The Supreme Court has dismissed Kim Cahill’s appeal over annotations on her 2001 Leaving Certificate, upholding the earlier decisions that the annotations did not amount to unlawful direct discrimination under the Equal Status Act.
Cahill, who has dyslexia, received a spelling and grammar waiver in Irish, English and French. Her results were accompanied by annotations explaining that those elements had not been assessed. She said the annotations singled her out and invaded her privacy. The Equality Tribunal initially found in her favour, but the Circuit Court reversed that decision and the High Court dismissed her appeal on a point of law.
In a judgment dated 24 May 2017, Mr Justice John MacMenamin said the Supreme Court’s role was confined to legal issues and it could not revisit the factual findings made in the Circuit Court. The evidence there supported the conclusion that annotations accompanied an exemption from a core examination element to protect the integrity of the examination. The judge said the Circuit Court had sometimes used inappropriate “judicial review” language when considering less favourable treatment, but that this did not affect its findings or the outcome under section 3(1).
The judgment also addressed section 4, which concerns reasonable accommodation for people with disabilities. MacMenamin said it requires service providers to do “all that is reasonable” and has both substantive and procedural dimensions. He considered the Department’s engagement with Cahill unsatisfactory: its position on whether she qualified for accommodation was inconsistent, and the waiver was granted only after her examination. He said a procedural claim under section 4(1) might have been arguable if it had been part of the case from the outset. The case as brought, however, did not allow the Court to make findings on that broader procedural issue.
The Court rejected the lower courts’ interpretation of section 4(5), finding that it did not exempt the Minister from the Equal Status Act. But this correction did not change the result. The Supreme Court upheld the orders under sections 3(1) and 4(1), and dismissed the appeal. It made no determination on whether section 5(2)(h) would have provided a defence to a hypothetical procedural claim, reserving that question for another case.