Complainant

Respondent

Anonymised Parties

A Citizen

A Government Department

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00004142-001

28/04/2016

The case concerns a claim by Mr A, that a Government Department discriminated against him on the ground of religion contrary to Section 3(2)(e) of the Equal Status Acts 2000 to 2015, in terms of failure to include him in a policy consultation process which he claims amounts to discrimination in access to a service.

The complainant referred a complaint under the Equal Status Acts 2000 to 2015 to the Director General of the Workplace Relations Commission on 28 April 2016. A submission was received from the complainant on 3 May 2016.   A submission was received from the respondent on 18 August 2016. On 13 March 2017, in accordance with her powers under S. 25 of the Acts, the Director General delegated the case to me, Stephen Bonnlander, an Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part III of the Equal Status 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 28 April 2017.

The complainant submits that when he saw a policy consultation forum run by the respondent advertised on 1 May 2015, he applied to participate by email. He subsequently received correspondence from the respondent stating that the number of participants in the policy forum would be limited initially but that this would be kept under review. The complainant was also told that he was therefore not invited. The complainant took this to mean that he would be invited at a later date. When no invitation was forthcoming, the complainant speculated that this might be because he had appealed a decision of the Data Protection Commissioner to the Circuit Court.

The connection to any potential discrimination on the religion ground, as per the complainant’s own statement, is very convoluted: The complainant’s religious outlook makes him critical of a particular social minority. He claims that these critical views have led to him being defamed online and his complaint to the Data Protection Commissioner was against a search engine provider for not removing links to the alleged online defamation.

He contends that his exclusion from the respondent’s policy forum happened so that members of the relevant social minority who work in government would not feel uncomfortable when he, as a “God-fearing man” in his own words, would be compelled by his beliefs to raise these criticisms again.

In his written exchanges with the respondent, which are appended to his submission, there is no indication that he mentioned his religion to the respondent in his application at all, or that the respondent refused his participation in the policy forum on the ground of religion.

The complainant nevertheless alleges that a mental health campaigner was afforded participation on the policy forum because of a complaint by that person of religious discrimination. The newspaper article which the complainant appended to his submission by way of proof does not support any aspect of this particular contention.

As a preliminary point, the respondent notes that whilst the initial letter to the complainant, which advised him that he was not invited to the consultation forum, was dated 26 June 2015, and the subsequent respondent notification was received by the respondent on 30 October 2015, the complaint itself was only filed on 28 April 2016. The respondent contends that this means that the complaint is out of time pursuant to the requirements of S. 21(6) of the Equal Status Acts 2000 to 2015.

In respect of the main argument, the respondent denies that it discriminated against the complainant when it did not invite him to participate in the consultation forum.   It states that the original advertisement made it quite clear that a sectoral approach was taken by the respondent. The respondent also notes that the complainant never provided the curriculum vitae which the respondent had asked for, but only expressed his interest in participating. In light of the considerable interest in the forum, the respondent decided to limit the number of participants, and to have civil society in particular be represented by three civil society organisations rather than persons attending in a personal capacity.

Furthermore, the respondent notes that the complainant has provided no evidence of any kind of discrimination on the ground of religion, religious outlook or background, or lack of religious belief.   The respondent further submits that the complainant provides no evidence of the relevance of his Circuit Court appeal to the respondent’s decision not to include him in the forum, and that the critical views of a social minority he expresses do not create a nexus between what he alleges and discrimination on religious grounds under the Equal Status Acts.

The respondent therefore argues that the complaint is devoid of merit and that the complainant has failed to establish a prima facie case of discrimination.

The respondent also submits that participation in a policy consultation forum should not be defined as a “service” within the meaning of S. 5(1) of the Equal Status Acts, but does not elaborate further on this point.

Given what the respondent sees as the overall lack of merit of the within complaint, it made an application to the Commission to dismiss the complaint under S. 22 of the Equal Status Acts as misconceived or frivolous and vexatious or relating to a trivial matter.

Preliminary issue 1: Time Limits

The preliminary issue for decision in this case is whether the complaint was brought in time, and if not, whether the complainant can provide credible reasons which both explain and justify the delay. Counsel for the respondent pointed out that the notification which is required pursuant to S. 21 of the Equal Status Acts, was itself late by two days and hence outside the four-month time limit set down in the Acts, which can only be waived by an adjudicator in exceptional circumstances. The filing of the actual complaint occurred approximately ten months after the respondent wrote to the complainant to advise that he was not, at that time, invited to the policy forum but that the matter was kept under review.

It was the complainant’s argument that since he has still not been invited to participate in the forum, the respondent’s discrimination is ongoing. The respondent confirmed that the forum deliberations are ongoing and that the issue of possibly inviting other participants was kept under review. The respondent also advanced the argument that because of this, no discrimination of the complainant could have occurred.

Irrespective of the substantive merits of the complainant’s case, I am satisfied that the situation which gave rise to his complaint does indeed continue – he is not participating in the forum – and hence possible discrimination could be ongoing. Also, in light of the fact that the complainant is an unrepresented litigant, I am prepared to allow the complaint to proceed despite the fact that notification was brought two days outside the four-month limit set by the Acts for notification of respondents. I am satisfied that the respondent is not prejudiced by this delay in terms of defending the within proceedings.   Accordingly, I find that the case is in time and I have jurisdiction to investigate it in this respect.

Preliminary issue 2: Is a Policy Consultation a Service?

The respondent also raised the point as to whether participation in a policy consultation process instigated by the government could possibly be a “service” within the meaning of the Acts. Counsel for the respondent, whilst noting that the definition of “service” given in S. 5 of the Acts includes free services and services which are open only to parts of the public, argued that membership in a policy forum could not be comprehended in that definition. She further argued that such a membership was not a “good” or a “facility” within the meaning of the Acts. She gave the example of a book club in her house, which was by invitation only, too.

The complainant responded to state that in his view, being able to give one’s view on policy issues was still an opportunity for members of the public to participate in a process and to argue that the invitation process confined it to a particular “membership”, like in a club, was disingenuous.

Given that “goods”, as defined in S. (2) of the Acts, are “any articles of moveable property”, that is, chattel, it is clear that this type of access does not come under this part of the definition.

Section (2) of the Equal Status Acts defines “service” as

a service or facility of any nature which is available to the public generally or a section of the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes [various examples]. [Emphasis added].

I am satisfied that nowhere in the Equal Status Acts are policy consultations expressly excluded from coming under their remit. I feel therefore free to consider how they might be comprehended to be a service under the Acts.

In considering how participation in government policy formulation might be comprehended as being a “service”, the first thing to note is that invitations which come on foot of public advertisements for expressions of interest clearly do mean that sections of the public are meant to have access to it. In that context, counsel’s comparison with a private book club seems misguided. In addition, Section (5) of the Acts clearly states that services or facilities which can be availed of without consideration are included in what the Acts define as the “disposal of goods and provision of services”. I am satisfied that the respondent’s policy forum fulfils both of these criteria.

There are two valid arguments, in my view, which support the definition of participation in policy consultation processes as a “service” within the meaning of the Acts:   The first is that it can be understood to be a facility: members of the public who are selected following a public advertisement which invites expressions of interest get an opportunity to communicate their views to the government in a discursive structure set up for this specific purpose.   In addition, they get the opportunity to speak to government officials directly on the policy issue in question, which can make for much more straightforward communication than letters or written submissions.

This aligns fairly precisely with the first definition of “facility” given in the Concise Oxford English Dictionary, which is: a building, service, or piece of equipment provided for a particular purpose. [Emphasis added.]

I am satisfied that the purpose of the government for conducting policy consultations is to learn the views of different stakeholders and members of the public on its proposals, and that providing a policy consultation forum therefore is very much the service it provides to the citizenry for just that purpose.

A second, slightly more indirect, argument for viewing policy consultation processes as services in which sections of the public participate is that any policy consultation ultimately informs the provision of services which the government provides to the public. In that sense, gathering the views of a section of the public on any policy proposal, so as to ensure that benefits accrue to the public as intended, could be seen as an integral part of public service provision by the government, and hence be included in the definition of “service” as provided for in the Acts.

Either way, I am satisfied that participation in government policy consultation processes can be defined as a “service” within the meaning of the Acts, to which sections of the public have access, without consideration, and that I have therefore jurisdiction to investigate the matter.

I will now continue to consider the substantive case.

Substantive Case

The main issue for decision in this case is whether the complainant was discriminated against on the ground of religion because the respondent did not include him in its policy consultation forum.

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 he 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.

In coming to my decision, I have considered all oral and written evidence presented to me by the parties.

The main element for the complainant to prove, to establish any prima facie case under the Acts, is that a person of a different religion or religious outlook was treated more favourably than him by being invited to participate in the forum. This requirement is set out in Section 3(1) of the Acts. The complainant was wholly unable to discharge this elementary probative burden. It turned out that the person he had named as a comparator had not ever been a participant on the forum, and neither did the complainant know this person’s religion. Furthermore, the complainant had not ever given his religion, which is Roman Catholic, to the respondent; although he argued that his religious outlook should have been obvious from the misgivings about the identified social minority he expressed in his submission.

The complainant further tried to argue that he was entitled to a hypothetical comparator.   I referred the parties to the Labour Court decision in Citibank v. Massinde Ntoko [EED045], in which the court held that because Mr Ntoko was the only agency worker in the respondent business and hence a category of one, he was entitled to rely on a hypothetical comparator.

In the within case, I am satisfied that the forum consultations actually commenced and that there were therefore people in attendance who may or may not have been of a different religion, or have had a different religious outlook, from the complainant. In other words, there is no need for the complainant to rely on a hypothetical comparator because of lack of an actual comparator and hence this right does not avail him. Therefore, the onus proving the religion or religious outlook of one of the forum participants and hence providing a valid comparator within the requirements of Section 3(1) of the Acts is firmly on the complainant. Given that the complainant has not been able to do so, I am satisfied that he has not established a prima facie case and that therefore his complaint must fail.

Based on all of the foregoing, I find, pursuant to Section 25(4) of the Equal Status Acts, that the respondent did not discriminate against the complainant, on the ground of religion or religious outlook or background, pursuant to Sections 3(1), 4 and 5(1) of the Acts.

Time limits – policy consultation “service” within the meaning of the Equal Status Acts – religious belief or outlook – valid comparator – hypothetical comparator – Labour Court decision Citibank v. Massinde Ntoko EED045 – no prima facie case.