EQUAL STATUS ACTS
DECISION NO. DEC-S2016-006
PARTIES
An individual
AND
A Voluntary Organisation
File reference: et-150786-es-14
Date of issue: 29th January 2016
1 DISPUTE
1.1 This dispute concerns a claim by an individual that she was discriminated against by the respondent organisation on the grounds of her religion contrary to Section 6 of the Equal Status Acts (2000-2013) when she was removed from the position of Contact Officer, on the respondent organisation's National Coordinating Body (the NCB) having been duly elected to that position at the AGM some two months before.
1.2 The claimant referred her claim to the Director of the Equality Tribunal on 7 November 2014 under the Equal Status Acts. On 3 December 2015, in accordance with his powers under Section 25 of the Acts, the Director General of the Workplace Relations Commission delegated the case to me, Ray Flaherty, an Adjudication Officer for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides and in accordance with Section 25 (1) of the Acts and, as part of my investigation, I proceeded to an oral hearing on 10 December 2015.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2 CLAIMANTS' SUBMISSION
2.1 The complainant was elected as Contact Officer for the respondent organisation by a majority vote at the AGM on 24 August 2014. This position (Contact Officer) was one of a number of positions on the National Coordinating Body (NCB), which coordinated and managed the issues and policies of the organisation.
2.2 The complainant submits that shortly after her election to the NCB certain members of the organisation, including members of the NCB, expressed their disapproval of her participation in a protest outside Dáil Éireann, during the debate surrounding the issue of Civil Partnership in 2010
2.3 The complainant submits that from that point on she was subjected to a pattern of harassment and discrimination by the NCB.
2.4 In support of her complaint the complainant submitted that in the immediate aftermath of her election, a number of comments were posted on a public Facebook page querying her suitability for the role of Contact Officer. The complainant further submitted that she was accused of "homophobia", "zealotry", and of "bullying the gay community in the press". She further submits that her election to the NCB was described as a "fiasco".
2.5 The complainant also submitted evidence of email correspondence between certain members of the NCB which further queried her suitability to hold office because of her religious beliefs and those of her family.
2.6 The complainant submits that an Extraordinary General Meeting (EGM) of the organisation was called for 11 October 2014, at which there was a motion proposing to remove the complainant from her position as Contact Officer and from the NCB.
2.7 The complainant submits that in the period between her election as Contact Officer at the AGM on 24 August 2014 and the EGM, on 11 October 2014 her contact details, as the new Contact Officer, were not put on the organisation's website. The complainant further submits that although she was duly elected to the position of Contact Officer at the AGM, she was not allowed by the respondent to act in that capacity and, therefore, could not be claimed to have brought the respondent into a disrepute.
2.8 The complainant submits that she wrote to the Secretary of the organisation outlining her concerns and requesting an apology and retraction of the motion being proposed for the EGM. According to the complainant her statement was not circulated to the members of the organisation, as requested, nor did she receive an apology or retraction of the motion as requested.
2.9 The complainant submits that during the debate on the motion for her removal as Contact Officer at the EGM on 11 October 2013 a number of specific items were circulated and used to influence voters. These included two items from one of her son's website (one of which had been created as part of the school project) and a university leaflet against same-sex marriage, which, the complainant alleges, was falsely linked to the campaign of another one of her sons to become a Student' Union Officer.
2.10 The complainant also submits that a photograph of her taking part in a peaceful protest outside the Dáil in 2010 against the Civil Partnership Bill, was also circulated. According to the complainant this was the only protest she had ever taken part in and was acting within her constitutional rights when doing so. In addition, the complainant submits that the actions of the respondent with regard to her role at this protest constitutes a violation of her freedoms under Article 9.1 of the European Convention on Human Rights, which set out clearly an individual's freedom to "manifest one's belief in public or in private".
2.11 The complainant submits that the public inquisition of her beliefs/actions (and those of her family members) during the debate on the motion for her removal at the EGM impacted negatively on her and her family.
2.12 The complainant submits that despite her repeated requests that a fair and non-discriminatory attitude be adopted by the respondent, the motion was carried at the EGM on 11 October 2014 and she was removed from her position as Contact Officer.
2.13 The complainant submits that the stance adopted by the respondent organisation strongly discriminated against her on the basis of action taken because of her religious beliefs and she found this to be unacceptable.
3 RESPONDENT'S SUBMISSION
3.1 In response to the claims made by the complainant, the respondent submits that it is a voluntary, not-for-profit, support group. It further submits that it is an unincorporated association, governed by a constitution.
3.2 The respondent states that the complainant was proposed and elected as Contact Officer at the organisation's AGM, which was held on 23/24 August 2014. The respondent further submits that the complainant was elected with a total of 10 votes in her favour.
3.3 The respondent submits that by a further vote of members at an Extraordinary General Meeting on 11 October 2014, a motion was carried removing the complainant from the role of Contact Officer, with 80 votes in favour of the motion.
3.4 The respondent submits that the complainant, despite being removed from her position as Contact Officer, remains a member of the organisation. The respondent further submits that the complainant's admission to membership, election as Contact Officer on the NCB and her subsequent removal from this position were all conducted in accordance with the rules and procedures of the organisation.
3.5 The respondent submits that the Equal Status Acts do not have any application to the claims made by the complainant in that the organisation is not a provider of goods or services to the complainant, was not engaged in the disposal of premises are accommodation, was not acting as an educational establishment nor was it operating as a registered club.
3.6 The respondent submits that the election to a voluntary role in the organisation does not constitute the provision of the service. The respondent further submits that the complainant's election to and removal from office were matters concerning the internal procedures of the organisation and the role concerned the day-to-day administration of the organisation.
3.7 The respondent submits that an individual's election to and/or removal it from an NCB position takes place by member vote.
3.8 The respondent submits that, notwithstanding its position that jurisdiction does not exist in this case under Equal Status, the complainant has also failed to demonstrate that her treatment was less favourable than that of any other member on the basis of one of the grounds of discrimination as laid down by the Acts. The respondent further submits that motions for the removal of two officers were voted on by members the EGM. Therefore, the complainant was not the only person removed from office at that time.
3.9 The respondent submits that it is not an organisation which engages in discrimination. The respondent further submits that the organisation does not for refer to religion other than to say that they accept those from all religions into its membership.
3.10 The respondent submits that members of the organisation had their individual reasons for removing the complainant and that the organisation was not privy to these reasons. The respondent further submits that the concerns that appear to have been held by the membership centred on the promotion of the non-discriminatory nature of the organisation which is enshrined in its constitution and on a determination that all officers (including the Contact Officer, in this case) would actively maintain and promote the non-discriminatory policy.
3.11 The respondent submits that it would have been against the organisation's policy to ignore the feelings of an overwhelming number of members. However, notwithstanding this, the respondent submits that it also sought to treat the complainant with fairness in relation to the application of the procedures.
3.12 In response to the complainant's assertion that the material produced at the EGM was influential in her removal from her position, the respondent submits that the majority of votes had been taken electronically prior to the EGM and, therefore, those votes obtained the day at the meeting were not decisive in this regard.
3.13 The respondent further submits that it did not authorise or publish any material which could be deemed to have harassed the complainant. The respondent submits that all material for publication on behalf of the organisation must first be put forward to the NCB and voted on prior to release, otherwise it cannot be considered as an official statement of the organisation.
3.14 The respondent submits that the complainant agreed to take up the role of Contact Officer on 4 September 2014 and was forwarded emails regarding the NCB business. The respondent further submits that the complainant was afforded the opportunity to meet and speak with other NCB members but that she chose not to engage. In addition the respondent submits that the complainant did not contact the outgoing Contact Officer to gain an understanding of the role although she was requested to do so.
3.15 The respondent submits that the complainant was invited to make a statement to be circulated to the membership prior to the EGM but she did not do so. The respondent further pointed out that the complainant did not attend the EGM at which the motion for her removal as Contact Officer was discussed and voted on.
3.16 The respondent submits that, although the complainant was removed from her role as Contact Officer, she remains a member of the organisation and retains all membership benefits.
4 FINDINGS & CONCLUSIONS OF THE ADJUDICATION OFFICER
4.1 The issue before me for decision is, whether or not, the respondent discriminated against the claimant, on grounds of religion contrary to the Equal status Acts, when she was removed from her position as Contact Officer on the National Coordinating Board of the organisation.. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.2 Section 5 (1) of the Equal Status Acts, states: "A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service".
It is clear from the evidence adduced at the hearing that the elements of the Equal Status Acts pertaining to the "disposal of goods" does not apply in this case. Consequently, the case before me for consideration falls under the element of the Acts pertaining to the "providing of a service".
4.3 In the Equal Status Acts under Section 2, "service" is defined as a service or facility of any nature which is available to the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes –
a) access to and use of any place
b) facilities for
i. banking, insurance, grants, loans, credit or financing
ii. entertainment, recreation or refreshment
iii. cultural activities, or
iv. transport or travel
c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and
d) in professional or trade services
4.4 In their response to the complaint, the respondent strongly contends that the Equal Status Acts do not have application to the claims being made by the complainant as the respondent organisation was not engaged in the provision of services to the complainant. Consequently, the respondent is satisfied that its actions do not therefore represent discrimination contrary to the provisions of the Equal Status Acts.
4.5 In presenting her complaint, the complainant contends that the respondent organisation is a "service provider", as defined by Section 2of the Equal Status Acts. In support of her contention in this regard, the complainant drew attention to the respondent organisation's constitution and cited the following sections as evidence that it provides services to its members:
Ø (Article 3.14) "to provide a means for the interchange of ideas and experiences among [members]through social gatherings, newsletters and other means, such as Internet, text, telephone, and email;
Ø (Articles 3.1.5 – 3.1.8) "to build understanding between[members] and the public; to build connections between [members] and the authorities; to act as negotiators and/or lobbyists with state authorities as the need arises; to strengthen the position of the [group] as an integral part of the[national system/sector where in this group operates].
4.6 In addition, the complainant made reference to the respondent organisation's website which lists the following in response to the question "What does [the respondent organisation] offer":
Ø A phone line for those looking for information or advice,
Ø Regional contacts who can put you in touch with [other similarly interested people] in your area,
Ø Meet-ups across the country (providing insurance where necessary),
Ø Annual conference over a weekend in August,
Ø Two glossy quarterly newsletters,
Ø A members Facebook group,
Ø Discounts for members,
Ø Involvement with the government on policy matters around [matters pertaining to the sector].
4.7 In further support of her contention that the respondent organisation does provide service to its members and, is therefore, covered by the provisions of the Equal Status Acts in this regard, the complainant made reference to 2 cases taken under these Acts. In one of these cases [DEC-S2012-004] the respondent was a choir, while in the other [DEC-S2011-001] the respondent was the youth wing of a large national political party. The complainant submitted that her circumstances were similar to those that existed in these cases, in which it was held that both respondents were providing a service.
4.8 Therefore, before considering the substantive aspects of the complaint and whether or not the complainant established a prima facie case of discrimination, I must first address the preliminary points raised by the respondent with regard to jurisdiction.
4.9 Having carefully considered the evidence adduced and with particular regard to previous decisions by the Equality Tribunal, I am of the view that, based on the evidence presented with regard to its constitution and website, the respondent organisation is, by its activities, providing a service to its membership. I am further of the view that this constitutes a service within the meaning of Section 2 of the Equal Status Acts.
4.10 However, notwithstanding the finding at 4.9 above the evidence adduced suggests that the complainant was not discriminated against in her application for membership of the respondent organisation or in the provision of the services listed above for members. The complainant, on paying her membership fee, became a full member of the organisation, with all the attendant benefits and that membership remained in place even after her removal as Contact Officer from the NCB.
4.11 It is clear from the evidence adduced that the complainant's complaint of discrimination on the grounds of religion pertained solely to her election to the position of Contact Officer at the AGM on 24 August 2014 and her removal from the position following a motion put to an EGM on 11 October 2014.
4.12 The question therefore arises as to whether election to and/or removal from the organisations administrative and governing body, the National Coordinating Body (NCB), constitutes a service within the meaning of Section 2 of the Equal Status Acts. In her submission to the hearing, the complainant contends that the provision in the respondent organisations constitution for the election of any of its members to the NCB is a necessary part of its service. She contends that the opportunity for election to the NCB is part of the service provided to members who wish to become involved in the leadership of the organisation. The complainant further submits that this was one of the services which she sought to avail of when taking out membership of the organisation in August 2014.
4.13 In supporting her position with regard to election to the NCB, the complainant refers to the decision of the Equality Officer in case reference DEC-S2014-018. Having reviewed that decision I am of the view that it is neither analogous to or has direct relevance to the specific aspect of the complainant's case in this instance. The issue in the case referred to above related to whether the service provided by an educational institution extended to the parents of students. The question that arose in that case was whether the Education or Equal Status Acts deliberately intended for educational establishments to be exempted from scrutiny in relation to the students’ parents. I consider this to be quite different both in detail and significance to the question being raised here as to whether the opportunity provided to members of an organisation to partake in the Administration and/or governance, by way of election to the coordinating body, constitutes a service within the meaning of Section 2 of the Equal Status Acts.
4.14 Having carefully considered all the evidence adduced, I am of the view that the opportunity to put oneself forward for election to the coordinating body of the organisation does not constitute the provision of a service within the meaning of the Acts. As has already been stated, I find that the respondent organisation does provide service(s) under the meaning of the Acts. However, I am of the view that this does not extend beyond those aspects set out in 4.5 and 4.6 above.
4.15 Therefore, I am of the view that all matters relating to the National Coordinating Body of the respondent organisation relate solely to the internal management and administration of the organisation. I do not believe that election to the NCB constitutes a service to the membership in the manner envisaged under the Acts and must be viewed more as internal processes/procedures.
5. DECISION
For the foregoing reasons, I find that I do not have jurisdiction to investigate the specific aspects of the complainant's complaint, which she contends constitutes discrimination on the religion grounds.
____________________
Ray Flaherty
Adjudication Officer/Equality Officer
26th January 2016