Complainant

Respondent

Anonymised Parties

{A Complainant}

{A Public Body}

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00015059-001

17/10/2017

The Complainant says that he has been discriminated against on grounds of religion in the provision of goods or services by the Respondent. He is a Roman Catholic Evangelical Christian.

The Complainant says that on 17th and 18th May 2017 he was discriminated against by the Respondent due to his religious beliefs and outlook on homosexuality.

The Complainant sent a number of emails to the Respondent requesting them to apply to be joined as a Notice Party to proceedings which were to take place on 18 May 2017. On 17th May 2017 the Complainant telephoned the Respondent, to request it to have a legal representative apply to the High Court the next day to become a Notice Party in an appeal hearing by the Data Protection Commissioner and Google Ireland Limited (Notice Party) of a Circuit Court decision. The Circuit Court decision under appeal was a successful appeal by the Complainant of the Data Protection Commissioner’s refusal of a complaint against Google who had previously refused to take down a URL relating to the Complainant. The URL displayed reference to the Complainant’s name, location and as a “homophobic candidate”.

The Complainant sought that the Respondent be joined to the proceedings as a Notice party to make legal submissions in his support, in the event he was unsuccessful in his appeal that there is tacit acceptance by the Judiciary that it is acceptable for gay perverts to engage in homosexual acts in broad daylight on a public beach in view of or in proximity to children, and that anyone expressing disapproval by raising public awareness was homophobic and risked being smeared indelibly on the internet.

The Complainant made two attempts to telephone the Respondent’s main number after being firstly told to contact his local office. The local office told him they would only accede to the request if it was in the form of a High Court Order. He subsequently spoke to a member of staff on the telephone, and again requested a solicitor to attend the hearing the following day to become a Notice Party. The member of staff became hostile saying “oh no we won’t be sending a solicitor” and refused to identify herself and hung up. Given the mandate of the public body the Complainant says this is disgraceful behaviour that it refused to become involved. At the Appeal Hearing, no representative from the Respondent appeared or applied to become a Notice Party.

The Respondent is a service provider under the Equal Status Acts 2000-2015. The complaint alleges discrimination around 17 or 18 May 2017. This was due to the refusal by the Respondent to accede to the Complainant’s request that it be joined as a Notice Party in High Court proceedings by the Complainant against the Data Protection Commissioner and Google.

The Respondent denies discrimination on the religion ground as a consequence of his views in relation to homosexuality. The Respondent denies that it refused to provide a “service” and it says that the request by the Complainant that it would request to be joined as a Notice Party in legal proceedings cannot be construed to be a “service” or one that it could be reasonably expected to provide, and any refusal to do so cannot be interpreted as amounting to an act of discrimination.

If in the alternative, the refusal to agree to make an application to become a Notice Party in the Complainant’s legal proceedings amounts to a refusal to provide a service, it is submitted that the Complainant has not established any facts from which it could be inferred that the reason for the refusal related to the Complainant’s religion or personal views, nor that a similar request from another person would have been treated differently than the Complainant. The Respondent says the Complainant has not demonstrated a prima facie case of discrimination on the grounds of religion.

Section 5 of the Equal Status Act 2000 prohibits discrimination in providing services to the public generally or a section of the public, whether the service is provided for consideration or otherwise.

“Service” means a service or facility of any nature which is available to the public generally or a section of the public under the Act.

The Respondent accepts that it is a service provider under the Act but says that the service requested is one which cannot reasonably be expected to be provided by them.

The Complainant claims that he was discriminated against by the Respondent on grounds of his religion in terms of Section 3 (1) and S 3 (2) (e) of the Equal Status Acts 2000-2015 and contrary to S 5 (1) of the Acts in the Respondent failing to provide goods, service or facilities.

The ES1 form was sent to the Respondent on 13 July 2017 by registered post. No reply was received from the Respondent who say they have no record of receipt of the Form ES1.

The Complainant gave evidence that he was a local election candidate in an area, and set out his concerns and disapproval about lewd behaviour on a local beach in an election leaflet. This was indexed on a google search and when his name was searched he was smeared as “homophobic”. When he requested Google to take this down, they refused and he complained to the Data Protection Commissioner regarding the refusal. His complaint was upheld on appeal to the Circuit Court. The Appeal of the Circuit Court decision by the Data Protection Commissioner was due to be heard in Court on 18th May 2017.

He sent 4 emails to the Respondent from 15th May onwards outlining his disapproval of gay marriage, lewd acts of gross indecency on a local beach in view of parties who should be safeguarded. He did not receive any response. He decided to ring the Respondent to see if they would make submissions to the Court as a Notice Party due to the nature of their role. He had been informed by his local office that they would only accede to his request if it were in the form of a Court Order. He complains about 1 telephone call with the Respondents representative at their head office. He says the representative directed him back to the local office again, he said he was requesting the attendance of a solicitor at his Court hearing the following day as this is relevant to the Respondent’s function and again requested that a solicitor attend Court the next day to apply to become a Notice Party. He says that the representative became hostile on the call and said “oh no we won’t be sending a solicitor”, refused to identify herself and hung up.

Section 3 (1)(a) of the Equal Status Acts 2000-2015 provides that discrimination shall be taken to occur 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”. Section 3 (2) (e) provides that as between any two persons, the discriminatory grounds are (e) that one has a different religious belief from the other, or that one has a religious belief and the other does not (the religion ground).

S38A of the Acts sets out the burden of proof which applies to a claim of discrimination under the Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. It is only where such a prima facie case of discrimination has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

The first question to be considered is whether the Complainant sought a service which comes within the Equal Status Acts 2000-2015.

I have considered the customer charter of the Respondent in relation to their safeguarding role for the welfare and protection of children which is a statutory role. The Respondent gave evidence that approximately 2,000 reports are made daily by telephone and that they have help lines open to assist with this. Their website has a specific procedure for making child protection reports.

The complaint relates to the failure of the Respondent to attend the High Court to seek to join itself to High Court proceedings of the Complainant at the request of the Complainant by email and verbally a number of days prior to the hearing. The Complainant says by joining itself to the proceedings the Respondent could then to make supportive legal submissions to the Court in relation to child safety concerns given its statutory role.

The differences between a service and function of a public body under the Acts have been considered by the Equality Tribunal in a number of cases including Donovan v Garda Donnellan DEC S2001-011 when the Equality Officer drew a distinction between the investigation and prosecution of crime by the Gardai and services provided to the public by the Gardai. The investigation and prosecution of crime by the Gardai are State functions carried out by the Gardai on behalf of and for the benefit of the public. This is separate to services for the public. It is accepted that the Respondent is a service provider. The provision of child protection services is a service to a section of the public. This service would commonly cover the making of the complaint by a member of the public, and such further interactions with the member of the public as required. I find the Respondent’s role to investigate the report and take such action as it sees fit to protect the welfare of children are State functions carried out for the benefit of the public.

Mr Justice Kelly in the High Court in Ryanair Holdings Plc v Irish Financial Services Regulatory Authority [2008] IEHC 231 considered an application by Ryanair to compel the Irish Financial Regulatory Authority to investigate a complaint made to it by Ryanair in which he considered the law in this area and the UK and stated:

“This Court will be extremely slow to interfere with an investigatory authority’s discretion on whether or not to investigate a particular matter. Such an approach is well supported by authority in this jurisdiction and elsewhere.”

In refusing Ryanair’s application Mr. Justice Kelly stated:

”A decision to investigate is clearly a matter within the discretion of the Respondent. The concept of there being an absolute duty on the Respondent to investigate every complaint or to do so in the manner or on the terms upon which a Complainant may propose and then to give reasons why it has decided not to do so is not supported by any case law and in fact the contrary is so.”

The question of whether a State body should apply to be joined to private legal proceedings between third parties relating to child protection concerns at the request of one of the parties, in my view falls within the Respondent’s investigatory and other functions. This is not a service to a section of the public within the scope of these Acts.

Accordingly, I find that the complaint fails as it does not relate to a service within the scope of the Equal Status Acts 2000-2015.

I find that the complaint does not relate to a service within the meaning of the Equal Status Acts 2000-2015 and fails.

Meaning of service within Equal Status Acts 2000-2015, duty of safeguarding children, child protection