EQUAL STATUS ACTS
DECISION NO. DEC-S2017-026
PARTIES
Mark Savage
Complainant
AND
Department of Children and Youth Affairs
(Represented by Lauren Tennyson, BL
instructed by the Chief State Solicitor’s Office )
Respondent
File reference: ET-159523-ES-15
Date of issue: 3rd August 2017
Introduction:
1.1 On the 22nd September 2015, the complainant referred a complaint pursuant to the Equal Status Acts to the Equality Tribunal/Workplace Relations Commission. The complainant asserts that he was discriminated against on the grounds of religion by the respondent, a Government Department.
1.2 On the 28th October 2016, in accordance with powers under Part III of the Equal Status Acts, the Director General delegated the case to me, Kevin Baneham, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under section 25 of the Acts, on which date my investigation commenced. In accordance with section 25(1) and as part of my investigation I proceeded to a hearing on the 3rd November 2016. The complainant attended the hearing. The respondent was represented by counsel, instructed by the Chief State Solicitor’s Office.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.
2. Summary of the complainant’s case:
2.1 The complainant asserts that the respondent discriminated against him in failing to provide a service to him. The complainant outlines that this discrimination was on grounds of religion. He says that this matter arose when he read an article in a newspaper regarding court proceedings where an employee of a non-governmental organisation was standing trial relating to the misappropriation of funds. It was of concern to the complainant that the article referred to this person also having a conviction in another jurisdiction for a sexual offence. The complainant said that he was concerned that such little attention had been made to the conviction and that this person worked for an NGO. He sought to raise this with the then Minister of the respondent Government Department and received a response from the Minister on the 2nd May 2014. The complainant wrote again to the respondent Minister on the 16th March 2015. He stated that he is a God fearing person with a religious outlook on life. The complainant indicates his opposition to the 34th Amendment of the Constitution. He asserts that the NGO does not provide a Child Safeguarding Statement on its website and that a convicted sex offender was allowed to work for this organisation. The complainant calls on the respondent to make raise this issue publicly and in Dáil Éireann. He states that the respondent’s refusal to take this step would amount to discrimination on grounds of religion.
2.2 The complainant outlined that the respondent’s response to his correspondence fell within the definition of “service” provided in the Equal Status Acts. He outlined that the relevant section provides examples of services, but is not exhaustive. He outlined his opposition to the 34th Amendment of the Constitution and said that children should always come first. He stated that the discrimination was ongoing as the respondent had not raised his matters of concern in the Dáil or publicly. He stated that the appropriate comparator was a person of a particular sexual orientation. He said that he had met the prima facie of discrimination, referring to the Labour Court authority of Mitchell v Southern Health Board [2001] E.L.R. 201. He stated that the respondent’s failure to take action on his complaint amounted to religious discrimination. He was motivated by his religious beliefs and the respondent Minister had not acted because of his support for the 34th Amendment to the Constitution. He said that the respondent had put up a straw man in recommending that he refer any concern to TUSLA or the Gardaí. The complainant said that an inference should be drawn from the respondent’s refusal to allow him publicise his complaint in advance of this investigation and at the time of a general election.
3. Summary of the respondent’s case:
3.1 The respondent denies the claim. It states that the complaint does not relate to a service provided by the respondent and refers to the statutory definition of “service” provided in section 2. It submitted that the respondent had replied to the complainant’s correspondence and advised him to refer any concerns to named agencies. The respondent outlines that the issues raised by the complainant relate to third party non-governmental organisations and they should be the respondent in any claim. It outlines that it is a stranger to the issues raised by the complainant and the contents of the newspaper article. It submits that the complainant refers to his personally held beliefs, but they do not fall within the definition of religious beliefs provided in the Equal Status Acts. It stated that the complainant has failed to provide a comparator and the reference to a person of a particular sexual orientation was not an appropriate comparator. There is no prohibited conduct or less favourable treatment on the grounds of religion. The respondent outlined that it was not permissible for details of the complaint to be publicised prior to the completion of this investigation and does not accept that any inference can be drawn from this. The respondent submits that the complaint is misconceived and should be dismissed pursuant to section 22 of the Equal Status Acts.
4. Findings and reasoning:
4.1 The complaint relates to correspondence issued by the complainant to the respondent on the 16th March 2015 and sometime prior to the 2nd May 2014. They relate to a non-governmental organisation and the complainant calls on the respondent to raise issues relating to this NGO publicly and in Dáil Éireann. The letter of the 16th March 2015 states that the complainant will consider a refusal on the part of the respondent as discrimination on the grounds of religion.
4.2 Section 2 of the Equal Status Acts provides the following definition of service: “service” means 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 the 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) a professional or trade service,
but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies."
4.3 Section 3(1) of the Equal Status Acts provides that discrimination occurs “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)..." Section 3(2)(e) defines discrimination on the grounds of religion as arising between any two persons “that one has a different religious belief from the other, or that one has a religious belief and the other has not."
4.4 Section 5(1) prohibits discrimination in the provision of services available to the public:“A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”
4.5 Section 22 of the Equal Status Acts allows for the dismissal of claims at any stage. The section provides as follows:
“(1) The Director of the Workplace Relations Commission may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.
(2) Not later than 42 days after the Director of the Workplace Relations Commission dismisses a claim under this section, the complainant may appeal against the decision to the Circuit Court on notice to the Director of the Workplace Relations Commission specifying the grounds of the appeal.
(3) On appeal the Court may affirm or quash the decision.
(4) No further appeal lies, other than an appeal to the High Court on a point of law.”
4.6 I find that the complaint cannot succeed. I reach this finding for the following reasons. The respondent is correct in its submission that this complaint does not relate to a “service” as defined in the statute. The complainant called on the respondent to raise matters he had seen in a newspaper and the respondent did not respond to the complainant’s satisfaction. This cannot be construed as a service or facility available to the public. The complainant is dissatisfied with the response given to him, which was that he could raise any concern he had with the relevant agencies. These agencies are the statutory bodies that investigate and prosecute child protection concerns and reports. The complainant cites as his comparator members of a community according to their sexual orientation. This is not an appropriate comparator for a claim of discrimination on grounds of religion, where one has a different religious belief from the other, or where one has a religious belief and the other has not. While the comparator cited by the complainant may differ in their personal beliefs to him, no case has been made out regarding the comparator’s religious beliefs or outlook. Given these findings, in particular that the complaint does not fall within the definition of service in the Equal Status Acts, the claim is misconceived. The claim is, therefore, dismissed in accordance with section 22 of the Equal Status Acts.
5. Decision:
5.1 I decide that the complaint is misconceived and I dismiss it in accordance with Section 22(1) of the Equal Status Acts.
________________________________
Kevin Baneham
Equality Officer / Adjudication Officer
3rd August 2017