Complainant

Respondent

Parties

Mark J Savage

Pink News Media Group Limited

Act

Complaint Reference No.

Date of Receipt

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

CA-00020785-001

25/07/2018

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

CA-00020953-001

01/08/2018

The respondent is a UK based news website catering for the LGBT community.

The complaints relate to discrimination and victimisation.

The complainant had been a party in a complaint heard by the WRC.

It came to his attention that the respondent had published a report of the Decision in the case on September 15th, 2017 but which contained inaccuracies.

These were subsequently corrected following contact from the complainant.

The complainant says that this was the act of victimisation and it was a direct result of his having taken the complaint under the Act.

Another case taken by the complainant was also referred to subsequently by the respondent.

In respect of the complaint of discrimination he says that he has been treated less favourably than LGBT readers of the website on the basis of his religion and that this could lead to discriminatory treatment of him in the future by a potential employer.

The publication of the article is the service in respect of which he has been discriminated.

The Respondent did not attend the hearing but made a detailed written submission; an edited version of which follows.

The respondent denies any allegation of discrimination and/or victimisation under the Equal Status Act on the grounds of religion (or otherwise).

It submits that the Complainant has failed to provide any evidence supporting the alleged discrimination and/or victimisation by the Respondent due to his religious beliefs, or any other ground.

Further, it is submitted that the Complainant's claim is without merit and that he has failed to discharge the burden of proof required under the Equal Status Act in relation to the allegation that he suffered unlawful discrimination and/or victimisation on the grounds of religion, or otherwise.

In addition, the Respondent is a small media organisation operating an LGBT news website based in the UK without any physical presence or employees in Ireland. The Respondent would like to emphasise the difficulty in responding to such a claim in a foreign jurisdiction in which it has no physical presence, no employees, no clients, no business entity and very limited knowledge of the law.

The Complainant appears to have taken issue with the fact that a news report was published on the website on 15 September 2017 regarding a previous complaint (against a different Respondent) made by the Complainant to the WRC (ADJ-00005992).

The complaint in question was widely reported.  

The Complainant also appears to have taken issue with the content of the news report of his previous WRC complaint on the website.

The Complainant emailed the Respondent on 22 January 2018 alleging that the "statements of fact in the article concerned [were] wholly inaccurate as well as defamatory, being objectively verifiable as false".

The ES1 Form was dated 12 February 2018, on it the Complainant alleged he was victimised on the grounds of religion by the Respondent on 22 January 2018. The Complainant claims that the alleged victimisation arose because he "made two complaints under the Equal Status Act 2000 and/or the Equality Act 2004 and/or The Equal Status Act.

The Respondent replied on Form ES.2 and denied any allegation of victimisation on the grounds of religion (or otherwise) and the Respondent stated that the Complainant failed to provide any evidence in support of his claim of victimisation.

The Complainant submitted a Form ES.3 dated 21 July 2018 to the WRC, which restated the Complainant's belief that he has been victimised by the Respondent.

The Complainant also submitted a WRC Complaint Form dated 1 August 2018 in which he alleged he has been "discriminated against and/or victimised for having made a complaint under the Equal Status Acts." He further stated that the Respondent has treated him unlawfully by discriminating against him in the provision of goods/services.

The Respondent denies the Complainant's allegations in their entirety and considers the his complaint to be entirely misconceived, misconstrued and without any merit. The issues the Complainant refers to simply do not constitute a valid claim under the Act.

The Complainant has failed to provide any evidence supporting his allegation of unlawful discrimination and/or victimisation under the Equal Status Act on the ground of religion.

The Complainant was not discriminated against or victimised in the provision of goods or services by the Respondent. The Complainant has always been (and continues to be) entitled to freely access the service provided by the Respondent website on the same basis as any other user of the service.

It is also submitted that the Complainant has failed to nominate a comparator, which is a requirement under the Act.

In summary, the Complainant has failed to raise a prima facie case of unlawful discrimination and/or victimisation against the Respondent as required by the ESA and his complaint must be dismissed.  

Section 38A of the Act provides that the burden of proof which applies to a claim of discrimination and victimisation (as alleged by the complainant) under the Act is initially on a complainant who must first establish a prima facie case of discrimination and/or victimisation.

It is only when a prima facie case has been established that the burden of proof would shift to the Respondent to rebut the claim of discrimination and/or victimisation.

In the Labour Court determination of Southern Health Board v Teresa Mitchell [2001] E.L.R. 201 the Court set out the evidential burden which a complainant must discharge before it can accept that a prima facie case of discrimination has been established. The Court held that the complainant 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 these 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 test by the Labour Court in Mitchell remains the most frequently cited when assessing the burden of proof. In the more recent case of Aer Lingus Limited v Maria McConnell (2018) (EDA1849) the Labour Court described the test as a three-step process of analysis:

The Complainant must first prove the primary facts upon which she relies in advancing her claim of discrimination. If the primary facts are proved, or are admitted, the Court must be satisfied that they are of sufficient significance to raise a presumption of unlawful discrimination. If the first two limbs of this test are satisfied by the Complainant the Respondent must then prove, as a matter of probability, that the Complainant was not subjected to unlawful discrimination.

In the case of Melbury Developments v Arturs Valpetters (EDA0917), the Labour Court stated that a Complainant,  

"… must first establish facts from which discrimination may be inferred… All that is required is that 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…the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits no exceptions to that evidential rule."

On the basis of the foregoing, it is respectfully submitted that the Complainant has failed to prove primary facts from which unlawful discrimination and/or victimisation may be inferred. A prima facie case of unlawful discrimination or victimisation has not been established.  

Notwithstanding the fact that the Complainant has failed to establish a prima facie case of unlawful discrimination and/or victimisation, the Complainant has also failed to show how any alleged discriminatory treatment or victimisation by the Respondent was not or would not have been experienced by a comparator.

The Complainant claims that he was "discriminated against in the provision of goods and services under the religion ground". However, this would require the Complainant to be "treated less favourably than another person is, has been or would be treated in a comparable situation" on the ground of religion.

It is unclear how, if as the Complainant alleges, the provision of goods and services by the Respondent would have been different if the ultimate consumer of those goods and services happened to be a person who held different religious beliefs to the Complainant's.

The Respondent operates an LGBT news website which is, and always has been, equally accessible by the Complainant and by any other individuals worldwide, regardless of the religious beliefs that one might hold.

The Respondent does not distinguish between one person and another based on their religious beliefs when providing its service. The Respondent does not and has never, for instance, blocked the Complainant from accessing the website on account of his religious beliefs. The Complainant has not demonstrated how he has suffered less favourable treatment in accessing the service provided by the Respondent than that of a person with different religious beliefs.

In summary, the Complainant's claim of unlawful victimisation is entirely misconceived and without any merit. The Complainant has provided no factual basis for a complaint of victimisation and/or discrimination against the Respondent, as required under Section 3(2) of the Act.

The Complainant has not demonstrated how the facts of this case resulted in unlawful discrimination and/or victimisation under the Act against the Complainant on the grounds of his religious belief in the provision of the Respondent's service and, on this basis, it is submitted that this complaint should be dismissed.

The relevant sections of the Act are as follows:

Section 3(1)(a) of the Equal Status Act 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), the religion ground, provides that as between any two persons, the discriminatory grounds are "that one has a different religious belief from the other, or that one has a religious belief and the other does not."

Section 3(2)(j) of the Act, the victimisation ground, 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 complainant makes two complaints; one of discrimination and the other of victimisation, this latter being prohibited penalisation for having made a complaint.

The respondent has questioned whether the complainant has made out a prima facie case, and identified comparators.

There is however an issue which arises before this.

The respondent submits;

It is unclear how, if as the Complainant alleges, the provision of goods and services by the Respondent would have been different if the ultimate consumer of those goods and services happened to be a person who held different religious beliefs to the Complainant's. The Respondent operates an LGBT news website which is, and always has been, equally accessible by the Complainant and by any other individuals worldwide, regardless of the religious beliefs that one might hold.

One question arising here is whether the respondent; a website, can be considered to be providing ‘goods and services’ to the complainant.

The Act defines services as follows, at section 2 (Interpretation);

The complainant faces a number of obstacles; this being the first. Does the respondent provide a service within the meaning of the above definitions?

Even allowing for ‘the generality’ of the phrase; ‘a service or facility of any nature which is available to the public generally or a section of the public’, but also taking into account and having some regard for the examples which follow it, can the publication of an article be said to fall within the purview of the Act?

Secondly, the complainant must establish that he has been less favourably treated (and also penalised) by the mere fact of publication, even erroneous publication.

He must also, of course do so by reference to one of the prohibited grounds in the Equal Status Act.

The respondent has raised a question as to whether the complainant has established a prima facie case; i.e. whether he has met the test in Melbury Developments v Arturs Valpetters (EDA0917), to

"… first establish facts from which discrimination may be inferred… All that is required is that be of sufficient significance to raise a presumption of discrimination.

The complainant took exception to the publication of the comments about his WRC case. This situation rarely arises as the publication of most decisions arising from employment law statutes is done on an anonymised basis, an exception being employment equality cases where a degree of discretion is permitted and cases under the Equal Status Act where the parties are identified.

As noted above in the respondent‘s submission the Complainant’s claim that he was "discriminated against in the provision of goods and services under the religion ground" would require him to be "treated less favourably than another person is, has been or would be treated in a comparable situation" on the ground of religion.

The respondent continues that ‘it is unclear how the provision of goods and services by the Respondent would have been different if the ultimate consumer of those goods and services happened to be a person who held different religious beliefs to the Complainant's’.

The respondent says its website remains equally accessible by the Complainant regardless of their religious beliefs. So, even without having to decide whether this access represents a service or not there is no basis made out that any discrimination took place.

The Respondent says it has not blocked the Complainant from accessing the website on account of his religious beliefs and that he has not shown how he has suffered less favourable treatment in accessing the service provided by the Respondent than that of a person with different religious beliefs.

Accordingly, I can find no facts here from which a prima facie case of discrimination might be inferred.

The prohibition of victimisation is a necessary sanction to protect the right of complainants to take a case and not be penalised for doing so, and this is generally taken to refer to some detriment which is visited on them as a consequence of having done so.

On this point the complainant told the hearing that the detriment he suffered was possible adverse treatment in relation to future job applications, presumably by a person who had read the report of the decision and reached conclusions about the complainant.

There is a totally insufficient and speculative basis to this purported connection to permit it to be seen as a detriment.

In addition, in relation to the ‘victimisation’ ground the Act (section 2 (4) (j) makes it clear that the breach will arise from the fact of having ‘in good faith applied for any determination or redress’ under the Act.

Again, even if the act of publication were to be considered a breach of the section it would probably have to contain some criticism of the fact of the case having been raised, rather than simply any views which may have been expressed in the course of it, as well as meeting the detriment criterion.

All in all, there is again no basis on which a prima facie case might be made on these disjointed facts, strung together in an attempt to make something greater out of the sum of their parts.

The complainant has not established a prima facie case on either ground. In addition, in my opinion, simple (even erroneous) reporting does not fall within the definitions of a service in its widest ‘generality’ on these facts.

For all these reasons the complaints fall.

For the reasons set out above I do not uphold CA-00020953-001 or CA-00020785-001 and they are dismissed.

Discrimination, adverse treatment prima facie case