Complainant

Respondent

Parties

John Hamill

National Transport Authority

Complainant

Respondent

Anonymised Parties

John Hamill

The National Transport Authority

Representatives

In Person

Stephen Holst, Solicitor,

McCann Fitzgerald Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00022186-001

26/09/2018

The Complainant is a member of the Congregationalist Church of the Flying Spaghetti Monster (hereafter referred to as CCFSM) and is an atheist. He claims he was discriminated by the Respondent by refusing him free travel on Luas, a tram/ light rail system, on 26 August 2018 when on the same day the Respondent allowed free travel to people who had tickets to attend the Papal Mass in the Phoenix Park in Dublin.

The Complaint has three elements. One based on direct discrimination and two based on indirect discrimination on the ground of religion.

The direct discrimination complaint is that he was refused free travel on grounds of his religion.

The indirect discrimination complaint is two-fold.

Firstly that his faith, CCFSM, is a religious belief and that the Respondent gave preferential treatment to a group of persons who were predominantly Catholic, or Christian, but refused to extend such preferential treatment to members of CCFSM. This complaint is expressly set out in the WRC complaint form.

Secondly as a person of no religious belief (an atheist who was also happened to be a member CCFSM) he was treated adversely in that he was refused free travel on Luas on the day in question, whereas persons, who predominantly had a religious belief, were given free travel. This complaint is not expressly set out in the complaint form.

At the Adjudication hearing the Complainant withdrew the complaints of direct discrimination and the first basis of the indirect discrimination argument and proceeded only with the second, namely his atheism or non-belief. The Respondent objected to this.

The basis of the Respondent’s objection was that they were not on notice of the claim of indirect discrimination on grounds of atheism, rather they were meeting a case based on the Complainant’s religious belief of pastafarianism or CCFSM.

At the outset of the Adjudication the Complainant, for the purpose of the present case, accepted the WRC ruling in the case of John Hamill v. Dublin City Council (Adj. – 00011817) namely that the CCFSM was not a religious belief within the meaning of section 3(2)(e) of the Equal Status Act 2000.

Therefore, the present complaint is being pursued solely on the grounds of the Complainant’s atheism or non-belief. He contends that while he may also be a member of CCFSM this is immaterial because, it was on the basis of his non-belief that he was indirectly discriminated against.

The Respondent says this complaint is fundamentally different to that on the WRC complaint form and is consequently out of time. In the alternative the Respondent denies that they discriminated against the Complainant either directly or indirectly.

By way of letter dated 27 July 2018 Complainant informed the Respondent that his church, the Congregationalist Church of the Flying Spaghetti Monster, (CCFSM) intended to hold a solemn religious service in a restaurant beside the Phoenix Park on 26 August 2018. By way of an advert on a travel website on 10 August 2018, the Complainant learned that that those attending the Papal Mass in the Phoenix Park on 26 August 2018 were to be allowed free travel on the Luas within the Greater Dublin area. As a result, he asked the Respondent that he too be allowed to travel for free on that day. His request was stated as follows:

“I would like to formally request that you should extend your offer of free public transport on 27 July 2018 (sic 26 August 2018), to those attending the ceremony to be conducted by the Congregationalist Church of the Flying Spaghetti Monster at the Phoenix Park.”

He explained that it is discriminatory to treat CCFSM any less favourably than any other religion and any policy at the National Transport Authority which would treat “our religion” differently from “one established in a foreign desert during antiquity” would be contrary to Article 18 of the International Covenant on Civil and Political Rights.

By way of letter dated 7 August 2018 Respondent replied, refusing the request. They stated as follows:

“The Authority is not able to provide free travel for your event. The primary reason for making travel free for those attending the Papal Mass is crowd safety at the main boarding locations. The volumes of people attending are such that the priority on 26 August is to board and transport people as quickly as possible. The Authority has been advised by the organisers that approximately 500,000 people will attend the Phoenix Park event, so our priority is for fast and safe transport on the day. Consideration would be given to putting similar arrangements in place for events of a similar scale whether religious gathering or any other.”

The Complainant replied by letter dated 8 August 2018 objecting to the basis for the Respondent’s refusal. In it he criticised the Respondent’s attempt to justify the refusal on a crowd safety basis as discriminatory because it to treat a ticket holder for the Papal mass (predominantly Catholic) differently to a non-ticket holder would require Respondent staff to be present, discriminating at Luas stations which would be unnecessary if no such discriminatory distinction were being made.

He stated that section 3.2 of the Equal Status Act 2000 states that illegal discrimination shall be taken to occur where “…one person is treated less favourably than another because one has a different religious belief from the other.”

The Respondent did not reply to this letter and prompted by a reminder letter from the Complainant dated 20th August 2018, to which the Respondent replied on 22 August 2018. Their letter referred to their earlier correspondence and again denied that their actions were discriminatory.

On 26 August 2018 the Complainant travelled to the Phoenix Park on the Luas. He paid for his ticket and he met fellow travellers who were attending the Papal mass. These persons informed him that their travel was free because they had a ticket to attend the mass.

At the adjudication hearing the Complainant showed evidence of his Luas ticket purchase, photographic evidence that he travelled on the Luas to the Phoenix Park station on the 26 August 2018. In the photos he had a colander on his head (colanders being the headwear of CCFSM pastafarians.) He showed photos of NTA stewards at Luas station platforms ushering travellers onto the trams, photos of travellers with their tickets as proof of mass attendance, evidence (which is accepted) that those who could prove that they had a ticket to attend the mass were not required to pay for a Luas ticket.

The Complainant gave evidence at the Adjudication hearing, that he attended the CCFSM concelebration in a restaurant proximate to the Phoenix Park and that those who attended were, like him, all former catholic, now atheist - who were celebrating their non-Catholicism and discussing the benefits of not being Catholic.

On 27 August 2018 the Complainant issued an ES 1 form setting out his complaint against the Respondent. In the form he sets out a description of what had occurred. He set out the correspondence that had been entered into between the Complainant and the Respondent as set out above. He synopsised his complaint as being that he “had to pay full fare because the religious service that I was attending was a non-Catholic ceremony” and he disputed the validity of the crowd safety justification. He raised questions in the ES1 form that the Respondents only partially answered and following receipt of the Respondent’s ES2 form the Complainant issued a complaint to the WRC.

At the Adjudication Hearing the Complainant changed the basis of his argument. In the interim period, he had received a WRC decision in another case in which he was involved. The finding was that CCFSM did not constitute a religious belief.

At the present adjudication hearing rather than arguing that he had been discriminated against because his religious belief (CCFSM), he contended instead that he was discriminated against as a non-religious person, i.e. as an atheist, which is illegal by virtue of the second limb of section 3 (2)(e)of the Equal Status Act 2000. He contended that while he may also be a member of the CCFSM, he is an atheist, i.e. someone who has no religious beliefs and section 3 (2)(e) of the Equal Status act 2000 does not require a complainant to specify which of the two limbs of section 3 (2)(e) is being relied upon.

Section 3 (2)(e) protects persons who have a religious belief who are being discriminated against because of that religious belief but it equally protects persons who have no religious belief and who are being discriminated against for having no religious belief.

In the case of Adjudication ADJ 11817 (John Hammill v. Dublin City Council, dated 31 October 2018) the WRC Adjudicator found that CCFSM did not meet the test for religious belief. For the purpose of the present complaint the Complainant accepted this ruling and wished to proceed with the present case on the second limb of section 3(2)(e) of the 2000 Act, which permitted a complaint to be brought, where a person of no religious belief is discriminated against. For the purpose of his argument his membership of the CCFSM is immaterial as it is possible to be a member of the CCFSM and be an atheist, these are not mutually exclusive beliefs.

Therefore, the case made out at the Adjudication Hearing on 20 March 2019 was that the Complainant was indirectly discriminated against by the Respondent because their decision to refuse his request was ostensibly because he did not have a ticket to the Papal Mass, which is a neutral provision however as many more Catholics/ persons with religious belief would be able to comply with this, it is easier for persons with a religious belief to comply with this term than someone who is an atheist, because persons with religious belief are more likely to have applied to attend the event than non-religious persons.

The remedy being sought is a finding that he was indirectly discriminated against by the Respondent and a refund of €3.70, the cost of the Luas ticket that he purchased to attend the CCFSM event.

Preliminary Clarification

In light of the Complainant’s change of approach at the start of the Adjudication hearing, the Respondent requested time from the Adjudicator to assess which of the Complainant’s arguments were still required to be met by them. This time was allowed.

The Respondent returned to the Adjudication hearing and requested two clarifications from the Complainant. Firstly, that the Complainant was no longer pursuing a direct discrimination complaint, which was accepted by the Complainant. Secondly, in relation to the indirect discrimination complaint, the Complainant was no longer arguing that CCSFM was a religious belief, which again was accepted.

The Respondent then clarified that it only had to meet the complaint on one basis. This was the claim that they had indirectly discriminated against the Complainant because he had no religious belief and was refused free travel whereas those who had a ticket to attend the mass (who were more likely than not to have a religious belief) were allowed free travel. The Complainant accepted that this was the sole argument that he was proceeding with.

Respondent’s defence to the complaint at the Adjudication Hearing was as follows:

Background

The Respondent accepts that free Luas travel was permitted on 26 August 2018 for those who had a Papal mass event ticket. The tickets were issued by the World Meeting of Families CLG. The Respondent was a stranger to the distribution of these tickets. Its involvement was to solely to organise an effective and safe transportation of those attending the event.

Direct Discrimination claim

As far as it is known to the Respondent, there was no condition that in order to get a Papal mass ticket, one had to have a religious belief. Indeed, there was widespread media coverage at the time that many protestors applied for tickets. In any event, it was open to the Complainant to apply for a ticket, had he wished to do so. Had he done so, he would have been able to avail of free travel to the event. Even though the direct discrimination complaint was now not being pursued, this clearly would have defeated such a claim.

Indirect Discrimination claim

The Respondent denies that it indirectly discriminated against the Complainant in refusing him free travel by letter dated 7 August 2018 in response to his request dated 27 July 2018.

The Respondent denies that its refusal was discriminatory on the religion ground (section 3 (2)(e) of the Equal Status Act 2000) or at all. The Respondent adheres to Circular 24/2002 Diversity in the Civil Service – a Policy of Equality of Opportunity.

At all times the Respondent acted in compliance with its statutory obligations in a non-discriminatory manner. The provision of free transport on 26 August 2018 was not concerned with religion. It was to ensure a safe public transport system to address the potential hazard to crowd safety arising from the anticipated numbers at the event. The fact that the numbers ultimately materialised not to be as high as was anticipated was not foreseeable. It was the Respondent’s duty to take steps to prepare for the numbers that could potentially be using the public transport system on the day and they did so.

Respondent’s submission points on law:

The complaint is vexatious and frivolous

The Complainant has failed to prove a prima facie case of indirect discrimination on grounds of religion

Section 3(2)(e) of the Equal Status Act 2000 does not apply as the actions taken were prompted by an assessment of risk based on data available to it

Section 3(2)(e) of the Equal Status Act 2000 does not apply where the actions sought to be impugned were required by legislative enactment

CCFSM does not constitute a religious belief for the purposes of section 3 (2)(e) of the Equal Status Act 2000. This has been decided by the WRC on two previous occasions Mulryan v. Road Safety Authority (DEC-S2016 – 018) and John Hamill v. Dublin City Council (Adj. 00011817). Similar rulings have been made by the US District Court of Nebraska (Cavanaugh v. Bartelt F. Supp. 3d 819 D.Neb2016) and more recently in 2018 the Dutch Council of State when it interpreted what constitutes “religion” for the purposes of Article 9 of European Convention on Human Rights.

In relation to the only remaining complaint pursued by the Complainant at the Adjudication hearing, the Respondent submitted that the Adjudicator had no jurisdiction to deal with this.

The Respondent’s refusal was to his request, to provide him with free transport was for an event celebrating his religious belief, namely CCFSM. It is not now open to the Complainant to change tack at the Adjudication hearing and contend that the Respondent discriminated against him, not for his religious belief (as he set out in his request letter, the ES1 form and WRC complaint form) but rather because his atheism or lack of religious belief. This is a new and different complaint and the Adjudicator should not entertain it. Not only is this an alteration of his complaint at the eleventh hour but more significantly, it completely changes the nature of the allegation made.

The alleged prohibited act in the ES1 form and the WRC complaint was that the Respondent refused to provide him with free transport to attend an event celebrating his religious belief (CCFSM).

It is not permissible for him to now argue a different case, one that the Respondent was never asked, that they discriminated against him because his atheism. The fact of his atheism until the Adjudication hearing was unknown to the Respondent it never having been raised before.

The Complainant maintained his position that CCFSM constituted religious belief until a number of court cases and decisions told him otherwise. He cannot now be permitted to change the basis of his complaint to be something other than is in the request letter, the ES1 form and the WRC complaint form.

Lastly, in the event that the Adjudicator finds that there is a prima facie case of indirect discrimination, the differential treatment afforded to ticket holders and not to non-ticket holders was objectively justified.

Objective Justification

Pope Francis, the Head of the Catholic Church visited Ireland in August 2018. He did so at the invitation of the World Meeting of Families CLG. The visit was announced by the Vatican on 21 March 2018 and the attendance of the Pope at an open-air mass in the Phoenix Park in Dublin was confirmed on 11 June 2018.

Once the visit was announced the Irish government and various state agencies, including the Respondent, had a very tight time frame, of two months, to organise travel and security plans associated with the visit and specifically, a public transportation plan to ensure the health and safety of those attending the largest event of the visit, which was the mass in the Phoenix Park on 26 August. Tickets for the event were issued by the Organisers of the World Meeting of Families, and the all 500,000 tickets were issued. This information was passed to the public agencies and the Respondent then had the responsibility of ensuring the health, safety and welfare of the public to and from the mass event.

The Respondent contends that the reason that free travel was permitted for those who possessed a Papal Mass ticket was because they had been were informed by the World Meeting of Families CLG that 500,000 tickets had been applied for and issued. This meant that there were potentially 500,000 extra passengers using the Luas light railway that day, on top of those who were ordinarily using the Luas services within the Greater Dublin area on the day in question. This presented logistical and safety concerns for the Respondent, which they attempted to abate in preparation for the day, by pre-selling tickets. However approximately one month before the event, the ticket pre-sales were low and the plan had to be abandoned.

This left the Respondent with a potentially dangerous situation. Based on the data they held, on the morning of 26 August 2018 large numbers of people, most from outside of Dublin (who were possibly unfamiliar with the Luas ticketing arrangements) would be gathering together attempting to buy Luas tickets with cash and cards at automated ticket kiosks. With the risk of injury or worse at Luas stations, proximate to the tram tracks, a decision was taken by the Respondent to permit free travel to those who were attending the Papal event. This was cope with this extra cohort of people.

500,000 is a very significant number of people, it represents 11% of the national population. There is no other public event, numbers wise, which compares to this event. No concert venue or sporting fixture is comparable. With this in mind, crowd safety became the utmost priority for the Respondent.

In April a Working Group had been set up by the Respondent to consider options as to how best to deal with the large numbers that would be traveling to the event. The options were as follows:

1.       Free travel for all throughout the State – this was rejected because of the strain that would be placed on the resources of private travel operators nationwide

2.       Free travel on bus and Luas for all in the Greater Dublin Area – this was rejected because it was thought that it would incentivise more people to travel, who ordinarily would not, on a day that the public transport system was already over-stretched.

3.       Sell Leapcard travel passes for the event. This was rejected because over half the 500,000 ticket holders were from outside of Dublin and were unlikely to have Leapcards. Also, the Respondent had requisitioned extra buses from regional areas and Northern Ireland for use in Dublin on the day, but these buses were not equipped with Leapcard readers.

4.       Advertise pre-event travel cards to people who were event ticket holders. The advantage of this option was that the travel cards could be pre-sold to those who had registered to attend the event. This would avoid ticket queues at Luas stations on the day. For these reasons option 4. was selected.

Unfortunately, however one month before the event the numbers of pre-sold travel cards were too low and it was clear that the card would not be used. So option 4 had to be abandoned. An alternative solution became immediately and urgently necessary.

At that stage the Working group decided that the safest option was to allow free travel to those who due to attend the Phoenix Park event. Those who were going already had event tickets and this could be easily verified at the stations. This allowed a quick and efficient travelling to and from the event, in as safe a means as possible.

It meant that no revenue would be gained from the large numbers travelling but that safety of those people would be protected. There was no other way to facilitate the large number of people traveling on public transport. The Respondent had exhausted every alternative available and this was the only option left. All other alternatives were inadequate to meet the objective of crowd safety. The aim was to allow free travel for those attending the event and at the same time to disincentivise others from using the Luas at critically busy times that day.

For these reasons the Respondent submits that the decision to allow free travel only to the event ticket holders was an appropriate and necessary means of pursuing a legitimate aim.

In relation to the Respondent’s preliminary argument that the complaint is frivolous, vexatious or misconceived I do not accept that evidence for this position has been adequately made out. The Complainant is entitled to bring his complaint. Even though the tone in the Complainant’s correspondence is satirical and at times comedic, this belies a serious contention being raised and one that the Complainant is entitled to make. Consequently, I do not find this complaint to be frivolous, vexatious or misconceived

Equal Status Act 2000 Section 3(2)(e) defines “the religion ground”

Section 3 (1)

For the purpose of this Act, discrimination shall be taken to occur where a person is treated less favourably than another person

S. 3(2)

….as between any two persons the discriminatory grounds are…

S. 3(2) (e)

that one has a different religious belief from the other, OR that one has a religious belief and the other has not…

Section3(2)(e) has two limbs, which are mutually exclusive. The first relates to a complaint as between two persons with differing religious beliefs, where one person is treated less favourably to another. OR the second relates to a complaint where a person with a religious belief is treated more favourably than a person who with no religious belief. It is either one or the other. The use of the word “or” makes the section only being capable of being read as the complaint being one or the other.

What therefore is the complaint currently before the Adjudicator at the hearing?

The first issue is to identify the alleged prohibited act complained of. The next step is to establish whether this is different to that which is alleged at the Adjudication Hearing. If it is not, then the matter proceeds. If it is, the issue to be determined, is whether there is jurisdiction to hear the complaint?

What is the alleged prohibited act in the WRC complaint form?

The Complainant identified the alleged discrimination as being the Respondent refusal to allow him free travel on the Luas. This occurred on 7 August 2018 when the Respondent wrote to him refusing him free travel. The Respondent’s refusal is what the Complainant alleges to be the prohibited act.

The letter of 7 August 2018 was a refusal of free travel for the Complainant to attend a CCSFM ceremony. Neither the Complainant’s request for free travel (letter 27 July) nor the Respondent’s response (7 August 2018) expressed itself in any other way other than in terms of free travel to attend a CCSFM ceremony. The Complainant’s request letter refers to the requirement to treat all religions equally and the prohibition from treating CCFSM and Catholics on the different terms. There is no mention of the Complainant’s atheism or no religion in his letter of request or in the ES 1 form or in the WRC complaint form.

An argument based on no religious belief would have been an easier complaint for the Complainant to succeed in, not least because he would not have had to overcome the hurdles as to what constitutes “religious belief” but also because an indirect claim would be easier to prove in that persons of any religious faith would have been more likely to benefit from the neutral provision of being a ticket holder, than those of a narrower class of religion, specifically Catholic or Christian faith.

In any event the second limb of section 3(2)(e) of the Equal Status Act 2000 (no religion) was not raised until the Adjudication hearing. Therefore, the issue is what complaint is extant to be adjudicated upon?

The Adjudicator’s jurisdiction is limited to considering that which is sought in the WRC complaint form. The complaint cannot change in nature, so that the case at the adjudication becomes a different allegation to that made out in the pre litigation stage.

This is the case, not least because section 21 (2) (a) (i) of the Equal Status Act 2000 specifies as a pre-condition to any complaint to the WRC, that the Complainant shall, within two months of the occurrence of the prohibited conduct, notify the Respondent in writing of “the nature of the allegation” (ES1 form). If the nature of the allegation at the adjudication hearing is fundamentally different to the allegation set out in the ES1 for, then the pre-condition that the Respondent be put on notice of the nature of the allegation has not been met and there is no right to an Adjudication. Use of the word “shall” is instructive and makes this pre-litigation step mandatory.

Clearly one could not complain in an ES1 form about prohibited conduct based on race (section 3(2)(h) and at the Adjudication hearing vary that to a reliance on section 3 (2) a) (the gender ground) because the “nature of the allegation” in the ES1 form, as a mandatory pre-condition, was not identified.

But if section 3(2)(e) is relied on in the WRC complaint but a different limb of the section is relied on at the Adjudication hearing from that identified in the ES1 form, is this a different nature of allegation? The answer is, that depends on what it being factually alleged.

The Complainant says no, he says he ticked the religion ground box in the WRC complaint form and this allows him free rein to argue on the basis of either limb of section 3(2)(e).

The Respondent argues yes. The two limbs of section 3(2)(e) are mutually exclusive because of the word “or.” They contend that they considered their position when they replied to his request on 7 August 2018. Their response to his request was to refuse him free travel to attend his own religious ceremony. In the ES1 form he identified the alleged prohibited conduct as being their refusal of free travel to attend the CCFSM ceremony. In the WRC complaint form he stated; “I had to pay full fare because the religious service that I was attending was a non-Catholic ceremony.” i.e. he maintained that he was attending a religious service, not that he was attending a non-religious service or not attending any service.

Both the ES1 form and the WRC complaint form identify the alleged prohibited conduct as being facts relying on the first limb of section 3(2)(e) that less favourable treatment was afforded to him based on his religious belief, as opposed to him being a person of no religion.

Finding

The prohibited conduct alleged by the Complainant in his letter of 27 July 2018 is identified as being discrimination based on his religious belief.

The prohibited conduct alleged by the Complainant in the ES1 form was identified as being discrimination based on his religious belief.

The prohibited conduct alleged in the WRC complaint form was identified as being discrimination based on his religious belief.

I do not accept that the Respondent was, until the morning of the Adjudication hearing, put on notice of the Complainant’s intention to argue that the prohibited conduct that he alleges occurred was based on him being an atheist or being a person with no religious belief. Specifically, the Respondent was not put on notice, as section 21(2)(a)(i) 2000 Act mandates, that the nature of the allegation being made in in writing in advance.

No application was made, at the Adjudication hearing to dispense with the requirement to lodge the ES 1 form.

If an equality complaint is pursued on one basis and the Respondent defends its actions in relation to that complaint and if their positions (in terms of the complaint brought and the defence to that complaint) do not change, throughout correspondence, ES1 forms and a WRC complaint form, it would be in breach of fair procedures and in breach of the 2000 Act, if an alternative complaint, on a different basis could be raised afresh at the Adjudication hearing, when the Respondent has never before been on notice of this new complaint. This is the case even if two different types of complaint are covered by the same subsection i.e. the religion ground (s. 3(2)(e) of the 2000 Act) because they are two distinctly different types of complaint. Both involve claims of religious discrimination but on different factual bases.

As the Complainant at the outset of the hearing withdrew his complaints for direct discrimination and indirect discrimination based on his religious belief in CCSFM (accepting that CCFSM did not constitute religious belief) and as the two limbs of section 3(2)(e) are mutually exclusive and as the Complainant’s ES1 notification did not set out the nature of the allegation that was ultimately proceeded with, I find that I have no jurisdiction to consider this complaint. The only complaint being proceeded with is one that the statutory pre-litigation steps were not taken and given the mandatory wording of section 21(2)(a)(i) of the Equal Status Act 2000, I have no discretion other than to find that there is no right to have the matter now sought to be adjudicated upon, to be adjudicated upon.

Decision

I find this complaint under the Equal Status Act 2000 fails for want of jurisdiction. There is no right to an adjudication where the Complainant does not follow the mandatory pre-litigation steps set out in section 21 (2) (a) (i) of the Equal Status Act 2000. In this case the Respondent was not put on notice of the nature of the allegation in advance of the adjudication and the complaint must fail.

Discrimination – religion - section 3(2)(e) Equal Status Act 2000 – jurisdiction – pre-litigation steps – ES1 form - section 21 (2) (a) (i) of the Equal Status Act 2000