Complainant

Respondent

Anonymised Parties

A Church Minister

An Institute of Technology

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00009242-001

23/01/2017

The complainant is a Minister of a church. He claims to have been discriminated against by the Respondent on the grounds of religion in contravention of Section 3 (2)(e) of the Equal Status Act, 2000. The Respondent is an Institute of Technology and the alleged discrimination relates to the provision of chaplaincy services at the Institute.

The complainant contends that the Respondent discriminated against him on the basis of his religious beliefs. The complainant’s position is that the Respondent had previously listed the contact details of other religions on the Chaplaincy website but had refused his request to have the details of his Church and contact details listed.

The complainant’s position is that the chaplaincy website and the student handbook refer to other religions/groups and the specific contact details of each organisation. The complainant contends that a refusal on the part of the Respondent to include details of the complainant’s church on the website and in the student handbook constitutes discrimination.

The Respondent refutes the complainant’s assertions. It contends that it did not discriminate against the complainant at any time.

By way of preliminary argument, the Respondent stated that the complainant’s church has been the subject of a previous referral to the Adjudication Services of the Workplace Relations Commission. The Respondent quoted Decision No: DEC-S2016-018 as follows:

“the (name of church) does not come within the definition of a religion and/or religious belief and therefore [the complainant] has failed to establish a prima facie case of discrimination on the ground of religion.”

The Respondent further expanded on the Adjudication Officer’s Decision regarding the meaning of a philosophical belief which stated as follows:

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.

The Respondent contends that the complainant’s church bears no resemblance to what is accepted as underpinning a religion or a religious belief.

Notwithstanding the preliminary arguments raised, the Respondent contends that in June 2016, it tendered by open tender for the provision of chaplaincy services. The Respondent’s position is that once a new service provider was chosen, a review of the chaplaincy service took place which reviewed the chaplaincy website, the relevant parts of the Student Handbook and all publications relating to the chaplaincy service. The Respondent stated that after the review had taken place, it was decided that the website would provide the contact details of the Chaplaincy service but would not include specific contact details of any specific religions or groups. The Respondent stated that if any students requested the details of any church, the chaplain would source the information and provide it to the student in question.

The Respondent contends that it was willing to retain the complainant’s contact details and would give out the necessary information if requested to do so by any students. It is the Respondent’s position that despite numerous requests, the complainant did not provide the chaplaincy service with the contact details of his church. The Respondent stated in conclusion that at no time did it discriminate against the complainant on the basis of his religion in the provision of its chaplaincy service.

The specifics of this complaint are as follows:

The complainant contends that he was discriminated against on the grounds of his religion when the details of his church were not included in the list of faith groups on the Respondent’s chaplaincy website.

The complaint was submitted to the Work Place Relations Commission on 23rd January 2017 and the complainant alleges that the act of discrimination to which the complaint relates occurred on the 12th December 2016.

I note that without prejudice to its preliminary argument raised at the adjudication hearing, the Respondent was, at the material time, willing to retain the complainant’s church details and to provide these details when requested by students using the chaplaincy service. On that basis, I do not consider it appropriate to comment on the validity or otherwise of the complainant’s religious beliefs.

I find that at the time the complaint was made, the Respondent had already tendered for the provision of chaplaincy services and a new appointee was in place. The complainant stated at the adjudication hearing that he had no difficulty with the tendering process and the appointment that was made as a result.

I find that following the appointment of the new chaplain, a review of the chaplaincy website resulted in changes to the publication details of faith groups and religions. The previous practice had been to provide a list of contact details relating to different faith groups and religions. Following the review in September 2016, the chaplaincy service details were published on the website but no specific details of other groups were listed.

The Respondent stated that the chaplaincy contact details were listed on the website and the chaplaincy service would deal with all queries and provide the specific details of other groups as requested by the students who used the service.

Discrimination

Section 3(1)(a) of the Equal Status Act 2000 provides, inter alia, that discrimination shall be taken to occur where:

(a)    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) (in this Act referred to as the ‘‘discriminatory grounds”)

Section 3 (2)(e) refers to the religion ground:

(e) “where one has a different religious belief from the other, or that one has a religious belief and the other has not."

According to section 2, ‘religious belief’ includes ‘religious background or outlook’.

Burden of proof

Section 38A of the Equal Status Acts, 2000-2015 provides as follows in relation to the Burden of Proof:

1.       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.

The Burden of Proof in cases of discrimination rests initially with thecomplainant. If the Complainant raises facts from which an inference of discrimination can be drawn, the burden of proof then shifts to the Respondent.

The burden of proof is dealt with by the Labour Court in the decision of Southern Health Board v   Mitchell [2001] ELR 201 where it determined that:

“The first requirement is that the claimant must establish facts from which it may   be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

“It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”

The Labour Court has also determined in Melbury Developments v Valpeters [2010] ELR 64 that:

“mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

I find that the approach taken by the Respondent following the review of its website and student handbook is not discriminatory. All contact details of other groups were held by the chaplaincy service and were available on request to service users.

On that basis the complainant was, at the material time, not treated less favourably than any other group or religion. Accordingly, I find that the complainant has not discharged the burden of proof in relation to the alleged discrimination.

Naming of the parties

Having taken into account all the circumstances of this case and the sensitivities surrounding the allegations made, I have decided to anonymise the parties in this Decision.

On the basis of the written and verbal submissions of the parties, the additional information submitted and all of the evidence adduced at the hearing of this matter, I find that the complainant has failed to establish a prima fascia case of discrimination. Accordingly, I declare that the complaint is not well founded.

Discrimination, religion,   burden of proof