Equal Status Acts 2000 to 2004
EQUALITY OFFICER’S DECISIONS NO: DEC-S2008-030
A Parent on behalf of a child
V
A national youth work organisation
(Represented by Brendan Kirwan BL
instructed by Matheson Ormsby Prentice)
Keywords
Equal Status Acts 2000 to 2004 - Discrimination, Section 3(1)(a) - Religion ground, section 3(2)(e) – Disposal of goods and provision of services 5(1) – Vicarious liability, section 42 - Preferential treatment on religious grounds in relation to membership waiting list.
1. Delegation under the Equal Status Acts 2000 to 2004
1.1 A parent referred a claim on behalf of child on 21 March 2005 to the Director of the Equality Tribunal under the Equal Status Acts 2000 to 2004. In accordance with her powers under section 75 of the Employment Equality Act, 1998, the Director then delegated the case to me, Tara Coogan, an Equality Officer, on 1 November 2007 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under part III of the Equal Status Acts. A hearing was held on 22 January 2008. Subsequent correspondence was received from both parties, the last of which was received on 15 February 2008.
2. Dispute
2.1. The dispute concerns a complaint by a parent representing a child (hereafter the complainant) that a locally based service of a national youth work organisation (hereafter youth service) treated a child contrary to the Equal Status Acts 2000 to 2004 on the religion ground. The parent maintains that the youth service treated the complainant, a Roman Catholic, less favourably than a person who is a member of Church of Ireland when it indicated on 4 February 2005 that it gave preferential treatment on its waiting list to Church of Ireland members.
3. Anonymity of parties
3.1. As the complainant at the centre of this complaint is under the age of 18 and, therefore, unable to make a complaint in her own right I have anonymised all parties concerned to ensure that her identity and right to privacy is protected.
4. Case for the complainant (on behalf of child)
4.1. The complainant’s parent maintains that her daughter was discriminated against on the grounds of her religion (she is Roman Catholic) when she attempted to join a youth service in early February 2005. The complainant’s parent states that she was informed by one of the group’s local leaders that the particular local branch gives preference to Church of Ireland members on its waiting list over those who are not members of that Church.
4.2. The complainant was aged 8 at the time of the alleged incident. She had a friend who was a member of the youth service. In January 2005, that friend’s parent informed the complainant’s parent that there was a vacancy in the youth service and that she should bring her daughter along to the next meeting. The friend’s parent had allegedly received this information from the leader, Ms. A, of the youth service.
4.3. The complainant’s parent brought her daughter along to the next meeting. Despite the leader, Ms. A, not being present and the other two assistant leaders having not been informed that the child would be coming, the leaders – Ms. B and Ms. C - along with the members of the youth group, were welcoming and the child enjoyed herself.
4.4. A few days later, one of the assistant leaders, Ms. B, rang the complainant’s house and left a message for the complainant’s parent requesting that she ring her. The complainant’s parent did and was told by Ms. B that the youth service operated a waiting list and that there was another child ahead of the complainant. This meant that the child would have to wait until another vacancy became available. Ms. B then added that as the child did not belong to a named parish (associated with Church of Ireland) the complainant would have to wait until at least 2006 before she could have any chances of joining.
4.5. This statement of ‘not in the parish’ involving the complainant, according to the complainant’s parent, meant that Ms. B had clearly indicated that the complainant - who is Roman Catholic - was not a member of Church Of Ireland. This, she maintains, means that the complainant was treated less favourably than a person with a different religious belief from her own.
4.6. The parent further argues that some Church of Ireland members whom she is acquainted with would regularly use the phrase ‘in the parish’ to refer to people who are members of Church of Ireland and who attend the named parish.
4.7. The complainant’s parent subsequently made contact with the youth service’s Head Office and made her complaint to the CEO, Ms D, over the phone and in a letter dated 9 February 2005. She outlined her complainant and informed the CEO that she had made contact with Reverend Z from the named parish to enquire about the youth services waiting list. According to the parent, Reverend Z openly admitted that it is he who insists that priority be given to members of his church. Further, she maintains, that Reverend Z was unapologetic about this and quite trenchant in his view that this is and would continue to be his position. According to the parent, Reverend Z stated “you have the GAA”.
4.8. In a further letter dated 11 February 2005 addressed to the CEO, Ms. D, the parent rejected an offer of an immediate place the youth service operating in a named parish. The parent received a letter dated 23 February 2005 from the CEO, Ms. D with an offer for a place for the complainant. This was offer was declined by the parent. The reason for this refusal was because the offer had been made on ‘an exceptional basis’ and therefore, the parent believes, does not address the alleged discriminatory practice that had led to the incident in the first place. The parent had stated in her letter of 11 February 2005 that “I could not allow my daughter to accept such an offer unless and until I am assured by you that discrimination on religious grounds no longer influences the waiting list system for the youth service in this area”.
4.9. In a final letter dated 13 March 2005, the parent indicated that the reply she had received from the CEO, Ms. C, had not satisfactorily addressed the issue of the alleged discriminatory issue nor indicated what the youth service intended to do about removing it. In this letter, the parent acknowledges that the leader of the youth service, Ms. A, had assured her that the complainant was next on the waiting list but is adamant that because of her initial conversation with Ms. B, the assistant leader, she was left with the understanding that the complainant was a) not on the waiting list and b) that this waiting list was influenced by a person’s religious affiliation. While the parent was now told that the complainant would be able to join sometime in 2005 she maintains that the leader, Ms. A, also confirmed that the practice which the parent’s believed to be a discriminatory system of preferring members of the Church of Ireland of the said parish would remain in operation.
4.10. The parent argued at the hearing that any reasonable person would understand Ms. B’s statement that the child ‘was not in the parish’ to mean that the child was not a member of Church of Ireland. She does not accept that ‘parish’ could refer to a catchment area or to a locality. The parent submits that to infer that Ms B meant anything other with the phrase ‘not in the parish’ than the meaning of ‘not a member of the Church of Ireland’ is not credible and that to define it as ‘locality’ is just a way for the respondents not to accept the severe implications of actual significance of ‘not in the parish’.
4.11. The parent also argues that even if the youth service had only 11 Church of Ireland members in a group of 24, this is not inconsistent with the fact that the youth service prioritises its waiting list according to religious belief.
4.12. Having examined the geographical make-up of the said parish, the parent also submits that the complainant did, indeed, live in the geographical area of the named parish. This, she argues, means that Ms B’s statement that she used the term parish to distinguish the named area (shared with the parish) from other areas in the locality, such as the place where the complainant resides, is moot as the complainant clearly lives in the geographical area which covers the named parish.
4.13. The parent maintains that the letter in which the CEO, Ms. D refers to “external constraints being imposed” is a clear admission of the conditions of use attached to the parish hall. She does not accept that it could refer to insurance cover. She submits that Reverend Z, Ms. A and Ms. B all confirmed that such terms were imposed on the youth service for their use of the hall.
4.14. The complainant’s parent does not want to undermine the valuable work done by the youth service nationally. She believes that the named local youth service operates an on-going discriminatory policy because of its association with the named parish. If the group were to meet elsewhere, she argues, this problem may be eliminated.
5. Case for the respondent
5.1. The respondent is a non-profit, voluntary organisation for young people. It is independent from any political organisation or party. The organisation is faith based, open to all faiths. This is one of its core principles.
5.2. The youth service has an extensive constitution and by-laws outlining the organisation’s mission statement, its policies and aims and objectives. Centrally managed, the organisation is run from a number of locally based services. For this particular age category, the maximum number of participants for any meeting is outlined in the by-laws as 24.
5.3. When a local service is established, every effort is made to find a location that is not specifically linked with any particular religion. Across the country, meetings are held in a variety of locations including parochial halls of all denominations, community centres, school premises and sport facilities. Cost and health and safety aspects are important considerations for a voluntary organisation when it comes to decisions about where meetings are to be held.
5.4. The local youth service in question meets in a local a parish hall (Church of Ireland). This hall has, for a number of years, been and is provided free of charge. The respondent submits that no terms and conditions indicating that members belonging to that particular parish should be given priority have ever been suggested to it. The respondent openly admits that the fact that the hall is offered to the youth service free of charge is one of the reasons why the group meets in the hall. The arrangements for the hall are made through the parish secretary.
5.5. The leader of the youth service submitted at the hearing that she had taken over the running of the service after the previous leader had suddenly resigned in 2004. She stated that the previous leader had managed the group independently while she and the other two assistant leaders had helped with the running of the group. When the group resumed again after the summer, the three assistant leaders came along with a view of yet again offering support to the leader as parents of some of the members when the then leader suddenly resigned. This meant that unless one of the previous assistants took over the responsibility of running the youth service it would have had to close. Ms. A took on the mantle of the youth service leader but stated at the hearing that she preferred to delegate the various duties and share the responsibilities with the other two assistant leaders Ms. B and Ms. C. This means that, at the time, the youth group was really managed as a democracy rather than by one ‘central’ leader.
5.6. At the hearing Ms. A stated that it was unusual for a vacancy to rise in the group during the academic year. The places were allocated on a first-come, first-served basis. That year (in September 2004) there had been a good turn out for membership and the group’s quota was met at the first meeting. At this stage there was no need to establish a waiting list. During the year, one of the members indicated that her family were moving abroad. All of the leaders were informed of this.
5.7. A friend of the complainant’s parent approached Ms. A in January 2005 to enquire about a place for the complainant. Ms. A told the friend’s parent that the complainant could come along to the next meeting on 31 January 2005. At the time, Ms A was unaware that Ms B had offered the place to someone else. Due to family commitments, Ms A was unable to attend the meeting the day the complainant attended her first meeting.
5.8. At the end of the meeting, one of the assistant leaders mentioned it to the complainant’s parent that she did not think that there was a place for the complainant in the group as the vacancy had already been filled. She informed the parent that she would talk to the leader Ms. A and be in touch later in the week with the parent to confirm the situation.
5.9. Ms. A and Ms. B subsequently discussed the issue of the vacancy and realised that there had been a breakdown of communication between the two of them. Ms. A had not known that Ms. B had already told another parent several months previously that her child could have the next available place. As soon as she realised this, it was agreed that Ms. B ring the complainant’s parent and explain the reason for the mix up. Ms. B spoke with the complainant’s parent and, after apologising for the misunderstanding, told the parent that another child had been offered the place and as a result, the complainant would have to wait for another vacancy before she could become a member. Ms. B denies that she told the parent that the complainant would have to wait until “at least 2006” before she would be offered a place. She maintains that she told the complainant’s parent that the youth service would be able to take the complainant in June/September 2005 when some of the participants would be leaving.
5.10. Subsequent to the phone call, the complainant’s parent made a complaint to the youth service’s head office. She told the CEO that the youth service in question operated a discriminatory policy and that this policy was linked with religious affiliation.
5.11. As a result of this complaint, the CEO, Ms. D investigated whether any of the other nearby services had any available places for the child in question. A vacancy was discovered in a nearby service and an offer was made to the complainant. This was initially accepted by the parent but turned down 30 minutes later. The CEO, Ms. D then contacted the person responsible for the area to discuss the matter.
5.12. The youth service investigated the matter, including looking into other venue options as suggested by the complainant’s parent, and identified that the only reason why the group could not accommodate a 25th member (apart from the tradition of having a maximum 24 children to a group) was due to insurance cover. The group had three adult leaders and, allowing for child protection concerns, could therefore extend the numbers temporarily to allow for the child to join. The reason why the respondent went to these lengths to accommodate the child, according to the CEO, Ms. D was because the youth service did not wish the child to be left out.
5.13. The respondent submits that, at the time of the incident complained of, registration forms for the youth group reveal that only 11 out of the 24 females were members of the Church of Ireland. This means that 13 of the females were of another religion or none. The reason why the youth service enquires about church membership is outlined under the organisation’s religious policy which outlines that the religious beliefs of all members shall be respected and the following clauses observed:
A. If the group is composed of members of various forms of religion they shall be encouraged to attend the services of their own form of religion.
B. Any form of daily prayer should be of the simplest character, attendance being voluntary.
C. Where it is not permissible under a rule of the religion of any member to attend religious observances other than her own form of religion, the leaders of the group must see that such rule is strictly observed while the member is in their care.[1]
5.14. The respondent has never acknowledged, contrary to the complainant’s parent’s letter dated 11 February 2005, that a person’s affiliation determines a person’s position on the waiting list. The CEO, Ms D, absolutely refutes that she has ever stated anything of the kind. The respondent maintains that the misunderstanding arose from an unfortunate lack of communication between its volunteer leaders.
5.15. The respondent has no idea why Reverend Z would have made the comments that the complainant maintains he made. While the CEO, Ms. D and the leader Ms. A have since met with Reverend Z – who, according to the respondent, denies making any such statements to the complainant – the respondent is in no position to defend or explain his alleged actions. The respondent, however, categorically denies that Reverend Z has ever requested that it operate a preferential recruitment policy. The respondent also positively denies that it would ever give preference to any faith not that it would succumb to any pressure placed on it in that regard.
5.16. The respondent submits that it is a faith-based, non-denominational youth service. It categorically denies that it operates a policy of discrimination based on religious beliefs. The organisation has, in its view, taken every effort to explain the mix up in relation to the availability of places and made every effort to include the complainant. The respondent regrets that the miscommunication between the two leaders has been interpreted as something more sinister but is adamant that it has no case to defend before the Tribunal.
6. Conclusions of the Equality Officer
6.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting the she suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
6.2. In making my decision I have taken cognisance of both oral and written submissions made to me before, during and after the hearing.
6.3. The complainant at the centre of this complaint is Roman Catholic. Some of the other participants in the local youth service are members of Church of Ireland. It is also agreed that an incident involving the complainant did take place. Both parties agree that the complainant did attend a meeting and that her parent was subsequently informed that the vacancy had been offered to another child. The question that this decision must address it whether the young person was treated less favourably than another person of a different religious background or outlook is, has been or would be treated in a comparable situation.
6.4. No evidence was offered to the Tribunal to establish that the other child had not been placed on a waiting list prior to the complainant attending the meeting. Nor have I been presented with any evidence indicating that the other child’s religious outlook or background (or having none) had anything to do with her being ahead of the complainant on the waiting list. I also accept that a waiting list was established and that it was accepted by the other leaders that 1) Ms. B had the authority to do so and 2) that a waiting list was an acceptable practice.
6.5. I accept that this other child was indeed offered the place before the complainant attended the meeting in January 2005.
6.6. The parent also maintained that the letter she received from the CEO, Ms D, referred to the fact that the offer of a place was made in ‘exceptional circumstances’ and that this was a direct admission of the alleged discriminatory practise. I, having perused the youth service’s policies in relation to group size[2], accept that the fact that the number was extended to 25 created the ‘exceptional circumstances’. The CEO’s letter to the complainant’s parent dated 23rd February 2005 is clear in stating: “the only barrier to your daughter’s membership was the insurance cover for the number of girls in the unit. We agreed to make an exception and informed the leaders that they could have one more than the maximum number of girls in the unit.”
6.7. The remaining question that I need to answer is whether the use of the phrase “not in the parish” by Ms. B could be construed as a act of discrimination within the meaning of section 5(1) of the Equal Status Acts 2000 to 2004?
6.8. Having considered the phrase “not in the parish” I appreciate how subjective its meaning can be. While the respondent maintains that if such a phrase had been used it would have referred to the locality, the complainant’s parent believes that it is refers to a person’s religious affiliation. The complainant rejected the respondent’s interpretation of ‘not in the parish’ referring to a locality or a neighbourhood. She asked Ms. B how she knew where the complainant resided? When Ms. B replied that the parent has told her she lived in X, the parent did accept that she might have told Ms. B at the time. I do believe, on the balance of probabilities, that a parent leaving her child in care of another adult would divulge such information. Therefore, I do not accept that the statement about the complainant not being in the parish be intended to be interpreted as a religious reference.
6.9. Therefore, the phrase ‘not in the parish’ cannot on its own be viewed as sufficient evidence of discrimination within the meaning of the Acts. I accept that the place had been offered to another child before the complainant attended the meeting. I also find that the child at the centre of this complaint was welcome and made to feel so on the day she participated. As a result of the complaint brought up by the parent, the youth organisation took a number of practicable steps to ensure that the child could be included as soon as possible. Indeed, two offers were made. The first, in a nearby youth service, was declined. The second offer, made within three weeks of the complaint, was for a place in the local youth service. This offer, outlined in Ms. D’s letter dated 23 February 2005 to the complainant’s parent, could be made because the respondents had contacted their insurance company and extended their cover to allow for an additional member to be included.
6.10. I find that this admitted communication failure about the waiting list between the two leaders has, on the balance of probabilities, nothing to do with religious belief. As a result of it, Ms. B was placed in an uncomfortable situation where she had to explain the situation to the complainant’s parent and, during the conversation between Ms. B and the complainant’s parent, a regrettable utterance of geography was made. The complainant’s parent interpreted this statement as a reference to the Church of Ireland. This interpretation was deepened when the parent approached Reverend Z and received the alleged information from him.
6.11. Having regarded section 42(1) of the Acts: “Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval” I find no legitimate reason to hear Reverend Z as a witness. Reverend Z is not an employee or an agent of the youth service and thus anything that he did or did not allegedly say about the youth service has no relevance to the issue.
6.12. While I can appreciate the reasons why a parent would feel that she needed to go and talk to a person representing the parish, rather than the youth service, in her effort to investigate the policies of the youth service, it is obvious that the complainant’s parent’s decision to do so only deepened the conflict further. The youth service cannot be held liable for things that may or may not have been said by persons who are not linked with the organisation. As stated above, I find no liability between the youth service and the named individual. Even if named person had said what has been alleged, and it is important to emphasise that the person was not present at the hearing, I must stress that - within the meaning of the Equal Status Acts 2000 to 2004 - he cannot be held liable and is irrelevant to this decision
6.13. Having regarded the full facts presented to me in this case I must conclude that I have not found facts of sufficient significance to establish a discriminatory practice on the religion ground within the meaning of the Acts in the local youth service. The youth work organisation took many steps in its effort to rectify an inflamed and unfortunate situation. I find that a misunderstanding had risen due to a breakdown of communications between the local leaders. This lead to a difficult phone call to the complainant’s parent. I accept that any reference to ‘in the parish’ was intended as a reference to the locality. Having considered the entire case, I must conclude that, on the balance of probabilities, the complainant was not treated any less favourably than any other child associated with another religion or none would have been treated in a comparable situation.
7. Decision
I find the complainant has failed to establish a prima facie case of discrimination on grounds of religion, in terms of section 5(1) of the Equal Status Acts 2000 to 2004 and her complaint must therefore fail.
_________________
Tara Coogan
Equality Officer
May 2008