Complainant

Respondent

Anonymised Parties

A Complainant

A Public Representative

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00009028-001

12/01/2017

This dispute involves a claim by the complainant that he was discriminated against by the respondent, on grounds of religion contrary to section 3(2)(e) of the Equal Status Acts 2000-2015. There is also a claim of victimisation.

The complainant referred a complaint under the Equal Status Acts, 2000-2015 to the Workplace Relations Commission on the 12th of January, 2017.     In accordance with powers under section 75 of the Employment Equality Acts, 1998-2015 and under the Equal Status Acts, 2000-2015, the Director General delegated the case 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 Part III of the Equal Status Acts, 2000-2015.   Written submissions were received from both parties.   As required by Section 25(1) and as part of my investigation, I proceeded to a Hearing on the 12th of January, 2018. The respondent was not present at the hearing.

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.

The complainant submits that he was discriminated against under Section 21 of the Equal Status Act by being treated less favourably than someone else would have been treated on the ground of religion and by being treated unlawfully by being discriminated against in the provision of goods and services.

The complainant advised the hearing that he requested that the respondent make representations on his behalf in respect of an allegation made by him that he had been discriminated against by the Department of Social Protection in respect of a reduction in his Jobseekers allowance. The complainant told the hearing that he had phoned the respondent and left a message and had then emailed the respondent on 10 July 2016 outlining the fact that his job seekers allowance had been stopped due to his refusal to participate in a Job path scheme administered by a service provider company Seetec.     The complainant stated that he also sent a hard copy of this email to the respondent by registered post on the 13th of July, 2016.     The complainant told the hearing that he received no response to his request for intervention/representation and that this amounts to discrimination on grounds of his religious beliefs and victimisation following a previous complaint against the respondent.

The complainant told the hearing that his refusal to participate in the scheme was due to the fact that he had included on his CV under Key Achievements the following text 

“Standing up for and defending my Religious Beliefs which include that Abortion on demand is Evil and Homosexuality is an intrinsic disorder inclined towards Evil and that abortion on demand is evil”.    The Complainant submits that the service provider employee upon reading this said “You can’t say that, employers are biased”, which is when he alleged the discrimination occurred.   The complainant submits that he is proud of his achievements and of standing up for his Religious Beliefs and being told that he could not include them on his CV caused him emotional upset and distress.

 At the hearing the Complainant contended that this would not be said to a homosexual client who had included in his achievement the fact that he had stood up for his beliefs by having campaigned for gay rights and for the legalisation of gay marriage. He also stated that it would not be said to a disabled person which who had campaigned for rights of disabled people. The complainant submits that following this he withdrew from the Job path scheme which he submits was being submitted in an oppressive environment.

The complainant submits that following his withdrawal from the scheme he was advised that the implications of withdrawing from the scheme were that penalties would be imposed in the form of a reduction in his Jobseekers allowance followed by disqualification from receipt of the allowance for a number of weeks due to his withdrawal from the job path scheme.  

The complainant in outlining the case against the respondent stated that he is a Christian and stated that he does not believe in gay marriage and added that the respondent is of the opposite view. The complainant submits that the respondent’s failure to reply to his request for intervention/representation on his behalf amounts to discrimination against him on grounds of his religious beliefs.   The complainant submits that this also amounts to victimisation following an earlier complaint of discrimination made by him against the respondent.

The respondent submits that she has no knowledge of the complainant’s religion and does not see how she could have discriminated against him on religious grounds.   The respondent in her submission also stated that “I don’t believe my responsibilities as a Dail Deputy stoop to requiring that I advocate homophobic views and repeat unsubstantiated allegations”.

The issue for decision by me now is, whether or not the respondent discriminated against the complainant on grounds of religion in terms of sections 3(2)(e) of the Equal Status Acts, 2000-2015 and whether the respondent victimised the complainant.   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.

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."

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 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.”

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 am satisfied that the respondent is providing a service within the meaning of the Equal Status Acts.

Discrimination on grounds of religion and victimisation

In making my decision I must consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. 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 making my decision, I have taken into account all of the evidence, written and oral, made to me by the parties to the case.

The complainant cites as his comparators members of a community according to their sexual orientation and also compares himself to persons with a disability campaigning for the rights of disabled persons. These are not appropriate comparators for a claim of discrimination on grounds of religion, where one has a different religious belief from the other, or where one has a religious belief and the other has not.     While the comparators cited by the complainant may differ in their personal beliefs to him, no case has been made out regarding the comparators’ religious beliefs or outlook.  

In addition, the respondent as a public representative is not obliged to represent or make representations or interventions in respect of each and every request they receive from each and/or every member of the public and a failure to intervene or to make representations on behalf of a constituent cannot be used to automatically ground a claim of discrimination or victimisation.   It is for the complainant to show that he was treated less favourably by the respondent than a person of different religious beliefs or no religious beliefs.    

The complainant in the present case submits that he wrote to the respondent asking her to intervene on his behalf where he had chosen to withdraw from the job path service and which had the consequence of his Job seekers allowance being reduced and later withdrawn. The complainant submits that the respondent did not reply to his requests for intervention and submits that this amounts to discrimination on grounds of his religious belief. Having adduced the evidence in the instant claim, the complainant did not demonstrate how he was treated less favourably by the respondent on the grounds of his religious belief.   In the circumstances, I find that the complainant was unable to discharge the elementary probative burden and therefore, his complaint fails.   Accordingly, I am satisfied that the complainant was not discriminated against by the respondent on the ground of religion in relation to this matter.

Victimisation ground

Section 3(2)(j) of the Equal Status Acts 2000-2015 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”).        

The complainant, submits that he was victimised by the respondent.   He submits that the respondent’s failure to intervene or make representations on his behalf following the reduction of his job seekers allowance due to his voluntary withdrawal from the job path service, is due to the fact that he had made a previous complaint against the respondent under the Equal Status Acts.   The complainant alleges that he withdrew from the scheme due to a comment made by a staff member on a statement made by the complainant in his CV.   The complainant in his CV under Key Achievements had included the following text

“Standing up for and defending my Religious Beliefs which include that Abortion on demand is Evil and Homosexuality is an intrinsic disorder inclined towards Evil and that abortion on demand is evil”.   The Complainant submits that the service provider employee upon reading this said “You can’t say that, employers are biased”, which is when he alleged the discrimination occurred.   The complainant submits that he is proud of his achievements and of standing up for his Religious Beliefs and being told that he could not include them on his CV caused him emotional upset and distress. The complainant following this alleged comment then withdrew from the scheme.   The consequence of an individual’s withdrawal from the job path scheme is that Job seekers payments are then reduced and eventually withdrawn.

The complainant in advancing this aspect of the claim is seeking to assert that the respondent’s failure to intervene or to make representations on his behalf following the reduction and withdrawal of his Job seekers payments occurred due to the fact that he made a previous complaint against the respondent. The respondent in her submission to the Commission in response to this allegation stated that “I don’t believe my responsibilities as a Dail Deputy stoop to requiring that I advocate homophobic views and repeat unsubstantiated allegations”.   The respondent has submitted that this is the reason she did not represent the complainant’s views or intervene on his behalf.       The original complaint to which the complainant refers did not succeed.   In addition, the respondent as a public representative is not obliged to represent or make representations or to intervene in respect of each and every request they receive from each and every member of the public and a failure to intervene or to represent a constituent’s point of view cannot be used to automatically ground a claim of discrimination or victimisation. I am satisfied from the totality of the evidence adduced in relation to this matter that the complainant in this case has failed to establish that he was subjected to adverse treatment by the respondent due to the fact that he had made an earlier complaint against her under the Equal Status Acts.  

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) of the Equal Status Acts 2000-2015. Accordingly, I am satisfied, that the complainant was not victimised by the respondent in relation to these matters.

In reaching my decision I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, 2000 to 2015, I conclude this investigation and issue the following decision.

(i)                the complainant was notdiscriminated against by the respondent on grounds of religion contrary to section 3(2)(e) of the Equal Status Acts, 2000-2015, and

(ii)              the complainant was not victimised by the respondent in terms of Section 3(2) (j) of the Equal Status Acts 2000-2015.