DEC-E2014-045

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

Decision DEC – E2014-045

PARTIES

John McAteer

(Represented by Tiernan Lowey B.L. instructed byJ.J Fitzgerald & Co., Solicitors)

-V-

South Tipperary County Council

(Represented by Local Government Management Agency)

File Reference: EE/2011/019

Date of Issue: 24th June 2014

Keywords: Employment Equality Acts 1998-2011 - direct discrimination - Section 6(1), less favourable treatment, S. 6(2)(e) – the religion ground, indirect discrimination -Section 22 and 31, Section 8 – discriminatory dismissal, S. 85A – Burden of proof, Manifestation of religion - Council Directive 2000/78, Treaty of Lisbon, Charter of Fundamental Rights of the European Union, Article 9 and 14 of the European Convention of Human Rights.

1. Dispute

This dispute involves a claim by a complainant that he was discriminated against on the religion ground by the above named respondent in relation to his conditions of employment and dismissal from the Council contrary to section 6(1) & 6(2)(e) and in terms of section 8 of the Employment Equality Acts, 1998 and 2011.

Background

1.2 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 19th of January 2011 alleging that the respondent discriminated against him in relation to his conditions of employment and dismissal contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011, the Director delegated the case on the 8th of May 2013 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from the complainant on the 22nd December 2011 and 19th June 2013 and from the respondent on the 15th February 2012 and 9th of May 2013. A hearing on the complaint was held on the 9th May 2013 and the last correspondence was received on the 9th of May 2013 and the final correspondence was received on the 19th of June 2013.

2 Summary of the Complainant's case

2.1 The complainant is a civil engineer and was employed by the respondent in December 2007 having previously worked with North Tipperary CC for 10 years. He was primarily located in Clonmel Borough Council and he was dismissed on the 30th July 2010. He referred a complaint of discriminatory dismissal on the 19th January 2011. The complainant is an Evangelical Christian, commonly referred to as a Born Again Christian, since 1990. He said that the tenets of his religion require him to speak to people about Jesus and share the Gospel with them. He usually shares faith with people in a social setting. He said that sometimes when he is sharing his faith with people he can read that they are not interested without them verbalising it and when he sees these signs he stops as he does not believe that he has a right to violate a person’s free will. He said that he was employed as an engineer on the roads and was usually out and about in the good weather supervising engineering projects. He started work in Clonmel Borough Council in December 2007 and on the 15th of April 2008 he was called to a meeting by the HR officer Ms. X and he was told that there was a complaint about him sharing his faith in the office. He was asked to desist from doing so in the office. He felt it was unfair, particularly during his rest periods, that he was denied the freedom to speak about his faith. He said that he would have spoken about his faith daily and sometimes he spoke to people in the canteen about it. He said that he spoke to Ms X on the 15th and again in a follow up meeting on the 23th April 2008 and he was informed he could not talk about religion during the working day including his lunch break. He said that he gave an undertaking to desist but he found it particularly difficult, given the need to practice his religion.

2.2 On the 30th of May 2008 he received a letter asking him to attend a disciplinary meeting on the 6th of June 2008. The letter outlined that the disciplinary meeting would consider:

Failing to comply with a direction received from a senior member of staff.

Preaching of personal religious beliefs to members of the public during normal working hours, and thereby,

Absenting himself from the workplace without prior permission. (This allegation was withdrawn at the disciplinary hearing)

The complainant said that he believed from an email he received that the staff of the Council had permission to attend a bicycle race which was passing through the town on the 23rd of May 2008. He said that he observed other staff of the Council including the Administrative Officer, Mr. A, attending the race. The complainant said that the race was late and while he was waiting around, he at first spoke to a man and shared his faith with him, and then he spoke to two teenagers and shared his faith with them also. He said that there was no objection from either party

2.3 The complainant attended the disciplinary hearing the 6th of June 2008 on his own. The meeting was chaired by his supervisor, the senior executive engineer, Mr. B and Mr A, who outlined the allegations to him. It was put to him that despite numerous commitments not to speak about his religious beliefs to staff or members of the public he was seen by Mr. A speaking to a man, and later to two girls at the bicycle race. Mr. A told him that he had spoken to both parties and learned from them that he had discussed religion and Jesus with them. The complainant accepted that he had. He was warned that if he shared his faith with anybody during normal working hours he would be sacked. He said that he apologised because he did not want to be sacked. He was told that it was a policy of the Council that he could not promote his personal religious beliefs during the working day. The complainant said that the Employee handbook refers to the Councils policy in relation to diversity which includes religious beliefs and he believed that he was being denied an opportunity to express his religious beliefs. On the 12th of June he received a letter from Mr. B giving him a written warning about his conduct. He was also referred to the staff support team. He said that he attended with a member of the staff support team who was very sympathetic to him and he had a very satisfactory meeting, but the outcome of the meeting did not change his personality or his desire to express his religious beliefs.

2.4 In August 2008, the complainant was in charge during the pouring of a concrete footpath and he left the office to check on the progress. There was a man with a motorbike parked in a parking bay beside the footpath. He spoke to him at first about his bike and then about religion. He was not aware that there was any complaint made to the Council, but he was called to a disciplinary meeting by letter dated 28th of August 2008. The complainant accepted that he had spoken to the man in question. He said that he felt his job was threatened and he made promises that he would desist from sharing his faith so that he could keep his job. He was given a final written warning on the 4th of September due to the serious nature of the misconduct and he was warned:

“You will obey all reasonable directions/instructions given by a senior member of staff, and,

You will cease the preaching of personal religious beliefs to members of the public during normal working hours (for the purposes of clarity these are 9am to 5pm) with immediate effect.”

He said he was warned that the likely consequences, if he was in breach of this warning, would be dismissal. He was given a right to appeal which he did not exercise.

2.5 On the 1st of February 2009 he was called to a disciplinary meeting in connection with an incident on the 13th of February 2009, when he was observed by a member of staff talking to a man outside a coffee shop. At the meeting the complainant accepted that he was talking to the man about religion. The disciplinary hearing was conducted by the Borough Council Manager. The complainant said that the Manager considered that his (the complainant) desire to share his faith with others was a defect and an abnormality in his personality. On the 4th of June 2009 he was informed of the outcome of the disciplinary hearing. The complainant said that he was found guilty of gross misconduct and he was suspended without pay for a period of 2 months and he was compelled to seek professional help to control his compulsion to speak to people about his religious beliefs. He attended 4 counselling sessions and a report was provided to the respondent and he returned to work after his suspension.

2.6 On the 17th of May 2010 the complainant was suspended on full pay pending an investigation of an incident on the 12th May 2010 when it was alleged that he engaged in the promotion of his religious beliefs to a contractor employed by the Council. The complainant said that a person was standing outside the back door of the Council offices having a cigarette at about 2pm and he was getting a file from his car. They had a conversation which included a discussion about Jesus. The complainant said that an investigation was carried out into the matter and he was informed by letter dated the 28th of June 2010 from the Borough Council Manager that he was recommending his dismissal and he was given 10 working days to appeal. The complainant said that he lodged an appeal on the 22nd of July 2010 which was outside the 10 days and it was not accepted and the dismissal was confirmed.

2.7 The complainant said that he regarded his lunch period as his own time and he believed that he should have been able to share his faith during this period. He did not accept the respondent’s description of his sharing of his faith with other people as preaching. He said that he was sharing the word of Jesus and the Gospel with people as it is a tenet of his religion. If he detected from a person’s body language that he or she was not interested, he would change the conversation or walk away. He said that there was no question that he inappropriately forced his religious beliefs on any person to whom he spoke. He denied that he brought the Borough Council into disrepute or that he could be easily identified as an employee of the Council. He said that he believes that no member of the public ever complained to the Council about him. After the first warning, he never shared his faith with any of the office staff. He said that he was treated differently than other staff as his conversations were continually monitored and watched. He said that he was marginalised in the office as other subjects could be discussed by the staff such as sports and current affairs but he was not allowed to discuss religion or mention the name of Jesus. He said that it was a great difficulty for him that he could not mention the name of Jesus Christ in the office, the most important being to him in his life, while other staff would deliberately use the name of Jesus in an offensive manner in front of him. He said that he never complained about this treatment but one member of staff did apologise to him.

2.8 The complainant’s counsel submitted that the complainant is an Evangelical Christian known as Born Again Christian and at all material times the respondent knew this fact. He said that the key tenets for practitioners of this faith are

(i) The need for a personal conversion (or being born again);

(ii) A high regard for biblical authority;

(iii) an emphasis on teachings that proclaim the saving death and resurrection of Jesus Christ;

(iv) Actively expressing and sharing the Gospel.

It was submitted that the complainant’s evidence was that he sought to manifest his beliefs by sharing his faith with others and this type of practice, which is sometimes referred to as evangelism, constituted a fundamental tenet of his religious belief system. The complainant does not accept that his actions were inappropriate evangelising or that he was proselytising during working hours.

2.9 Counsel submitted that the complainant was not always conscious of his actions and that, for him, sharing the gospel was simply part of who he was. He felt that there was nothing wrong with what he was doing and there was no evidence apart from one informal complaint from staff in the Council that anybody ever objected to the content of his conversations. The complainant advised the respondent a number of times that he would have great difficulty in not speaking to people about the gospel and expressed the view that it was unfair of them to require him not do so during his rest periods. He felt he had a right as a human being to practice his faith. It was submitted that the respondent was treating the complainant as though he was suffering from some form of mental disability because of his need to share his faith and arranged that he would receive professional assistance to address the problem and the complainant co-operated and attended the sessions.

2.10 Counsel also submitted that the respondent states in the Employee Hand Book that it is an equal opportunities employer and in it there are a section entitled “Equality Issues” which provides that the County Council is committed to equality of opportunity in its employment practices. The handbook goes on to state that the Council will not tolerate discrimination or harassment on a number of grounds including the religion ground. In a separate document entitled Equality and Diversity Management – Policy and Procedures, the respondent provides in it that managing diversity is based on the concept that people should be valued as individuals and managing diversity requires recognition of the differences that exist between people and I was referred to the following passage:

“Managing diversity is based on the concept that people should be valued as individuals for reasons related to business interests, as well as for moral and social reasons.

Managing Diversity requires that we take account of the differences that exist between people and that we recognise that these differences can be a source of strength to the organisation.”

The document also provides:

“All elected council members, management and those who work in South Tipperary Local Authorities have a responsibility to create a working environment in which differences are respected and in which all people – staff, clients and customers – are valued as individuals.”

It was further submitted that in that document the respondent states that it is committed to successfully facilitating its staff in integrating their domestic life with their working life. The complainant’s diversity is that he had a different religious belief and he was not facilitated in the practice of his beliefs and as a result of practising them he was accused of gross misconduct and dismissed from his employment.

2.11 It was submitted that the respondent had no written policy or practice in relation to the sharing of faith during working hours or while on break, up until the 15th of April 2008 meeting with the complainant. This was the first time the complainant had been advised of the respondent’s position on this issue and this new policy was not contained in any written policy. The prohibition upon him not to share his religious belief with staff or members of the public during working hours was arbitrary and lacking in any sound or proportionate rationale. It was submitted that the rationale for this policy put forward by the respondent is based on two assumptions (i) that his role would be undermined in the eyes of other members of staff or the public by sharing of his faith (ii) and this would result in staff and members of the public not interacting with him on a professional basis. It was submitted that there was no evidence before the Tribunal to substantiate that there was any basis for these assumptions and there was no evidence to suggest that the complainant’s actions resulted or even had the potential to result in his role being undermined or that staff or members of the public felt they could not interact with him on a professional basis. It was further submitted that the respondent in seeking to justify the dismissal, are now stating that the complainant’s action brought the respondent Council into disrepute. But there was no evidence adduced before the Tribunal to substantiate this claim.

2.12 I was referred to the Irish Constitution and the provisions on religion contained in Article 44.2.1 which provides for the freedom of profession and practice of religion. In McGee v Attorney General [1974] I.R. 284 the Supreme Court held:

“What the Article guarantees is the right not to be compelled or coerced into living in a way which is contrary to one’s conscience and, in the context of the Article, that means contrary to one’s conscience as far as the exercise, practice or profession of religion is concerned.”

Article 44.2.3 prohibits discrimination on the ground of religious profession belief or status and the Article was considered by the Supreme Court in McGrath v Trustees of Maynooth College [1976] ILRM 166 and stated: In proscribing disabilities and discrimination at the hands of the State on the ground of religious profession, belief or status, the primary aim of the constitutional guarantee is to give vitality, independence and freedom to religion

2.13 Counsel for the complainant submitted that the Employment Equality Acts and the EU Framework Directive 2000/78 prohibits inter alia discrimination both direct and indirect on the grounds of religion or religious belief. The Equality Acts which defines religious belief as including “religious background or outlook” is a broad definition. He referred me to an article by Marguerite Bolger, titled Discrimination on grounds of religion: theory and practice (2004) 1(2) IELJ 48 where she expressed the view that the word “outlook” suggests an expansive definition. I was also referred to the UN Convention on Human Rights which was incorporated into Irish law by the European Convention on Human Rights Act 2003 and it was submitted that there was an obligation on organs of the State to perform their functions in a manner compatible with the State’s obligation under the Convention as per Section 3 of the 2003. Article 9 of the Convention provides for freedom of religion and a right to manifest that religion. Article 6 of the Treaty of the European Union provides that the EU should respect “fundamental rights as guaranteed by the ECHR and as they result from the constitutional traditions to Member States, as general principles of Community Law.”

Article 9 of the European Convention on Human Rights provides:


“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

Article 14 – Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

It was submitted that Article 9 involves the protection of an individual’s core belief system and for the right to manifest such beliefs either individually or with others, both in private as well as in the public sphere.

2.14 The complainant’s counsel submitted that the complainant sought to manifest his beliefs by sharing his faith with other persons and that this practice, which is sometimes referred to as evangelism, constituted a fundamental tenet of his religious belief. It is denied that the complainant was preaching as characterised by the respondent. Counsel submitted that there was no evidence he acted forcefully in his evangelism nor is there any evidence that he was seeking to convert any person to his faith. He said that a distinction has to be drawn between wholly inappropriate, forceful and unwelcome promotion of religious beliefs and the simple sharing of one’s faith with others. I was referred to the following passage in Bolger, Bruton & Kimber, Employment Equality Law, Thomson Reuters, 2012, p. 452

The issue of whether mere discussion of religion by an employee in the workplace without any attempts to convert fellow employees or any application of pressure to do so would justify the taking of action by an employer remains to be determined. Issues of the constitutional guarantees, albeit not absolute, to freedom of religion and freedom of expression would certainly be of relevance, as would the nature of the discussion of the particular religion, i.e. could it be regarded as offensive or inappropriate? The European Court of Human Rights has emphasised that not every discussion about religion between individuals could justify the taking of action and justification would arise from evidence of harassment or undue pressure.”

2.15 I was referred to the jurisprudence of the European Court of Human Rights and asked to apply it to the case herein. In Larissis & others v Greece [1999] EHRR 329 (23372/94, 2637794, 26378/94), the Court held that there was no violation of Article 9 as the Greek authorities had been justified in taking measures to protect junior airmen in the Greek Air force from improper proselytising by their commanding officers. It was held they were using their positions of authority to inappropriately persuade junior staff to become Jehovah’s Witnesses. However, in that case the Court did find that the measures taken against two of the commanding officers for the proselytising of civilians were in violation of Article 9 as the civilians were not subject to the same pressure and constraints as the airmen. It was submitted that this was of significance to the instant case. It was submitted that the complainant was not forcing anybody to join his religion. His actions were passive in that he shared his faith with people and did not involve the inappropriate use of his position to convert subordinates nor was he forcing his religious views on others. His evidence was that if people did not want to discuss the matter he would immediately desist.

In Kokkinakis v Greece (14307/88) Chamber judgement 25/5/1993, the Court found a violation of Article 9 in circumstances where a criminal conviction for proselytising was imposed on the applicant, a Jehovah Witness by the Greek Courts after he engaged in conversation with a member of the Orthodox church. The Court held that the conviction was not shown to have been justified in the circumstances of the case by a pressing social need and neither was it shown in what way the applicant had attempted to convince his neighbour by improper means.

2.16 Inthe European Court of Human Rights case, Eweida and Others v United Kingdom (application nos. 48420/10, 59842/10 and 36516/10), the applicants complained that the domestic law failed to adequately protect their right to manifest their religion in the workplace. The four applicants were unsuccessful in their claims of religious discrimination in the UK courts referred claims of a breach Article 9 and 14 of the Convention. All the applicants argued that workplace regulations prevented them from expressing their Christian faith. Ms. Eweida, who worked at check in for British Airways, was prevented from wearing a cross over her uniform as it was against company policy. I was referred to paragraph 80 of that Judgment which Counsel submitted was an important development and sets out the general principles that are required to be considered as follows:

80 “Religious freedom is primarily a matter of individual thought and conscience. This aspect of the right set out in the first paragraph of Article 9, to hold any religious belief and to change religion or belief, is absolute and unqualified. However, as further set out in Article 9.1, freedom of religion also encompasses the freedom to manifest one’s belief, alone and in private but also to practice in community with others and in public. The manifestation of religious belief may take the form of worship, teaching, practice and observance. Bearing witness in words and deeds is bound up with the existence of religious convictions (see Kokkinakis, cited above, § 31 and also Leyla Şahin v. Turkey [GC], no. 44774/98, 105, ECHR 2005-XI, 44 EHRR 5). Since the manifestation by one person of his or her religious belief may have an impact on others, the drafters of the Convention qualified this aspect of freedom of religion in the manner set out in Article 9. 2. This second paragraph provides that any limitation placed on a person’s freedom to manifest religion or belief must be prescribed by law and necessary in a democratic society in pursuit of one or more of the legitimate aims set out therein.”

Counsel submitted that it is clear from the Judgement that the right to religious freedom will differ depending on the situation and the Court will consider each person’s right on an individual basis. He further submitted that the Judgment states that religious convictions contemplates bearing witness in words and deeds to a person’s faith and the above mentioned passage is very relevant to the instant case and the complainant’s manifestation of that belief.

2.17 It is also submitted that the Court rejected the rationale applied by Lord Bingham in the case of R (Begum v. Governors of Denbigh High School [2006] UKHL15 (a case involving the right to of a Muslim school girl to wear a jilbad instead of the official school uniform) and relied on by the respondent in the instant case and where it was suggested that there would be no breach of the Convention if changing from the job would be an option. The Court stated at paragraph 83:

“Given the importance in a democratic society of freedom of religion, the Court considers that, where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate.”

2.18 It was submitted that there was uncontested evidence before the Tribunal that a central tenet of the complainant’s religion is the sharing of his faith with others and which is a manifestation of his religious belief in the form of worship, teaching practice and observance and as such is protected by Article 9 of the Convention. It is submitted that any direction from the respondent to refrain from doing so constitutes an interference with that right and any interference with a right has to be proportionate. The respondent said that they believed that the complainant’s role as an executive engineer would be seriously undermined if he shared his religion with either the staff or the public during the working day because it may result in these people feeling that they could not interact with him on a professional basis only. It is submitted that the respondent has not provided any evidence to support this contention and the dismissal of the complainant for manifesting his religion was a discriminatory dismissal on the religion ground.

3. The Respondent’s Case

3.1 The complainant commenced employment with the respondent in December 2007 as an Executive Engineer and he worked in Clonmel Borough Council. In April 2008 Ms. X senior executive officer in HR called him to a meeting following complaints from staff that the complainant was preaching religion to his work colleagues and to members of the public. The complainant confirmed that the details of the complaint were true and he said he felt compelled to speak about his religion to people he came in contact with. He was informed that it was not acceptable that his religious beliefs would be preached to other colleagues or members of the public during normal working hours which is 9am to 5pm. The complainant was given a verbal warning and a direction not to preach or actively share his religious beliefs with either his work colleagues or members of the public during these hours including on his lunch break. He was also advised that failure to comply with this direction would leave him liable to action being taken under the disciplinary procedures. It was submitted that the complainant confirmed that he understood the implications.

3.2 On the 6th of June 2008, the complainant was called to a disciplinary hearing after he was observed by members of the council preaching his personal religious beliefs to members of the public during normal working hours; thereby absenting himself from the work place without prior permission. The complainant was issued with a written warning and instructed to cease the preaching of personal religious beliefs during normal working hours.

3.3 Following further complaints a further disciplinary hearing took place on the 2nd of September 2008 in accordance with the disciplinary procedures. Following this hearing, the complainant was issued with a final written warning and he was warned that the likely consequence any further misconduct was suspension/ dismissal.

3.4 In February 2009 the respondent received a report from a member of staff regarding the complainant and an investigation was initiated. In accordance with the respondent’s procedures, the complaint was considered and the complainant was called to a meeting with the Director of Services and Borough Manager. A decision was taken to suspend the complainant for a period of 2 months without pay during which time he was required to seek and avail of professional assistance that would assist him in controlling his compulsion to express his religious beliefs.

3.5 The complainant undertook the required professional assistance and returned to work following the suspension. However, shortly after returning to work, a further complaint from a member of staff in relation to the complainant’s inappropriate promotion of his personal religious beliefs was received. An investigation was undertaken by the respondent and it was conducted in accordance with the disciplinary procedures. Following the hearing, a recommendation to dismiss the complainant was made to the County Manager. The complainant was advised that he had the right to appeal the recommendation within a 10 day period and no appeal was made within the allotted time and the dismissal was confirmed.

3.6 Mr. A, an AO officer in HR in the Council, said that he had received an informal complaint in April 2008 from two staff members about the complainant talking about his religious beliefs, but they did not want to make an official complaint about him. Mr. A said that he had concerns about his alleged activities namely that he was preaching his personal religious beliefs to members of staff and possibly to members of the public during normal working hours. He said that he had observed the complainant talking to two boys on the street around this time, but he did not know the content of the conversation. He decided to report the complainant to the HR Senior Executive Officer, Ms. X. and a meeting was arranged with him on the 15th of April 2008. The complainant, Mr. A and Ms. X attended the meeting. It was put to the complainant by Ms. X that it had come to her attention that he was preaching in relation to his religion to work colleagues and members of the public out on the street during lunch time. He was asked if this was correct and he confirmed it was. He was warned that he could not preach during normal working hours to either the staff of the Council or to member of the public on the street and that normal working hours included his lunch break.

3.7 Mr. A said that there was a bicycle race going through the town on the 23rd of May 2008 and he saw the complainant in conversation with a man in the doorway of a shop. He observed him for about twenty minutes and the man did not appear to engage with the complainant. He said that he subsequently met the man and enquired of him if he knew the complainant and the man said that he did not. He then asked him who initiated the conversation and what they were talking about. The man said that the complainant initiated the conversation and it was ultimately about “Jesus and Religion”. He then observed him talking to two teenage girls for about ten minutes. Mr. A said that he approached the girls and asked them if they knew the complainant. Both the girls said that they did not know the complainant and that he engaged them in conversation about Jesus. He said that he was concerned about the fact that the complainant had disobeyed an instruction not to preach his personal beliefs to members of the public. He was further concerned that his actions would cause great damage to the integrity of the Council with the public and he reported the matter to Ms. X. He said that when he saw him talking to the people on the street he was fairly convinced he was speaking about his religion. He wrote to the complainant on the 30th of May 2013 and called him to a disciplinary hearing on the 6th of June 2013 and advised him that he was entitled to be represented.

3.8 Mr. B, Senior Executive Engineer, chaired the meeting and Mr. A also attended and the complainant attended but he was not represented. Mr. A outlined the allegations to the complainant which were as follows:

(i) Failing to comply with a direction received from a senior member of staff.

(ii) Preaching of personal religious beliefs to members of the public during normal working hours, and thereby,

(iii) Absenting himself from the workplace without prior permission.

Mr. A said that he referred to the meetings that the complainant had with Ms. X where it was pointed out to him that the practice of preaching his personal religious beliefs to staff and members of the public during normal working hours was unacceptable and if it continued it would leave him liable for disciplinary action. Mr A then outlined to the complainant that he had observed him speaking to a man and to two teenage girls on the 23rd of May 2008 and having spoken to both parties Mr. A told the complainant that he learned from them that he initiated a conversation with them about Jesus. Mr A pointed out to him that it was his belief that the complainant had disobeyed a direction given to him and he had continued to preach his personal religious belief to members of the public during normal working hours and absenting himself from work without permission. Mr. A said that the complainant had no permission to attend the cycling race, but during the disciplinary hearing the complainant’s explanation was accepted and this complaint was not pursued. Mr. B enquired from the complainant if he concurred with the allegations that he continued to talk about his religion and he agreed the incident as described took place. The complainant stated that he was sorry and apologised for his actions.

3.9 On the 12th of June 2008, Mr. B issued the complainant with a written warning to remain on his file for 9 months under the Grievance and Disciplinary procedures for failing to comply with the direction received from Ms. X and for preaching of personal religious beliefs to members of the public during normal working hours. He was informed that further misconduct would result in a final written warning. Mr. B also told the complainant given that his religious beliefs place certain compunction on him which may interfere with his ability to carry out his functions for his employer that he had to seek assistance from the Staff Support Team.

3.10 Mr. A said that he received a report from Mr. B dated 8th of August 2008. In that report Mr. B said that it had been brought to his attention, by another member of staff, that a member of staff had witnessed the complainant from the window in the Accounts Office talking to a male motor cyclist across from the Council Offices. Mr. B then observed the complainant and when the conversation ceased he went across the road and spoke to the motor cyclist who told him that the conversation was mainly about religion and this man assumed the complainant was a preacher. Mr B said that he also established that the complainant had informed the motor cyclist that he worked for the respondent. Mr. B said in the report to Mr. A that he had spoken to the complainant and warned him that he was putting his job in jeopardy. Mr. B also reported that he was told by another employee that she saw the complainant outside a chemist shop at lunch time and it was her view that he was talking to a young man about religion.

3.11 As a result of this report Mr. A called the complainant to a further disciplinary hearing on the 2nd of September 2008 to consider the following:

(i) Failing to comply with a direction received from a senior member of staff.

(ii) Preaching of personal religious beliefs to members of the public during normal working hours, and thereby,

(iii) Absenting himself from the workplace without prior permission.

(iv) Failing to observe or have regard to a previous written warning issued on the 12th of June 2008.

The disciplinary hearing was chaired by Mr. C, Borough Engineer, and the allegations as set out in Mr. B’s report were put to the complainant. The respondent said that the complainant stated in reply that he was a Christian and that he felt a very strong compunction to preach the Gospel to people he met and accepted that he spoke about religion as outlined in the report. He disagreed that he spoke to the man with the motor bike for 10 minutes; he said it was only a brief conversation.

3.12 Mr. C advised the complainant that the respondent viewed this as a very serious matter and that the implications of continuing to ignore the instructions given to him could place his employment in jeopardy. He also advised the complainant that the respondent wished to provide him with assistance with his compunction to preach and encouraged him to avail of the services provided by staff support. On the 4th of September 2008 Mr. C issued the complainant with a final written under stage 3 of the Council’s Grievance and Disciplinary procedure for the conduct outlined in Mr. A letter to the complainant of 28th of August 2008. The complainant was required to improve his conduct as follows:

(i) You will obey all reasonable directions/instructions given by a senior member of staff, and,

(ii) You will cease the preaching of personal religious beliefs to members of the public during normal working hours (for the purposes of clarity these are (9am to 5pm) with immediate effect.

(iii) The likely consequence of further misconduct is a suspension/dismissal.

3.13 On the 13th of February 2009 Mr A said that at about 1:45 he met two other work colleagues on the street and he was advised by one of them that she passed the complainant and he appeared to be preaching to a man outside a coffee shop and she heard a reference to the Holy Spirit. Mr. A said that he then observed the complainant for a further 18 minutes speaking to this man. After the complainant left the area he approached the man and asked if he knew the complainant and he confirmed that he did not. The man told Mr. A that he saluted the complainant who then initiated the conversation which was mainly about religion. The man told him that he was not offended. Mr. A compiled a report on the incident dated the 18th of February 2009 and sent it to the town clerk who appointed two Senior Executive Officers to investigate the incident. The complainant was interviewed on the 24th of April 2009. At first the complainant could not recall the incident and following a reminder of the facts he confirmed that he had spoken about religion to a young man on the 13th of February 2009.

3.14 The complainant told the Investigation team that he was a Born Again Christian and he was of the view that he could preach his religious beliefs during his lunchtime period. It was pointed out to him that he had previously been instructed not to undertake such activities during normal working hours which included lunchtime and that he was in breach of a final written warning. The complainant told the Investigation team that he found it difficult to refrain from expressing his religious beliefs and that he was passionate about such beliefs and indicated it was a compulsion which he could not explain. On foot of the report from the Investigation team, the complainant was called to a disciplinary hearing chaired by the Director of Services for Roads, Transportation & Safety and Manager of the Borough Council, Mr. D. The report of the Investigation team was read out to the complainant. The complainant acknowledged that the incident of the 13th of February 2009 took place and was in breach of the terms of the final warning he had received on the 4th of September 2008. The complainant told the hearing that he is a Christian and he feels compelled to preach about his religion. He pointed out that he takes his work for the Council seriously and he is in the office every day at 8:30 and there have been no complaints about his work.

3.15 The complainant was informed in a letter dated the 4th of June 2009 from Mr. D that he had upheld the allegation and found that he was guilty of a breach of his employment contract which amounted to gross misconduct and the sanction could be dismissal. However the circumstances warranted further consideration and he recommended a period of suspension without pay for a period of 2 months during which time the complainant would be required to seek and avail of professional assistance to control the compulsion to preach his religious beliefs. Following this the complainant’s contract of employment with the Council was suspended for two months commencing on the 22nd of June 2009. The complainant attended counselling and provided a report to the Council as requested and returned to work.

3.16 On the 14th of May 2010, an Assistant Senior Engineer of the Council, Mr. E made a report to the Town Manager, Mr. D, that the complainant was observed by another employee, an engineer, speaking to an electrician working for a contractor in the council rates office. He spoke to the electrician and it was confirmed that the complainant was speaking about his religious beliefs. The matter was reported to the Town Clerk and the complainant was informed of the allegation and suspended pending the completion of an investigation. An investigation team was appointed consisting of the Chief Fire Officer and a Senior Executive Officer. The report of Mr. E was put to the complainant and he accepted that he was speaking to the electrician about his religious beliefs. The complainant was asked if he wished to put forward mitigating factors which he wanted the Investigation Team to consider. The complainant said that his religious beliefs were a passion and he had a compulsion to share his faith and it was like someone having a passion for a football team. There were tensions with his work colleagues over the issue and he felt the zero tolerance by his employer of him speaking about his beliefs during working hours. He found this policy too restrictive and he found it hard to separate his life into working and non working hours as his beliefs are 24/7. He also confirmed that he attended 6 counselling sessions and that he was aware that his working hours covered the period from 9am to 5pm. A copy of the report on the meeting drawn up by the Investigating team was sent to the complainant and he signed it. The report was sent to the Town Manager Mr. D and he held a disciplinary hearing with the complainant on the 24th of June 2010. The complainant accepted the incident with the electrician did take place. He apologised for speaking about his religious beliefs. He said that despite attending 6 counselling sessions he still found it hard to break the habit.

3.17 Mr D wrote to the complainant on the 28th of June 2010 informing him that having given the matter due consideration that he was of the opinion the allegations were upheld and that the complainant was in breach of his employment contract amounting to gross misconduct. He recommended the dismissal of the complainant from his post of executive engineer and he gave him ten days from the 28th of June to appeal the decision to the County Manager. The complainant did not appeal the decision to dismiss him within 10 days and the decision to dismiss him was confirmed to the complainant by the County Manager in a letter dated 16th July 2010 to take effect from the 30th of July 2010. The complainant lodged an appeal against the decision by letter dated the 22nd of July. In a response the Council informed him that his appeal was outside the time limit for making such an appeal and that he should submit in writing any exceptional circumstances which prevented him from appealing within the 10 days provided. There was no response received from the complainant and his dismissal was implemented.

3.18 The respondent submitted that the complainant was not dismissed because of his religious beliefs and was not treated less favourably than a person of a different religious belief and would have treated in similar circumstances. The complainant was dismissed because he continuously failed to comply with the directions of senior members of the Council and that he continued preaching and promoting his religious beliefs to members of the public during normal working hours. It was submitted that the Act, while protecting the complainant’s right to hold a religious belief and not to be treated less favourably in relation to his religious belief, it does not necessarily protect the complainant in exercising his freedom to manifest his religious belief at any time or place of his choosing. The respondent fully respects the complainant’s right to a religious belief however during working hours from 9am to 5pm he is required to carry out his contractual obligations with the Council.

3.19 The respondent submitted that the disciplinary procedures were followed and were invoked against the complainant when he failed to comply with instructions not to preach during working hours. The complainant told the respondent that his religious beliefs were very strong and he felt compelled to talk about Jesus and he found it difficult to stop. The respondent compelled him to go to counselling to assist with his compulsion to preach. However on his return to work he still failed to obey the warnings he received and continued to preach. It was submitted that the complainant does not have a right to manifest his religion or beliefs as and when he chooses. It was submitted that the Irish Constitution, the Convention and the Equality Acts all protect the complainant’s right to hold a religious belief, but in all the declarations concerning human rights, no right is absolute an unlimited. The complainant continued failure to obey reasonable instructions not to preach his religion during working hours led to his dismissal and it was only after the disciplinary procedures were fully exhausted that the decision to dismiss was taken.

3.20 It was submitted by the respondent’s representative there was no ban imposed on the complainant in relation to the profession of his faith. He was dismissed for the inappropriate promotion of his faith to members of the public during working hours which included lunch time. He was disciplined following a reasonable request to desist from such behaviour he continued to disobey the instruction even after a final written warning which resulted in his dismissal.

3.21 I was referred to a decision of the English EAT Chondol v Liverpool City Council [2009] EAT 0298-08-1102 which concerned a claim of discrimination on the religious ground. It was submitted that the reasoning in this case should be applied to the instant case. Mr Chondol, a committed Christian, was a social worker working for a NHS trust as part of a Community Mental Health Team. He was dismissed for inappropriate promotion of his religious beliefs to service users. In a decision dismissing the claim of religious discrimination and upheld by the Court of Appeal, the EAT held that “it was not on the ground of his religious belief that he received the treatment but on the ground that he was improperly foisting it on service users.”

I was also referred to the Court of Appeal decision in an appeal from the EAT in the case of Ladele –v- London Borough of Islington [2009] EWCA Civ 1357. The question raised was whether Ms Ladele could be compelled to register civil partnerships even though she objected to officiating at such registrations on the grounds of her religious beliefs. The Masters of the Rolls in rejecting her appeal and in considering the matter under Article 9 of the Convention stated at paragraph 56:

In Pichon and Sajous v France Application 49853/99 (2 October 2001), the Strasbourg Court pointed out that "the main sphere protected by Article 9 is that of personal convictions and religious beliefs" although it "also protects acts that are closely linked to those matters such as acts of worship or devotion forming part of the practice of a religion or a belief". Accordingly, the article did not protect pharmacists who claimed that their "religious beliefs justified their refusal to sell contraceptives" as "the sale of contraceptives is legal and occurs nowhere other than in a pharmacy", and the pharmacists could "manifest [their] beliefs in many ways outside the professional sphere."

It was submitted that paragraph 58 was also relevant

Accordingly, in Sahin v Turkey (2007) 44 EHRR 5, the Grand Chamber held that there had been no violation of article 9, when a University refused admission to lectures or tutorials, and refused enrolment on courses, to students with beards or Islamic headscarves. In paragraph 108, the Grand Chamber said that the need "to maintain and promote the ideals and values of a democratic society", in that case "the principle of secularism" (paragraph 116), can properly lead to "restrict[ing] other rights and freedoms … set forth in the Convention" (in that case the wearing of beards and headscarves for religious reasons). In paragraph 105, the Grand Chamber endorsed the proposition that "Article 9 does not protect every act motivated or inspired by a religion or belief. Moreover, in exercising his freedom to manifest his religion, an individual may need to take his specific situation into account".

3.22 It was also submitted that the judgment of the House of Lords in R(SB v Governors of Denbigh High School 2007 1AC100 was also relevant. The case concerned the right of a Muslim schoolgirl to wear the jilbab instead of the approved school uniform. At paragraph 50 Lord Bingham stated: “Article 9 does not require that one should be allowed to manifest one’s religion at any time and place of one’s own choosing.”

At paragraph 86 in relation to Article 9.2 of the Convention the judgment stated:

86. “Freedom to manifest one’s religion” does not mean that one has

the right to manifest one’s religion at any time and in any place and in

any manner that accords with one’s beliefs”

The European Court of Human Rights in the Eweida case cited above considered Lord Bingham analysis of the case law in above mentioned Governors of Denbigh case where he stated at paragraph 23:

“The Strasbourg institutions have not been at all ready to find an interference with the right to manifest religious belief in practice or observance where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are other means open to the person to practise or observe his or her religion without undue hardship or inconvenience”.

3.23 It was submitted that the complainant was not discriminated against nor was there any breach of Article 9 as the complainant was perfectly free to practice his religion outside working hours. It was submitted that in following the above cited case law with regard to Article 9 of the Convention this jurisprudence clearly does not give the complainant a right to practice his religion at any place of his choosing. The complainant was restricted to manifesting his religion outside working hours as he was required to conduct himself in a professional manner when he was carrying our his duties on behalf of the Council. It was submitted that the complainant was in breach of the Code of Conduct for Employees under the following headings: (i) at para. 2.2 where it provides that an employee should“ maintain the highest standards of integrity by: - ensuring that their conduct does not bring the integrity of their position or of local government into disrepute.” And “observe appropriate behaviour at work by promoting equality and avoiding bias in their dealings with the public.” (ii) At paragraph 10.1 he was required to devote his full attention to official duties and not absent himself from duty without authority. (iii) At para. 11.5 employees are required to show “due respect to their colleagues at work and to engender positive working atmosphere.” Employees must also observe the codes of practice dealing with equality and harassment. (iv) At para 13.4/5 employees are required if other situations arise not covered in the Code which would give rise to a conflict between personal and public interests that employees should deal with that situation in accordance with the code and ensure that their actions are governed by ethical and other considerations implicit in the Code.

It was submitted the respondent was entitled to dismiss the complainant for being in breach of the Code of Conduct.

4. Conclusions of the Equality Officer

4.1 I have to consider the complainant's claim that the respondent directly discriminated against him on the religion ground in terms of sections 6(1) and 6(2)(e) of the Employment Equality Acts 1998 and 2011, in contravention of 8(1) of that Act in relation to dismissal. I have also to consider whether the complainant was indirectly discriminated against contrary to Section 31 of that Act. I have taken into account all of the evidence, written and oral, submitted to me by the complainant and the respondent.

4.2 It is a matter for the complainant in the first instant to establish a prima facie case of discriminatory treatment. It requires the complainant to establish facts from which it can be inferred that she was discriminated against on the above mentioned grounds. It is only when he has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.

Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:

“(1) Where in any proceedings facts are established by or

on behalf of a complainant from which it may be presumed that

there has been discrimination in relation to her or her, it is for the

respondent to prove the contrary.”

4.3 The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell DEE 011, 15th February 2001 considered the extent of the evidential burden which a complainant must discharge before a primafacie case of discrimination on grounds of sex can be made out. It stated that the claimant must:

“.... “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.”

The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that he was not discriminated against on the gender, marital status or family status grounds. If the complainant does not discharge the evidential burden, the claim cannot succeed.

4.4 I am now going to consider the evidence in the light of the above and to determine whether the complainant has established a prima facie case. Section 6(1) of the Employment Equality Acts 1998 and 2011 provides:

6.—(1) For the purposes of this Act and without prejudice to its

provisions relating to discrimination occurring in particular circumstances,

discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is,

has been or would be treated in a comparable situation

on any of the grounds specified in subsection (2) (in this

Act referred to as the ‘‘discriminatory grounds’’)

4.5 Section 6(2)(e) provides that as between any two persons, the discriminatory grounds are, inter alia:

(e) that one has a different religious belief from the other, or

that one has a religious belief and the other has not (in

this Act, referred to as ‘‘the religion ground’’),

‘‘religious belief’’ includes religious background or outlook;

 

“8(1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective

employee and a provider of agency work shall not discriminate

against an agency worker.”

(4) A person who is an employer shall not, in relation to

employees or employment—

(a) have rules or instructions which would result in discrimination

against an employee or class of employees in

relation to any of the matters specified in paragraphs (b)

to (e) of subsection (1), or

(b) otherwise apply or operate a practice which results or would

be likely to result in any such discrimination.”

………..

(6) “Without prejudice to the generality of subsection (1), an

employer shall be taken to discriminate against an employee or prospective

employee in relation to conditions of employment if, on any

of the discriminatory grounds, the employer does not offer or afford

to that employee or prospective employee or to a class of persons of

whom he or she is one—

(a) the same terms of employment (other than remuneration

and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short

time, transfers, lay-offs, redundancies, dismissals and disciplinary

measures, as the employer offers or affords to another person or class of persons,

where the circumstances in which both such persons or classes

are or would be employed are not materially different.”

 

22.—(1) (a) Indirect discrimination occurs where an apparently

neutral provision puts persons of a particular gender

(being As or Bs) at a particular disadvantage in

respect of any matter other than remuneration compared

with other employees of their employer.

(b) Where paragraph (a) applies, the employer shall be

treated for the purposes of this Act as discriminating

against each of the persons referred to (including A

or B), unless the provision is objectively justified by

a legitimate aim and the means of achieving that aim

are appropriate and necessary.

31.—(1) Subsections (1) and (1A) of section 22 apply in relation

to C and D as they apply in relation to A and B, with the modification

that the reference in subsection (1) to persons of a particular

gender (being As or Bs) is a reference to persons (being Cs or Ds)

who differ in a respect mentioned in any paragraph of section 28(1)

and with any other necessary modifications.

4.6 The first question I have to consider is whether the manifestation of religious beliefs is covered by the Employment Equality Acts and the Directive. It was argued by the respondent that while the Acts protect an employee’s right to hold a religious belief it does not protect a right to manifest that religion or belief. The complainant was dismissed not for his religious belief but for gross misconduct because he failed to obey a lawful instruction of his employer not to preach his religion during working hours. Counsel for the complainant submitted that while the Framework Directive does not refer to discrimination arising out of the manifestation of religion or belief but in the light of the EU Charter of Fundamental Rights such matters are now covered by the Directive.

Title 11 Article of10 Charter of Fundamental Rights of the European Union OJ C 303/3 provides:

“Freedom of thought, conscience and religion

Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.”

It was also submitted by the complainant’s Counsel that the right guaranteed in Article 10 of the Charter corresponds to the right guaranteed in Article 9 of the ECHR cited above and, in accordance with Article 52(3) of the Charter has the same meaning and scope. Article 52(3) provides:

“3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.”

I note that on 1 December 2009, with the entry into force of the Treaty of Lisbon, theCharter became legally binding on the EU institutions and on national governments, in the same way as the other EU Treaties. Therefore there is an obligation on me to interpret the Act and the Directive in conformity with the Treaty and the Charter of Fundamental Rights of the European Union. I note that the Charter and the Convention protects a right to manifest one’s religion. For these reasons I am satisfied therefore that the manifestation of religion is covered within the religion ground in the Employment Equality Acts.

4.7 I have to consider whether the complainant was directly discriminated against and treated less favourably than another person of a different religion or a person of no religion was treated or would have been treated in similar circumstances. I have also to consider is whether the complainant was indirectly discriminated against in accordance with section 31 of the Act.

Direct Discrimination

4.8 The complainant submits that he was discriminated against in relation to his conditions of employment and dismissed because the respondent had zero tolerance of his religious belief and the manifestation of that belief. The complainant stated that there was no other staff member treated like he was. He said that he is an Evangelical Christian and as a follower of Jesus Christ it is a requirement of his faith to share the Gospel with other people. He submits that he was treated differently to other staff that did not have the same faith to him. Counsel for the complainant referred me to the provisions in the respondent’s Equality and Diversity Management - Policy and Procedures quoted above which provides that management should value people for reasons related to the business, take account of differences which exist between people and create an environment where these differences are respected and elsewhere in the document it states that no member of staff will be treated less favourably because of their religious belief. He submitted that the respondent in its treatment of the complainant failed to follow its own policy and procedures and disciplined and dismissed the complainant because of his difference in relation to his religious beliefs.

4.9 The respondent’s case is that the complainant was not discriminated against in any respect in relation to his religious beliefs. He was guilty of gross misconduct in refusing to obey a lawful instruction not to preach to either staff or member of the public during normal working hours i.e. 9am to 5pm and because of his actions there was a potential that he would bring South Tipperary County Council into disrepute. The complainant had been made aware that if he continued to share his religious beliefs it would seriously undermine his role as Executive Engineer and could result in member of the public feeling that they could not interact with him solely on a professional basis. The respondent submits that the complainant, despite a final written warning, was in breach of his employment contract by not obeying an instruction not to preach his personal religious beliefs. There was no ban on the complainant in relation to the profession of his faith but he was not allowed to approach members of the public during working hours including lunch time. It was submitted that there was a lack of trust that the complainant would conduct himself in a professional manner when he carried out his duties on behalf of the Council. It was further submitted that he was wearing his high-vis jacket which identified him as a council employee that his behaviour was in breach of the above mentioned Code and in continuing to ‘preach’ after receiving a number of warnings including a final written warning amounted to gross misconduct and he was dismissed for this re

4.10 I note that the facts of this case are not in dispute. I note that there was a verbal complaint to HR about the complainant speaking about religion to staff. The staff making the complaint did not wish to put the matter in writing and the complaint was dealt with informally. There was no evidence that there were any further complaints from staff in relation to this issue. There was absolutely no evidence put before me that there were any complaints made to the Council about the complainant from members of the public. It seems to me that following the warning, the complainant confined his conversations about religious beliefs mainly to his lunch period. The evidence put forward by the respondent that the complainant deliberately absented himself from work to preach his religious beliefs was not substantiated. There were two incidents raised which occurred outside the lunch period. The first related to the man with the motor bike and the complainant’s evidence in relation to this is that he was supervising works on a footpath and this evidence was not disputed by the respondent. The other incident occurred at the back door of the respondent’s premises shortly after 2pm when the complainant engaged with a contractor on his return from his car with some official files and the complainant’s evidence was not disputed in relation to this event. I note that the complaint about his absence from the office during the bicycle race was withdrawn by the respondent and the complainant’s explanation was accepted.

4.11 It seems to me that from the first warning onwards that the complainant was observed and closely monitored by staff of the Council and when he was seen speaking to other people these people were approached by Council staff to find out the content of the conversation. From the evidence it appears a significant number of Council staff were apprised of the complainant’s religious beliefs and the fact that he could not speak about his beliefs to anybody during the working day including the lunch period. It is clear that these staff were asked to monitor him given the number of staff who reported to management that they saw the complainant speaking to a member of the public. Following each incident, the complainant was warned under the Disciplinary Procedures. I am satisfied that the treatment of the complainant and the monitoring of him by Council staff directly related to his religious beliefs and the manifestation of these beliefs. There was no evidence submitted that the complainant failed to carry out his duties as an employee or that the practising of his religious beliefs had any adverse impact on the respondent’s business. I note that there was no evidence that other staff of the Council had their conversations with members of the public monitored in any way. I am satisfied that the complainant has established that he was treated less favourably than a person of a different religion or a person of no religion would have been treated in similar circumstances as other staff had not had their conversations with members of the public investigated and reported to management. I note from the evidence there was no prohibition on other staff of a different religion practising their religion and it was accepted in evidence that a person of the Catholic faith could attend Mass during the working day. I also note that the complainant was compelled to attend counselling because the respondent believed that his passion for speaking about his religion was a form of addiction. I am satisfied that a person of another religion would not have been compelled to attend counselling for reasons related to their religion. For these reasons, I am satisfied that the complainant has established a prima facie case of discriminatory treatment in relation to his conditions of employment and dismissal.

4.12 I note that the complainant was dismissed for gross misconduct and under the Disciplinary Procedures. The definition of gross misconduct includes ‘bringing South Tipperary County Council into disrepute.’ There was no evidence presented in relation to how the complainant brought the Council into disrepute or breached the code of conduct. The complainant disputed that he could be clearly identified as a Council employee and Mr. A could not confirm if the complainant was wearing his high-vis jacket during any of the incidents raised with him. I note that none of the people approached by the Council in relation to the complainant’s conversations with them complained about him to the Council. It is clear that the complainant was passionate about the practice of his religion but the respondent treated this passion and desire to manifest his religious beliefs as an ‘addiction’ and ordered him to attend counselling to help him to desist from doing so. It is clear that the respondent did not like the complainant speaking about his religion in any manner or at any time during the working day including break times. There was no evidence presented that he did not carry out his duties on behalf of the Council in an appropriate manner nor did he receive warnings about the quality of his work.

4.13 I was asked to apply the reasoning in the UK EAT case in Chondel cited above. I note in that case, Mr. Chondel, a committed Christian, was a social worker and was part of a Community Mental Health Team. He was aware that the Council prohibited social workers from promoting their religious beliefs in the course of their work. However Mr. Chondol on visits to service users homes gave one service user a Bible and he actively promoted his religious belief to another servicer user who made a complaint to the Council and asked that a different social worker to be assigned. He was subjected to disciplinary proceedings and dismissed for his conduct. The Employment Tribunal found that he had been inappropriately promoting his religion to the service users and that an employer would have reached the same conclusion regardless of the religion of the person. The Tribunal concluded that it was not on the ground of his religion that he was dismissed; he was dismissed for a number of reasons some unconnected to his religion but including the inappropriate promotion of religion to service users. I note that the service users in that case were in a vulnerable position and the social worker was required as part of his duties to visit service users in their homes. Therefore the facts of that case can be differentiated from the instant case. There is no evidence that the complainant at any time inappropriately promoted his religious beliefs to service users of the Council or that he was handing out Bibles or other religious material to them. Furthermore, once the complainant was warned about sharing his religious beliefs with staff in the office, there was no further complaints that he continued thereafter. For the foregoing reasons, I am satisfied that the respondent has failed to rebut the prima facie case established by the complainant. I find therefore that the complainant was dismissed for reasons connected to his religious belief which the respondent has failed to rebut.

Indirect Discrimination

4.14 It was submitted by counsel for the complainant that I should consider the matter as indirect discrimination. Indirect discrimination in relation to the non-gender grounds is covered at Section 31(1) of the Acts which should be read in conjunction with Section 22(1) which states ‘where an apparently neutral provision puts a person of a particular religion at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.’ The definition of ‘provision’ in Section 2 is broad: ‘a term in a contract or a requirement, criterion, practice, regime, policy or condition relating to employment.’ The above definition of indirect discrimination reflects the definition set out in Article 2 of the EU Framework Directive 2000/78/EC.

Indirect discrimination occurs: ‘unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.’

The policy the complainant had to comply with was not to engage in conversation about religion with either members of staff or members of the public during normal working hours which included lunch-time. Because he was unable to comply with the policy, he was dismissed for gross misconduct. The complainant submitted that any policy of this kind must not be arrived at arbitrarily with disproportionate effects on a class of person. The complainant submits that he is an Evangelical Christian and one of the fundamental tenets of his religion is evangelisation or sharing his faith with others. Therefore, the ban imposed on him for the duration of the working day had a greater impact on Evangelical Christians than it would have on people of other religions or people who have no religion as he could no longer practice his religious beliefs during the working day. It is necessary for me to consider if the requirement is indirectly discriminatory under the Act.

4.15 The Supreme Court in the case of Nathan v. Bailey Gibson & Others [1996] ELR vol. 7 set out the tests to be applied in considering cases of indirect discrimination. This was a case under the Employment Equality Act, 1977 concerning indirect discrimination on the grounds of sex and marital status. The Supreme Court stated the following principle which were followed by the High Court in the case of Conlon v University of Limerick [1999] ELR vol. 10

“In such a case the worker is not required, in the first instance, to prove a causal connection between the practice complained of and the sex of the complainant. It is sufficient for him or her to show that the practice complained of bears significantly more heavily on members of the complainant’s sex than on members of the other sex. At that stage the complainant has established a prima facie case of discrimination and the onus of proof shifts to the employer to show that the practice complained of is based on objectively verifiable factors which have no relation to the plaintiff’s sex.”

4.16 The complainant submitted that this policy put him at a particular disadvantage compared to other staff of a different religion. While the complainant has not produced any statistical evidence to support this contention it is obvious that the predominant religion in this country is still Roman Catholic and it can be inferred from this that the predominant religion of the respondent employees is Catholic. I note that from the CSO report of the 2011 census that 84.2% of the population said that they were Catholics. The practice of sharing faith with others is not a fundamental tenet of the Catholic faith so therefore substantially more employees of a different faith could comply with the requirement than the complainant. In considering the matter of statistical evidence in indirect discrimination cases, I am guided by the Labour Court decision in an employment case, NBK Designs Ltd v Inoue ED/02/34 Determination No. 0212. In this Decision, the Labour Court held that an expert tribunal like the Labour Court could take account, even in the absence of specific evidence, matters such as the risk of disparate impact on a protected ground under the Act which are well established and are obvious from its specialist experience. In Inoue, the Labour Court held that it was obvious that measures impacting on part-time workers, or on those caring for small children, would impact disproportionately on women. I am satisfied that the ban placed on the complainant from sharing his faith during working hours of 9am to 5pm including lunch time impacted disproportionately on persons of his religious faith than persons of a different religious faith or on persons with no religious faith. Therefore the complainant has established a prima facie case of indirect discrimination on the religion ground.

4.17 Under Section 31(1) it is a matter for the respondent to objectively justify the policy. Now I will turn to the three limbs of objective justification:

(i) whether it’s a legitimate aim

(ii) whether the means of achieving that aim is appropriate

(iii) whether the means of achieving that aim is necessary

The respondent submits that the aim of the policy to prevent the complainant bringing the Council into disrepute by the inappropriate promotion of his religion. It was also necessary to have the policy in place to prevent users of the Council services feeling they could not interact with the complainant as a representative because of the inappropriate promotion of his religion and there was a lack of trust that the complainant would conduct himself in a professional manner when dealing with the public. The complainant was dismissed after a final warning because he refused to comply with the ban on discussing his religion during working hours. It was submitted that the public would have regarded the complainant as a representative of the Council and would not have distinguished between the working day and lunch-time and it was for this reason, the policy was put in place and the complainant’s failure to adhere to the policy led to his dismissal. While all of the above matters are legitimate aims of the Council, there has been no evidence presented that the complainant brought the Council into disrepute or acted other than in a professional manner when dealing with members of the public on behalf of the Council.

4.18 I note that the respondent did not receive any complaints from members of the public about the complainant or that he was holding himself out as a representative of the Council while he was sharing his faith. Neither was there any evidence put forward to show that the services of the Council that the complainant was providing as an employee to members of the public, were in any way dependant on the joining his religion. Even if the complainant was identified by the public as an employee of the Council, it is difficult to see how that the complainant’s activities in manifesting his religion had the potential to bring the Council into disrepute. The idea that the Council’s reputation might be affected by the complainant’s manifestation of his religious belief to members of the public is not tenable, because as an employee, he was not holding himself out as an example of the Council’s belief or lack of belief in this regard, but he was acting purely as an individual who happens to work there. I note that the complainant’s conversations with other people were constantly monitored by the Council staff to find out the content. Approaching people the complainant was seen having a conversation with and prying into the content of that conversation with a view to catching out the complainant was wholly inappropriate and unnecessary. I am not satisfied that the respondent has established that the means chosen to achieve the aim were appropriate or necessary in circumstances.

4.19 In considering objective justification it was submitted by the complainant’s Counsel that it was necessary to consider Article 9 of the Convention. An individual right pursuant of Article 9 not only includes a right to hold a religion or a religious belief but also includes a right to exercise it without interference unless such interference is “necessary in a democratic society in the interest of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” It was further submitted that the respondent argued that the complainant was disciplined and dismissed for a breach of a direction, it was submitted that any such direction must not only be reasonable but cannot be informed fundamentally by a policy or position which is at odds with the complainant’s right to religious freedom and any such policy must be justified pursuant Article 9.2. It was submitted that from an analysis of the jurisprudence cited above the Strasbourg Court has held that the freedom to manifest ones religion will differ from one person to the next and the Court considers each person’s right on an individual basis. It was submitted that the respondent’s decision to restrict the complainant’s right to manifest his religion was not proportionate and they have failed to objectively justify their decision.

4.20 It was submitted by the respondent that they had no difficulty with the complainant’s religious beliefs and that he was perfectly free to practice his beliefs outside normal working hours and therefore there was no breach of Article 9 of the Convention. It was also submitted that under Article 9 the right to manifest ones religion is not absolute and unlimited.

I was referred to a number of European Court of Human Rights judgments already cited above.

I note in Larissis that the commanding officers were in positions of authority and it was held that it was inappropriate for them to pressurise their junior officers to become Jehovah’s witnesses and the Court held that there was no breach of Article 9 of the Convention. It was also held that measures taken against the commanding officers for proselytising civilians were unjustified and amounted to a breach of Article 9. I note that the Court made a distinction between the evangelisation of subordinates who felt pressurised and the evangelisation of civilians who were not subject to the same pressures and constraints as the junior airmen. There was no evidence here that the complainant forcefully shared his religion with either members of staff or members of the public or that he was in a position of authority. It was his evidence that if a person by their body language displayed no interest in his conversation, he would terminate the conversation and this evidence was not disputed by the respondent.

4.21 In the Eweida case cited above the facts are as follows; Ms Eweida, a practising Coptic Christian, claimed discrimination against British Airways on the religious ground under the Employment Equality legislation when she was sent home from work for refusing to remove a cross she was wearing for religious purposes outside her uniform which was in contravention of company’s uniform policy. The Employment Tribunal held that the requirement to comply with the dress code was disproportionate as the employer had not distinguished between the religious significance of the cross and a piece of jewellery. This finding was reversed by the EAT and upheld by the Court of Appeal which found that the employer acted proportionately. An appeal to the European Court of Human Rights was referred under Article 9 and 14 of the convention. The Court found that there was a breach of Article 9, in that there was a failure of authorities to protect her right to manifest her religion. The Court did not consider it necessary to consider the complaint under Article 14.

4.22 I note that three other applicants Chaplin, Ladele and McFarlane were joined to the above Eweida case and the Court rejected their application that there was any breach of Article 9 or 14.

Ms. Chaplin, a practising Christian, worked as a nurse for the NHS in a geriatric hospital. She wore a cross on a chain around her neck as an expression of her faith. After the introduction of new uniforms with v necks, her cross was visible and she was asked to remove it on health and safety grounds as it could come into contact with patients and open wounds. She refused as it was a symbol of her faith. A number of attempts to resolve the issue were unsuccessful and the complainant was moved to a non-nursing temporary position. She referred a complaint to the Employment Tribunal claiming discrimination on the religious ground which was unsuccessful. The matter was appealed to the European Court of Human Rights under Article 9 and 14. The Court held that there was an interference with her right to manifest her religion. The employer argued that the chain and cross constituted a health and safety danger as a patient might grab the chain thus injuring either the patient or Ms. Chapin. In considering the matter under Article 9.2, the Court concluded, having heard the reasons for not allowing the wearing of a cross and chain by the nurse, that the measure was not disproportionate and there was no violation of Article 9 and applying the same reasoning to Article 14 concluded there was no violation of that article either.

4.23 Ms Ladel, of an orthodox Christian view was a Register of marriages and had objected to performing same sex civil partnerships. The facts of her case are outlined above. The applicant referred a complaint under Article 9 and 14. The Court held that there were competing rights under the Convention, the right of the couple not to be discriminated against and the right of Ms. Ladel not to suffer discriminatory treatment in relation to her religious beliefs. The Court held that national authorities had a wide margin of discretion when it comes to striking a balance between competing rights and this margin was not exceeded and therefore there was no violation of the Convention.

4.24 Mr. Mc Farlane, a practising Christian, worked in a relationship counselling and sex therapy service. He had a difficulty based on his religious beliefs providing sex therapy to same sex couples and despite giving an undertaking that he would do so, he failed to comply with a direction to provide therapy to same sex couples. He was dismissed from his employment and lodged a claim with the Employment Tribunal which was rejected. He referred a complaint under Article 9 and 14 of the Convention and the Court held that there was no violation having considered the matter in similar terms to the Ladel case above.

4.25 It is clear from the above mentioned series of cases that the right to manifest one’s religious beliefs at work is protected as in the Eweida case, but these rights are balanced with the rights of an employer to limit these rights provided there is objective justification for doing so and any limitation must be proportionate, for example, to protect staff from undue pressure as in Larissis, in the Chaplin case toprotect the health and safety of both staff and patients, in the Ladel and Mc Farlane case, their dismissal was objectively justified for their refusal to carry out certain aspects of their jobs because of their religious beliefs. In applying the above jurisprudence to the case herein, I am not satisfied that the sanction of dismissal imposed on the complainant was warranted in the circumstances and therefore the respondent has not established objective justification for this decision. I note the complainant was dismissed for continuing to talk about his religion to members of the public during the working day which included lunch-time. It should be noted that it was accepted that the complainant did not speak to staff about his religion after he got the initial warning. The question then was it objectively justifiable to maintain a ban on the complainant speaking about his religion when there was no evidence that it had any impact on him carrying out his duties for the Council or that what he was doing was either offensive, inappropriate or it constituted harassment. For all the foregoing reasons, I find that the respondent has failed to rebut the prima facie case of indirect discrimination raised by the complainant. I find therefore that the dismissal of the complainant was for discriminatory reasons on the religion ground.

5. Decision

5.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2011, I find that:

the respondent did discriminate against the complainant on the religion groundpursuant to section 6(1) and 6(2)(e) of the Acts and in terms of section 8 of the Acts in relation to his conditions of employment and dismissal.

5.2 Under Section 82 of the Act I can provide redress. The Section provides:

82.—(1) Subject to this section, the types of redress for which a

decision of the Director under section 79 may provide are such one

or more of the following as may be appropriate in the circumstances

of the particular case:

(c) an order for compensation for the effects of acts of discrimination

or victimisation which occurred not earlier than 6

years before the date of the referral of the case under

section 77;

(i) In calculating redress for the complainant, I must be cognisant that the complainant was dismissed for discriminatory reasons from a permanent position and has only succeeded in getting part-time work since then. I am satisfied that the effects of the dismissal on him were very serious. I am also guided by Article 17 of the Directive 2000/78 O.J. L 303 which states penalties must be effective, proportionate and dissuasive.

(ii) The maximum award I can make under Section 82(4) of the Acts is two years pay for discriminatory treatment. The complainant’s salary was €54,000.

(iii) Taking into account all the circumstance of the case, I consider that an award in the amount of €70,000 is appropriate in relation to the discriminatory treatment. In accordance with my powers under section 82 of the Employment Equality Acts, I order the respondent to pay the complainant €70,000 in compensation for the effects of the discriminatory treatment. This figure represents compensation for the infringement of his rights under equality legislation in relation to discrimination and dismissal it does not include any element relating to remuneration, and therefore it is not taxable.

____________________

Marian Duffy

Equality Officer

24th June 2014