Publications of the European Communities). The passage quoted, omitting footnotes, is as follows:

“At first glance it may seem that the obligation to provide for a ‘reasonable accommodation’ is a particular form of positive

action, as it provides for ‘advantages’ to individuals who fall within the group of persons with a disability. However, this

impression is misleading and the obligation to provide for a reasonable accommodation can better be characterised as a

particular kind of non-discrimination legislative provision, related to, but not synonymous with, the established forms of

direct and indirect discrimination . . .”

The footnotes disclose that the reference to “reasonable accommodation” in that passage is to reasonable accommodation as

provided for in, inter alia, Article 5 of Directive 2000/78/EC, which is quoted later. That analysis of Article 5, in my view, is equally

applicable to the implied obligation to provide for reasonable accommodation in s. 4(1) of the Act of 2000, which may be properly

characterised as a particular kind of non-discrimination legislative provision.

58. Those observations highlight something of an absurdity in the Minister’s invocation of s. 5(2)(h) to disapply s. 5(1). The kernel of

the Minister’s answer to the Appellant’s claim that she was discriminated against is that there has been no breach by the Minister, as

the provider of a service, of the obligation imposed by s. 4 of the Act of 2000 for avoiding discriminating, that is to say, to do all that

is reasonable to accommodate the needs of the Appellant as a dyslexic person in relation to the Leaving Certificate examination and

the certification of the result thereof, which it is contended the Minister did in giving the Appellant the waiver coupled with the

annotation in relation to the language subjects. Accordingly, the Minister’s position is that he is not liable for the form of

discrimination which would arise from the failure to comply with that obligation imposed by s. 4(1). If the Minister is correct that the

action of giving the Appellant the waiver coupled with the annotation has avoided liability to the Appellant for the form of

discrimination legislated for in s. 4(1), it is difficult to see how it could be argued that the Oireachtas intended that the same action

would give rise to an exemption in favour of the service provider by reference to s. 5(2)(h) from the prohibition on discrimination in s.

5(1), given that the necessity for such exemption, presumably, is premised on the understanding that without it there would be

prohibited discrimination by the Minister.

59. While, of course, the Minister is in the position of having to answer a claim by the Appellant that she has been discriminated

against within the meaning of both s. 4(1) and s. 3(1) by the Minister, as the provider of a service to her, and while s. 4(1) applies

only to discrimination on the ground of disability, whereas s. 3 applies to discrimination more generally, but, significantly, the Appellant

only relies on the disability ground, having regard to the kernel of the Minister’s defence to the Appellant’s claim as outlined earlier,

that there has been no failure on the part of the Minister to comply with the requirement provided for in s. 4(1), it seems to me that

the Minister’s invocation of s. 5(2)(h), which is based on the assumption that there has been discrimination, is misconceived.

Therefore, I consider that the proper course is to consider the application of s. 4(1) and s. 3(1) without expressing any definitive

view on the effect of s. 5(2)(h) generally.

60. I propose to consider the application of s. 4(1) next. As s. 4(1) specifically addresses discrimination on the ground of disability,

which is the ground relied on by the Appellant in invoking s. 3(1), it seems logical to consider it before considering the more general

meaning of discrimination on a range of grounds, including the disability ground, in s. 3(1).

Section 4(1) issue

61. It will be recalled that the Appellant contends that both the Circuit Court judge and the High Court judge applied the wrong test

in the application of s. 4(1), it being contended that at both levels the administrative law reasonableness standard was wrongly

applied to determine whether reasonable accommodation had been provided to the Appellant in accordance with s. 4(1). The position

of the Minister is that, in advancing that argument, the Appellant mischaracterises what happened at both levels in the courts below.

It is submitted that the Circuit Court judge correctly posited a test which required a balancing exercise and a judgment on the facts

of the particular case as to whether reasonable accommodation was provided. Further, it is submitted that the legal test thus applied

is correct in law. While some of the observations of the Circuit Court judge quoted earlier are resonant of the judicial review

reasonableness test, what is of more relevance for consideration now is what each side submits as to the proper construction of s.

4(1) and how that is reflected in the judgments of the Circuit Court and the High Court.

62. In their submissions, counsel on both sides have endeavoured to assist the Court in the task of interpreting s. 4(1) and its

application to the facts in this case by reference to European Union law, international law and authorities from other jurisdictions.

63. Both sides refer the Court to Directive 2000/78/EC, which is known as the Framework Employment Directive. Counsel on each side

referred to Article 5 thereof, which sets out the concept of reasonable accommodation and provides:

“In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable

accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a

particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to

undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be

disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the

Member State concerned.”

64. The Court is also referred by both sides to the United Nations Convention on the Rights of Persons with Disabilities (the UN

Convention), which was ratified by the European Union on 23rd December, 2010, but has not yet been ratified in this jurisdiction,

although the intention of the Government as originally outlined was to put the legislation to ratify it before the Oireachtas before the

end of 2016. In fact, when on 20th December, 2016 the Disability (Miscellaneous Provisions) Bill 2016 was published by the Minister

for Justice and Equality, it was announced by the Minister that its primary purpose is to address the remaining legislative barriers to

Ireland’s ratification of the UN Convention. That Bill is still winding its way through the Oireachtas, although the Government’s

commitment to ratification of the UN Convention is consistently made clear. The UN Convention provides for reasonable

accommodation, which is defined as –

“. . . necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where

needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others

of all human rights and fundamental freedoms.”

65. There is obviously a degree of similarity between s. 4(1), on the one hand, and Article 5 and the definition of reasonable

accommodation in the UN Convention, on the other hand, but there are also differences. For example, the relevant requirement of

reasonable accommodation or necessary and appropriate adjustments is imposed in different contexts in that, in the case of Article 5,

it is in the context of employment, whereas, in the case of the application of s. 4(1) on this appeal, it is in the context of the

provision of a service. Another difference is the express reference in Article 5 to “disproportionate burden” and in the UN Convention

to “disproportionate or undue burden”, whereas the only express qualification on s. 4(1) which points to a burden on the service

provider is s. 4(2), which merely limits the burden by providing for a “nominal cost” threshold. However, the primary issue which arises

on the application of s. 4(1) in any case is what is the correct interpretation of the requirement to do “all that is reasonable” to

accommodate the needs of the disabled person in the circumstances outlined in the sub-section. That the service provider is only

required to do “all that is reasonable”, in my view, imports the concept of proportionality into s. 4(1), subject, however, to the cost

limitation in s. 4(2) and subject also to the provision of special treatment or facilities being expressly limited to enabling the disabled

person to avail of the service or to do so without undue difficulty.

66. Counsel for the Minister place particular emphasis on a relatively recent judgment of the Court of Justice of the European Union

(CJEU) in Joined Cases C – 335/11 and C – 337/11, Ring and Skoube Werge v. Dansk almennyttight Boligselskab EU: C: 2013: 222 (the

Ring and Skoube Werge case), in which requests for a preliminary ruling in the interpretation of certain articles of the Framework

Employment Directive, including Article 5, were addressed. In a judgment delivered on 11th April, 2013, the CJEU ruled that, as the UN

Convention is an international agreement concluded by the European Union, it is binding on all institutions and all European Union law,

including the Framework Employment Directive, must be interpreted as far as possible consistently with the UN Convention. Having

quoted the definition of “reasonable accommodation” in the UN Convention, the Court stated (at paras. 53 and 54):

“It follows that that provision prescribes a broad definition of the concept of ‘reasonable accommodation’. . . .

Thus, with respect to Directive 2000/78, that concept must be understood as referring to the elimination of the various barriers that

hinder the full and effective participation of persons with disabilities in professional life on an equal basis with other workers.”

However, the Court pointed out that, in accordance with Article 5 of the Directive quoted earlier, the accommodations which persons

with disabilities are entitled to must be reasonable, in that they must not constitute a disproportionate burden on the employer.

67. Counsel for the Minister suggest that the decision of the CJEU should be of assistance to this Court in interpreting the concept of

reasonable accommodation in s. 4(1). It is submitted that any interpretation which draws down concepts of reasonable

accommodation at European Union level must also draw down the balancing provisions, which provide for weighing of measures to

reasonably accommodate those with disabilities with the policy of the Member States, the protection of rights and freedoms of others

and the ability of the person upon whom the obligation is imposed to meet it. It is emphasised that, although this Court is urged on

behalf of the Appellant to apply European Union and international human rights norms to produce a purposive approach to the

interpretation of reasonable accommodation, in the Appellant’s submissions there is no reference to the balancing approach which is

part and parcel of European Union and international law.

68. It is submitted on behalf of the Appellant that the Court might derive some assistance as to the correct approach to the

substantive protection available under s. 4(1) from the approach adopted by the courts in the United Kingdom in relation to the

obligation to make “reasonable adjustments” under the Disability Discrimination Act, 1995 (the UK Act of 1995). I propose only

considering the one decision of the House of Lords which is cited: Archibald v. Fife Council [2004] 4 All ER 303 (the Archibald case).

The matter before the House of Lords in that case concerned the proper construction of certain provisions of the UK Act of 1995

which dealt with discrimination in employment. Section 5 identified, in the words of Baroness Hale of Richmond, two sorts of

discrimination. Section 5(1) dealt with less favourable treatment for a reason related to the person’s disability, where the employer

could not show that the treatment in question was justified. Section 5(2) identified as discrimination the failure of an employer to

comply with “a section 6 duty imposed on him in relation to the disabled person” to make adjustments, where he could not show that

the failure to comply with the duty was justified. Section 6 was a fairly comprehensive provision. Sub-section (1) provided that,

where any arrangements made by or on behalf of an employer placed the disabled person at a substantial disadvantage in comparison

with persons who were not disabled, it was “the duty of the employer to take such steps as it is reasonable, in all the circumstances

of the case, for him to have to take in order to prevent the arrangements . . . having that effect”. Examples of the steps which an

employer might have to take were set out in subs. (3), which included “transferring him to fill an existing vacancy”. Sub-section (4)

itemised a number of factors to which regard should be had in determining whether it was reasonable for the employer to have to take

a particular step. The factors included the extent to which it was practicable for the employer to take the step, the financial and

other costs which would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of his

activities. Sub-section (7) provided:

“Subject to the provisions of this section, nothing in this Part is to be taken to require an employer to treat a disabled

person more favourably than he treats or would treat others.”

69. When the Archibald case was before it, the United Kingdom Employment Tribunal relied on s. 6(7) as being applicable and ignored

the fact that it was prefaced by the words, “Subject to the provisions of this section . . .” and concluded that the employer, Fife

Council, was not in breach of its duty. The House of Lords allowed Mrs. Archibald’s appeal and the case was remitted to the

Employment Tribunal so that it could consider whether Fife Council had fulfilled its s. 6(1) duty to Ms. Archibald. While the provisions

of s. 5(2) and s. 6 which were under consideration by the House of Lords, in broad terms are analogous to s. 4 of the Act of 2000,

the provisions of s. 6 of the United Kingdom statute were much more instructive as to what would constitute “such steps as it is

reasonable . . . to take” than the provisions of s. 4 of the Act of 2000 are as regards what constitutes “all that is reasonable to

accommodate the needs of a person with a disability” in the circumstances addressed in s. 4(1). The factual basis of the Archibald

case was totally dissimilar to the factual basis of this case. Not only was it concerned with treatment of an employee by an employer,

but the complaint arose when Mrs. Archibald, as a result of a complication during minor surgery, could no longer carry out the job of

road sweeper, which she held with Fife Council. She sought redeployment to a higher grade but failed to obtain any post and was

eventually dismissed on the grounds of incapacity.

70. The foregoing rather long outline of the facts and legislation at issue in the Archibald case is necessary to get a perspective of

the relevance or otherwise to the determination of the s. 4(1) issue by this Court of the passages from the speech of Baroness Hale

on which counsel for the Appellant relies. Having outlined the provisions of s. 6, Baroness Hale, in a sentence which is relied on by

counsel for the Appellant, stated (at para. 65):

“The duty is to take such steps as it is reasonable in all the circumstances of the case for the employer to have to take.”

Having considered further the provisions of s. 6, Baroness Hale addressed the misapplication by the Employment Tribunal of subs. (7)

of s. 6. It had ignored the words by which subs. (7) was prefaced, “Subject to the provisions of this section”, and it relied solely on

the remainder of the sub-section. Baroness Hale then (at para. 68) stated the correct position, in a passage on which the Appellant

also relies, as follows:

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

obliged to treat a disabled person more favourably than others.”

71. Because of the specificity of the statutory provisions under consideration in the Archibald case and, in particular, the specificity in

relation to the interaction of the two sorts of discrimination, I do not find the decision in the Archibald case to be of any particular

relevance or assistance in determining the s. 4(1) issue. As I understand the purpose behind citing the Archibald case and, in

particular, the last passage from the speech of Baroness Hale quoted in the next preceding paragraph, and other authorities of the

courts of the United Kingdom cited by counsel for the Appellant, it is to support the submission that, under U.K. law, it is not simply

open to the employer in making a reasonable adjustment to treat a disabled person more favourably than others, but it is required to

do so and, accordingly, that a high threshold is set for the employer. It is submitted that, by analogy, the same applies to the

provision of reasonable accommodation in accordance with s. 4(1) in this jurisdiction, in that it must be construed as creating a duty

on the part of the service provider to proactively and positively promote accessibility to the service. Taking a realistic view of its

provisions, I consider that the opportunity to do “all that is reasonable to accommodate the needs of a person with disability”, in

other words, to provide special treatment or facilities to meet the circumstances outlined, under the Act of 2000 is not merely

permissive, but, in reality, by implication imposes an obligation on the service provider, but only to the extent expressly provided for in

s. 4(1), that is to say, to provide special treatment or facilities for the purposes outlined in s. 4(1). If the service provider is to avoid

discriminating, it must not refuse or fail to do “all that is reasonable to accommodate the needs of a person with disability” in

accordance with s. 4(1). It is prohibited from discriminating by virtue of s. 5(1) and, if it breaches that provision, it may face a claim

for redress in accordance with s. 21. The crucial question, however, is, if, as in this case, the claim for redress is based on alleged

discrimination within the meaning of s. 4(1), what is the service provider required to do to meet the requirement of doing “all that is

reasonable to accommodate” as provided for in s. 4(1). That is a matter of construction of s. 4(1) in the context of the Act of 2000

as a whole. The rest of the Act of 2000, with the exception of subs. (2) of s. 4, which points to cost being a factor to which regard

may be had, gives little or no guidance as to how the parameters of “all that is reasonable to accommodate” the needs of a disabled

person by providing special treatment or facilities for the purposes outlined in s. 4(1) are to be identified, either in general or in

relation to a particular factual situation.

72. Before considering the proper interpretation of s. 4(1) and its application to the Appellant’s circumstances, the basis of the

Appellant’s claim against the Minister that she had been discriminated against must be emphasised again. Her claim, from the outset,

as expressed in the notification to the Minister dated 24th August, 2001 (on Form ODEI 5), was that the annotation discriminated

against her. The issue, on the application of s. 4(1) is whether, having granted the waiver but by the annotation noting on the

certificate that it had been granted, the Minister in July and August 2001 did all that was reasonable to enable the Appellant to avail

of the service, that is to say, to obtain the result of her participation in the Leaving Certificate appropriate to her needs having

regard to her disability.

73. As a matter of interpretation, I consider that s. 4(1) is clear and unambiguous. The standard of reasonableness which is at the

heart of s. 4(1), as has already been noted, in my view, imports the concept of proportionality. It envisages that a balance is to be

maintained between the needs of the disabled person and how those needs are met by the provision of special treatment or facilities

to the extent necessary to enable the disabled person to avail of the service, or to do so, without undue difficulty, on the one hand,

and the effect of such provision on the service provider in the overall context of the position of the service provider, as the provider

of the service, on the other hand. The interest of a third party vis-à-vis the service provider may be a relevant factor, even though it

is not spelt out in s. 4, or, indeed, in Article 5 of the Framework Employment Directive or in the definition in the UN Convention. As

regards s. 4(1), that is because the expectations or entitlements of the third party, for example, an end user of the action which

constitutes the special treatment, may impose a burden on the service provider. Having regard to the nature of the Appellant’s

complaint from the outset with particular reference to Form ODEI 5 in the situation envisaged therein, the end user might be an

employer who is relying on the Leaving Certificate submitted by the Appellant in connection with an application for an employment

position as evidence of her capability for the position. In that type of situation, the burden on the Minister would be to ensure that

the prospective employer was not misled, by reason of the contents of the Leaving Certificate issued by the Minister, as to the

capability of the Appellant for the position being applied for. In weighing the balance, as in every context in which reasonableness is

deployed to delimit an obligation, an objective standard must be applied.

74. In this case, the Appellant’s needs arising from her disability were primarily addressed by the Minister in the treatment of her

performance in relation to the three subjects, English, Irish and French, in the examination, in that she got the benefit of the waiver,

which unquestionably was a significant benefit to her. Her complaint is that the annotation on the certificate discriminated against her

and, in the Form ODEI 5, the basis of the complaint was that the annotation would reveal her disability, which is a private matter. As

against that, the position of the Minister, as outlined earlier in considering the s. 5 issue, is that the waiver and the annotation are

inextricably linked. Whether or not, as a matter of fact, the waiver coupled with the annotation, as distinct from the waiver on its

own, meets the proportionality test inherent in the obligation to do all that is reasonable to meet the needs of a dyslexic student

participating in a State examination falls to be considered in accordance with the evidence which was before the Circuit Court.

75. To put the s. 4(1) issue in chronological perspective, the evidence before the Circuit Court established that the use of the waiver

and annotation accommodation was introduced by the Minister for the Leaving Certificate examination in 2000, and continued in 2001,

following receipt by the Minister in January 2000 of a report from the Expert Advisory Group on Certificate Examinations entitled

“Arrangements for the Assessment of Candidates with Special Needs in Certificate Examinations”. That report, which has been relied

upon by the Minister throughout this process, proposed certain principles on which provision of arrangements for candidates with

special needs might be based. One such proposal was that when an element or elements of an examination have been waived, so that

the purpose of the examination regarding that element or elements has not been met, or the method of the examination has been

significantly altered, this should be indicated by the presence of an explanatory note on the candidate’s certificate of results.

Reflecting that principle, the following recommendation on treatment and reporting of candidate performance was made in the report:

“It should be noted on certificates of results if an element or elements of an examination have been omitted or the

method of examining has been altered in a substantial way.”

That recommendation was the subject of in-depth analysis by the expert witnesses who testified in the Circuit Court.

76. The grounds on which the Appellant contends that the Circuit Court judge erred in the application of s. 4(1) is that he applied the

wrong test, the administrative law type reasonable standard, in determining whether “reasonable accommodation” had been provided

by the Minister. Moreover, by and large, the grounds on which it is suggested that the High Court judge misinterpreted and misapplied

the concept of “reasonable accommodation” is also based on the suggestion that he applied the wrong test. It is undoubtedly the

case that, in the analysis of the application of s. 4(1) in the judgment of the Circuit Court, terminology is used, for example,

references to “irrelevant considerations” and “an improper purpose”, which is common in an assessment by a court in judicial review

proceedings of an administrative act or decision which it is contended is invalid. Notwithstanding that, it seems to me that the

practical approach for this Court to adopt is to endeavour to ascertain from his judgment on what basis the Circuit Court judge

concluded on the facts that the Minister did all that was reasonable to accommodate the needs of the Appellant, and, in particular,

whether his conclusion as to the reasonableness of the Minister’s actions was reached by applying the proper test on the basis of

balancing the respective positions of the Appellant and the Minister. Certain aspects of the judgment of the Circuit Court suggest

that it was, many of which have been alluded to in outlining the judgment earlier.

77. First, the Circuit Court judge alluded to the fact that the annotation had been done out of concern as to the integrity of the

examination, albeit that he did so in the context of the application of s. 3(1). Further, as quoted earlier, in the context of his

observations on “the Irish bonus”, he accepted that the Minister’s Department had a genuine concern over the integrity of the

examination. Secondly, in interpreting subs. (1) of s. 4, he stated that “reasonable” was not defined in s. 4, save that subs. (2)

“provides some assistance in discerning the possible ambit of the phrase”. However, as regards “the costs of accommodation provided

in the education sphere”, he proceeded on the assumption that “such expenditure could well be regarded as nominal”. It was at that

stage that he stated that “the reasonableness of these accommodations fall to be judged by reference to the content and context in

which they were provided”. Thirdly, having referred to “the evidence relating to the process by which the system of accommodation

was devised”, with particular reference to the three independent experts who had given evidence on behalf of the Minister, he

expressed the belief that the decision of the Minister was based “on a reasoned and reasonable process”, wherein all the arguments

and evidence on both sides of the issue were canvassed. He also expressed the belief that “the system of waiver and annotation is a

reasonable response by the Department to the needs in question”. In that context he again referred to the evidence of the

independent experts on international practice and their conclusions that the approach of the Department was a reasonable approach.

Finally, he expressed the view that the Claimants were requiring that the Minister would go beyond the concept of what constitutes a

reasonable accommodation in seeking an exemption or waiver without annotation. He referred to the evidence of the only independent

expert witness called on behalf of the Appellant, Dr. Michael Shevlin, whom he described as “the Head of the School of Education in

Trinity College”. In relation to Dr. Shevlin’s evidence, the Circuit Court judge stated (at p. 99):

“His evidence went no further than to express concerns about the consequences of annotation and he did not specify an

alternative, nor indeed did he go so far as to characterise the overall system adopted by the Department as

unreasonable.”

78. In the light of the support which the Circuit Court judge found in the evidence of the independent expert witnesses called on

behalf of the Minister for his conclusion that the system of waiver and annotation was a reasonable response by the Minister to the

needs of dyslexics, it is appropriate to briefly outline the Circuit Court judge’s account of the evidence of the independent witnesses,

who testified on behalf of the Minister. However, it must be acknowledged that brevity does not do justice to the force of the

testimony.

79. In relation to the evidence of Dr. Jeffrey Braden, Professor of Psychology attached to North Carolina State University, the Circuit

Court judge recorded (at p. 62) that, in relation to the Appellant, Dr. Braden had testified, having referred to the reports upon which

she was granted the waiver, that he felt that he would not have done so and he described the provision of the waiver in favour of

the Appellant as “an unusually generous effort to accommodate” her. That is alluded to by way of explanation of the reference by the

Circuit Court judge in the passage quoted earlier (at para. 28) to the approach of the Department as being “a reasonable or generous

approach, as it was described by one witness”. Recording (at p. 58) Dr. Braden’s analysis of the principles enunciated by the Expert

Advisory Group in 2000 with reference to annotation following a waiver, the Circuit Court judge stated that his evidence was that

waiver of what he referred to as “target skills”, meaning skills that are intended to be measured by assessment, expressly included in

the syllabus “carried an obligation to notate under national and international standards”. Further, Dr. Braden was of the opinion that

the annotations used by the Department on the Leaving Certificate were worded exactly as in similar situations in other jurisdictions.

His view was that the Department had it “just right”.

80. Another witness called on behalf of the Minister, Nicholas Peacey, an expert from England involved in examinations and

assessments, was recorded by the Circuit Court judge (at p. 80) as also having characterised the approach of the Department to

granting of waivers in the particular cases at issue “as being generous”. Earlier, (at p. 78) it is recorded that Mr. Peacey testified that

annotation should inevitably follow in circumstances where exemptions were given in relation to spelling, punctuation and grammar,

which were very much part of the construct of English and other languages, and that the relationship between the annotation and

the alteration of the test construct is absolutely constant across all jurisdictions known to him, including England, Wales, Scotland

and Northern Ireland. It is recorded in the judgment (at p. 81) that Mr. Peacey, in cross-examination, maintained that the annotation

was of great significance to the integrity of the examination system.

81. The remaining expert witness who testified on behalf of the Minister, Dr. John Eakin, who was described as a Chartered

Educational Psychologist at Queen’s University, Belfast, with particular expertise in the area of dyslexia, is recorded (at p. 69) by the

Circuit Court judge as having testified that, in general, in relation to the system of waiver and annotation adopted by the Department,

he felt that it was reasonable from the perspective of his experience.

82. The purpose of outlining the foregoing features of the judgment of the Circuit Court judge and the evidence to which he pointed

as supporting his conclusion that the system of waiver and annotation was a reasonable response to the needs of the Appellant, is to

assess whether, notwithstanding other terminology used by him in considering the application of s. 4(1), he applied the correct test

and his finding was supported by evidence. I consider that it has been illustrated that the Circuit Court judge applied what I consider

to be the correct legal test, the proportionality test or balancing exercise conducted by applying an objective standard, in

determining whether, in providing the waiver to the Appellant coupled with the annotation, the Minister had done all that was

reasonable to accommodate the needs of the Appellant in accordance with s. 4(1), while protecting the integrity of the State

examination system. Further, it has been illustrated that there was evidence to support his conclusion. Therefore, the Appellant has

not established any error in law on the part of the Circuit Court judge in the application of s. 4(1), so that the determination of the

Circuit Court judge that no discrimination had been established by reference to that provision was correct and was properly upheld by

the High Court judge.

83. A feature of the process leading to this appeal to which counsel for the Minister direct this Court’s attention is that at no stage in

the process had it been established that the Minister failed to do all that is reasonable to accommodate the needs of the Appellant in

accordance with s. 4(1). It is pointed out that the Tribunal determined that point against the Appellant. As recorded earlier, the

finding of the Equality Officer in favour of the Complainants was based on discrimination by reference to s. 3(1) and s. 3(2)(g) and

the Equality Officer found that the complainants had failed to establish a prima facie case of discrimination in terms of section 4 of

the Act of 2000. Moreover, it is pointed out on behalf of the Minister that there was no appeal against the determination of the

Equality Officer to the Circuit Court by either of the Claimants. However, even though the Minister pursued the section 4(5) issue in

both the Circuit Court and the High Court, it was obviously argued on behalf of the Minister at both levels that the Minister had not

failed to provide reasonable accommodation in accordance with s. 4(1) and the Minister succeeded on the argument at both levels.

Section 3 issue

84. As already noted, there are two separate and distinct sources of the meaning of “discriminate” for the purposes of the application

of the provisions of the Act of 2000, s. 3(1) being one source and s. 4(1) being the other source. As observed earlier, I consider that

s. 4(1) is the provision, and, thus, the source which is most relevant to the nature of the Appellant’s complaint that prohibited

conduct was directed against her, which is the ultimate basis of these proceedings. Applying s. 4(1) to the Appellant’s complaint that

she has been discriminated against, the question which arises by reference to the wording of s. 4(1) is whether there has been a

failure on the part of the Minister to do all that is reasonable to accommodate the needs of the Appellant by providing special

treatment in the form of the waiver coupled with the annotation. Having analysed s. 4(1) in the context of the factual circumstances

as considered at Circuit Court level, I have concluded that the Circuit Court judge was correct in finding, as was upheld by the High

Court, that the action of the Minister constituted reasonable accommodation within the meaning of s. 4(1), and, accordingly, that

there had not been discrimination on the part of the Minister within the meaning of s. 4(1).

85. Turning to s. 3(1), and bearing in mind that the only discriminatory ground on which it is contended that the Appellant was

treated less favourably than another person is the disability ground set out in s. 3(2)(g) and not any of the other grounds itemised in

s. 3(2), in essence the Appellant’s case based on s. 3 is that discrimination occurred because she was treated less favourably than a

person not disabled or with a different disability. While s. 3(1) and s. 4(1) provide separate and distinct meanings of “discriminate”,

those meanings combine to give rise to a prohibition on discrimination in providing a service under s. 5(1). Accordingly, in my view, the

definitions must be construed, and the prohibition applied, so as to avoid any inconsistency or repugnancy within s. 5(1).

86. Given that, on a plain reading of the words of s. 4(1), a failure by the service provider to do all that is reasonable to

accommodate the needs of the disabled person by providing special facilities amounts to discrimination, it is an implicit corollary that,

if the service provider has done all that is reasonable to accommodate the needs of the disabled person in question as specified,

there is no discrimination under s. 4(1). Therefore, in interpreting s. 5(1) as a whole by reference to both s. 4(1) and s. 3(1), one

must ask whether the Oireachtas intended that, if a complainant is relying solely on the disability ground in invoking s. 3(1), and the

service provider has done all that is reasonable to accommodate the needs of the disabled complainant within the terms of s. 4(1), so

that there is no discrimination under that provision, the application of s. 5 by reference to s. 3(1) could be open to a finding that

there was discrimination under s. 3(1), in circumstances where the basis of the complaint under both s. 4(1) and s. 3(1) is precisely

the same.

87. Therefore, having regard to the nature of the Appellant’s complaint and its factual underlay, one must ask to what extent it is

appropriate, or indeed necessary, to consider whether there has been discrimination by the Minister within the meaning of s. 3(1).

The Oireachtas having expressly addressed in s. 4(1) the particular type of circumstance which has formed the basis of the

Appellant’s complaint and her claim under the Act of 2000, in my view, the proper conclusion is that what the Oireachtas intended in

enacting s. 4(1) is that, once it is determined in such circumstances that there is no discrimination on the application of the

provisions of s. 4(1), and the only basis for a claim that there has been discrimination under s. 3(1) is on the disability ground, a

finding could not be made that there has been a breach of s. 5(1). The rationale for that conclusion is that the Oireachtas, in

enacting s. 4(1) and in imposing by implication the obligation to provide reasonable accommodation in the particular circumstances, in

the words of the EU Commission quoted earlier (at para. 57) was creating “a particular kind of non-discrimination legislative provision”.

In so doing, it was marking a particular clearly defined circumstance, that is to say, where there was compliance with the obligation

under s. 4(1), as not consituting discrimination. Accordingly, where, as here, s. 3(1) is invoked and only the disability ground is relied

on by the complainant, an interpretation of ss. 3(1), 4(1) and 5(1) as a whole, applying the principle of consistency, must lead to the

conclusion that the finding that there was no discrimination under s. 4(1) by reason of compliance with the obligation thereby imposed

precludes the existence of discrimination under s. 3(1).

88. While on this appeal the parties did not address the interaction between s. 4(1) and s. 3(1) which has been analysed in the

preceding paragraphs, there was some discussion about the interaction of the two provisions before the Equality Officer, which she

considered in the decision (at p. 26). Her conclusion was that the two provisions are quite different. In particular, she concluded that

compliance with s. 4 did not provide “a get-out-of-jail-free card with regard to any less favourable treatments arising under Section

3”. That prompts consideration of the basis on which the Appellant contends that she was “treated less favourably” within the

meaning of s. 3(1)(a) and, in particular, whether it is any different from the basis on which she contends that the Minister did not do

all that was reasonable to accommodate her needs in accordance with s. 4(1). That exercise has to be undertaken against the

background that the Appellant’s focus in relation to the s. 3 issue on this appeal was on the grounds on which it is contended that

both of the lower courts erred in the application of s. 3(1).

89. The grounds on which it is contended by the Appellant that the Circuit Court judge erred in law, and that the High Court judge

erred in upholding his decision, on the application of s. 3(1), have been outlined earlier (at para. 32), by reference to the appeal to

the High Court. In relation to the ground referred to at (c) in para. 32, the position of the Minister is that the Appellant

mischaracterises the interpretation of less favourable treatment by the Circuit Court judge as being solely confined to a preference

arising on the basis of a whim, a caprice, unreasonableness and the other factors mentioned. It is submitted that the interpretation of

less favourable treatment applied by the Circuit Court judge, and upheld by the High Court judge, was based firstly on a distinction

between different treatment and discriminatory treatment, which, as reflected in the grounds set out at (a) and (b) in para. 32, is

asserted by the Appellant to be erroneous. It is also suggested on behalf of the Minister that the interpretation by the trial judge is in

line with settled law at national level and at European Union level, reference being made to the decision of the CJEU in the Ring and

Skoube Werge case.

90. Underlying those grounds relied on by the Appellant, which the Minister argued should be rejected as not being sustainable, on

this appeal are certain controversies between the Appellant and the Minister which emerge from their respective submissions in

relation to the interpretation of s. 3(1) and its application to the Appellant’s situation. For instance, it is submitted on behalf of the

Appellant that central to an assessment of whether discrimination is taken to have occurred in accordance with s. 3 is the impact on

the person of the measure in question and not the fact that the treatment is the same as that afforded or meted out to others. The

position of the Minister is that, in the context of the Act of 2000, it is only indirect discrimination, which is not at issue here, which is

concerned with adverse impact.

91. Another argument advanced on behalf of the Appellant is based on the proposition that the Leaving Certificate is a “standardized”

test. The substance of the argument is that the standardized tests used by the Minister have not been developed with the needs of

the disabled student in mind. It is suggested that to make a standardized examination system fair, the Leaving Certificate being such

a standardized examination, the examination or the conditions in which the examination is taken must be adapted to the situation so

that, in reality, the barrier to measuring the student’s ability is removed or reduced. Further, it is suggested that were the

accommodation properly effected then there would be no need to annotate the results because the test results would properly

measure ability. It is suggested that the need for annotation on the grounds advanced by the Minister only exists if there has been no

“reasonable accommodation” in the first instance. However, as the Court has determined, by reference to the basis of the Appellant’s

complaint of discrimination, that the Minister did all that is reasonable to accommodate the needs of the Appellant in accordance with

s. 4(1), there is inherent in that argument a basic proposition which is contrary to the finding already made on the s. 4(1) issue, that

the Circuit Court did not err in finding, and that the High Court did not err in upholding the finding, that the Minister did all that was

reasonable to comply with the obligations implicitly created by s. 4(1). Apart from that, the position of the Minister is that the Leaving

Certificate is not a standardized test and that evidence was given to that effect in the Circuit Court. It is not necessary to express

any view on that proposition.

92. It is also argued on behalf of the Appellant that the placing of the annotation on the certificate of the results of the examination

perpetrates a whole new act of discrimination, in that her certificate is defaced and her achievements demeaned and, further, that

her right of privacy is not protected in a like manner with other students and a signal has been sent to the world at large that she is

disabled. The accommodation provided by the Minister for the needs of the Appellant, which the Court has held meets the

requirement to do all that is reasonable in accordance with s. 4(1) so as to avoid discrimination, encompasses the annotation, and, as

has been submitted on behalf of the Minister and was established on the evidence in the Circuit Court, both the waiver and the

annotation are necessarily inextricably linked in meeting the proportionality requirement in accordance with s. 4(1). Once again,

inherent in the Appellant’s argument is a proposition which contradicts the finding already made on the application of s. 4(1).

93. It must be acknowledged that outlining those controversies is largely a theoretical exercise. As regards the situation which

prevailed in 2001, when the Appellant sat the Leaving Certificate examination, it is contended on her behalf that the failure to provide

an examination system which permitted the ability of a disabled person, such as the Appellant, to be measured in comparison to

others without reference, through the medium of the annotation, to his or her disability was discriminatory. That factual matter, of

course, forms the basis of the Appellant’s contention that the only accommodation provided by the Minister to the Appellant was not

“reasonable accommodation” within the meaning of s. 4 of the Act of 2000. It also forms the basis of the claim that the Appellant was

treated less favourably within the meaning of s. 3(1) and thus discriminated against. Because, in reality, the foundation of the

Appellant’s case from the outset and at each of the three procedural levels before this appeal that she was discriminated against

within the meaning of s. 3(1) is fundamentally the same as the foundation of her case that there was a failure on the part of the

Minister to do all that was reasonable to accommodate the needs of the Appellant in accordance with s. 4(1), it cannot form the

basis of a finding of discrimination at variance with the finding on the section 4(1) issue, so as to give rise to a breach of the

prohibition in s. 5(1). Although the position of the Minister on this appeal is that the Circuit Court judge was correct in law and on the

facts in finding, as was upheld by the High Court judge, that there was no less favourable treatment of the Appellant within the

meaning of s. 3(1), for the foregoing reason, in my view, the s. 3 issue does not fall for further consideration on this appeal.

94. In summary, the basis of the Appellant’s case that she was discriminated against within the meaning of s. 4(1), that the waiver

coupled with the annotation on the Leaving Certificate did not amount to compliance by the Minister with the obligation of doing all

that was reasonable to accommodate her needs as a disabled person, being in essence the basis of her claim that she was

discriminated within the meaning of s. 3(1) on the disability ground, in that she was treated less favourably than another person

whose Leaving Certificate was not so annotated, having regard to the finding on this appeal that such action on the part of the

Minister was not discrimination within the meaning of s. 4(1), as a matter of construction of s. 3, s. 4 and s. 5 of the Act of 2000 as

a whole, the conclusion must be that the action was not discrimination within the meaning of s. 3(1) so as to give rise to breach by

the Minister of the prohibition prescribed in s. 5(1).

Summary of conclusions

95. Sub-section (5) of s. 4 of the Act of 2000, on the proper construction of s. 4, does not preclude the Appellant from invoking

subs. (1) of s. 4 and from contending that she was discriminated against by the Minister on the ground that he failed to do all that

was reasonable to accommodate her needs as a person with a disability in the assessment of her accomplishment in the Leaving

Certificate examination by providing to her, by way of special treatment, the waiver coupled with the annotation. In short, the

Appellant’s submission that s. 4(5) does not exempt the Minister from the obligation implicitly imposed under s. 4(1) is correct.

96. In finding that the Minister had not failed to do all that was reasonable to accommodate the needs of the Appellant by the

provision of that special treatment, the waiver coupled with the annotation, so that the Appellant had not been discriminated against

within the meaning of s. 4(1) of the Act of 2000, neither the Equality Officer, the Circuit Court judge nor the High Court judge erred.

Therefore, as regards the Appellant’s claim that prohibited conduct, being discrimination within the meaning of s. 4(1), had been

directed against her in contravention of s. 5 of the Act of 2000, that claim fails.

97. Having found that the basis of the Appellant’s claim, in reliance solely on the disability ground identified in s. 3(2)(g), that she was

treated less favourably than another candidate in the Leaving Certificate examination, so as to be discriminated against within the

meaning of s. 3(1) of the Act of 2000 is that the special treatment, that is to say the waiver, she received, unlike the position of

another candidate, was annotated on the Leaving Certificate, which, in essence, is the same as the basis of her claim that she had

been discriminated against in accordance with s. 4(1), a finding that the action of the Minister in awarding the waiver but coupled

with the annotation constituted discrimination within the meaning of s. 3(1) would be clearly at variance and inconsistent with the

finding that such action did not constitute discrimination within the meaning of s. 4(1). Accordingly, as a matter of construction and

application of s. 3, s. 4 and s. 5 of the Act of 2000 as a whole to the Appellant’s complaint, it must be concluded that there was not

discrimination within the meaning of s. 3(1) on the part of the Minister contrary to s. 5(1).

98. While I have considered it unnecessary to express any definitive view on the meaning or effect of s. 5(2)(h) of the Act of 2000

generally, having found that the Minister has not discriminated against the Appellant either within the meaning of s. 3(1) or s. 4(1) so

that there has been no breach of the prohibition contained in s. 5, the issue of the disapplication of s. 5(1) does not arise.

Order

99. Accordingly, it is proposed that there be an order that the appeal be dismissed.

Concurring judgment

100. I agree with the concurring judgment delivered in this matter by O'Donnell J.