Complainant

Respondent

Parties

Mark J Savage

Department Of Justice And Equality and Law Reform

Representatives

Joseph Dolan Chief State Solicitor's Office

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00025238-001

23/01/2019

The Complainant says that he has been discriminated against by the Respondent due to his religion on 24th July 2018 when he sought legal representation regarding a criminal offence.

The Complainant says that he was given one version of events when he telephoned the Respondent seeking legal representation. On 24th July 2019 he received an email from a member of staff of the Respondent which was completely at variance to what the Complainant had been told.

The Complainant submits that on reading the email it appears there is no entitlement by an accused person who qualified for legal aid to apply for Counsel representation in respect of criminal charges in the District Court at level 3. The information received is not inaccurate but does not address the query and gives a misleading impression.

The Complainant submits that the circumstantial evidence is sufficient to establish the burden of proof that he was discriminated against by the Respondent due to his religious beliefs (that acts of abortion and homosexuality are repellent and dreadful evils). He says the Respondent’s employee would be aware of high profile litigation in which he was involved, including one case against the Minister of the Respondent Department and which makes clear his religious beliefs. There is no other reasonable explanation for the variance between the information received in the telephone call and by email.

The Complainant served a form ES1 on the Respondent on 1st August 2018.

The Respondent denies any discrimination on the religious ground.

The Respondent employee spoke to the Complainant by telephone and then responded to his email on 24th July 2018. She gave him the contact details for the person in the Courts service responsible for the Solicitors panel for Dublin for legal aid. An application for free legal aid is made by the individual charged to the District Court Judge. When a legal aid certificate is granted by a Judge a named solicitor is assigned to the accused. In exceptional circumstances an assigned solicitor may make an application for a legal aid certificate for District Court Counsel. If granted the solicitor will instruct a barrister.

The Respondent’s employee is not aware of the Complainant or his religious beliefs, nor any litigation in which he has been involved.

The Complainant’s claim is entirely frivolous, vexatious and misconceived. It does not constitute a valid claim under the Acts, and the Respondent requests dismissal of the complaint pursuant to S22 of the acts. The Respondent replied to the ES1 on 22nd August 2018.

The Complainant has not submitted what his religious belief, background or outlook is in order to maintain his claim. He has not provided a comparator required under the Acts. The complaint does not meet the burden of proof.

The Respondent denies the alleged discrimination, and victimisation of the Complainant on the religious ground.

I have considered carefully the oral and written submissions of the parties.

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.

The Complainant claims that he was discriminated against and victimised 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.

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 Complainant alleges that he was discriminated against on 24th July 2018 by the Respondent’s employee who spoke to him by telephone and sent him an email regarding the provisions of the criminal legal aid scheme. He alleges that there is a significant difference in what he was told verbally and the email received. He alleges the email is misleading and says this is circumstantial evidence of discrimination by the Respondent on the religious ground.

Having considered the text of the relevant emails exchanged between the Complainant and the Respondent’s representative on 24th July 2018, I am satisfied that there is no reference whatsoever to the Complainant’s religious beliefs contained in the emails. The Respondent’s employee has confirmed that she had no knowledge of the Complainant or his religious beliefs on 24th July 2018 when she replied to his email.

The Complainant is unhappy with the response of the Respondent on 24th July 2018 and believes the reply given is misleading. General unhappiness by the Complainant does not infer that he was treated poorly because of his religion. The Labour Court has clearly stated in Valpeters v Melbury Developments Ltd [2010] 21 ELR 64 that mere speculation or assertions unsupported by evidence cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.

The Complainant has an obligation under S38A of the Act to prove the primary facts upon which he relies. No prima facie case of discrimination or victimisation on the religion ground under the Act has been shown by the Complainant and the complaint fails.

I decide no prima facie case of discrimination or victimisation on the religion ground under the Act has been shown by the Complainant and the complaint fails.

Religious discrimination, burden of proof, prima facie case, frivolous & vexatious