ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00013611

Parties:

Complaint:

Date of Adjudication Hearing: 11/06/2018

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

The Complainant referred the aforesaid complaint under Section 21 of the Equal Status Acts 2000-2015 (also referred to as ‘the Acts’), to the Workplace Relations Commission (hereinafter ‘WRC’) on 7th March 2018. The Complainant alleges direct and/or indirect discrimination against the Respondent on the ground of religion along with a complaint of victimisation. Pursuant to Section 25 of the Acts, the Director General referred this complaint to me for adjudication. I gave the Parties an opportunity to be heard and to present any relevant evidence. As the facts giving rise to this complaint were not materially in dispute between the Parties and this complaint turns on the applicable law, it was agreed that it was unnecessary to hear evidence on behalf of the Respondent. The Complainant represented himself whilst the Respondent was represented by Mr Stephen Hughes BL, instructed by an In-house Solicitor. As the Complainant was unrepresented, I outlined the relevant legal provisions in lay terms. All oral evidence, written submissions, supporting documentation and law presented by both Parties have been taken into consideration.

Background:

The Complainant complains that the Respondent discriminated against him on the ground of religion by preventing him from distributing pamphlets to the public in its Park in manifestation of his Evangelical Christian faith, contrary to the Equal Status Acts and seeks an award of compensation.

Summary of Complainant’s Case:

The Complainant gave evidence outlining his complaint of direct and/or indirect discrimination along with a complaint of victimisation on the ground of religion under the Equal Status Acts against the Respondent. In relation to his current religious status, he said that he had formerly been a member of the Catholic Church but in or around August 2017, he had become an Evangelical Christian. He furnished an email dated 14th August 2017, confirming his change of religion to a Bishop of the Catholic Church. In accordance with his common law, statutory, constitutional and human rights and the requirement to proselytise being a central tenet of the Evangelical Christian faith, he sought to manifest his religious beliefs by preaching in public: “the good words and messages of the good Lord Jesus Christ and bear witness against evils that oppose said good words and good messages.”

The Complainant confirmed that on 18th August 2017, he had taken part in a Voluntary Project with the Respondent, scheduled until 8th September 2017. However, it is common-case that differences arose between the Parties a few days into the Project and he was directed to leave by the supervisor. In the following days, he attended at a public Park adjoining the cordoned off area with the Project. The Respondent was also responsible for the upkeep of the Park in question. The Complainant handed out pamphlets to members of the public visiting the Park. A copy of the pamphlet in question was furnished at the hearing. It was headed with the name of the site followed by the word ‘limited’, being the name of a limited company set up by the Complainant. The Complainant confirmed that the wording expressed a particular view in relation to the forthcoming Abortion Referendum. An incident occurred on 5th September 2017 when a member of the public visiting the Park took personal offence at the contents of the pamphlet, and proceeded to rip one out of the Complainant’s hand and scrunch it up into a ball. The caretaker, an employee of the Respondent, witnessed the incident and directed that the Complainant to cease handing out the pamphlets in the Park. The Complainant explained that as an Evangelical Christian he was entitled to express his religious beliefs in this manner and in response, the caretaker said: “it’s the same treatment for everyone”. The caretaker in question was identified for the first time at the hearing but it was not in dispute that the Respondent’s staff had asked him not to distribute the pamphlets in question. The Complainant considered this contravention to extend until 8th September 2017.

Following these events, the Complainant sent an ES1 notification to the Respondent on 7th November 2017 as required under Section 21(2) of the Equal Status Acts and received an ES2 reply dated 6th December 2017. At the hearing, he confirmed that he was departing from the ES1 notification and complaint form in that his complaint of discrimination was wholly based upon the caretaker’s actions in obstructing his entitlement to hand out the pamphlets and not his earlier ejection from the Voluntary Project. As per his complaint form, he did not dispute the facts set out in the Respondent’s ES2 reply. The Complainant contended that the refusal to allow him to hand out the pamphlets in the public Park in manifestation of his religious beliefs amounted to direct discrimination on the ground of religion. It also constituted indirect discrimination in that as an Evangelical Christian, he was more disadvantaged by not being permitted by the Respondent to hand out pamphlets as his faith required him to spread the message as contained therein.

In this respect, he furnished information on the Evangelical Christian faith in Ireland and relied upon a decision of the Equality Tribunal which upheld a complaint of discrimination and discriminatory dismissal in relation to an employee arising from the proselytization of his Evangelical Christian faith (John McAteer -v- South Tipperary County Council DEC-E2014-045). When asked what goods or service he was availing of under the Acts, he contended that he was availing of the service provided by the Respondent’s caretaker, in his capacity as an arbiter of security in the Park. Although the Complainant had not selected the box for victimisation, he had referred to it in the body of his complaint form and confirmed that it referred to the earlier ejection from the voluntary project. By way of remedy, he sought an award of compensation which would be donated to a Catholic Charity.

Under questioning from Counsel for the Respondent, the Complainant was asked why he had pursued another complaint of discrimination on the religious ground before the WRC in September 2017, as a member of the Catholic Church, when he now asserts that he had become an Evangelical Christian in August 2017. A copy of the decision arising from the hearing in question was produced. The Complainant confirmed that at the time of discrimination and referral of that complaint, he had been a Catholic but had ceased practicing by the time of that hearing as per his email to the Bishop. When it was put to him, the Complainant accepted that he had signed a Volunteer Code in relation to the Voluntary Project operated by the Respondent, agreeing to uphold its principles which included: “It is against the ethos of the Council for employees or volunteers to use their position to promote their personal, political or religious beliefs.” However, he was of the view that that the Code was repugnant to his rights and in any event, his complaint primarily related to his treatment after leaving the Project when he was prevented from handing out pamphlets in the adjoining public Park. In this respect, it was put to him that he was subject to the Respondent’s Bye-laws as furnished and outlined at the hearing. The Complainant replied that as the Bye-laws in question were headed ‘Trading in the Park’ and ‘Public Meetings’, they referred to trading and public meetings and were not applicable to handing out pamphlets in manifestation of his religious beliefs. He agreed that anyone else handing out pamphlets expressing a different view in relation to the Abortion Referendum or otherwise would also have been asked by the caretaker to desist from same. However, he contended that owing to his faith, he was more adversely affected and if the Respondent’s conduct did not amount to direct discrimination, it constituted indirect discrimination.

Summary of Respondent’s Case:

Detailed written submissions setting out the relevant law and application to the facts presented were received from the Respondent. It was confirmed that the Respondent always acts in accordance with the Equality legislation and promotes equality within the community in accordance with its Citizen Charter. In relation to this specific complaint, it was pointed out that the Complainant had not taken issue with the facts or reasons for the Respondent’s actions as set out in the ES2 reply. It was submitted that the Complainant had failed to establish a prima facie case of discrimination on the ground of religion owing to his contention that he is an Evangelical Christian. In particular, he had not presented any evidence to indicate that he has been treated any differently to persons of other religious affiliations or was at a disadvantage in comparison to such persons. The allegations of discrimination were unfounded, misconceived and lacking in factual foundation.

Specifically, the Complainant had been subject to the Volunteer Code when participating in the Voluntary Project as signed and outlined above. If he was now basing his complaint on being asked to cease handing out his pamphlets in the adjoining public Park after he had left the Project, he was still subject to the Respondent’s Bye-laws as furnished. It was accepted that use of the public Park was a service within the meaning of Section 5 of the Acts. However, it was submitted that by directing the Complainant to cease handing out the pamphlets in question in accordance with the Respondent’s Bye-laws, the caretaker was not treating him any differently to any other member of the public in similar circumstances. In relation to his complaint of direct discrimination, the Complainant had failed to adduce any evidence to demonstrate that he had been treated less favourably than a person of a different religion or of no religious belief. In relation to his complaint of indirect discrimination, the Complainant had failed to adduce any evidence to demonstrate that an ‘apparently neutral provision’ had placed him at a particular disadvantage when compared with other persons. Overall, and as the Complainant had failed to meet the requisite burden of proof and establish a prima facie case of discrimination or victimisation, this complaint should be dismissed.

Findings and Conclusions:

The issue for my decision is whether direct and/or indirect discrimination on the ground of religion against the Complainant and victimisation can be inferred from the Respondent’s conduct. It is necessary to apply the applicable legal provisions to the factual matrix presented. Section 3(1) of the Equal Status Acts provides that discrimination shall be taken to occur “(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) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which - (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned, (b) where a person who is associated with another person - (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination, or (c) where an apparently neutral provision would put a person referred to in any paragraph of section 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.” Section 3(2)(e) of the Acts defines the discriminatory ground 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." Section 3(2)(j) provides for complaints of victimisation and requires less favourable treatment to be shown as between any two persons and, “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 adjudication officer 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 5(1) of the Equal Status Acts further provides: “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”.In this respect, there is no issue that use of the public Park in question is a service to the public, or that the employment of a caretaker to oversee the Park forms part of this service within the meaning of Section 5(1) of the Acts. Section 38A of the Equal Status Acts sets out the burden of proof which applies to all claims of discrimination and victimisation under the Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination or victimisation alleged may be inferred. 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 / victimisation raised.

As outlined above, at the hearing, the Complainant sought to limit this complaint to events which occurred after leaving a Voluntary Project with the Respondent, to an incident on 5th September 2017 when he was asked to cease handing out pamphlets by the Respondent’s caretaker in the adjoining public Park. For this reason, it is unnecessary to set out the Respondent’s legal arguments pertaining to the circumstances leading to his leaving the Voluntary Project. It is further noted that as the facts giving rise to this complaint are not in issue, this complaint turns on the applicable law and whether discrimination on the ground of religion can be inferred from the factual matrix.

Although the Respondent had questioned the authenticity of the Complainant’s conversion to the Evangelical Christian faith given that he had pursued another complaint before the WRC asserting his Catholic faith after his conversion, for the purposes of this decision, I am prepared to accept that he is a bona fide practicing Evangelical Christian. In relation to his complaint of discrimination, he contended that distribution of the pamphlets in question was in manifestation of his Evangelical Christian faith, a central tenet of which was the requirement that he proselytise in public. In John McAteer -v- South Tipperary County Council DEC-E2014-045, the Equality Officer found that the manifestation of a religion was covered within the religion ground in the Employment Equality Acts. I therefore have to consider whether the distribution of the pamphlets in question to members of the public was a manifestation of the Evangelical Christian faith and in pursuance of the obligation to proselytise. In this respect, I have considered the wording on the pamphlet in question which expressed a particular view in relation to the forthcoming Abortion Referendum and cannot reasonably construe it as constituting a manifestation of the Evangelical Christian faith, either subjectively or objectively. Furthermore, the Complainant fully accepted that someone distributing pamphlets expressing a counter-view on the Referendum would have been treated likewise by the Respondent’s caretaker. It follows therefore, that there is no factual basis for the Complainant’s complaint that he was discriminated against either directly and/or indirectly by the Respondent on the ground of religion. In circumstances where he has failed to adduce a prima facie case of discrimination, it is unnecessary to consider the Respondent’s rebuttal including application of the Bye-laws pertaining to the public Park in question. For the sake of completeness, I further note that the Complainant has provided no factual basis for any complaint of victimisation arising from same.

Decision:

Section 25 of the Equal Status Acts 2000-2015 requires that I make a decision in relation to this complaint, in accordance with the relevant redress provisions under Section 27 of that Act if favourable to the Complainant. I have concluded my investigation of this complaint and based upon the aforementioned reasoning, I find pursuant to Section 25(4) of the Acts, that the Complainant has not established a prima facie case of direct or indirect discrimination by the Respondent on the ground of religion or victimisation requiring rebuttal and accordingly dismiss same.

Dated: 3rd September 2018.

Workplace Relations Commission Adjudication Officer: Aideen Collard

Key Words: Sections 3 & 5 Equal Status Acts 2000-2015 - Discrimination on ground of Religion