EQUAL STATUS ACTS 2000-2015
Decision DEC-S2016-047
PARTIES
Mr John Hamill and Monaghan Farmer’s Market
(represented by Kevin McCann, B.L.)
-v-
Monaghan Town Council (represented by Enda O’Carroll, Solicitor)
File Reference: ES/2014/0123
Date of Issue: 30th June 2016
Keywords: S. 5(1) – “service” includes facility – discrimination needs to occur directly between parties – second-named respondent is granting permission to hold market, not enabling discriminating behaviour – misconceived – reason to bring complaint – intent of notification procedure set out in the Acts – not fully engaged.
1. Claim
1.1. The case concerns a claim by Mr John Hamill, representing Atheism Ireland, that Monaghan Farmer’s Market and Monaghan Town Council discriminated against him on the ground of religion, or lack thereof, contrary to Section 3(2)(e) of the Equal Status Acts 2000 to 2011, in terms of failure to provide the organisation Atheism Ireland with permission to have an information stand at Monaghan Farmers Market.
1.2. The complainant referred a complaint under the Equal Status Acts 2000 to 2011 to the Director of the Equality Tribunal on 2 July 2014. A submission was received from the complainant on 19 January 2015. A submission was received from the Monaghan Farmer’s Market on 2 March 2015, and from Monaghan Town Council on 29 March 2016. On 8 February 2016, in accordance with his powers under S. 25 of the Acts, the Director General delegated the case to me, Stephen Bonnlander, an Equality Officer/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part III of the Acts. On this date my investigation commenced. As required by Section 25(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 2 June 2016.
2. Summary of the Complainant’s Written Submission
2.1. The complainant submits that he and a friend made a verbal application to Monaghan Farmer’s Market. They were told by the chairperson for the Market that she would bring their request to the Market Committee. At the next meeting, she told the complainant and his friend, according to the complainant, that “there are two people on the committee who have been saved and who are now Christian preachers. They have indicated that they could not countenance atheists being part of Monaghan Market.”
2.2. The complainant states that the written application process to be part of the Market was not mentioned. He also states that he was told this was a final decision, which he took to mean that there was no appeals process.
2.3. The complainant further states that once he had sent the form ES1 to Monaghan Farmer’s Market, that he received a letter from the chairperson in which she confirmed that two stall-holders are Christian, but stated that they do not preach during market hours. The representative further stated that religion was previously discussed by the committee, but that it was felt religion was best left outside the market. On this occasion, the complainant was also sent a copy of the constitution and an application form to join the market. This stated, among other things, that stallholders should sell a product in order to enhance the market.
2.4. The complainant states that the obligation to sell a product was a new condition and is in contradiction to the Market’s constitution, which states in its first sentence that its purpose is “to develop the culture, social, commercial and tourism life of the area”.
2.5. The complainant also takes issue with the written application form, which he claims was a “post-hoc” decision by the Market to justify their earlier verbal exclusion. He also states that it is evidence of discrimination that “all other prospective new members of Monaghan Market Association were previously allowed to submit a written application”. It is not at all clear, however, even from his own submission and the evidence appended to it, that he or Atheist Ireland were ever not allowed to submit such a written application. The application form sent to him by the chairperson and which he submits in evidence together with her letter would indicate the opposite.
2.6. In terms of the chairperson’s statement in her letter, that the Market felt religion should best be left out of it, the complainant states that the Market sells overtly Christian products, including St. Brigid’s crosses, and that the Market advertises this on social media.
2.7. The complainant also states that Monaghan GAA had a stand at the Market, where the Association sold jerseys, hoodies, rain jackets and other memorabilia. The complainant states that this shows the Market went beyond the licence granted to it by Monaghan Town Council, the second-named respondent in the within proceedings.
2.8. With regard to his complaint about the second-named respondent, Monaghan Town Council, the complainant submits that it would have been the council’s duty as issuer of the licence to the first-named respondent, to ensure that no sectarian discrimination took place, either by ensuring that the complainant’s organisation could have a stand, or else by revoking the first-named respondent’s licence. The complainant submits that the council should have reviewed the first-named respondent’s meeting minutes for that purpose. The complainant considers the second-named respondent negligent and therefore “complicit and culpable” with respect to what the complainant alleges is the first-named respondent’s religious discrimination.
3. Summary of the first-named Respondent’s Written Submission
3.1. As a preliminary matter, the respondent claims that the complainant gave its name wrongly on the complaint form and that it is therefore wrongly impleaded. It also raises the argument that the notification process set out in S. 21 of the Acts was not observed. For these reasons, it argues that the complaint is frivolous and vexatious and should be dismissed.
3.2. In terms of the substantive case, Monaghan Farmer’s Market denies that it failed to provide a service within the meaning of the Acts to the complainant. It states that initially, a verbal inquiry was made by a woman who was a member of Atheist Ireland and who lived locally. A visit then followed by this woman and the complainant to enquire about their verbal application.
3.3. The respondent states that the complainant was provided with a letter of apology in response to his written complaint of 24 May 2014, together with an application form to participate in the market, the market’s rules and the constitution of Monaghan Farmer’s Market. According to the respondent, no application to participate in Monaghan Farmer’s Market had been received from the complainant by 25 February 2015. It is the respondent’s position that they are a farmer’s market and sell produce, rather than a general market which also facilitates information stands.
4. Summary of the second-named Respondent’s Written Submission
4.1. The Monaghan Town Council submits that it granted permission to the first-named respondent permission to trade outside Monaghan Court House, but that this permission was restricted to the sale of horticultural, home-baking and craft products, and that the permission did not extend to the dissemination of information.
5. Conclusions of the Equality Officer
Preliminary issue: Jurisdicion
5.1. The preliminary issue for decision in this case is whether the complaint against Monaghan Town Council is possibly misconceived pursuant to S. 25A of the Acts, and whether the case against Monaghan Farmer’s Market is frivolous and vexatious pursuant to the same section, as the respondent claims.
5.2. With regard to the complaint against Monaghan Town Council (now Monaghan County Council), I am satisfied from the evidence adduced by both parties, that the respondent did not provide a service within the meaning of S. 5 of the Acts, to the complainant. S. 5 is quite clear that discrimination needs to occur directly between parties. Monaghan Town Council, however, simply granted trading rights to Monaghan Farmer’s Market, pursuant to old market rights vested in Monaghan Town Council, which were put onto a statutory basis by the Casual Trading Act, 1995. It is clear that the permission granted to use the space in front of the courthouse was given to the first-named respondent in this case, who then decided who could be a stall-holder. Furthermore, Monaghan Town Council acted on the ground of a statute, which means it enjoys an exemption from suit provided in S. 14(1) of the Equal Status Acts. Either way, I am satisfied that I do not have jurisdiction to investigate this complaint.
5.3. For all of these reasons, I dismiss the complaint against Monaghan Town Council, now Monaghan County Council, as misconceived pursuant to S. 22 of the Equal Status Acts, 2000 to 2015.
5.4. With regard to the application by Monaghan Farmer’s Market to dismiss the complaint against them as frivolous and vexatious under the same section of the Acts, I do not concur, having heard the matter, that the within complaint can be said to be frivolous and vexatious, as will be clear from my deliberations below. I will now proceed to consider the merits of the substantive case.
Substantive Case against Monaghan Farmer’s Market
5.5. The main issue for decision in this case is whether the complainant was discriminated against on the ground of religion because the respondent failed to allow the complainant to have an information stand for the organisation Atheist Ireland at their market.
5.6. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 38A of the Acts. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that prohibited conduct has occurred in relation to him. It is only where such a prima facie
case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.7. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
5.8. At the hearing of the complaint, both parties often put diametrically opposed interpretations on certain facts. For example, the complainant seemed to put great store in the first paragraph of the respondent’s articles of association, which states that the Market aims to enhance the cultural and economic life of the region, whilst disregarding the following two pages, which make it amply clear that the Market is indeed a farmer’s market whose primary objective is to sell crafts and products.
5.9. Similarly, somewhat exaggerated reliance was placed by the complainant on the fact that some stall holders sell crafts which would have a religious connotation. This ranges from St. Brigid crosses which may just as well rate as cultural artefacts – for example, it is easy to imagine that a tourist of no religion, or someone who is Jewish or Muslim might buy one of them simply because they are typical of Irish culture -, to more explicitly religious merchandise such as wood carved crosses and saints. For the sake of clarity, I wish to state that I do not think that selling these types of craft products amounts to any type of religious mission. Neither buyers nor sellers, nor even the artists who make them, need to be religious people.
5.10. That said, the complainant was very right to be concerned about other stalls and aspects of their operation. He provided photographic evidence of a recent visit to the Market, which showed a stall which sold religious books and DVDs. While it is not clear whether these stallholders did attempt to sell same at the time the complaint was filed – although based on the entirety of the complainant’s evidence, I am inclined to believe that it was -, it does show that Christian literature was being distributed at the Market, and clearly this is neither produce nor a craft product.
5.11. Furthermore, the complainant gave credible evidence how one of the stallholders, on the same recent visit, attempted to evangelise him and foisted a Christian pamphlet on him, which the complainant produced in evidence. The respondent accepts that two of its stallholders are evangelical Christians, but says that they are prohibited from preaching and that a decision was made several years ago, to “keep religion out of the market”. Whatever the respondent’s aspirations on this point, the complainant’s evidence shows that it has not been very successful. The complainant’s perceived discrimination against an information stand by Atheist Ireland must be seen against this backdrop, and this is the main reason I do not concur with the respondent’s application that the complaint is in any way frivolous and vexatious.
5.12. There was again contradictory evidence between the parties on how the complainant was initially refused, but overall I am satisfied that the complainant, together with a local friend who also gave evidence, made oral enquiries about a stall for Atheist Ireland and did not receive a favourable answer. The respondent said that the complainant was told he had to fill out an application form, but at the same time accepted that the two evangelical stallholders, mostly due to their long association with the market, never had to do this. Also, from an application form of a baker who joined the market later, I am satisfied that for applicants that were personally known, the application process was still very informal.
5.13. After receiving what he saw as a verbal rebuff, the complainant then started proceedings by notifying the respondent through the Commission’s EE1 form of that intention. At that point, he was sent the market’s rules, articles of association, and an application form, together with a letter of apology from the market’s chairperson. The application form was never filled out and sent back by the complainant, or by anyone else within Atheist Ireland. I asked quite a number of questions of the complainant’s witnesses on this point. These witnesses included the CEO and the Human Rights Officer of Atheist Ireland, who have extensive experience of lobbying at the highest for a, such as the United Nations. The Human Rights Officer stated that in their view, there was no point in applying, since Atheist Ireland had no product to sell and they were certain it was a moot exercise and they would be refused again.
5.14. I cannot accept this, especially since the complainant also stated that the organisation never had an opportunity to give details to the respondent about their work and the kind of stall they would have liked to have. A written application, with appropriately appended documentation, would have been a prime opportunity to do just that. Furthermore, I am mindful that the notification process set out in the Equal Status Acts was put there by the Oireachtas not to introduce a bureaucratic hurdle, but to give respondents an opportunity to right a situation before litigation would ensue in earnest. I find that by not receiving an appropriately documented written application, the respondent was deprived on an opportunity to fully consider the complainant’s case. For this reason, that is, the complainant’s insufficient engagement with the respondent within the framework provided by the Acts, that the complaint must fail.
6. Decision
5.1 This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015.
Based on all of the foregoing, I find:
5.2 Pursuant to S. 22 of the Acts, that the complaint against Monaghan Town Council, now Monaghan County Council, is misconceived.
5.3 Pursuant to Section 25(4) of the Equal Status Acts, that Monaghan Farmers Market did not discriminate against Mr John Hamill, pursuant to Sections 3(1), and 5(1) of the Acts.
5.4 I nevertheless recommend to Monaghan Farmer’s Market, to avoid exposure to future litigation, to either police their rule of “no religious proselytising at the market” as strictly as possible, or to consider amending their articles of association to come up with a regulatory framework for information stands for religious, civic and political organisations, as the case may be.
______________________
Stephen Bonnlander
Equality Officer
30 June 2016