EMPLOYMENT EQUALITY ACTS
Decision - DEC–E2017-057
PARTIES
A Teacher
(represented by Purdy Fitzgerald Solicitors)
and
A Central Technical Institute
(represented by Mr. Barra Faughnan B.L.
on the instructions of Eversheds Solicitors)
File Reference: et-150691-ee-15
Date of Issue: 24th July, 2017
Keywords: Employment Equality Acts – Section 6(2)(b) – Religion Ground – Section 31 – Indirect Discrimination - Section 14A - Harassment – Section 74(2) - Victimisation
1. Dispute
1.1 This case concerns a complaint by the Complainant that he was subjected to discriminatory treatment by the Respondent on the grounds of his religious beliefs contrary to sections 6(2)(e) of the Employment Equality Acts in relation to his conditions of employment. The Complainant also claims that he was subjected to harassment by the Respondent on the grounds of religion contrary to Section 14A of the Employment Equality Acts and that he was subjected to victimisation contrary to Section 74(2) of the Acts.
2. Background
2.1 The Complainant referred the present complaint under the Employment Equality Acts to the Director of the Equality Tribunal on 3rd May, 2015. In accordance with her powers under Section 75 of the Employment Equality Acts, the Director General delegated the case on 12th December, 2016 to me, Enda Murphy, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts. This is the date I commenced my investigation. A written submission was received from the Complainant on 14th July, 2016 and from the Respondent on 14th October, 2016. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 23rd March, 2017.
2.2 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.
3.Summary of the Complainant's case
3.1 The Complainant, who is a Humanist, commenced employment with the Respondent in 1994 and has since worked as a teacher of computer science. The Complainant previously referred a complaint to the Equality Tribunal alleging discriminatory treatment on the grounds of religion in relation to his employment. This complaint was resolved by way of mediation and a mediated settlement agreement was entered into on 27th April, 2015. The matters which are the subject of the instant complaint arose following the aforementioned mediation agreement being entered into.
3.2 On the 1st May, 2015 the Complainant entered his workplace and was greeted by a religious altar and statue which had been prominently placed in an area in which he would be working. The Complainant sought to remove the statue so as to bring it to attention of management but when in the course of doing so he was accosted and assaulted by a member of the custodial staff. Following on from the foregoing, the Complainant raised a complaint with his Principal and Vice-Principal regarding the treatment which he was subjected to by a member of staff and indeed the treatment which he was subjected to by virtue of the placing of religious artefacts in his workplace. It was submitted that the Complainant’s valid grievances in this regard fell on deaf ears and instead the Complainant was disciplined as a result of the incident on 1st May, 2015. The Complainant subsequently took issue with the foregoing in a letter dated 12th June, 2015.
3.3 The Complainant submits that the placing of the statue in such a prominent location at the Complainant’s place of work represents indirect discrimination contrary to Section 31 of the Employment Equality Acts. He submits that the placing of the religious altar and statue at his place of work represents an act which puts him at a disadvantage given his strongly held beliefs. In particular, the Complainant submits that the statue provokes deep unease and anxiety in him. Matters in this regard are made worse by virtue of the fact that the Respondent was fully aware of the Complainant’s strongly and sincerely held views before it was decided to place the altar and statue in a prominent location in his workplace. The Complainant submits that Section 31(1) of the Acts requires complainants who allege indirect discrimination to show that the discrimination involved a disadvantage as compared with other employees of a different religion. In this regard, the Complainant submits that the appropriate comparators are practicing Roman Catholic members of the Respondent’s staff and the placing of the statue and altar did not have the same effect on these staff members as it did on the Complainant.
3.4 The Complainant also submits that the placing of the altar in the workplace amounted to victimisation contrary to Section 74(2) of the Employment Equality Acts. The Complainant claims that he was victimised as a result of having made his initial complaint to the Equality Tribunal (i.e. the complaint that was resolved by way of mediation). In this regard, the Complainant submits that the placing of the religious altar and statue in a place which he would be working represents a clear act of victimisation. Of particular relevance is the fact that the Respondent was fully aware of the effect which the placing of the religious artefacts had on the Complainant prior to the separate complaint which was dealt with by way of mediation. The Complainant submits that he made complaints about similar artefacts being placed in the workplace in 2012, as a result of which the artefacts were not present in 2013 or 2014, which is prior to the separate complaint which was dealt with by way of mediation. The Complainant submits, therefore, that this speaks to the placing of the altar and statue being a premeditated act which the Respondent was fully aware would negatively impact upon him. The Complainant claims that the Respondent’s actions in this regard amount to “adverse treatment” of him. Furthermore, the complainant submits that he was subjected to such “adverse treatment” directly as a result of having raised a complaint of discrimination i.e. the complaint that was dealt with by way of mediation. It was submitted that the lodging of the aforementioned complaint comes within the ambit of Section 74(2)(a) and 74(2)(b) of the Acts and thus amounts to a “protected act”. The Complainant submits that he would not have been subjected to the “adverse treatment” contended but for the fact that he had raised a complaint of discrimination.
3.5 Further and separate to the above, on the date in question, being the 1st May, 2015, the Complainant raised a complaint regarding the placement of the altar and statue. The Complainant submits that this complaint also comes within the meaning of Section 74(2)(a) of the Acts. The Complainant submits that instead of dealing with the his valid complaint in a proper manner, the Respondent decided to discipline him and he was subsequently issued with a verbal warning arising out of his conduct on the date in question. The Complainant submits that as a result of raising the aforementioned complaint he was furnished with a disciplinary sanction for which there was no basis and which amounts to “adverse treatment” within the meaning of Section 74(2) of the Acts.
3.6 The Complainant also claims that he was subjected to harassment on the grounds of his religious beliefs contrary to Section 14A of the Acts. The Complainant submits that the actions of the employee, who accosted him as he was in the process of removing the statue on 1st May, 2015 amount to harassment. The complainant submits that in circumstances where he was in the process of asserting his religious beliefs it is abundantly clear that he was subjected to such treatment because of such beliefs. The Complainant submits that this incident greatly impacted upon him in that it resulted in him suffering physical harm and also caused him to suffer very considerable stress and anxiety. The Complainant submits that this incident comes within the definition of harassment as provided for in Section 14A of the Acts in that the conduct of the employees was “unwanted” and had the effect of “violating his dignity” and caused him to feel targeted, intimidated and offended. The Complainant submits that the Respondent must be held vicariously liable for the acts of its employee in relation to this incident in accordance with the provisions of Section 15 of the Acts.
3.7 The Complainant referred to the following cases in support of his case namely, Angelini –v- Sweden[1], A Company –v- A Worker[2], Monaghan County Council –v- Mackarel[3], Kavanagh –v- Aviance UK Limited[4] and Fagan –v- Revenue Commissioners[5].
4.Summary of the Respondent’s case
4.1 The Respondent is an Education and Training Board established under the Education and Training Boards Act 2013 and provides a range of education programmes including Second Level Education, Post Leaving Certificate Programmes, Further Education and Adult & Community Education. The Complainant is employed by the Respondent and at the relevant time was a teacher of computer science and maths at a regional Central Technical Institute (CTI) which is a constituent college of the Respondent. The CTI has a Christian ethos as outlined in the School’s Religious Education Policy. In addition to the provision of religious education, CTI has, traditionally, taken various steps in preservation of its primarily, but not exclusively Christian ethos such as a prayer at morning assembly, an end of year Mass for graduate students and the provision for students, if they so desire, to receive ashes at Lent. In addition to the various prayer elements, from time to time religious symbols have been put up in the building such as a Christmas tree and crib, the May altar is erected each year comprising a small table, a statue and flowers, in 2013 a statue of Buddha was on display in the context of solidarity with the victims of the earthquake in Nepal and in 2014 a talk was arranged from a Jewish survivor of the Holocaust.
4.2 The Respondent submits that the May altar is a tradition which has been continued in CTI for a period of decades rather than years and has been continuously erected during the Complainant’s employment but has not been the subject of any complaint other than from the Complainant. The Respondent submits that there was an incident between the Complainant and another teacher, Mr. A, in 2012 in relation to the May altar. Mr. A informed the School Caretaker that the statue had been removed from the May altar. This gave rise to a heated discussion between the Complainant and Mr. A on the basis of the latter’s belief that the Complainant had taken the statue. On this occasion the Deputy Principal, Ms. B, intervened, the statue was returned and it was decided to put it at the entrance to the Gaelcholaiste, which is at the other end of the same building, in the interest of dampening tensions between the two teachers. The Respondent refutes the Complainant’s assertion that following this altercation the statue was not present in 2013 and 2014 and contends that the May altar has been erected every year, including 2013 and 2014, in the same place in the CTI at the main entrance. The Respondent submits that the 2012 incident was dealt with by the Deputy Principal primarily as a dispute between two teachers, albeit that the disagreement related to the position of the statue. However, contrary to the assertion made by the Complainant, there was no complaint, made by the Complainant to management of the CTI in relation to the placement of the statue nor was there any agreement sought or obtained that the practice of erecting a May altar would cease.
4.3 On the 1st May, 2015 the May altar was erected at the main entrance to CTI by the Caretaker in the usual way and in the manner it had been erected in previous years. The Respondent submits that this event was not related in any way to the equality case taken by the Complainant and which had been settled by way of mediation the previous month. The Complainant took grave exception to the placement of the statue and ultimately took possession of it once again. On this occasion, there was an altercation between the School Caretaker, a slight man in his 60’s, and the Complainant. Another staff member (Mr. D) entered the building around this time and stated that the Caretaker “stumbled out from behind the area after an aggressive altercation” and that the Caretaker was “visibly shook from the incident”.
4.4 The Respondent submits that there was some dispute between the Complainant and the Caretaker as to precisely what took place. The Complainant has stated that he sought to remove the religious statue “to bring it to the attention of management” which the Respondent submits is not accepted. The Complainant asked the Caretaker if he had put up the altar and if he had permission. The Respondent submits that the Caretaker has stated that the Complainant stated in an aggressive manner “I’m putting it in your room so you can look at it” before removing the statue. The Caretaker has stated that the Complainant was then asked to put back the statue an when he refused, the Caretaker sought to retrieve it from him. It was then that the Complainant pushed the Caretaker backwards causing him to sustain a cut to his neck and bruising to his hand. The Respondent submits that the respective accounts are disputed to some extent, but it is not disputed that the Caretaker was cut and needed medical attention as a result thereof and that the incident was reported to the Gardai. The Respondent submits that had the Complainant simply wished to bring the matter to the attention of management, he could, of course, have done so without removing the statue. Following the altercation, a number of complaints were immediately received and ultimately there was a disciplinary/investigation process followed in relation to the matter. The Complainant took issue with this process throughout, and did not cooperate or fully engage with it. Ultimately, it resulted in a verbal warning to the Complainant and he was entitled to appeal the outcome but failed to exercise that right.
4.5 The Respondent submits that the right being enforced in the context of the present complaint has been characterised by the Complainant as a right to be protected from “imposed religion”. The Respondent submits that there is no imposing of religion aspect in this case at all and it is contended that what the Complainant objects to is the presence of a particular religious symbol in his workplace, simpliciter. It follows, a fortiori, that what the Complainant asserts as a legal right is an entitlement to carry out his work, on one view, without being exposed to any manifestation of religion at all. On another view, without being exposed to any particular religious image to which he personally objects. The Respondent submits that there is no authority to support that proposition and in all cases where there are competing religious beliefs, an employer is required to strike some form of balance between them. The balance put forward by the Complainant, in effect, is that his beliefs (which are non-religious) must have primacy such that there is nothing in the physical environment which is incompatible with those beliefs. The Respondent submits that such a proposition is not the law.
4.6 The Respondent further submits that, contrary to the Complainant’s assertions, at no time was he expected to regard the statue with great respect or to venerate religious objects contrary to his beliefs. The Complainant was only expected to treat his colleagues and their religious views with respect which it contends that he singularly failed to do. The Respondent submits that the Complainant has not provided any evidence of a disadvantage to him, by placing the May altar in CTI’s common area nor had he detailed the reasons for his alleged anxiety and unease, allegedly caused by what has been described as an “essentially passive symbol”. The Respondent refutes the Complainant’s contention that he was asserting his religious beliefs by removing the statue from the May altar. The Respondent submits that the Complainant was asserting, physically, the primacy of his beliefs over those represented by the statue and, indeed, by the vast preponderance of the student and staff body. The Respondent submits that in these proceedings the Complainant is asserting a legal right to the primacy of his beliefs to the extent that while he is working any manifestation of other beliefs must be extinct or invisible.
4.7 The Respondent submits that the Complainant has pointed to Roman Catholic colleagues to allege that he was discriminated against but has failed to show any basis for same. The Complainant was not placed at any disadvantage in relation to his conditions of work but rather by removing the statue he was putting his colleague at a disadvantage. The Complainant has stated that he was removing the statue “in the process of asserting his religious beliefs”. The Caretaker only attempted to retrieve the statue which was being removed without permission. The Respondent submits that the Caretaker did not attempt to retrieve the statue because of the Complainant’s beliefs but simply because the statue was being removed. The Respondent submits that the sole disadvantage alleged by the Complainant is that he should not have been exposed to a particular religious symbol. The Respondent submits that the law does not go that far and accordingly, it is denied that the placement of the May altar amounts to indirect discrimination against the Complainant.
4.8 The Respondent also submits, without prejudice to the foregoing submissions that the placement of the May altar does not constitute an act of discrimination on religious grounds against the Complainant, that he is in any event precluded from making such an assertion by virtue of the provisions of Section 37 of the Acts with regard to religious ethos and schools. The Respondent submits that the presence of religious symbols is wholly legitimate, rational and proportionate to the object of the preservation of a religious ethos within CTI, which has the express benefit of statutory protection. The Respondent submits that even were it accepted that the presence of such symbols amounted to discrimination on religious grounds, which it is not, the conduct impugned in these proceedings nonetheless has the benefit of the protection of the statute.
4.9 The Respondent rejects the claim that the Complainant was subjected to victimisation contrary to Section 74(2) of the Acts. The Respondent denies that the placement of the May altar was in any way related to the Complainant’s previous complaint to the Equality Tribunal (which had been settled by way of mediation prior to the incident on 1st May, 2015). The Respondent submits that the May altar has been a feature of the school life by reference to its ethos for decades and as such was a practice carried on prior to the Complainant’s employment in the school, prior to his equality complaint, during it and subsequent thereto. The Respondent submits that far from being a deliberate act motivated by the equality case, it was conduct viewed by the Respondent as being a completely separate matter.
4.10 The Respondent also rejects the claim that the Complainant was subjected to victimisation as a result of the disciplinary action and sanction invoked against him arising from the incident on 1st May, 2015. The Respondent submits that the disciplinary procedure was generated not by religious belief but by the Complainant taking upon himself not to discuss the matters with management or make a direct complaint thereto, to interfere with property directly and to engage in a scuffle with a fellow member of staff, a man in his mid-60’s, which resulted in personal injury. This matter required to be investigated and dealt with under the prevailing disciplinary procedures. The Respondent received complaints about the incident and was required to investigate same. On being offered the opportunity to discuss the grievance and the alleged discrimination with the Principal and/or Human Resources, the Complainant failed to do so. Following an investigation of the incident the Complainant was issued with a verbal warning by letter which references his actions on 1st May, 2015 and his failure to attend any of the disciplinary meetings. He was offered the right to appeal which he did not take.
4.11The Respondent also rejects the Complainant’s claim that he was subjected to harassment by the Respondent contrary to Section 14A of the Acts in relation to the incident that occurred on 1st May, 2015. In this regard, the Respondent referred to the case of Tipperary County Council –v- McAteer[6]and contends that the Labour Court made it clear that in an employment context, there cannot be an unfettered right to engage in the practice or manifestation of religion. The Respondent submits that the right could not be exercised “in a way that is disruptive of the business of the employer” and it contends that engaging in a physical altercation trying to enforce his views on colleagues, is without doubt disruptive to the business of CTI. The Respondent submits that there must be no absolute right to be allowed to suppress the practice or manifestation of religion. The Respondent submits that it was the Complainant’s conduct, in accosting a fellow employee and/or removing the statue which was “disruptive of the business of the employer” and not the other way round.
4.12 The Respondent relied upon the following cases in support of its case, namely Sheeran –v- Office of Public Works[7], Lautsi –v- Italy[8], Tipperary County Council –v- McAteer[9], Greenline Pallets Limited –v- John Whyte[10], Southern Health Board –v- Mitchell[11], Monaghan County Council –v- Mackarel and Skelly –v- Board of Management of St. Pauls Secondary School[12].
5. Conclusions and Findings of the Equality Officer/Adjudication Officer
Jurisdictional issue
5.1 The Respondent submits that the Complainant’s previous equality complaint which was resolved by way of mediation agreement (signed by the parties on 27th April, 2015) did not relate to the May altar, nor is same mentioned anywhere in the papers associated with it. The Respondent submits that if it is the case that the Complainant is alleging in the instant proceedings that the settlement of the earlier claim resulted in an agreement, the effect of which is to preclude CTI from placement of the May altar, then the actual complaint is one of failure to implement and/or breach of a mediated settlement. The Respondent further submits that the jurisdiction for the enforcement of mediated settlements is a matter for the Circuit Court in accordance with the provisions of Section 78(5) of the Employment Equality Acts. The Respondent, therefore, contends that the WRC has no jurisdiction in relation to the enforcement of the mediated agreement pertaining to the earlier equality complaint.
5.2 This jurisdictional issue was raised at the oral hearing and the Complainant’s representative confirmed that the terms of the mediated settlement pertaining to the earlier equality complaint had no bearing on the alleged discriminatory treatment (including the claims of victimisation and harassment) in the instant case. The Complainant’s representative accepted that the alleged discriminatory treatment which was the subject of the earlier complaint was totally unrelated to the issues that arose in relation to the placement of the May altar, and therefore, they constitute a separate complaint. The Complainant’s representative further clarified that the only relevance of the earlier equality complaint in the context of the present proceedings is that it constitutes a “protected act” within the meaning of Section 74(2) of the Acts for the purposes of the complaint of victimisation.
5.3 Having regard to the foregoing, I am satisfied that the earlier equality complaint which was the subject of a mediated settlement is a separate complaint which is totally unrelated to the alleged discriminatory treatment in the instant case. Accordingly, I find that I have jurisdiction to investigation the claims of discriminatory treatment, harassment and victimisation contained within the present complaint.
Substantive issues – Indirect Discrimination
5.4 The first issue that I must consider relates to the claim that the placement of the May altar in a prominent location at the Complainant’s place of work constitutes indirect discrimination against the Complainant. Indirect discrimination in relation to the non-gender grounds is covered at Section 31(1) of the Acts which should be read in conjunction with Section 22(1) which states“where an apparently neutral provision puts persons of a particular religion at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.” The definition of ‘provision’ in Section 2 is broad: “a term in a contract or a requirement, criterion, practice, regime, policy or condition relating to employment.” The above definition of indirect discrimination reflects the definition set out in Article 2 of the EU Framework Directive 2000/78/EC. Indirect discrimination occurs: “unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”
5.5 The Employment Equality Acts and the EU Framework Directive 2000/78 prohibits interalia discrimination both direct and indirect on the grounds of religion and religious beliefs. Both the Act and the Directive are silent on whether religion, in that context, includes the manifestation of religion. This question was addressed by the Labour Court in the case of McAteer case where it was held that “Consequently the jurisprudence of the European Court of Human Rights (ECHR) on the interpretation of the Convention for the Protection of Human Rights and Fundamental Freedoms applies in determining the ambit to be ascribed to the Charter. 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.” I am satisfied, therefore, that the manifestation of religion is covered within the religion ground in the Employment Equality Acts.
5.6 It is clear that the first criterion which the Complainant must satisfy in terms of establishing a case of indirect discrimination is that the contended apparently neutral provision i.e. the placement of the May altar puts him at “a particular disadvantage” within the meaning of the legislation. If it does it could amount to indirect discrimination. The Complainant contends that the placement of the May altar in the workplace puts him at a particular disadvantage given his strongly held beliefs (as a Humanist) and that it provokes deep unease and anxiety in him, and in effect, that this amounts to an “imposition” of Catholic and Christian religious beliefs on him. The Complainant submits that an appropriate comparator is a practising Roman Catholic member of staff and he contends that the placement of the religious objects in the workplace did not have the same effect on these members of staff as it did on him. The Respondent disputes the contention that the Complainant was put at any disadvantage in terms of the placement of the May altar and it argues that the interpretation of this provision of the legislation does not extend so far as to preclude him from exposure to a particular religious symbol on the basis of his personal beliefs.
5.7 The first issue that I must consider in addressing this matter relates to the question of whether or not the presence of the May altar in the workplace and the Complainant’s subsequent attempt to remove the religious statue constituted a prohibition or disadvantage to him in terms of the manifestation or assertion of his beliefs as a Humanist. In the case of Eweida and Others –v- The United Kingdom[13] the European Court of Human Rights held that “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….. 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.”
5.8 The Complainant adduced evidence that the presence of the May altar is unpalatable and offensive to him personally on the basis of his belief that the religious statue of the Virgin Mary is one associated with the repression of normal human sexuality. However, the Complainant has failed to adduce any compelling evidence from which it could reasonably be assumed that other persons who share his Humanist beliefs would be similarly offended or disadvantaged by the presence of such a religious statue in the workplace or other religious statutes which symbolise the Christian faith. I find, therefore, that the Complainant has failed to establish the existence of a sufficiently close and direct nexus between either the presence of the May altar in the workplace and/or his actions in removing the religious statue on 1st May, 2015 and his Humanist beliefs or that such matters are intimately linked to these beliefs. Accordingly, I find that the presence of the May altar in the Complainant’s workplace and his subsequent attempt to remove the religious statue did not constitute a prohibition or disadvantage on him in terms of the manifestation or assertion of his beliefs as a Humanist.
5.9 The question then turns to the issue of whether or not the manifestation of the religious beliefs espoused by the Respondent in terms of the placement of the May altar in the workplace (and in keeping with its Christian ethos) puts the Complainant and other persons that subscribe to Humanist beliefs at a particular disadvantage within the meaning of the Acts. In considering this matter, I have taken cognisance of the case of Lautsi –v- Italy[14] where the European Court of Human Rights considered the impact or otherwise of the presence of religious symbols in a building with the overall scheme of what might constitute discriminatory treatment on the grounds of religion. The Court held that “a crucifix on a wall is an essentially passive symbol and this point is of importance in the Court’s view, particularly having regard to the principle of neutrality. It cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities” (see Paragraph 72).
5.10 I am satisfied that there are parallels between the Lautsi case and instant case. It is clear that the Respondent has an established Christian ethos and it adduced evidence that the placement of the May altar is a long standing tradition which it practices every year in keeping with this ethos. The Respondent also adduced evidence that the Complainant is the only person who has made a complaint about the presence of the May altar despite the fact that this tradition has been in existence for a period of 30 years or more. I am satisfied that the placement of the May altar is a passive symbol which is not intended for the purpose of imposing or manifesting Catholic or Christian beliefs upon the Complainant personally, or indeed, upon others who do not share such religious beliefs but rather this practice is in keeping with the Respondent’s Christian ethos. I cannot accept the Complainant’s contention that there was any requirement or expectation placed upon him to venerate a religious idol contrary to his beliefs merely by virtue of the presence of the May altar in the workplace. In light of the foregoing, I am satisfied that the Complainant has failed to establish that the placement of the May altar in the workplace puts persons of the same beliefs as him at a disadvantage relative to those of a different religious belief. Therefore, I find that the Complainant has failed to establish a prima facie case of indirect discrimination. Accordingly, this element of his claim must fail.
Section 37 exemption
5.11 The Respondent has contended that the provisions of Section 37 of the Acts provide a defence in the event that I was to find that the Complainant has been subjected to discriminatory treatment on the grounds of religion. Strictly, the issue as to whether the exemption in Section 37 can be invoked does not arise given that I have already found that the Complainant has not been subjected to indirect discrimination on the grounds of religion. However, for the sake of completeness and in the event that my previous findings are found to have erred in law, I propose to also deal with this issue.
5.12 The Respondent submits, that actions taken, including what might otherwise be discriminatory treatment, which are in furtherance of the preservation of an educational institution, are expressly excluded from the ambit of discrimination pursuant to the provisions of Section 37 of the Acts. The Respondent submits that the presence of religious symbols is wholly legitimate, rational and proportionate to the object of the preservation of a religious ethos within CTI, which has the express benefit of statutory protection. The Respondent further submits that even if it were accepted that the presence of such symbols amounted to discrimination on the religious ground, which it is not, the conduct impugned in these proceedings nonetheless has the benefit of the protection of the statute.
5.13 The Complainant disputes the Respondent’s contention that it can rely upon the provisions of Section 37 of the Acts as a defence in the event that it is accepted that the presence of the May altar amounted to discrimination against the Complainant on the grounds of religion. The Complainant submits that the exemption in Section 37 of the Acts relates to the teaching of religion and could only be invoked in circumstances where the religious object (or statue) was used for purposes of teaching religion. The Complainant submits that the May altar was not used for the purpose of teaching of religion in the circumstances of the instant case, and therefore, its presence in the workplace did not constitute a genuine, legitimate and justified occupational requirement having regard to the Respondent’s religious ethos.
5.14 Before I consider the substantive issue in relation to the applicability or otherwise of the exemption in Section 37, I must address an issue raised by the parties in relation to the precise version of the legislative provisions which apply in the context of the present proceedings. In this regard, the Complainant submits that the provisions of Section 37, as amended by Section 11 of the Equality (Miscellaneous Provisions) Act 2015, are the version of the legislation that applies to the instant case. The aforementioned Section 11 amends section 37 of the Act of 1998 so that the exclusion for discrimination by religious educational or medical institutions on grounds of religion can only be relied upon by institutions that are maintained in whole or in part by public money, if the more favourable treatment on grounds of religion is a genuine, legitimate and justified occupational requirement having regard to the institution’s ethos and the means of achieving that aim are objectively justified and are appropriate and necessary. Counsel for the Respondent contended that the provisions of Section 37, as amended by Section 11 of the Equality (Miscellaneous Provisions) Act 2015, could not be applicable in the instant case since the events giving rise to the claim predated its enactment and a change in the law is presumed not to have retrospective effect.
5.15 It is my understanding that the common law presumption that legislation does not operate retrospectively applies where an Act changes the substantive as opposed to the procedural law. The nature of this presumption against retrospectivity was considered by the Supreme Court in Hamilton v Hamilton[15]. Here Costello J, at page 302, adopted the following statement of the law from Halsbury’s Laws of England, 3rd Vol 36 para. 644: “The general rule is that all statutes, other than those which are merely declaratory or which relate only to matters of procedure or evidence, are prima facie prospective; and retrospective effect is not given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature”. In the same case Henchy J, at page 297, put the position thus: “From a wide range of judicial decisions I find the relevant cannon of Interpretation at common law to be this. When an Act changes the substantive, as distinct from procedural, law then, regardless of whether the Act is otherwise prospective or retrospective in its operation, it is not to be deemed to affect proceedings brought under the pre-Act law and pending at the date of the coming into operation of the Act unless the Act expressly or by necessary intendment provide to the contrary”.
5.16 Having regard to the foregoing, I take the view that the amendment to Section 37 of the 1998 Act (which was effected by Section 11 of the Equality (Miscellaneous Provisions) Act 2015) was a substantive change to the law. I also take the view that the legislation which gave effect to the amendment did not expressly or by necessary intendment provide that the relevant provisions should have retrospective effect. Therefore, as the amendment to Section 37 of the Acts came into effect on 1st January, 2016, the events giving rise to the instant claim predated the enactment of the changes in the law. Accordingly, I am satisfied that the amendments effected to Section 37 of the Acts in terms of the introduction of the objective justification test are not applicable to the instant case.
5.17 I will next turn to the substantive question as to whether or not the Respondent is entitled to avail of the exemptions provided for in Section 37 of the Acts in the context of the present case. Section 37 of the Acts (i.e. the relevant provisions which pre-dated the abovementioned amendment to the legislation) provides as follows:
“37. (1) A religious, educational or medical institution which is under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values shall not be taken to discriminate against a person for the purposes of this Part or Part II if—
(a) it gives more favourable treatment, on the religion ground, to an employee or a prospective employee over that person where it is reasonable to do so in order to maintain the religious ethos of the institution, or
(b) it takes action which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution.”
5.18 It is the provisions in paragraph (b) of subsection (1) which are relevant to the issue in question in the present case. The exemption provided for in paragraph (b) allows for action to be taken by a religious, educational or medical institution against an employee in order to prevent that employee from undermining the religious ethos of the school. In order to avail of this exemption an employer must satisfy the following criteria; firstly, that the institution must be a religious, educational or medical institution and secondly, the objectives of the institution expressly include the provision of services in an environment which promotes certain religious values.
5.19 It is not disputed that the Respondent is an educational institution and I am satisfied that the CTI has a Christian ethos and the teaching of religious education is a fundamental component of the curriculum in the school. The Christian ethos of the school is clearly outlined in the CTI’s Religious Education Policy. In this regard, I note the Respondent’s evidence that the teaching of religious education is intended to be pluralistic and multi-denominational and is aimed at fostering awareness of the existence of a variety of faiths and respect for all of them and for those of no faith. The Respondent also adduced evidence that in addition to the provision of religious education, CTI has traditionally, taken various steps in preservation of its primarily, but not exclusively, Christian ethos such as a prayer at morning assembly, an end of year Mass for graduate students and the provision for students, if they so desire, to receive ashes at Lent. In addition to the various prayer elements, from time to time religious symbols have been put up in the building such as a Christmas tree and crib, the May altar is erected each year comprising a small table, a statue and flowers, in 2013 a statue of Buddha was on display in the context of solidarity with the victims of the earthquake in Nepal and in 2014 a talk was arranged from a Jewish survivor of the Holocaust.
5.20 The Complainant has claimed that the placement of the religious objects in such a prominent location at his place of work amounted to indirect discrimination on the grounds of religion. I am satisfied that the placement of the May altar was a tradition which has been in operation in CTI for a period of 30 years or more. I concur with the Respondent’s position that the presence of religious symbols such as the May altar is wholly legitimate, rational and proportionate to the object of the preservation of the Christian ethos within CTI. It was not in dispute that the Complainant was attempting to remove the religious statue from the May altar on 1st May, 2015 when the altercation with the Caretaker ensued. I am satisfied that the actions of the Complainant in attempting to remove the statute on the date in question served to undermine the religious ethos of the school. Having regard to the Christian ethos of CTI, and in accordance with the provisions of Section 37(1) of the Acts, I find that the placement of the May altar within the confines of its school buildings cannot be held to be discriminatory against the Complainant on the grounds of religion contrary to the Acts. Accordingly, I find that the Respondent would be entitled to avail of the exemption provided for in Section 37(1) of the Acts in circumstances of the present complaint.
Victimisation
5.21 The next element of the Complainant’s complaint which I must consider relates to the claim that he was subjected to victimisation contrary to the Acts. The Complainant has claimed that he was subjected to two separate incidences of victimisation, namely (1) in relation to the placement of the May altar in an area in which he would be working and (2) in relation to the disciplinary sanctions imposed on him by the Respondent after he had made a complaint regarding the placement of the May altar. I will proceed to consider the alleged victimisation in relation to both of these incidences. Section 74(2) of the Acts defines victimization as follows:
“victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by the complainant
….. ….. …..
(i) an employee having opposed by lawful means an act that is unlawful under this Act….
(ii) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”
5.22 In the case of Tom Barrett v Department of Defence[16] the Labour Court set out the three components which must be present for a claim of victimization under Section 74(2) of the Acts to be made out. It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of Section 74(2) – what it terms a “protected act”, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant. In relation to the first incident detailed above, the Complainant has claimed that he was subjected to victimisation by the Respondent after he had referred an earlier complaint to the Equality Tribunal (and which was subsequently settled by the parties on 27th April, 2015 by way of a mediation agreement). I find that the fact of the Complainant having referred a previous complaint to the Equality Tribunal constitutes a “protected act” and therefore, satisfies the requirement outlined in (i) above.
5.23 In considering whether the Complainant has satisfied parts (ii) and (iii) of the test outlined above, I have taken cognizance of the case of Roy Mackarel –v- Monaghan County Council[17] where the Labour Court held that: “Both the Act and the Directive provide that victimisation occurs where a detriment is imposed on a worker ‘as a reaction‘ to a complaint or other protected act. The use of the expression ‘as a reaction to’ connotes that the making of a complaint, or other protected act, must be an influencing factor in the decision to impose the impugned detriment although it need not be the only or indeed the principal reason for the decision. It is, in the Court’s view, sufficient if the making of the complaint was an operative factor, in the sense of being anything other than a trivial influence, operating on the mind of the decision maker (see by analogy the dictum of Peter Gibson LJ in Wong v Igen Limited and Ors. [2005] IRLR 258 in relation to the degree of connection required between race and an impugned act or omission necessary to make out a claim of discrimination).”
5.24 The adverse treatment contended by the Complainant in the present case relates to the placement of the May altar in a prominent location at his workplace. The Complainant contends that the Respondent was fully aware of the effect which the religious objects would have on him prior to their placement in the workplace in 2015 especially in light of the fact that he had made a complaint about similar objects being placed there in 2012. The Complainant further contends that following his complaint to management in 2012 the May altar was not present in either 2013 and 2014 which was prior to the separate equality complaint which was dealt with by way of mediation. It was not disputed by the Respondent that an issue had arisen in 2012 involving the Complainant relating to placement of the May altar in the workplace. I am satisfied that this matter was resolved locally following the intervention of the Deputy Principal after agreement was reached to place the May altar in a different part of the school building for the remaining period of its placement during that year. There was a dispute between the parties as to whether the terms of the agreement in 2012 included an undertaking by the Respondent that the May altar would not subsequently be put in place in the workplace during future years. I prefer the Respondent’s evidence on this issue and I accept that no such undertaking was given by the Respondent. In coming to this conclusion, I have taken cognizance of the credible and compelling evidence adduced on behalf of the Respondent by a number of witnesses (including the School Principal, the Deputy Principal, the former Assistant Principal, a current Teacher and the School Caretaker) regarding the long standing tradition that existed in terms of the placement of the May altar in the school each year and crucially, that they all attested that the May altar was, in fact, put in place in the years 2013 and 2014.
5.25 As I have already stated above, it is clear that the Respondent has a Christian ethos and I accept that the placement of the May altar was one of a number of long standing traditions practiced by the CTI in keeping with its religious ethos. I am satisfied that the placement of the May altar in the school in May, 2015 was not in any way attributable to the fact of the Complainant having previously referred a complaint to the Equality Tribunal but rather it was a measure carried out exclusively in keeping with this long standing tradition which was practiced every year during the month of May. In the circumstances, I find that the Complainant has failed to establish a prima facie case of vistimisation within the meaning of Section 74(2) of the Acts in relation to this element of his complaint.
5.26 The second incident of victimisation alleged by the Complainant relates to his claim that he was subjected to a disciplinary sanction after he had made a complaint to the Respondent about the placement of the May altar in 2015. This complaint was made in the aftermath of the altercation that had occurred between the Complainant and the School Caretaker on that date in relation to the removal of the religious statue. It was not in dispute that the Complainant made a complaint by e-mail to the Respondent on 1st May, 2015 about the placement of the May altar in the workplace and that he informed the Respondent in this communication that he would not be attending work while he was “expected venerate a religious idol contrary to his religious beliefs”. I find that the fact of the Complainant having made this complaint to the Respondent about the placement of the May altar constitutes a “protected act” and therefore, satisfies the requirement outlined in (i) above.
5.27 The adverse treatment contended by the Complainant in relation to this incident relates to the disciplinary sanction of a verbal warning which was issued to him following the conclusion of the investigation into the altercation relating to the removal of the religious statue. In this regard, it was not in dispute between the parties that a physical altercation had taken place between both men on this date after the Complainant had attempted to remove the religious statue from the May altar. However, I note that it was very much in dispute between the parties as to who instigated the altercation and who had been the aggressor in terms of the “scuffle” that subsequently ensued. It is clear that both the Complainant and the School Caretaker both made formal complaints in relation to this incident. In the circumstances, I am satisfied that the Respondent was obliged to conduct an investigation into the matter in accordance with its internal Grievance and Disciplinary Procedures.
5.28 This investigation was carried out by the School Principal who had no involvement in the incident on the 1st May, 2015. As part of this investigation, the Complainant and the School Caretaker were both requested to provide written statements on the matter. They were invited to attend a Disciplinary Investigation meeting on 20th May, 2015 but the Complainant subsequently refused to attend this meeting or to cooperate or engage in the investigation process. It was not in dispute that the Complainant was issued with a verbal warning following the conclusion of the investigation for “his unprofessional and unacceptable conduct” in relation to the incident that occurred with the School Caretaker on 1st May, 2015 (and this verbal warning was communicated to him in writing in a letter from the Regional Education and Training Board dated 2nd June, 2015). The Complainant was informed of his right to appeal the disciplinary sanction which would have been dealt with by a person nominated by the Chief Executive of the Regional Education and Training Board. It was not in dispute that the Complainant failed to appeal the matter.
5.29 Having regard to the evidence adduced, I am satisfied the Respondent carried out an independent and impartial investigation into the incident in accordance with its internal Grievance and Disciplinary Procedures. I am satisfied that the disciplinary sanction (of a verbal warning) which was imposed on the Complainant following the conclusion of this investigation was wholly attributable to the findings made by the School Principal concerning his conduct and actions in relation to the altercation that took place on 1st May, 2015 and his subsequent failure to engage in the investigation and disciplinary process that subsequently ensued. I have not been presented with any evidence from which I could reasonably conclude that the disciplinary sanction was in any way attributable or motivated by the complaint which the Complainant made on 1st May, 2015 about the placement of the May altar. Accordingly, I find that that the Complainant has failed to establish a prima facie case of victimisation within the meaning of Section 74(2) of the Acts in relation to this element of his complaint.
Harassment
5.30 The final element of the complaint that I must consider relates to the claim that the Complainant was subjected to harassment contrary to Section 14A of the Acts. “Harassment” is defined in Section 14A(7)(a) of the Acts as “any form of conductrelated to any of the discriminatory groundsbeing conduct which … has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”. Section 14A(7)(b) further states that “such conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material”.
5.31 The Complainant claims that the actions of the employee (i.e. the School Caretaker) who accosted and assaulted him as he was in the process of removing the religious statue on 1st May, 2015 amounts to harassment within the meaning of the Acts. The Complainant contends that in circumstances where he was in the process of asserting his religious beliefs it is abundantly clear that he was subjected to this treatment because of such beliefs. In considering this matter, it is important to note that there had been a previous incident involving the Complainant and the School Caretaker in 2012 in relation to the removal of the religious statue from the May altar. It was not in dispute that the Complainant also removed the religious statue from the May altar on that occasion and placed it in the Caretaker’s office. However, on that occasion the matter was resolved at a local level following an intervention by the Deputy Principal.
5.32 As I have already adverted to above, it was not in dispute between the parties that an altercation did, in fact, take place between the Complainant and the School Caretaker on 1st May, 2015 after the Complainant had attempted to remove the religious statue from the May altar. Neither was it in dispute that both parties sustained minor injuries in the nature of bruising and superficial abrasions arising from the “scuffle” over the statue that ensued during the incident. It was very much in dispute between the parties as to who instigated the incident and who had been the main aggressor in terms of the altercation that subsequently ensued. Having regard to the evidence adduced, it would appear that as the incident developed on the date in question, the School Caretaker attempted to reclaim the religious statue from the Complainant after he removed it from the May altar. I note that Mr. D (School Teacher) who witnessed the latter part of the incident stated that both parties had a grip on the statue and were pushing each other back and forward in an attempt to obtain control of the statue and he made the analogy that it was comparable to “a tussle between two players over a rugby ball”. The incident concluded following the intervention of Mr. D intervened who separated the parties and alerted the School Principal about the matter. The incident was subsequently investigated as a disciplinary matter in accordance with the Respondent’s internal Grievance and Disciplinary Procedures.
5.33 It is clear that the incident which occurred between the Complainant and the School Caretaker was very unsavoury and that both parties engaged in conduct which was unprofessional and totally unacceptable in the workplace. It is also clear from the evidence adduced that the incident caused upset and distress to both parties. However, the key issue which I must decide in terms of the claim of harassment is whether the conduct was related to one of the discriminatory grounds protected under the Acts i.e. the religion ground. The Complainant contends that he was removing the religious statue “in the process of asserting his religious beliefs”. I cannot accept that the Complainant’s actions in attempting to remove the statue were tantamount to an act of expression of his religious beliefs. It is clear that the Complainant did not have permission to take such action and a more prudent course of action would have been to raise his concerns regarding the matter with management instead of taking it upon himself to remove the statue. In light of the previous incident that had occurred in 2012, I am satisfied that it is not unreasonable to conclude that the Complainant could have expected that the removal of the statue in such a manner would provoke a reaction from the School Caretaker.
5.34 Based on the evidence adduced, I am satisfied that the incident and altercation which ensued was precipitated purely on the basis of the actions by the Complainant in attempting to remove the statue without permission. I have not been presented with any evidence from which I could reasonably conclude that the actions taken by the School Caretaker in trying to the retrieve the statute on the date in question arose as a consequence of the Complainant’s religious beliefs. I accept the Respondent’s contention that the School Caretaker did not attempt to retrieve the statue because of the Complainant’s beliefs but simply because the statue was being removed in an inappropriate manner and without permission. In the circumstances, I find that the Complainant has failed to establish that there was a sufficiently close nexus between the conduct of the School Caretaker towards him in terms of the incident that occurred on 1st May, 2015 and his religious beliefs. Accordingly, I find that the Complainant has failed to establish a prima facie case of harassment on the grounds of religion contrary to Section 14A of the Acts.
6.Decision
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts. I find that:
(i) The Complainant has failed to establish a prima facie case of indirect discrimination within the meaning of Section 31(1) of the Acts.
(ii) The Complainant as failed to establish a prima facie case of victimisation contrary to Section 74(2) of the Acts.
(iii) The Complainant has failed to establish a prima facie case of harassment contrary to Section 14A of the Acts on the grounds of religion.
Accordingly, I find in favour of the Respondent in relation to these matters.
______________
Enda Murphy
Equality Officer/Adjudication Officer
24th July, 2017
[1] [1988] 10 EHRR 123
[2] EED 035/2003
[3] EDA1213
[4] DEC-E2007-039
[5] DEC-E2008-004
[6] EDA153
[7] DEC-S2004-015
[8] App No. 30814/06
[9] EDA153
[10] EDA1225
[11] [2001] ELR 201
[12] DEC-E2013-180
[13] [2013] I.R.L.R. 231
[14] (2012) 54 E.H.R.R. 3
[15] [1982] ILRM 290
[16] EDA1017
[17] EDA1213