ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00004983

Parties:

Complaint(s):

Date of Adjudication Hearing: 19/06/2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

1. In accordance with Section 25 of the Equal Status Act, 2000, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

1. Mr John Hamill from Atheist Ireland alleged that on 5th July 2016 he was discriminated by Ms Jenny Blackburn who was representing Monaghan Farmers Market, an organisation that provides services or facilities. Mr Hamill alleged he was discriminated on the grounds of religion as he was refused permission to have a stall in the Market.

Summary of Complainant’s Case:

1. The Complainant submitted that in 2014 Atheist Ireland made a request for a stand at the Monaghan Farmers Market, which was refused by Ms Blackburn. At that time, the reason stated for the refusal was: “There are two people on the committee who have been saved and are now Christian preachers. They have indicated that they could not countenance atheists being part of the Monaghan Town Market.,” and where Mr Hamill submitted this decision was confirmed in writing.

1. Following this refusal, the Complainant made a claim to the WRC in 2016, but the claim was not upheld on the basis Mr Hamill had never submitted a written application, and as such the Respondent had been deprived of an opportunity to fully consider the Complainant’s case.

1. The Complainant then wrote again to the Respondent on 5th July 2016, formally requesting permission to provide a stand at its market. This letter was entitled Appeal of ES/2014/0123 to the   Circuit Court, and ended by saying if the matter was not resolved within 42 days the Complainant would be obliged to pursue an appeal of the WRC decision.

1. The Complainant maintained that there was no response to this written application. The Complainant wrote again to the Respondent on 19th August 2016 including another formal application to be permitted to join the Market and where he submitted a completed application form. The Complainant also asked for clarification with regard the Respondent’s policy in relation to its monitoring of no proselytising of religious artefacts, (which was a recommendation that had been made by the Adjudicator in the former WRC case). He maintained there was no response to this written application at this time.

1. On 29th August 2016, the Complainant again wrote to Monaghan Market by registered post, providing a completed ES1 form and a blank ES2 form.

1. Also on 29th August 2016, the Complainant submitted that the Respondent had written to him inquiring as to the status of the earlier WRC Decision, where the Respondent (referring to the Complainant’s inference that the WRC decision may be subject to appeal) indicated that it may be impossible to process the Complainant’s written application at that time if the case is sub judice.

1. The Complainant replied to this correspondence in writing on 1st September 2016 indicating that there was no legal prohibition on the Respondent in processing his application for a stall. Notwithstanding this, the Complainant submitted to the hearing within that the Respondent had refused to process his written application and had also refused to respond to the ES1 form. The Complainant maintained that the Respondent had accepted other applications from other applicants, including those who had an explicitly Christian character, yet they continued to exclude Atheist Ireland. The Complainant submitted that he has subsequently visited and bought religious artefacts at the Market, and argued that the Respondent has not policed its own procedures by allowing religious artefacts be sold. Therefore, taking all things into account, the Complainant argued that this represents discrimination against Atheist Ireland on the religious ground.

Summary of Respondent’s Case:

1. Ms Blackburn, on behalf of Monaghan Farmers Market (the Respondent) submitted that it was a voluntary body and where its members work pro bonofor the good of the community.It oversees the operation and facilities of a Farmers Market, and where it strives to ensure a balance to the stalls at the Market to ensure each trader has the opportunity to be successful. It submitted a profile of the stalls it operates which all had a focus on its core objectives of income opportunity for growers and craftspeople. These included baking, a fish stall, meat stall, CD/DVS, baskets, fruit stalls, flower arranging, jewellery and aloe vera craft. It also maintained that as a border town it wishes to ensure no religious artefacts are proselytised at the Market.

1. The Respondent maintained that a key element to the case was whether the former WRC decision was under appeal by the Complainant. Based on the Complainant’s letter of 5th July 2016, the Respondent was of the understanding the matter was subject to an appeal to the Circuit Court, and therefore held the view it was not appropriate to respond to the matter at that time. On that basis, it did not reply to the Complainant’s application.

1. The Respondent also contended that it did not in fact receive the letter of 14th September 2016 from the Complainant.       It maintained that it received a duplicate of the letter of 1st September 2016 from the Complainant.

1. The Respondent acknowledged that some religious artefacts are sold at the Market, for example a florist stall sells some graveside flower related products which may contain religious images. However, it argued the stall holder has no religious association with the products she sells, and where the Market encourages religious tolerance and a lack of bigotry.   It further argued that St Brigid crosses, corn dolls, kosher food, Halal meat, pork, hymns on CD, Buddha statues etc... are sold as there is no prescriptive list of products. Notwithstanding the Respondent argued it was unfair for it to be asked to respond at the hearing to photographs of religious artefacts that the Complainant alleged were for sale without it receiving prior notification of the pictures.

1. The Respondent also submitted that on 22nd July 2016 it had adopted a policy of there being no sectarian, no political (sic) and no religion in the market and that it had amended its Market Rules in this regard from that date.

1. The Respondent advised that it has previously removed stalls representing a particular religious organisation, and that it adapts a secular apolitical nature for its stalls, and this approach ensures a tolerant, non-bigoted free environment at the Market. It wishes to maintain this ethos, and it argued were it to allow the Complainant set up a stall for Atheist Ireland it would have to reverse its own policy. It submitted this would be unworkable and challenge its environment of mutual respect, tolerance, and lack of bigotry. The Market represents a cross border and cross community interaction and trade where it is primarily focussed on the sale of produce.       The Respondent has removed politicians and preachers from the Market to maintain its ethos, and where these decisions are respected.

1. It has stated the current claim submitted by the Complainant has created an atmosphere of mistrust, suspicion and fear amongst stall holders where they believe products they are entitled to sell are now being unfairly construed as offensive.

Findings and Conclusions:

1. The matter referred for adjudication is whether or not the Complainant was discriminated against pursuant to Section 3(1)(a) and 3(2)(e) of the Equal Status Act, and in terms of Section 5(1) of that Act. In reaching my findings I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.

1. A person making an allegation of discrimination under the Equal Status Acts must first establish a prima facie case of discriminatory treatment. Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the Respondent to rebut the presumption of discrimination.

1. 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 a professional service”.

1. I am satisfied that the Respondent was providing a facility to the public and/or sections of the public in relation to Market Stalls for the sale of produce, and therefore I am satisfied that the Complainant’s claim comes within the above definition.

1. Having considered the evidence, it is clear this complaint has history, and whilst acknowledging the WRC has previously ruled on a dispute between the parties, the present complaint is based on alleged actions post the previous complaint. I am satisfied that the current complaint refers to the Respondent’s failure to approve the Complainant’s written application to operate a stall at its Market.

1. It is not in dispute that the Complainant applied to the Respondent to be facilitated with an information stand for Atheist Ireland on 5th July 2016. At the time of the hearing within the Respondent had not decided on the application.

1. The Respondent has indicated that it understood the Complainant was intending to appeal an earlier WRC decision. It is evidenced from the correspondence submitted to the hearing within that the Complainant advised the Respondent in its letter of 5th July 2016 that if his application on behalf of Atheist Ireland was not considered favourably within 42 days he would appeal the WRC decision. The Respondent therefore decided not to progress the application for a stall at that time as it felt it would be sub judice.

1. In the meantime, the Respondent reviewed its policy on 22nd July 2016 and it decided the Market would operate on the basis “of being non-sectarian, no political and no religion” and where it amended its market rules from 22nd July 2016 in that regard.

1. The Respondent then wrote to the Complainant on 29th August 2016 seeking clarification on whether the Complainant intended to appeal the earlier WRC decision. On 1st September 2016, the Complainant responded and advised it would not be involving the Respondent in any appeal; however it inferred that any appeal process would be between the Complainant and the WRC. The Complainant again sought an update on his application for a stall.

1. On 12th September 2016, the Respondent replied and again sought clarification regarding the appeal and indicated it could not make a decision on the Complainant’s application until the matter of an appeal was clarified. The Complainant advised that he replied to this correspondence on 14th September 2016.

1. A conflict of evidence exists between the parties in relation to the correspondence that was sent by the Complainant on 14th September 2016, and where the Respondent maintains that it received a second copy of the Complainant’s letter sent on 1st September 2016 and not the 14th September 2016 letter referred to by the Complainant at the hearing.

1. The Complainant subsequently submitted that he purchased religious artefacts that were on sale in the Market on 28th April 2017. He therefore argued this amounted to discrimination on the basis the Respondent had failed to progress his application for a market stall for Atheist Ireland, yet it was allowing the sale of religious artefacts in other stalls.

1. Whilst the above issues set a context to the dispute, what the hearing has to decide upon is whether discrimination has occurred as a consequence of not providing the Complainant with a stall in the Market.

1. I am satisfied that the ethos of the Market is for trade, and where the Respondent has demonstrated that it does not allow stalls operate for the purpose of advocating religious or political views, or represent a particular religion, religious outlook, or indeed a political position. It has reviewed its policy to address any concerns that the market place remains non-sectarian, with no politics and no religion.

1. The core issue here is whether the Complainant has been treated less favourably on the religious ground than another applicant has been.       His application is clearly to set up a stall for Atheist Ireland and to specifically sell Atheist Ireland content on DVDs and CDs. This purpose is contrary to the policy of the market, and where the Complainant would be aware, based on the application form, that the purpose of the market is to create income opportunity for area growers and craftspeople, to offer farm fresh products and handmade craft work, and to strengthen ties in the community.

1. I find the Complainant has failed to provide a comparator as to where somebody of a different religion or no religion has applied for and been approved to set up a stall to sell religious goods, or to operate a stall and sell goods of a particular religious outlook. On the contrary, the Respondent has demonstrated it has treated persons operating stalls with a religious outlook in a similar fashion to the Complainant in that it has excluded these operators. I therefore find that the Complainant was unable to discharge the elementary probative burden and accordingly his complaint fails.

1. It is acknowledged that the sale of religious artefacts may occur at the Respondent’s facility, however that is fundamentally a different issue from the case within, i.e. that the Complainant was discriminated against based on his application to set up a stall solely for the purpose of promoting and selling Atheist Ireland information and materials.       There is no evidence to support that an application on a similar basis to solely promote a particular religion was approved.

Decision:

1. Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act. Based on all the foregoing, I find that the Respondent did not discriminate against the Complainant, on the ground of religion or religious outlook or background, contrary to the Equal Status Acts.

Dated:   14/11/17

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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