EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-S2017- 032
PARTIES
Alexander Sokolov Grant
Vs
The Department of Arts Heritage and the Gaeltacht
File reference: Et/156802-es-15
Date of issue: 25th of September, 2017
1. Dispute
This dispute involves claims by the complainant that he was discriminated against by the respondent on the grounds of race and religion contrary to the Equal Status Acts 2000 to 2015. There are also complaints of harassment, and of victimisation and of discrimination by association.
2. Background
The complainant referred a complaint against the above respondent under the Equal Status Act, 2000-2015 to the Equality Tribunal on the 29th of April, 2015.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 and under the Equal Status Acts, 2000-2015, the Director delegated the case on the 9th of June, 2017 to me Orla Jones, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under III of the Equal Status Acts, 2000-2015. This is the date I commenced my investigation. Written submissions were received from both parties.
2.3 The complainant wrote to the Commission advising that he did not wish to attend a hearing in respect of his complaint but asked that the Commission complete the investigation and issue a decision without a hearing.
2.4Section 25 (2A) of the Equal Status Act provides
(2A) ( a ) Where the Director of the Workplace Relations Commission considers that the case may be dealt with on the basis of written submissions only, the Director of the Workplace Relations Commission shall notify the parties in writing of his or her proposal to do so.
( b) A notification under paragraph (a) shall inform the parties of the right to make representations to the Director of the Workplace Relations Commission in accordance with paragraph ( c ).
( c ) A person who receives a notification under paragraph (a) may, within 28 days from the issue of the notification, make representations to the Director of the Workplace Relations Commission as to why the case should not be dealt with on the basis of written submissions only.
( d ) Where, in representations made pursuant to paragraph (c) , objection is made to the Director of the Workplace Relations Commission dealing with the matter on the basis of written submissions only, the Director of the Workplace Relations Commission shall not determine the matter in that manner.
2.5 Having read the submissions the Commission considered that the case could be dealt with on the basis of these submissions. Accordingly, the Commission gave notification of this to both parties and asked them to respond within 28 days. Both parties confirmed within 28 days that they had no objection to the matter being dealt with on the basis of the written submissions.
3. Summary of complainant’s case
3.1 The complainant submits that
He was discriminated against by the respondent on the grounds of race and religion. There are also complaints of discrimination by association as well as complaints of harassment, and of victimisation,
He has been discriminated against by the respondent on an ongoing basis from 1978/9 to 2014,
The last date of discrimination was on the 16th of November, 2014 and refers to the launch of a book by the Royal Irish Academy on that date entitled Royal Irish Academy’s Art and Architecture of Ireland , a five volume study of Ireland’s visual heritage,
This aspect of the complaint appears to centre around references to the complainant as a Foreign Sculptor working in Ireland and also to an image of his work contained in that book.
The earlier allegations refer to various applications for funding made by the complainant to the Arts Council.
4. Summary of Respondent’s case
4.1 The respondent submits that
The complaint is unintelligible and it is not clear what grievance the complainant has with the respondent Department.
5. Findings and Conclusions of the Equality Officer
5.1 The issues for decision by me are, whether or not, the respondent discriminated against the complainant, on grounds of race and religion, in terms of Section 3 and, contrary to Section 5 of the Equal Status Act, 2000-2015. There are also complaints of harassment, and of victimisation and of discrimination by association. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
5.2 Section 2 of the Equal Status Acts provides the following definition of service:
“service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—
(a) access to and the use of any place,
b) facilities for—
(i) banking, insurance, grants, loans, credit or financing,
(ii) entertainment, recreation or refreshment,
(iii) cultural activities, or
(iv) transport or travel,
(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and
(d) a professional or trade service,
but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies."
5.3 Section 3(1) of the Equal Status Acts provides that discrimination occurs “where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)..." Section 3(2)(e) defines discrimination on the grounds of religion as arising between any two persons “that one has a different religious belief from the other, or that one has a religious belief and the other has not." Section 3(2)(h) defines discrimination on the grounds of race as arising between any two persons “(h) that they are of a different race colour nationality or ethnic or national origins (the “ground of race”),
5.4 Section 5(1) prohibits discrimination in the provision of services available to the public: “A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”
5.5 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.
5.6 From my examination of the lengthy submissions provide by the complainant in this case it is clear to me that the complainant has adduced no evidence to support the assertion that he has been discriminated against and/or harassed and/or victimised by the respondent on grounds of his religion and/or race in respect of a service or facilities provided by the respondent. The complainant has adduced no evidence to substantiate his claim that he was treated less favourably in accessing a service or facilities, provided by the respondent than another person is, has been or would be treated in a comparable situation on the grounds specified.
5.7 The details provided by the complainant in his submissions are lengthy but the content is vague and his claims are unsupported by any consistent details or facts. In examining the submissions made by the complainant I note the comments of the Labour Court in the case of Melbury v Valpeters EDA 0917 which states
"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.
5.8 I am thus satisfied from the totality of the evidence adduced here that the complainant has failed to establish a prima facie case of discrimination or discrimination by association, harassment and/or victimisation on grounds of race and/or religion. Accordingly I am satisfied that the complainant was not discriminated against and was not harassed or victimised on grounds of race and/or religion in respect of these matters. I am also satisfied that the complainant was not discriminated against by association on grounds of race and/or religion in respect of these matters.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with Section 25(4) of these Acts, I conclude this investigation and issue the following decision. I find that –
the complainant was not discriminated against by the respondent on the grounds of race and/or religion in terms of Section 3 and, contrary to Section 5 of the Equal Status Acts, 2000-2015,
the complainant was not discriminated against by association by the respondent on the grounds of race and/or religion in terms of Section 3 and, contrary to Section 5 of the Equal Status Acts, 2000-2015,
the complainant was not harassed on the grounds of race and/or religion by the respondent in respect of these matters,
the complainant was not victimised on the grounds of race and/or religion by the respondent in respect of these matters,
____________________
Orla Jones
Adjudicator/Equality Officer
25th of September, 2017