EDA153

In this Determination the parties are referred to as they were at first instance. Hence, Mr McAteer is referred to as the Complainant and South Tipperary County Council is referred to as the Respondent.

The Issue
There is no material dispute concerning the facts of the case. But there are very considerable differences between the parties concerning the applicable law and its application to the facts giving rise to the case.

Background
The Complainant is a civil engineer. He was employed by the Respondent in that capacity in 2007. He was assigned to Clonmel Borough Council. The Complainant previously worked for North Tipperary County Council for 10 years. He was dismissed on or about 30^thJuly 2010. The Respondent contends that the dismissal resulted from the Complainant’s failure or refusal to obey lawful instructions and followed several warnings. The Complainant contends that the underlying reason for the dismissal was the practice of a central tenet of his religion

The Complainant is an Evangelical Christian (commonly known as a born again Christian). He has been an adherent of that religion since 1990. According to the Complainant, a central tenet of his religion requires him to speak to others about Jesus and to share the Gospel with them. The Respondent received complaints about the Complainant engaging in what it characterised as preaching in the office. He was instructed to desist from this practice. It would appear that the Complainant also engaged in this activity with members of the public mostly during his lunch break. He was subjected to disciplinary interviews in relation to this practice in 2008 and again in 2009. He was given a final written warning in 2008 and in 2009 and he was suspended for two months without pay. His behaviour was classified as gross misconduct on both occasions. As well as being suspended in 2009 the Complainant was required to seek professional help to overcome his compulsion to speak to others about religion. He attended four counselling sessions.

On or about 17^thMay 2010 the Complainant was suspended on full pay pending an investigation of a complaint that he had again engaged in the promotion of his religious beliefs with a contractor employed by the Council. Following a subsequent investigation he was dismissed.

Employees of the Respondent generally are not subject to any formal or contractual restriction in matters of religion, including the propagation of religion during or outside their working time.

The Complainant referred a Complaint to the Equality Tribunal on 19^thJanuary 2011. The complaint was heard by an Equality Officer on 9^thMay 2013. In a Decision dated

24^thJune 2014 the Equality Officer found for the Complainant. He was awarded compensation in the amount of €70,000. The Respondent appealed to this Court by notice of appeal dated 24^thJuly 2014.

Position of the Parties
The Complainant contends that the actions of the Respondent amounted to an interference with the practice by him of his religion. He contends that the propagation of his religious beliefs is a central obligation of his religion. He relies on several UK authorities and on decisions of the European Court of Human Rights in advancing this contention. He points out, correctly, that the European Convention on Human Rights and Freedoms is now incorporated in the law of the European Union and the Directive on which the Act is based must be construed in conformity with the Convention.

The Respondent denies that the Complainant was dismissed because of his religion. It contends that the dismissal resulted wholly from the Complainant’s refusal to obey lawful instructions as to how he should conduct himself in the performance of his duties. The Respondent also relies upon authority to advance the proposition that the right of religious freedom does not extend to the manifestations of religious belief in the course of employment.

The Facts
Evidence was given by Mr Jonathan Cooney, Managing Engineer with the Respondent; Ms Josephine Brett, who was Human Resources Officer with the Respondent at the material time and is now retired; Mr Paul Murray Administrative Officer with the Respondent and Mr Ned O’Connor who was the Respondent’s County Manager at the material time and who is now retired.

Both parties made written submissions which comprehensively set out the facts upon which they relied and on the applicable legal principles. A significant volume of other documents, comprising memoranda, reports and minutes of meetings were also put in evidence. Oral evidence was taken only on matter of facts that were in contention. The Court has relied upon the written submission, documents and on the oral evidence in reaching its conclusions.

The material factual matrix of the case, as admitted or as found on the evidence is as follows.

• • The Complainant is by religion an evangelical Christian or what is often known as a born again Christian. According to the Complainant’s written submission the term “born again” refers to a spiritual rebirth of the human soul or spirit, contrasted with physical birth. Again, according to the Complainant, people who profess to be born again often believe that they have a personal relationship with Jesus Christ.

    The Court was told that the key tenets for adherents of this faith are the need for personal conversion (or being born again); having a high regard for biblical authority; placing an emphasis on teaching that proclaims the saving death and resurrection of Jesus Christ and actively expressing and sharing the gospel.

    It appears that in or about April 2008 Ms Brett received a report from Mr Murray to the effect that the Complainant had been ‘preaching’ to work colleagues and also to members of the public during his lunch break. Ms Brett decided to deal with the matter at that time by way of counselling rather than through the formal disciplinary process. She met with the Complainant on 15^thApril 2008 for that purpose. The Complainant confirmed the accuracy of the report that Ms Brett has received. The Complainant told Ms Brett that he had been visited by Jesus and that that he felt compelled to share his belief and experience with those with whom he came into contact. Ms Brett told the Complainant that this conduct was unacceptable during his working hours which were between 9am and 5pm, including his lunch break. Ms Brett told the Complainant that he would be regarded as a representative of the Respondent and his activity had the potential to bring the Respondent into disrepute.

    Ms Brett instructed the Complainant to desist from this activity during working hours. In response the Complainant told Ms Brett that he would find it extremely difficult to comply with that direction as he could not separate his need to share his belief from his normal working day.

    The meeting ended on the basis that the Complainant would reflect on what had been said. A further meeting was arranged for 23^rdApril 2008. At the resumed meeting the Complainant told Ms Brett that he had discussed the matter with other adherents of his religion and had been advised to confine sharing his beliefs to outside of his work area and at weekends. He said that he would find it difficult to so confine himself. Ms Brett sought an assurance from the Complainant that he would comply with the direction that she had given at their previous meeting. The Complainant told Ms Brett that he would try to comply but expressed some reservation at his ability to do so. Ms Brett offered to meet with the Complainant again on the matter if he so wished.

    On or about 23^rdMay 2008 a major sporting event took place in Clonmel. The Complainant, in common with other employees of the Respondent, was asked to assist in traffic management on the streets of the town so as to facilitate this event. Mr Murray observed the Complainant engaging a young man in conversation on the street for some 20 minutes. After this conversation ended Mr Murray approached this person and enquired as to the nature of his conversation with the Complainant. This person told Mr Murray that the Complainant, whom he did not know, has spoken to him about Jesus and Religion. This person did not make any complaint in relation to the Complainant’s conduct.

    Shortly after this encounter Mr Murray observed the Complainant engaging in conversation with two girls. They were in school uniform and Mr Murray put their age at 15 or 16. Mr Murray approached these minors and again enquired as to what the Complainant has said to them. Mr Murray was informed that the Complainant has spoken to them about Jesus.

    On return to the office Mr Murray prepared a memo which he sent to Ms Brett in relation to these incidents. In the memo, which was put in evidence, Mr Murray concluded: -

    • “I feel that it is imperative that this practice adopted by Mr McAteer be stopped with immediate effect as it is likely to cause great damage to the integrity and standing of the Borough Council”

      I would appreciate it is you could call me re this matter at your earliest convenience”

    Neither the minors nor the young man to whom the Complainant has spoken said anything to Mr Murray from which it could be construed that they felt that the integrity and standing of the Borough Council had been compromised by the conduct of the Complainant.

    On foot of his memo Mr Murray was authorised to initiate the Respondent’s disciplinary process against the Complainant. Mr Murray wrote to the Complainant by letter dated 30^thMay 2008 instructing him to attend a disciplinary investigation on 6^thJune 2008 into three complaints relating to these matters. This disciplinary investigation resulted in the Complainant being issued with a written warning. In the written warning he was advised that he should obey all reasonable instructions given by a senior member of staff and that he should cease “preaching of personal religious beliefs to members of the public during normal working hours”.The Respondent was advised that working hours included all hours between 9am and 5pm.

    By letter dated 28^thAugust 2008 the Complainant was again made the subject of a disciplinary investigation initiated by Mr Murray. That investigation was on foot of a complaint made to Mr Murray by another official of the Respondent alleging that the Complainant had again spoken to members of the public about his religion. The official who made that complaint was not called to give evidence. The Complainant was then issued with a final written warning.

    In February 2009 Mr Murray again raised complaints about the Complainant speaking to members of the public about his religion during his lunch break. As on previous occasions, Mr Murray approached the person to whom the Complainant had spoken and asked that person about the subject matter of their conversation. Mr Murray was informed that the conversation was mainly about religion. This person told Mr Murray that he was not offended by the content of his conversation with the Complainant.

    A further disciplinary investigation ensued which resulted in the Complainant being suspended without pay for a period of two months. He was also instructed to undergo counselling so as to assist him in “controlling the compulsion” to speak about religion in defiance of the instruction he received to desist from so doing.

    A further complaint was made against the Complainant in May 2010 to the effect that he had spoken about religion to a contractor working for the Respondent. As with previous such occurrences, the person to whom the Complainant spoke made no complaint. Rather, the complaint was made by Mr Cooney who witnessed the occurrence. In his evidence to the Court Mr Cooney said that he had witnessed the Complainant speaking to the contractor who had attended at the Town Hall on business. He was told by this person that the Complainant had spoken to him about religion. The contractor had previously seen the Complainant in the street outside and he had assumed that the Complainant was a stranger who had come into the building.

    Mr Cooney reported what had occurred to the Town Manager in a memo dated 14^thMay 2015. A further disciplinary investigation ensued. As a result of this investigation a recommendation that the Complainant be dismissed was made to the County Manager. The County Manager accepted the recommendation and the Complainant was dismissed by letter dated 16^thJuly 2010.

    The then County Manager, Mr Ned O’Connor, gave evidence before the Court. He considered the recommendation in light of the Complainant's previous record of warnings and other disciplinary sanctions arising from similar complaints. Mr O’Connor considered whether the dismissal of the Complainant in the circumstances would offend against principles of employment equality. He formed the opinion that it would not. According to Mr O’Connor he would have taken similar action against a person of a different religious belief who engaged in‘preaching’during working hours.

• 1.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.

Article 52.3 of the Charter provides: -

• 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.

It follows from the foregoing that the right to manifest religion,inter alia,in teaching and observance is inherent in the notion of religion itself. Consequently, if a person is treated less favourably on grounds relating to religious teaching or observance they are discriminated against on grounds of their religion.

The Decision of the ECHR inEweida v United Kingdom[2013] IRLR 231 is instructive on that point. This case involved a member of British Airways cabin crew who was refused a right to wear a cross in the course of her work. She claimed that the wearing of a cross was a manifestation of her religious belief and therefore protected by Article 9 of the Convention on Human Rights. Her claim was rejected in by the UK Courts. In finding that Article 9 of the Convention was infringed in relation to the Claimant the Court observed: -

• Under Article 9, freedom of religion encompasses the freedom to manifest one's belief alone and in private, but also 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. 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). The right to freedom of thought, conscience and religion denotes views that attain a certain level of cogency, seriousness, cohesion and importance. Even where the belief in question attains the required level of cogency and importance, it cannot be said that every act which is in some way inspired, motivated or influenced by it constitutes a “manifestation” of the belief. Thus, for example, acts or omissions which do not directly express the belief concerned or which are only remotely connected to a precept of faith fall outside the protection of Article 9(1). In order to count as a “manifestation” within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. An example would be an act of worship or devotion which forms part of the practice of a religion or belief in a generally recognised form. However, the manifestation of religion or belief is not limited to such acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case. In particular, there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion inquestion.

• In cases involving restrictions placed by employers on an employee's ability to observe religious practice, the European Commission of Human Rights has held in several decisions that the possibility of resigning from a job and changing employment meant that there was no interference with an employee's religious freedom. Given the importance in a democratic society of freedom of religion, the ECHR 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.

Direct / Indirect Discrimination
In the course of the appeal Counsel for the Complainant urged the Court to hold that a restriction on the practice of religion constitutes direct discrimination. Direct discrimination arises where a person is discriminated against because of a protected characteristic or because of a criterion which is indissociable from that characteristic (see Opinion of Jacobs AG inSchnorbus v Land Hassen[2000] ECR 1-10997). There is cogency in the argument that a restriction on the practice of a religion can amount to direct discrimination as there are undoubtedly circumstances in which it could be held that the practice of a religion is indissociable from the religion itself. However, on the facts of the instant case, the Court believes that the restriction placed by the Respondent on the Complainant is more properly classifiable as indirect discrimination.

It is well settled that indirect discrimination arises where a provision, criterion or practice in relation to employment places persons who have a particular protected characteristic at a particular disadvantage relative to those who do not have that characteristic. In this case the Respondent contends that the restriction on what it terms as preaching applied without distinction as to religious adherence. The question then arises as to whether that restriction places persons of the same religious conviction as the Complainant at a particular disadvantage. If it does it could amount to indirect discrimination. Unlike direct discrimination which, other than in cases of age discrimination, is incapable of justification, indirect discrimination can be lawful where it is objectively justified.

Comparator
The Respondent took issue with the absence of a comparator against whom the Complainant’s case is grounded. It is clear that in cases involving discriminatory treatment in respect to conditions of employment a comparator may be actual or hypothetical. In a case of direct discrimination a hypothetical comparator should normally be constructed by establishing the factual criterion for the impugned decision and considering if that criterion would have similarly applied in the case of a person without the protected characteristic (see the observations of Lord Nicholls inShamoon vChief Constable of the Royal Ulster Constabular[2003] IRLR 285, paragraphs 8-12). On that approach, in a case of direct discrimination, the Court should hypothesise as to how a person of a different religious belief would have been treated if he or she had engaged in speaking about religion during working hours, including his or her lunch time.

However, in a case of indirect discrimination a different question arises. Where indirect discrimination is alleged the Court should consider if a restriction of the type in issue bears more heavily on a class of persons of which the Complainant is one than it does on another body or class of persons whose circumstances are similar other than in respect to the impact on them of the impugned measure.

The Complainant is a person who is enjoined by his religious beliefs to speak to others about Jesus and the Gospels. The Respondent prohibited him from so doing during working hours including his lunch break. That placed the Complainant at a disadvantage relative to a hypothetical class of persons, to whom the same restriction might be applied, but whose religious beliefs do not enjoin them to evangelise in the same manner as the Complainant.

In the instant case the Court is satisfied that the prohibition against discussing matters relating to religion imposed by the Respondent, even if it had general application, was intrinsically liable to place persons of the same religious belief as the Complainant at a disadvantage relative to those of no religious belief or those of a different religious belief. Hence, the measure isprima facieindirectly discriminatory on the grounds of the Complainant’s religion. It is therefore for the Respondent to objectively justify the measure.

Justification of the Impugned Restriction
Objective justification of a measure that isprima facieindirectly discriminatory is a defence. It is therefore for the person seeking to rely on the defence to make out factual basis against which it is advanced.

Article 2(2)(b)(i) of Directive 2000/78/EC provides that an indirectly discriminatory PCP is unlawful unless: -

• “that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”

Accordingly, a plea of objective justification is made out where the employer shows that the impugned measure is an appropriate and proportionate means of achieving a legitimate objective. It was first formulated by the Court of Justice inBilka-Kaufhaus GmbH v. Weber Von Hart[1986] ECR 1607.

The Respondent’s position is that the Complainant was dismissed for refusing to obey a legitimate instruction not to engage in what it termed ‘preaching’ during working hours. It sought to justify that instruction on the basis that the conduct of the Complainant, in interaction with members of the public, had the potential to bring the Respondent into disrepute.

There was no evidence tendered which could indicate that any of the people to whom the Complainant spoke to about God or the Gospels considered his conduct disreputable or that it adversely affected their perception of the Respondent. Nor was there any evidence to show that the Complainant’s evangelism impacted adversely on his capacity to perform the duties for which he was employed.

While it is perfectly legitimate for the Respondent to seek to protect itself from reputational damage, there is nothing before the Court from which it could be held that its reputation was in any way imperilled by the Complainant’s activities. Moreover, the Respondent went further than prohibiting the Complainant from discussing matters of religion while physically at work. He was prohibited from doing so while out of his place of work during his lunch break. The Respondent pointed out that the Complainant’s contract of employment provided that his working hours includes his lunch break. However, the Court is satisfied on the evidence that other employees were not monitored or restricted as to how they dispose of their time while on their lunch break. In that respect also the Complainant was treated differently than others.

Conclusion
For the reasons set out herein the Court is satisfied that the Complainant was subjected to indirect discrimination on grounds of his religion. The finding of the Equality Tribunal in that regard is affirmed.

Redress
The Complainant was awarded compensation by the Equality Tribunal in the amount of €70,000. The Respondent submitted that this amount is grossly excessive and urged that in the event of the finding of discrimination being upheld, the quantum of the award should be significantly reduced.

The Court has carefully considered these submissions. The Complainant was in receipt of a salary of some €54,000 per annum at the time of his dismissal. He was in permanent employment and had the benefit of a public sector defined benefit scheme. He has obtained alternative employment at roughly half his previous salary. In these circumstances the Court has concluded that the award made by the Equality Tribunal could not be regarded as excessive.

Outcome
The Decision of the Equality Tribunal is affirmed in its totality and the within appeal is disallowed.

Signed on behalf of the Labour Court



Kevin Duffy
CR______________________
30th January, 2015Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.