EQUAL STATUS ACTS
DECISION NO. DEC-S2016-018
PARTIES
Noel Mulryan
AND
Road Safety Authority
(Represented by Gary Compton, BL Instructed by Philip Lee Solicitors)
File reference: ES/2014/0038
Date of issue: 9 March 2016
1. Background to Claim
1.1 This complaint concerns a claim made by Noel Mulryan (hereinafter “the complainant”) that he was discriminated against by the Road Safety Authority (hereinafter “the respondent”) on the religion ground in terms of section 3 (2) (e) of the Equal Status Acts in relation to not being allowed wear a colander on his head for the purposes of the photograph when he was making an application to renew his driver’s license.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 2 December 2013 under the Equal Status Acts, 2000 – 2013 (hereinafter “the Acts”). In accordance with his powers under Section 75 of the Acts, the Director delegated the complaint to me, Valerie Murtagh, an Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VIII of the Acts. On 3 November 2015, my investigation commenced when the complaint was delegated to me. In accordance with Section 25(1) and as part of my investigation, an oral hearing was held on 8 December 2015 and both parties were in attendance.
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 84 (3) of the Workplace Relations Act, 2015.
2. Summary of the Complainant’s case
2.1 The complainant states that on 9 September 2013, he applied to the Motor Tax office for a change of address on his driver’s license. He provided a form, passport sixed photographs and proof of address as required. The complainant also included a letter explaining that he was wearing headwear in his photo due to his religious beliefs. The Complainant states that he received a letter dated 21 October 2013 explaining that after consultation with the respondent that his driving license application “was being refused on two grounds (i) the photo captured should have a clear view of the eyes/eyebrows/forehead area with minimal shadows (ii) while it is acceptable to wear head covering in accordance with religious beliefs, we do not believe that you have demonstrated that the use of head covering is related to a religious belief.” The complainant submits that at this point he felt he was being discriminated against because of his religious beliefs. He had already explained in the letter accompanying his application that he was wearing a colander on his head for religious purposes i.e. as he is a Pastafarian. The complainant did accept that his head covering could be smaller so he re-submitted his application on 23 October 2013 with new passport sized photographs. He also included an accompanying letter with examples of other fellow Pastafarians wearing their religious headwear in official government issued documents. He received a letter dated 21 November from the respondent suggesting that his religious beliefs were a parody and as a result his license application would not be accepted.
2.2 The complainant submits that he was treated less favourably on grounds of his religion. He states that persons of other religious persuasions are allowed to wear religious headwear but he is not. The complainant contends that the only guidelines offered by the respondent in relation to religious headgear are “head coverings, other than for religious reasons are not allowed and hair bands are not acceptable.” The complainant contends that he followed the guidelines correctly and explained that his headwear is for religious reasons. He states that nowhere in the guidelines does it say that the respondent must approve of his religious beliefs. The complainant maintains that not only was he asked to demonstrate that his wearing of religious headwear was for religious reasons but he was then told that his beliefs were not genuine and therefore would not be accepted. The complainant alleges that as a result of the discrimination, he has been without a driving license with his correct address for a substantial amount of time. He states that as a consequence, it has made it impossible to drive for work and to visit family and friends. The complainant states that since the most recent refusal to process his driving license, he has unfortunately lost his old driving license. This loss means that he is currently unable to drive a motor vehicle legally and the respondent has indicated that he is effectively barred from applying for a replacement license without first changing or denying his religious beliefs. The complainant also states that his inability to drive causes major inconvenience to his employer who has in the past requested him to drive to carry equipment from one place to another. He also submits that when he goes abroad, he cannot rent a car and must rely on public transport which can be slow, frustrating and expensive.
2.3 The complainant states that Pastafarianism is a minority religion in Ireland but is known and celebrated around the world. He submits that for someone to become a Pastafarian, they simply declare themselves a Pastafarian. The exact number of Pastafarians worldwide is currently unknown since as with most other religions, there is no central register. The complainant contends that the Pastafarian religion came to mainstream attention in 2005 when Bobby Henderson, a physics graduate of Oregan State University wrote a letter to the Kansas State Board of Education asserting that if Creationism was to be allowed in science classes, then Pastafarianism should also be given equal time. In 2006, Bobby Henderson expanded on his previous letter by issuing his Gospel of the Flying Spaghetti Monster. The complainant submits that as a baby, he was baptised a Catholic. In 2008 following careful reflection, he defected from the Catholic Church and then between 2008 and 2012, he entertained the beliefs of an atheist. In 2012, he first came across Pastafarianism and was very moved by what he learned. The complainant states that he spent time reflecting on Pastafarianism and what it says and following much thought, he decided that he could no longer deny the truth of Pastafarianism. He alleges that he was discriminated against on grounds of his religion in not being allowed wear a colander on his head for the purposes of the photograph when he was making an application to renew his driver’s license.
3. Summary of the Respondent’s case
3.1 The respondent states that it is obliged to apply the procedures contained in the Road Traffic (Licensing of Drivers) (Amendment) Regulations 2013 which prescribe the form and manner of an application for a licence. It is common case that the regulations require an applicant to supply a photograph and only permits the use of head coverings for religious reasons. The respondent asserts that the complainant has sought to use a photograph of himself with a colander on his head as he claims that such “headgear” is typically used by other members of the group known as Pastafarians. The respondent has refused to allow the complainant to use the said photograph as it does not believe the complainant is wearing the colander on his head for religious reasons. The complainant’s claim is based on alleged discrimination ground as set out in Section 3(2) of the Equal Status Acts. The respondent submits that the complainant must prove that he has been treated less favourably than another person by reason of his religious beliefs. The respondent states that it is therefore incumbent on the complainant to prove that Pastafarianism comes within the understanding of what is a religious belief within the meaning of Section 3(2)(e) of the Equal Status Acts. The respondent strongly believes that the complaint should be dismissed as falling outside section 3(2)(e) and/or pursuant to section 22 of the Acts that the complaint is frivolous and vexatious. The respondent submits that Pastafarianism is a parody of religion and uses ridicule to object to and critique the teaching of Intellectual Design in US schools. The respondent contends that it bears none of the hallmarks of what is accepted as underpinning a religion or a religious belief.
3.2 The respondent contends that Pastafarianism was invented in 2005 by Mr. Bobby Henderson who was a college student. Mr. Henderson objected to the decision to teach Intelligent Design alongside Evolution in US schools. Mr. Henderson highlighted what he believed was the inherent problem in the Intelligent Design theory, namely that it could equally support a claim that any entity created the universe. Mr. Henderson illustrated this point by suggesting that the universe was created by a being known as the Flying Spaghetti Monster. The respondent submits that the parody nature of Pastafarianism is further evidenced by Mr. Henderson’s website which juxtaposes images from Pastafarianism with religious imagery. The respondent submits that according to Mr. Henderson’s website, some of the beliefs of Pastafarianism include the following;
· we believe pirates, the original Pastafarians were peaceful explorers and it was due to Christian misinformation that they have an image of outcast criminals today
· we are fond of beer
· every Friday is a religious holiday
· we do not take ourselves too seriously
· we embrace contradictions (though in that we are hardly unique)
The respondent contends that these beliefs (which are omitted from the complainant’s submission) demonstrate clearly the nature of Pastafarianism as a parody of religion.
3.3 The respondent cites a quotation by the Committee on Culture on Science and Education of the Parliamentary Assembly of the Council of Europe on Pastafarianism “... in this connection, in accordance with the principles of an open attitude to the alternative theories advocated by the scientific creationists and in order to show the illogicality of teaching intelligent design alongside the theory of evolution a movement has ironically developed in the United States. The so-called Pastafarian movement supports the theory of the Flying Spaghetti Monster. Pastafarianism is a parody on religion created in response to the Kansas State Board of Education to permit the teaching of intelligent design in science courses on an equal footing with the theory of evolution. According to Pastafarianism, an invisible and omniscient being called the Flying Spaghetti Monster created the universe in one day. The supporters of Pastafarianism are demanding the same place in the school curricula as intelligent design. Full of irony, this pseudo-religion is setting a trend and the cult is spreading.”
3.4 The respondent submits that UK legislation (similar to Ireland’s Equal Status legislation) provides protection against discrimination on grounds of religion. Explanatory notes to this Act provide that in order to qualify as a “religion”, it is necessary for the “religion” to possess beliefs having “a certain level of cogency, seriousness, cohesion and importance provided that the beliefs are worthy of respect in a democratic society and are not incompatible with human dignity.” The House of Lords have further held in Williamson v Secretary of State for Education and Employment [2005] 2 WLR that the court should be “concerned to ensure an assertion of religious belief is made in good faith, neither fictitious, nor capricious and that it is not an artifice.” The respondent submits that Pastafarianism offends all of the above criteria which firmly puts good faith, respect and dignity as cornerstones of any religious belief.
4. Conclusions of the Equality Officer
4.1 The matter referred for investigation was whether or not the complainant was discriminated against on the religion ground contrary to the Equal Status Acts in not being allowed to wear a colander on his head for the purposes of his photograph when he was making an application to renew his driver’s license. In reaching my decision, I have taken into account all the written submissions and oral testimony made to me by the parties in the course of my investigation into the complaint. Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
3.- (1) For the purposes of this Act, discrimination shall be taken to occur -
(a) where 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’’)
Section 3 (2)(e) refers to the religion ground:
“ where one has a different religious belief from the other, or that one has a religious belief and the other has not."
According to section 2, ‘religious belief’ includes ‘religious background or outlook’.
The complainant is required to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred. Therefore, the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.
4.2 While the respondent requested the Tribunal to dismiss the complaint pursuant to Section 22 of the Equal Status Acts on the basis that it was made in bad faith and is frivolous and vexatious. Given the wide range of religions and religious beliefs in society, I was of the view that it would be prudent to hear all the evidence on the complaint and then issue a decision based on my findings. Having examined all the evidence, I note from the testimony of the complainant at the hearing that he stated that he does not wear the colander to work nor does he wear it when out socialising but on occasion he wears it at home when he is feeling sad and vulnerable. The complainant did state at the hearing that Pastafarianism does use satire to raise awareness and as an effective communication tool. In reviewing the definition of religion and religious belief in UK legislation; it is a broad definition in line with the freedom of thought, conscience and religion guaranteed by Article 9 of the European Convention on Human Rights. The main limitation for the purposes of Article 9 is that the religion must have a clear structure and belief system. The criteria for determining what is a ‘philosophical belief’ are that it must be genuinely held; be a belief and not an opinion or viewpoint based on the present state of information available; be a belief as to a weighty and substantial aspect of human life and behaviour, attain a certain level of cogency, seriousness, cohesion and importance; and be worthy of respect in a democratic society, compatible with human dignity and not in conflict with the fundamental rights of others. The respondent also states that a religion must possess a dogma i.e. a core set of beliefs and that they are consistent with basic standards of dignity and integrity.
4.3 I have carefully examined the definitions above on religion and religious beliefs. I note at the hearing, the complainant stated that Pastafarianism does indeed use satire as an effective tool of communication. I also noted from the testimony taken the occasional and selective nature of the complainant is his use of the colander. Based on all the evidence taken, I find that the claimant’s complaint does not come within the definition of religion and/or religious belief and therefore is not covered by the Equal Status legislation.
5. Decision
5.1 In reaching my decision I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision.
5.2 I find that the claimant’s complaint does not come within the definition of religion and/or religious belief and therefore he has failed to establish a prima facie case of discrimination on the ground of religion. His complaint therefore fails.
Valerie Murtagh
Adjudication Officer
9 March 2016