Complainant

Respondent

Parties

Kelvin O'Connor

Dublin City Council

Representatives

John Hamill, Atheist Ireland

Stephen O’Sullivan BL

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00021258-001

21/08/2018

This is a complaint about the refusal of the Chief Executive of DCC to agree to fund and install a banner on the Council’s offices at Wood Quay to promote the objectives of Atheist Ireland.

Chronology

On August 8th 2017, on behalf of Atheist Ireland, Mr O’Connor wrote to the Chief Executive of DCC concerning “the banner that outlines the aims of the Dublin City Interfaith Forum, which has been prominently displayed on your offices recently.” Mr O’Connor asked for a similar banner to be displayed describing the aims of Atheist Ireland.

On August 10th, Mr Keegan replied saying that the erection of the banner was a once off gesture to publicise the Charter, that it was due to be removed at the end of August and that another banner would not be erected in its place.

On September 30th 2017, Mr O’Connor wrote again to Mr Keegan, setting out his concerns about the banner that promoted the Dublin City Interfaith Forum and requesting that arrangement be made for the installation of a banner he had drafted, similar in style to the Dublin City Interfaith Charter, but with the objective of promoting secularism.

Mr Keegan responded on December 11th, denying the allegation of discrimination, but with no offer to collaborate with Mr O’Connor regarding a secular banner.

Mr O’Connor replied on February 19th 2018, reiterating his position regarding the Council’s unequal treatment of people of no religion, as displayed by the banner erected the previous August.

Mr Keegan replied on February 26th, confirming his position that the Dublin City Interfaith banner was erected to promote the collaboration of different faith groups on important issues and that the Council did not propose to erect a banner promoting atheism.

On March 23rd 2018, Mr O’Connor submitted an Equal Status Notification Form (ES1) to DCC.   He claimed that he had been discriminated against on the ground of religion, due to the refusal of the Chief Executive of DCC to agree to his request to erect an Atheist Ireland banner, along similar lines to that which was erected in support of the Dublin City Interfaith Forum.

The Council’s Law Officer replied with an ES2 form on April 23rd, setting out the reasons for the erection of the banner for the Dublin City Interfaith Forum and denying that non-secular groups had been treated less advantageously.

On August 21st 2018, this complaint of discrimination on the ground of religion was submitted to the WRC.

Preliminary Issue: The Complaint has been Submitted Outside the Time Limits

On March 23rd 2018, Mr O’Connor submitted an ES1 form to DCC, setting out his position that it was discriminatory of the Council to refuse his request to have a banner promoting secularism erected on the Council’s offices. He was informed of the Council’s position in the first instance more than six months previously, on August 10th 2017.

Section 21(2) of the Equal Status Act provides that notification of intention to seek redress under the Equal Status Act must be sent to a respondent within four months of the date that the alleged discrimination occurred. Section 21(3) of the Act contains a provision to “exceptionally,” extend the four-month time limit or to dispense with it altogether if I, as the adjudicator, consider it fair and reasonable to do so.

This complaint was submitted to the WRC on August 21st 2018, more than 12 months after the date on which Mr O’Connor was informed by DCC that they would not agree to his request to erect a banner promoting a non-religious charter.

Section 41(6) of the Workplace Relations Act 2015 provides that complaints must be submitted before the expiration of six months from the date on which the discrimination occurred. Section 41(8) provides that the six months may be extended to 12 months where the complainant shows “reasonable cause” for the delay:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

In response to my question to Mr O’Connor about why he waited until March 23rd 2018 to submit an ES1 form to DCC, Mr Hamill replied that the “reasons for refusing the banner were evolving.”   He argued that the time limit for submitting an ES1 form commences from the date of the last discriminatory act which, he claims, was February 26th 2018, when he received the final letter from Mr Keegan. Mr Hamill said that the first issue of discrimination was Mr Keegan’s refusal to allow a banner in support of secularism to be erected. He said that this developed when, in Mr Keegan’s letter of December 11th 2017, he said,

“Since the Council was not supporting a particular religious faith or faiths, the issue of discrimination does not arise.”

Mr Hamill argued that this suggests that Mr Keegan’s view is that it is acceptable to treat Mr O’Connor less favourably because he has no faith. Mr O’Connor was informed for the final time in Mr Keegan’s third letter of February 26th 2018 that the Council did not propose to erect a banner in support of a secular charter. Mr Hamill’s position is that the complaint is not out of time as less than six months elapsed between the final letter of February 26th 2018 and the submission of the complaint to the WRC on August 12th. On this basis, he made no case for an extension of the time limit.

On behalf of DCC, Mr O’Sullivan argued that the response provided to Mr O’Connor in Mr Keegan’s letter of August 10th 2017 did not change by the time he sent his third letter on February 26th 2018. The response was consistent and Mr Keegan did not demur from his position that a banner in support of a non-religious charter would not be erected. It is the respondent’s case therefore, that Mr O’Connor’s submission of the ES1 form on March 23rd 2018, more than eight months after Mr Keegan replied to Mr O’Connor on August 10th 2017, was outside the time limit prescribed at section 21(2) of the Equal Status Act 2000.

In his letter of August 10th 2017, Mr Keegan was unequivocal in response to Mr O’Connor’s request for a banner in support of a secular charter. Regarding the Dublin City Interfaith Council banner, at that time emblazoned on the front of the Council’s offices, Mr Keegan said:

“This was a once off gesture on the part of the Council designed to publicise the Charter. The banner is due to be taken down before the end of August. It is not proposed to erect any other banner in its place.”

Mr O’Connor then replied to Mr Keegan setting out his opinion that the “once off” nature of the Interfaith banner did not render it less discriminatory. This resulted in a back and forth series of letters in which nothing changed. I do not accept Mr Hamill’s argument that the reason for refusing to erect the banner evolved or developed. Mr Keegan’s responses in his letters of December 11th and February 26th were in answer to Mr O’Connor’s persistent claims of discrimination, which he sought to rebut. The alleged act of discrimination was the refusal to permit Mr O’Connor to have a banner erected on the Civic Offices and not Mr Keegan’s efforts to explain why he believed that this was not discriminatory.

Having considered this matter, it is my view that there was no reason why, when he received the letter of August 10th 2017, Mr O’Connor could not have submitted an ES1 form to DCC to set out his complaint of discrimination. Why he waited until March 23rd 2018 to do so is not explained by the reasons set out by Mr Hamill, to the effect that the reason for the discrimination was evolving. From the perspective of a person who has been discriminated against, the critical issue is the act of discrimination. It is for me, as the adjudicator, to consider if the reason for the discrimination complained about stands up.

As the ES1 form was submitted to the respondent outside the legal time limit of four months, I decide that I have no jurisdiction to adjudicate on this complaint.

Complaint was submitted outside the legal time limit.