DEC-S2017-040

EQUAL STATUS ACTS 2000-2004

DECISION NO.: DEC-S2017-040

PARTIES:

ISAAC BURKE

AND

NATIONAL UNIVERSITY OF IRELAND GALWAY

(REPRESENTED BY CLIONA KIMBER BL INSTRUCTED BY RONAN DALY JERMYN SOLICITORS)

File Reference: et-150764-es-14

Date of Issue: November 2017

HEADNOTES: Equal Status Acts – Religion – Victimisation - Harassment

1.0 DISPUTE

The complainant referred claims to the Director of the Equality Tribunal under the Equal Status Acts on 18th September 2014, 7th November 2014 and 9th January 2015. In accordance with powers under Section 75 of the Acts the Director delegated the complaint to me, Louise Boyle, an Equality Officer, on 12 October 2016 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts.

This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 84 of the Workplace Relations Act 2015.

As required by Section 25(1) and as part of my investigation, I proceeded to hearings on the 28th October 2016, 8th December 2016, 3rd March 2017, 15th March 2017, 16th March 2017 and 12th May 2017.

In this claim the submissions were substantial with copious volume of documentation and oral evidence was heard over six days and, whilst I will not be referring to every letter, incident, witness, event or reference every case law presented, I have taken into account all the submissions including oral, written and visual media, made to me in the course of my investigation as well as the evidence presented at the hearing.

As three siblings of the complainant had similar complaints, their complaints were also heard over the same days for which separate decisions have been issued.

The complainant represented himself and was also assisted by the three siblings Mr Enoch Burke, Ms Ammi Burke and Ms Kezia Burke, referred to above, as well as his mother who was in attendance with the consent of the Respondent.

During the six days of hearing I had cause to interrupt both the complainant and the respondent on a number of occasions. This occurred when I considered their means of adducing evidence as long-winded, laborious or deviated from the questions put to them. This is not unusual in cases and more so where both sides present copious documentation, when many preliminary points are raised, where there are many witnesses in attendance and/or the hearings are spread over many days; all of which applied in this case. While the norm might be for the respondent or complainant to raise their objections and upon my response would allow the case to proceed; the complainant and those assisting him, regularly refused to proceed and sought clarification on a continuous basis to questions that I put to him and to the respondent. On occasion his response to questions put to him was that he had already answered the question and would not repeat his answer. On at least two occasions he seemed to imply that he objected to my objectivity in hearing the case but did not furnish specifics around same nor did he request myself to recuse myself but merely he repeated that he did not have an issue with the case proceeding.

Such continuous interjections and discussions led to further delays and the need to adjourn on occasions. Part of the role of an Equality Officer, in following fair procedures, is to ensure each claim is heard fully but expeditiously. The two are not mutually exclusive but sometimes require the cooperation of the parties to ensure it happens. On occasion, it was difficult to secure the cooperation of the complainant, however, I am satisfied that he was given ample opportunity to present his claims and such objections and interruptions, did not affect my investigation of his claims.

This dispute concerns claims by Mr Isaac Burke (hereinafter referred to as the Complainant) that he was discriminated against by National University of Ireland Galway (hereinafter referred to as the Respondent) on the grounds of his religion and that the respondent allowed him to be harassed on the grounds of his religion and that the respondent treated him unlawfully by victimising him contrary to the Equal Status Acts in relation to what will be referred to, for ease of reference, 6 Categories of complaints and within each of the categories are 27 Items of complaints, which were categorised/itemised as such at the hearing by the complainant and are detailed below:

Category A:

Complaints regarding Posters and that the complainant was discriminated and harassed (Items 1, 2, 3, 4, 5, 6, 7, 8, 9 & 25)

Item 1 relates to a complaint to the security of the respondent on 5th March 2013, regarding another student who it was alleged ripped down the complainant’s Christian Union Society poster.

Item 2 relates to an email sent to head of security of the respondent on 30th October 2013 regarding a student ripping down his Christian Society poster.

Item 3 relates to an email sent to head of security of the respondent on 1st November 2013 regarding posters being ripped down.

Item 4 relates to a complaint sent to Vice President for Student Experience on 1st November 2013 regarding defacement of posters.

Item 5 relates to a complaint sent to Vice President of Student Experience on 3rd December 2013 naming a student who was seen ripping down the complainant’s Christian Union Society posters.

Item 6 relates to a complaint sent to Vice President of Student Experience on 17th February 2014 regarding posters being ripped down.

Item 7 relates to an email sent to Acting Disciplinary Officer on 18th February 2014 advising of posters being ripped down and a subsequent picket.

Item 8 relates to a hardcopy report outlining 10 breaches of the poster policy sent to Disciplinary Office, General Manager of Students Union and Societies Officer on 3rd March 2014.

Item 9 relates to a meeting of the University Societies Coordination Group (USCG) to hear a complaint regarding the ripping down of posters and suppression of free speech on 12th March 2014.

Item 25 regarding complainant’s posters ripped down at an event on the right to life of children with Down Syndrome, organised by the Life Society on 15th October 2014 and which the complainant is a member of the committee.

Category B

Complaints regarding the Student Union same sex marriage referendum and that the complainant was discriminated and harassed (Item 10, 11 & 12)

Item 10 relates to a complaint that the Christian Union Society information table was vandalised on 12th March 2014, the Gardaí were called, the information table was shut down and the Head of Security tore Christian Union posters.

Item 11 relates to a complaint that on 12 March 2014, the complainant was defamed, slandered, bullied, intimidated and harassed by students of NUIG and others both in person and online via social media and other media sites with no action taken by the respondent to curtail it and furthermore that he became unwell both physically and psychologically because of this.

Item 12 relates to a press release released by the complainant on 13th March 2014, as a committee member of the Christian Union requesting the University to call off the referendum on same-sex marriage.

Category C

Complaints to security regarding harassment and abuse and that the complainant was discriminated against and harassed (Item 13)

Item 13 relates to a complaint of harassment and abuse to security on 13th March 2014 while canvassing for the Student Union Post-graduate elections.

Category D

Complaints regarding the Disciplinary action taken against the complainant and that the complainant was discriminated and victimised (Items 14, 15, 16, 17, 18, 19, 22, 23 & 24)

Item 14 relates to a letter from Academic Secretary on 26th May 2014 regarding a picket in relation to Item 7 against the complainant.

Item 15 relates to a letter on 18th June 2014 asking that the complainant’s complaints be also dealt with.

Item 16 relates to a disciplinary hearing that was adjourned on 23rd June 2014.

Item 17 relates to attendance at a disciplinary hearing on 23rd June 2014 and the failure to advise the complainant that the person who had made the complaint was not in attendance.

Item 18 relates to submitted evidence on 2nd July 2014 to Academic Secretary in advance of a rescheduled hearing and advised that it was deferred indefinitely.

Item 19 relates to sending a letter on 15th August 2014 to the Academic Secretary outlining concerns as to the fairness of the disciplinary process.

Item 22 relates to the respondent’s refusal on 18th September 2014 to reschedule the hearing of the disciplinary committee.

Item 23 regarding a formal reprimand from NUIG on 30th September 2014 for the picket organised in February 2014.

Item 24 regarding a letter of appeal with the Academic Secretary on 10th October 2014.

Category E

Complaints regarding the USCG’s Regulations for Student Societies and that the complainant was discriminated against (Items 20, 21 & 26)

Item 20 relates to a regulation passed by USCG on 5th September 2014 detailing that societies need to sign up at least 100 members on Societies Day.

Item 21 relates to a regulation passed by USCG on 5th September 2014 detailing that some societies must be affiliated to an external organisation

Item 26 relates to the 100-member’s regulation on 5th September 2014 and a claim that it compromises the Christian Union Society and Life Society ethos which the complainant was a member of.

Category F

Complaint regarding the USCG decision to disbar the complainant from active membership of all societies and that the complainant was discriminated and victimised (Item 27).

Item 27 regarding notice of being disbarred from active membership of all societies on 10th November 2014 and the failure of the complainant’s appeal on 22nd December 2014.

2.0 PRELIMINARY ISSUES

Several preliminary issues were raised:

2.1Religion

It was claimed by the respondent that the complainant had failed to show the nature of his religion

2.2Notification & Time Limits

It was claimed that the respondent had not been notified in writing with regard to some of the complaints and that some of the complaints were out of time.

2.3Law Applicable to Educational Establishments

This preliminary issue was withdrawn by the respondent.

2.1.1 Religion

Religion – Respondent Submission

The respondent details that the complainant has not stated what religion he is other than that he says that he has Christian beliefs. They detail that it is not sufficient to allege a protected ground and treatment complained of and that he must show also that he has been treated differently than a comparator of a different religion or belief and that generalised complaints about freedom of expression, freedom of speech or defamation are not within the jurisdiction of the Acts.

Religion – Complainant’s Submission

The complainant details that his religion is such that he is a Christian who is evangelical and who holds to the scriptures as the ultimate authority for the believer. He outlines the key tenets of his faith are high regard for the authority of scripture including regard to the sanctity of life and the sacrament of marriage, a belief in atonement with God as being through the saving death and resurrection of Jesus Christ, the necessity of individual conversion and the necessity of spreading the Gospel. As a Christian, he seeks to manifest his belief by presenting the Christian viewpoint on any issue of the day on which the Scriptures speak and that he cannot in good conscience be silent on issues where the doctrine of the Scripture is clear. The Christian Union Society and the Life Society which he was a committee member of were mandated to promote the teachings of Christianity and the sanctity of human life amongst the student body. He detailed that his religious beliefs were the motive for joining both societies and detailed that the respondent knew his religious beliefs as it was disclosed prior to his submission of any of the acts of discrimination.

Religion – Findings and Conclusions

Section 3(2)(e) defines the discriminatory grounds of religion as arising in circumstances when as 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”.

In reviewing the definition of religion and religious belief in UK legislation as examined in DEC-S2016-018 Noel Mulryan and Road Safety Authority, it is clear that “it is a broad definition in line with the freedom of thought, conscience and religion” guaranteed by Article 9 of the European Convention on Human Rights”.

“The main limitation for the purposes of Article 9 is that “the religion must have a clear structure and belief system. The criteria for determining what is a ‘philosophical belief’ are that it must be genuinely held; be a belief and not an opinion or viewpoint based on the present state of information available; be a belief as to a weighty and substantial aspect of human life and behaviour, attain a certain level of cogency, seriousness, cohesion and importance; and be worthy of respect in a democratic society, compatible with human dignity and not in conflict with the fundamental rights of others”.

I note from the testimony of the complainant that his expression of his religious beliefs is something which is part of his daily life and which is not selective. Based on all the evidence therefore, I find that the complainant’s religion does come within the definition of religion and/or religious belief and therefore is covered by the Equal Status legislation.

2.2.1 Notification and Time Limits

Notification & Timelimits - Respondent’s Submission

The respondent detailed that Section 21 of the legislation requires that a complainant must notify a respondent in writing of the nature of the allegation and the complainant’s intention if not satisfied with the response to seek redress under the Act. It was detailed that the complainant only sent the ES1 notification on 18th September 2014 regarding Items 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 & 22 and that no notification was sent to the respondent by the complainant in writing in relation to the additional complaints referred to in form ES3 (Items 23, 24, 25 & 26) and what the complainant later referred to as an ‘ES4’ letter (Item 27). The respondent outlined that as the complainant had submitted an ES1 form in relation to some of the complaints, he could not cite ignorance of the law as to the reason why he had failed to properly submit his other complaints. Furthermore, they claimed that they were prejudiced by the failure of the complainant to do so as they had no opportunity to reply to the complaints directly to the complainant and that they were not given an opportunity to deal with the matter informally. It was also detailed that no application was made for an exception to be made to the legislative notification requirements. Case law cited included Litzouw v Matthews PromProperty DECS2010-026, Jackson v Ann’s Hot Bread Shop DEC S2009-018 and A Former Student and Research Assistant v A University ADJ00000546). It was further argued that the complainant has been drip feeding continuing allegations in copious volume of documents. The respondent argues that the bulk of the complaints did not occur within the six-month statutory time limit and that the only items remaining properly before them are items 19, 20, 21 and 22.

Notification & Timelimits - Complainant’s Submission

The complainant rejected the respondent’s submission in relation to incorrect notification. He advised that he submitted his ES1 form on 18th September 2014 and sent the ES3 form to the Equality Tribunal on 7th November which was subsequently forwarded to the respondent by the Equality Tribunal. He submitted that what he referred to as an ‘ES4’ letter (an informal designation by him) contained details of an additional category of complaint sent to the Equality Tribunal on 9th January 2016 which he advised was forwarded to the respondent by the Equality Tribunal. He detailed that all the complaints contained in the ES1, ES3 and what he referred to as an ‘ES4’ letter were properly notified to the respondent in accordance with Section 21 of the Equal Status Acts and that the respondent has had ample opportunity to respond to all complaints by way of written submission. It was detailed that the ES3 related to events that occurred after the ES1 form had been forwarded and that Section 7 of this form provides for Details of Complaint and Date you last experienced discrimination?(if ongoing please explain in box below)”. The complaint advised that there is a note in relation to this on the form which advises that “ongoing” means that there are continuing incidents of discrimination” and advised by completion of this form that there were continuing incidents of discrimination and victimisation. He rejected the respondent’s arguments and reliance on other case law, including A Former Student and Research Assistant v A University ADJ-000000546 as a fundamentally flawed reasoning that contravened extensive legal precedent in relation to the circumstances in which a complaint can augment an original claim and cited An Employee v An Employer DECE2014-022 by way of supporting his claim.

The complainant advised that in relation to the ‘ES4’ letter, he telephoned the Equality Tribunal prior to sending this explaining that a further incident of discrimination and victimisation had occurred and querying whether a written complaint regarding the same could be submitted to the Equality Tribunal. He advised that he received verbal confirmation that a written complaint regarding the additional incident could be submitted to the Equality Tribunal. It was detailed that this ‘ES4’ letter indicated in expressed terms an intention to amend the original claim so as to detail a further complaint of discrimination and cited Department of Foreign Affairs v Patricia Cullen (EDA-116).

Notification & Timelimits - Findings & Conclusions

The respondent details that there is a requirement to notify them of complaints in writing. The complainant advises that this was done through ES1, ES3 and what he referred to as an ‘ES4’ letter.

Section 21(2) of the Equal Status Acts, sets out:

(2) Before seeking redress under this section the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing

Thus, before seeking redress there is a requirement to “notify the respondent in writing” as well as detailing the nature of the allegation and the intent of the complainant if no response. While there is nothing provided for in the legislation regarding the use of an ES1 form, and thus it is not a statutory form, however, the wording is unambiguous that there is a requirement for the person who claims that there has been a prohibited conduct directed against him to notify the respondent in writing. The complainant notified the respondent in writing with regards to Items 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 & 22, and did not notify the respondent in writing with regards to items 23, 24, 25, 26 & 27.

The Act, however, does make a provision in that S21(3)(a) "exceptionally, where satisfied that it is fair and reasonable in the particular circumstances of the case to do so ..” the Director may direct that the requirement for notification shall not apply to the extent specified in the Directive. The term “exceptionally” sets a higher test than would be set by phrases such as "with reasonable cause" or "in exceptional circumstances". Indeed, it is clearly detailed in the case of DIR-S2012-008 that such a directive might only apply where the need for notification was dispensed owing to an exceptional event as in said case involving the funeral of the complainant’s child. No reasonable cause was presented in this instant case as to why the respondent had not been notified directly by the complainant and I am satisfied that the Director has not been approached nor granted any exception to the notification requirements to the respondent under section 21(3)(a) of the Acts.

Thus, while the complainant has not made an application to the Director to my knowledge, as to exceptional reasons why notification requirement should not apply, the complainant details that the ES3 form provides, by its text and layout, a facility for him to bypass the notification to the Respondent for Items 23, 24, 25, 26 & 27 as it provides for a situation where a continuous act of discrimination is alleged to occur. He details also that this is supported by Clare County Council v Director of Equality Investigations& Anor [2011] [IEHC 303] in that the ES1 form is only designed to set out the generality of a complainant. The complainant references there is similarity in his case with that of Department of Foreign Affairs v Patricia Cullen where the complainant in that case had not detailed victimisation in her ES1 and it was considered by the Court that “the facts alleged in this letter are capable of being understood as an allegation of victimisation”.

The complainant is correct in that the ES1 form is not as such a statutory form as referred to previously and should allow for “furnishing of further and better particulars”. Whilst the ES3 does allow for the ongoing nature of discriminatory acts this is different from the notification requirements of the Equal Status Acts. There is nothing in the legislation that allows for subsequent acts not to be notified to the respondent, other than the provisions of Section 21(3)(a)(ii), which I have already decided does not apply in this case. Therefore, I conclude that notification was not sent to the respondent in respect of incidents 23, 24, 25, 26 & 27 and I therefore do not have jurisdiction to consider them.

With regards to the time limits, as set out previously on application by a complainant, the Director of the Equality Tribunal may for reasonable cause, direct that the notification period of 2 months be extended to not more than 4 months and S 21(6) details that a claim may not be referred after the end of the period of 6 months of the date of the occurrence of the prohibited conduct.

Items 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 & 22 were notified to the respondent. The respondent argues that the bulk of the complaints did not occur within the six month statutory time limit and that the only items remaining properly before them are items 19, 20, 21 and 22. They reject the suggestion that the items are continuing acts because they detail that they are separate incidents and that the complainant is confusing the two months and six months’ time limits and is in error relying extensively on County Lough VEC v Equality Tribunal to justify continually adding fresh incidents to their complaint. The complainant argues that the incidents form a continuum of ongoing discrimination and must all be considered as acts of discrimination and are within time.

Inote that both the complainant and the respondent reference County Cork VEC v Hurley EDA1124 in support of their case regarding acceptance or rejection of the items. However, in relation to items 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 & 18 as the Labour Court outlined, the complainant must, firstly establish that a discriminatory act occurred within the correctly notified items (my emphasis). Thus items 19, 20, 21, & 22 being those items correctly notified will firstly be examined.

Category D – Item 19 - Complaint regarding the Disciplinary action taken against the complainant and that the complainant was discriminated and victimised

Complainant’s Submission - Item 19 – Letter to the Academic Secretary re Disciplinary process.

The complainant details that he sent a letter to the Academic Secretary outlining his concerns as to the fairness of a disciplinary process and that he received no reply. This letter outlines the complainant’s serious concerns regarding what he regarded as one-sided and partial nature of proceedings as well as what he regarded as disregard of fair procedures which negatively affected his summer and that the respondent showed no interest in the criminal nature of the activity which was reported by the complainant. He advised that the disciplinary process was initiated after he had legally opposed an act which he perceived to be unlawful under the Equal Status Acts and thus he was victimised.

Respondent’s Submission - Item 19 – Letter to the Academic Secretary re Disciplinary process.

The respondent denied that this letter nor their failure to respond, was in any way discriminatory on the grounds of religion. They denied also that the complainant was in any way victimised.

Findings & Conclusions- Item 19 – Letter to the Academic Secretary re Disciplinary process.

Section 3(2)(j) of the Equal Status Acts sets out the definition of victimisation as follows:

that one—

(i) has in good faith applied for any determination or redress provided for in Part II or III,

(ii) has attended as a witness before the Authority, the Director or a court in connection with any inquiry or proceedings under this Act,

(iii) has given evidence in any criminal proceedings under this Act,

(iv) has opposed by lawful means an act which is unlawful under this Act, or

(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv), and the other has not (the “victimisation ground”).

Section 38A (1) provides that the burden of proof is: " Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary." It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that the prohibited conduct has occurred. Therefore, the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.

I find it extraordinary that the respondent failed to reply to the complainant who quite clearly expresses his anxiety and psychological distress with regards to the disciplinary committee meeting that he refers to. He had been a student who had achieved significant academic awards during his time as a student, as such it can clearly be understood why he might be distraught at the impact of a disciplinary meeting. However, as was remarked in the Labour Court case of Arturs Valpeters v Melbury Developments Ltd, in EDA0917 [2010] 21 E.L.R on addressing the issue of the burden of proof, (an equality case whilst examining the circumstances in which the probative burden of proof operates), it held that: -

"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”　

I have examined in detail the letter referred to. While the respondent may have been remiss in their duty by their failure to respond to the concerns raised by the complainant, I note that at no place in this letter is there mentioned facts upon which an inference of discrimination can be drawn, nor was it expanded to any significant degree at the hearing how the failure of the respondent to reply is a discriminatory action.

I am satisfied from the totality of the evidence adduced in relation to this matter that the treatment of the complainant in this regard does not amount to adverse treatment on foot of an action defined in Section 3(2)(j) of the Equal Status Acts. Accordingly, I am satisfied, that the complainant was not victimised by the respondent in relation to these matters. I find also that the complainant has not pointed to primary facts of such substance to raise a prima facie case of discrimination and the claim on the grounds of religion in relation to Item 19 fails.

Complainant’s Submission - Item 22 – Respondent’s refusal to reschedule the disciplinary committee hearing

The complainant received a letter from the Academic Secretary on 17th September 2014 that his request for the rescheduling of a hearing of the Discipline committee for 25th September 2014 was refused. This date clashed with an important event in his research calendar. The complainant had been chosen as an Irish delegate to attend the Heidelberg Laureate Forum as a part of a highly competitive process. It was detailed that he was being asked to choose between an opportunity to meet some of the best scientists in the world and to defend himself against untrue allegations at what he regarded as a one-sided hearing.

Respondent’s Submission - Item 22 – Respondent’s refusal to reschedule the disciplinary committee hearing

The respondent denied that they had discriminated against the complainant. They detailed that following an incident which the complainant had been involved in, disciplinary proceedings were taken under standard university procedures. The complainant had been facilitated due to his non-availability on two previous occasions (3rd June and 26th August). Furthermore, the complainant had refused to attend on another date (23rd June) but subsequently did attend. While the respondent had themselves rescheduled it on one occasion (7th July) owing to the non-availability of an employee of the respondent, it was not possible to facilitate the complainant again with rescheduling the meeting. In addition, he had been advised, following the last request for an adjournment that a further request for a rescheduling of the hearing would not be considered.

Findings and Conclusions- Item 22 – Respondent’s refusal to reschedule the disciplinary committee hearing

The complainant detail that he was being forced to turn down a once-in-a-lifetime opportunity to meet some of the best scientists in the world at a conference. I also note that he proceeded to attend this conference and that on two previous occasions he had requested an adjournment for the disciplinary meeting which was to be held. While I also note that respondent availed of an opportunity to reschedule the hearing on one occasion, I am mindful of Arturs Valpeters v Melbury Developments Ltd, in EDA0917 [2010] 21 E.L.R on addressing the issue of the burden of proof, in an equality case held that: -

"[T]he Complainant must first establish facts from which discrimination may be inferred. …. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”　

The mere fact that the complainant was refused a request for the rescheduling of the meeting, having been facilitated with adjournments on two previous occasions, does not meet the burden of proof required such that an inference of discrimination can be drawn. I am satisfied from the totality of the evidence adduced in relation to this matter that the complainant has not pointed to primary facts of such substance to raise a prima facie case of discrimination nor do I find that the complainant was victimised in relation to these matters by the respondent and the claim on the grounds of religion in relation to Item 22 fails.

Category E – Items 20 & 21 - Complaints regarding the USCG’s Regulations for Student Societies and that the complainant was discriminated against

Items 20 & 21 are categorised as Category E complaints in which USCG introduced regulations regarding (Item 20) the number of members required to sign up to a society and (Item 21) societies were required to affiliate themselves to external societies. As Item 20 and Item 21 occurred on 5th September and were submitted on the ES1 form on 18th September 2014 they are within the 2-month time limits.

Complainant’s Submission - Item 20 – USCG regulation that Societies must acquire 100 members

The complainant outlined that a regulation was passed by the USCG stipulating that societies needed to sign up at least 100 members on societies day or else face demotion to provisional status. As a committee member of two societies: Life Society and the Christian Union society, he outlined his annoyance that he was never consulted in relation to same and that this impacted on every religious society on campus. He detailed that the Christian Union Society was a religious society and that the Life Society which supported the life of the unborn child is in effect a religious society as members would also hold religious views. It was indicated that the impact of such a regulation is such that it discriminates against religious minorities on campus who often are the most well-maintained and most active societies on campus and that a minimum of 100-member’s regulation forces many societies to dilute their membership. Details were provided highlighting that all religious societies had considerably less than 100 members including the Christian Union and while they did eventually achieve the 100-member threshold, it put them under extreme pressure to achieve this. He detailed that this new regulation restricted and curtailed his rights as a student rather than protecting them and stopped him expressing his Christian beliefs on campus.

Respondent’s Submission - Item 20 – USCG regulation that Societies must acquire 100 members

The respondent argued that there was no less favourable treatment because of this regulation. The complainant has failed to show that a comparator has been treated more favourably as no society was adversely affected. The rules were objectively justified due to the expansion of the university and an increase in the number of societies on campus. The regulation was introduced following research and benchmarking against best practice in other higher education institutions. It has been introduced in September 2013 for new societies and following its success it was expanded to include existing societies in 2014. This regulation was unanimously agreed by USCG. Furthermore, significant amount of time was given to allow societies to increase their membership. It was further argued that as the complainant has been disbarred since the 10th November 2014 from active membership he has no entitlement to bring the complaint on behalf of any University Society. It was argued that there needs to be a certain minimum of students for the University to be able to support a society both financially and administratively as support is provided by the limited resources of the Societies Offices. Evidence given by the Societies Officer was that she had limited resources and must rely on 4 unpaid interns and a part-time accountant to administer the societies. The new regulations apply to all societies regardless of their belief, the action which they wished to take or the views which they seek to espouse. It was further put forward that all societies could comply and extra time was given to some to allow them to fulfil the requirements. It also outlined that it cannot be assumed that all members of the Life Society have a religious belief behind them.

Findings & Conclusions - Item 20 – USCG regulation that Societies must acquire 100 members

The issue for decision by me is whether or not the respondent discriminated against the complainant on grounds of religion in relation to their regulation that required societies to have a minimum of 100 members (Item 20),

Section 3(2)(e) of the Act defines discriminatory grounds of religion as:

3.—( …(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (the “religion ground”), grounds

Section 3(1)(c) provides inter alia that indirect discrimination shall be taken to occur where

“where an apparently neutral provision puts a person referred to in S. 3(2) 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 complainant claims that the implementation of this regulation discriminates against him on the grounds of religion. It is for the complainant to prove that on the balance of probabilities that this criterion puts the complainant who has religious views at a disadvantage. If he succeeds, then the burden of proof shifts to the respondent to prove that the criterion is objectively justified by a legitimate aim and the means of achieving that aim are necessary and appropriate. It has been clearly established in law that a difference in status and a difference of treatment is not in itself, enough to shift the burden of proof. The complainant must establish some evidence for the differential treatment

Addressing the issue of the burden of proof in EDA0917 [2010] 21 E.L.R, Valpeters v Melbury Developments Ltd, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, held as follows

"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

In Graham Anthony and Co Ltd v Mary Margretts, EDA 038, in an age discrimination case, the Labour Court remarked:

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred”

The respondent submits that the complainant did not have locus standi to bring these complainants as he has been disbarred since 10th November 2014 from active membership of any society. However, the complainant submitted his complaint through his ES 1 form on 18 September 2014 and submitted his ES3 form on 7th November thus I reject this argument. The complainant advised that the regulation requiring societies to have 100 members or more impacted more negatively on him who was a committee member of two societies – Christian Union Society and the Life Society.

Having examined in detail the evidence of the societies who achieved the 100-member regulation and those who did not, I note that the St Vincent de Paul Society exceeded the 100-member requirement. The complainant has rejected that the St Vincent de Paul organisation is an actual religious organisation, despite its religious ethos, and argues that it appeals to members because of its volunteering appeal. However, I note that there is no requirement for a member of the Life Society to have a religion. Members of the Life Society support amongst other things, the right to life of the unborn child such that I fail to see how the complainant was therefore, discriminated against by being a committee member of this society which does not require a member to have a religion. Therefore, he has failed to establish a prima-facia claim of discrimination in relation to his membership of the Life Society.

The complainant was able to achieve the required number of 100 members and I note that the introduction of this regulation had been piloted back in 2013 prior to the complaint’s complaints of discrimination when it was introduced for new societies. In Goode Concrete v Oksana Shaskova EDA/0919 the Labour Court, in reliance of Mulcahy v Waterford Leadership Limited [2002] 13 ELR 12, accepted that the mere coincidence of the complainant's religion and his alleged discriminatory treatment is not sufficient, on its own, to shift the probative burden from, the complainant to the respondent. Furthermore, it is clear in Mulcahy v Waterford Leadership Case C-157 that while the decision of the respondent might have seemed unfair and unreasonable to the complainant, that does not in itself, lend itself to being in breach of the Equal Status Acts. Thus, for the aforementioned reasons, I do not find that the complainant has provided a prima facia case of discrimination and I dismiss this complaint.

Complainant’s Submission - Item 21– – USCG regulation that Societies Affiliate to an External Organisation

The complainant outlined that a regulation was passed by the USCG stipulating that any “volunteering and religious” as well as “social action and political” societies needed to affiliate to an external organisation. As a committee member of two societies who were impacted by this: Life Society and the Christian Union Society, he outlined his annoyance that he was never consulted in relation to same. He detailed that the Christian Union Society was a religious society and that the Life Society which supported the life of the unborn child is, in effect, a religious society as members would also hold religious view. It was indicated that the impact of such a regulation is such that it discriminates against societies who for religious reasons or otherwise are unfitted to affiliate with a particular external body. He detailed that this requirement singles out societies which espouse religious, social or political convictions and is also discriminatory. He felts it was an initiative to restrict and curtail his rights as a student rather than protect them and stopped him expressing his Christian beliefs on campus.

Respondent’s Submission - Item 21– – USCG regulation that Societies Affiliate to an External Organisation

The respondent argued that there was no less favourable treatment as a result of this decision to require societies to affiliate themselves to an external society. It was detailed that this regulation is a practical measure which is intended to enable the University to clarify both the society and external body’s ethos and to ensure that such ethos is in keeping with the policies and procedures of the university. The rules were objectively justified due to the expansion of the university and an increase in the number of societies on campus. Evidence given by the Societies Officer was that she had limited resources and must rely on 4 unpaid interns and a part-time accountant to administer the societies and with so many societies it can be difficult to manage the administration of them all. All societies groups who are philosophically and tangibly associated with external entities are required to declare affiliations. An example given was that a Roman Catholic Society would need to formally acknowledge its affiliation to the relevant Roman Catholic body whereas the aims and constitution of a Theology Society could be generic and no specific declaration of affiliation would be necessary. The principle underpinning this regulation is also relevant to social action and political societies. The complainant has failed to show that a comparator has been treated more favourably. This regulation was unanimously agreed by student and staff representatives of the USCG. It was further argued as the complainant has been disbarred since the 10th November 2014 from active membership he has no entitlement to bring the complaint on behalf of any University Society. The new regulations apply to all societies regardless of their belief, the action which they wished to take or the views which they seek to espouse. It also outlined that it cannot be assumed that all members of the Life Society have a religious belief behind them.

Findings & Conclusions - Item 21 – USCG regulation that Societies Affiliate to an External Organisation

The issue for decision by me is whether or not the respondent discriminated against the complainant on grounds of religion in relation to their regulation that required some “volunteering and religion” and “social and political” societies to affiliate to an external organisation (Item 21)

Section 3(2)(e) of the Act defines discriminatory grounds of religion as:

3.—( …(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (the “religion ground”), grounds

Section 3(1)(c) provides inter alia that indirect discrimination shall be taken to occur where

The complainant claims that the implementation of this regulation discriminates against him on the grounds of religion. It is for the complainant to prove that on the balance of probabilities that this criterion puts the complainant who has religious views at a disadvantage. If he succeeds, then the burden of proof shifts to the respondent to prove that the criterion is objectively justified by a legitimate aim and the means of achieving that aim are necessary and appropriate. It has been clearly established in law that a difference in status and a difference of treatment is not in itself, enough to shift the burden of proof. The complainants must establish some evidence for the differential treatment

In Graham Anthony and Co Ltd v Mary Margretts, EDA 038, in an age discrimination case, the Labour Court remarked:

The complainant advised that the regulation requiring societies to be affiliated to external societies impacted more negatively on the complainant who is a committee member of two religious groups – Christian Union Society and the Life Society. Having established previously that the complainant has failed to establish a prima-facia claim of discrimination in relation to his membership of the Life Society, which is not specifically a religious society, I will move to address whether his membership of the Christian Union and this regulation amounted to a discriminatory Act. As previously determined, I do not accept the respondent’s argument that the complaint did not have locus standi to bring this particular complaint.

With regard to Item 21 the respondent advised that this regulation is a practical measure which is intended to enable the University to clarify both the society and external body’s ethos and to ensure that such ethos is in keeping with the policies and procedures of the university. The complainant referenced that there existed a comprehensive constitution of the Christian Union Society which should have easily sufficed to clarity the society’s ethos if that was the aim of the regulation and suggest that it was not the actual aim. However, he was not very clear as to what he was proposing was the aim of the regulation, particularly with regard to how it discriminated against him. While he cited that he is placed at a particular disadvantage because of his high regard for Scripture and that he is not pre-disposed towards affiliation with an external body; I note that some of the former Christian union members are now affiliated through the Dóchas society with an external group which the Christian Union group had previously affiliated with. If it was a case that the complainant felt that the Christian Union Society had become generic in the way that the Theology society might have been regarded, he was within his right to make such a claim to the respondent that his society should not have to seek affiliation, but he failed to do so. In Goode Concrete v Oksana Shaskova EDA/0919 the Labour Court, in reliance of Mulcahy v Waterford Leadership Limited [2002] 13 ELR 12, accepted that the mere coincidence of the complainant's religion and his alleged discriminatory treatment is not sufficient, on its own, to shift the probative burden from, the complainant to the respondent. Furthermore, it is clear in Mulcahy v Waterford Leadership Case C-157 that while the decision of the respondent might have seemed unfair and unreasonable, that does not in itself, lend itself to being in breach of the Equal Status Acts. Thus, for the aforementioned reasons, I do not find that the complainant has provided a prima facia case of discrimination and I dismiss this complaint.

3.0 Decision:

I have concluded my investigation of these complaints and in reaching my decision, I have taken into account all of the submissions, written, oral and visual media that were made to me. In accordance with section 25(4) of the Equal Status Acts, I find that the Complainant has not established a prima facie case of discrimination, harassment and/or victimisation by the Respondent on the grounds of religion and accordingly dismiss his complaints.

____________________

Louise Boyle

Equality Officer

16 November 2017