EDA2124

1.Appeal of Adjudication Officer Decision No. DEC-E2017-057

BACKGROUND:

2.The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 1 September 2017. The following is the Court's Determination:




DETERMINATION:

Background to the Appeal

This is an appeal by Mr Fachtna Roe (‘the Complainant’) from a decision of an Adjudication Officer (DEC-E2017-057, dated 24 July 2017) under the Employment Equality Act 1998 (‘the Act’).

The Complainant is a Humanist. He is employed as a Teacher of Computer Science at the Central Technical Institute (‘CTI’) in Clonmel which is under the aegis of Tipperary Education and Training Board (‘TETB’) (‘the Respondent’). He alleges he was indirectly discriminated against, harassed and victimised on grounds of religion when a May altar, including a statue of the Blessed Virgin Mary, was erected in his place of work on 1 May 2015. He referred his Originating Complaint to the then Equality Tribunal on 3 May 2015. The Equality Officer/Adjudication Officer held that that the complaints under the Act were not well-founded. The Complainant’s Notice of Appeal was received by the Court on 1 September 2017. The Court convened a case management conference in Thurles on 22 May 2019 and heard the appeal in a virtual courtroom on the following dates: 6 April 2021, 7 April 2021, 5 May 2021 and 6 May 2021.

The Factual Matrix

It is necessary to refer briefly to certain events that took place at CTI prior to 1 May 2015 as the Complainant alleges that they evidence a continuum of discrimination on the grounds of religion against him.

It is not disputed that there is a long tradition of erecting a May altar in CTI on 1 May each year. Such an altar was put in place in the usual way by the school caretaker on 1 May 2012. The Complainant (to use his own words) views the statute of the Blessed Virgin Mary as “a symbol associated with cruelty and humiliation of women and children”. He, therefore, objected to the statue being placed in the workplace as it caused him ‘offence and upset’. The Complainant’s concerns were addressed on the day by the Deputy Principal – Ms Tina Kennedy. Ms Kennedy directed that the May altar be relocated to a different area of the school premises not frequented by the Complainant. This appears to have been accepted by the Complainant as a reasonable compromise. There is a conflict of evidence as to where in CTI the May altar was located in 2013 and 2014. (This will be addressed later in the Determination.)

Ashes are distributed to staff and students in CTI who wish to receive them on each Ash Wednesday. In March 2014, ashes were inadvertently distributed during one of the Complainant’s classes. Arising from that event, he referred a complaint to the Equality Tribunal. This resulted in a mediated settlement agreed between the Parties on 27 April 2015.

On 1 May 2015, the caretaker at CTI erected the May altar in the usual way at the same location as it had been placed in 2012. The Complainant submits that as the May altar (as he understood it) had not been placed at this location in either 2013 or 2014, a deliberate decision had been taken to return it to the offending location on 1 May 2015 and that this constituted victimisation of him as a consequence of the mediated settlement agreed some four days previously. The Complainant, therefore, attempted to remove the May altar himself. However, the caretaker – Mr Noel Lonergan – intervened to prevent this happening. A tussle and a heated verbal exchange took place between the Complainant and Mr Lonergan. Another teacher – Mr Jonathan Nolan - who came upon this incident successfully intervened to break it up. The Complainant characterises Mr Lonergan’s intervention as a physical assault on him and as harassment within the meaning of the Act.

Both the Complainant and Mr Lonergan were subject to disciplinary proceedings following the events of 1 May 2015. The Complainant refused to participate in those proceedings. No sanction was ultimately imposed on Mr Lonergan. The Complainant was relocated to alternative teaching duties in Templemore, where he continues to work. As will be detailed further below, witnesses for the Respondent contradicted the Complainant’s evidence in relation to the placement of the May altar in 2013 and 2014.

Submissions

The Court has received multiple and extensive written submissions, along with an enormous volume of supporting documentation, from both Parties to this appeal.

The gist of the relevant sections of the Complainant’s submissions can be summarised as follows: the placing of religious iconography per se in CTI – and, ipse forte, in the ‘disputed location’ in 2015 - is discriminatory having regard to the history of the school as a non-denominational place of technical and vocational education and the only State-run second-level school in Clonmel; the purported adoption of a religious ethos in the school was unlawful and contrary to the mission statements of CTI and TETB; the events of 1 May 2015 constitute victimisation and harassment within the meaning of the Act and TETB is vicariously liable for same; the Respondent cannot rely on section 37 of the Act by way of defence; and the judgment of the Grand Chamber of the European Court of Human Rights inLautsi v Italy(No. 30814/06, Judgment of March 18, 2011) is not applicable to the facts of the within appeal and cannot be relied on by the Respondent.

The Respondent’s submissions make the following points, inter alia, in response to the case being advanced by the Complainant: the judgment inLautsi v Italydoes apply to the issues raised by the within appeal; having regard to that judgment, the placement of the May altar and the statue of the Blessed Virgin Mary in CTI does not constitute discrimination on the grounds of religion and if were to be so regarded, section 37 of the Act would apply to protect it; the events of 1 May 2015 do not constitute victimisation in consequence of the earlier mediated settlement of the Complainant’s previous case under the Act or harassment within the meaning of the Act and the Complainant’s attempts to so characterise them as such is nothing more than an attempt to retrospectively justify the manner in which he attempted to take the law into his own hands on that date rather than invoke existing procedures; the placement of the May altar was not an assault on the Complainant’s beliefs, however, his actions on 1 May 2015 constituted an attack on the religious beliefs of others; such actions as the Complainant’s are not conduct protected by the Act; the ethos of CTI – as reflected in its Religious Education Policy - has evolved over the years from being one that was initially Catholic in focus to being one that is multi-denominational but welcoming of students of all faiths and none.

Witnesses

The Court heard evidence from the Complainant and from the following witnesses: Ms Rita O’Flaherty; Mr Chris Hind; Mr Noel Lonergan; Mr Mathún Ó Caoimh; Mr Jonathan Nolan; Ms Tina Kennedy and Mr Charlie McGeever.

The Complainant’s Evidence

The Complainant outlined how he came to object to the presence of the May altar in the School in 2012. He said the altar was then moved to a different location because of his objections and was not returned to the ‘disputed location’ in either 2013 or 2014. The Complainant then briefly outlined the incident with the ashes on Ash Wednesday 2014 which culminated in a mediated settlement between him and the Respondent in April 2015 with which he said he was very happy. However, the May altar was returned shortly afterwards, on 1 May 2015, to the ‘disputed location’. The Complainant characterises this as victimisation of him on the religion ground by way of retaliation for having referred a complaint of discrimination to the Equality Tribunal. In the witness’s view, the statue represents ‘Roman Catholic’ dogma and Humanists oppose dogma. He also stated that, in his opinion, there is no place in a vocational school for religious dogma. The witness told the Court that he regards the return of the statue to the disputed location as harassment of him on the religion ground as school management knew he found the symbol upsetting. As a consequence of the statue being returned to a location where he was likely to encounter it, the witness believes he was being made to feel inferior as a Humanist in his place of work.

Under cross-examination, the Complainant accepted that religious education – mandated by the Department of Education - had taken place in the school during the entire period of his service as a member of staff there since 1994. When asked about prayers at assembly and an annual Mass for graduating students, the Complainant claimed he had no knowledge of these matters and that they didn’t affect him as he performed his work largely in the school’s Post-Leaving Certificate (PLC) centre. He confirmed that the May altar was placed in the school each year on 1 May and that it had resided directly outside his room for many years. His first objection to the May altar was in 2012. He also accepted that a crib was erected in the school each Christmas. The Complainant opined that the placing of religious symbols in a place such as a school should be by consent and agreement. The Complainant said he had no objections to the crib as it reflected a ‘nice story’ and was not associated with any dogma. His objection to the May altar and the statue of the Blessed Virgin Mary arises from the fact – in his view – that it is an ‘exclusively Roman Catholic’ symbol. He told the Court that he believed that it was a failure of management ‘not to eradicate Catholic symbols’ from the school. In response to questions from Counsel about his actions on 1 May 2015, the Complainant stated that he first went to discuss the presence of the statute in the ‘disputed location’ with a colleague and agreed with the colleague that its location amounted to provocation (of the Complainant). He also confirmed that he did not approach management in order to request that the statue be moved before unilaterally attempting to do so himself.

Ms Rita O’Flaherty

Ms O’Flaherty is a parent of two pupils enrolled in CTI at the material time. Her first son commenced as a pupil in the school in 2013 and her second in 2014. The witness told the Court that she had a clear recollection of visiting CTI in May 2013 to collect enrolment papers for her first son. On that occasion, she says she noticed a statue of the Blessed Virgin Mary in a particular and unusual location within the school: under the stairs, on the ground floor of the new part of the building as she left the Múinteoir i bhFeighil’s office. In fact, according to the witness, the very presence of the statue in a vocational school struck her as unusual. She understood from an uncle of hers who is a teacher in a different vocational school that such schools do not have a specific religious ethos.

Under cross-examination, the witness told the Court that she had been approached by the Complainant in October 2019 in relation to her recollection about the location of the May altar in 2013. They met in a café to discuss the matter after the Complainant had telephoned her. In response to questions from the Court, the witness stated she did not raise the issue of there being a May altar in the school with Mr Ó Caoimh on that occasion in May 2013 or subsequently. The witness said she had been acquainted with the Complainant as they had both been involved in various community events and in ‘community activism’ from 2014 onwards.

Mr Chris Hind

This witness informed the Court that he is a confirmed atheist who works as an Assistant Principal in an interdenominational school which is under joint patronage of Dublin and Dun Laoghaire Education and Training Board and the Archdiocese of Dublin. His evidence was that he accepts the presence of certain religious symbols – such as the crib and Christmas tree – in the school as they are there by consent. He said that there are no religious statues placed in the school he works in and if there were he would, as an atheist, be offended by their presence. In the witness’s opinion, the ‘Roman Catholic’ Church has had an oppressive and controlling influence on education in the State. The witness also said that he doesn’t like what religion does to people as, in his view, it tends to bring out the worst in them.

Mr Noel Lonergan, the Caretaker at the material time (now retired).

Mr Lonergan told the Court that he had been employed as the Caretaker at CIT from 2005 until his retirement at the end of the school year 2016-17. During that period, the witness’s duties included erecting the May altar and the Christmas crib each year, both of which he placed in the main entrance to the school.

Mr Lonergan told the Court about an event that occurred in May 2012. He had erected the May altar in the usual way, in the normal place. However, it went missing later that day. He later found it on returning to his room and replaced it where he had erected it earlier that day. It went missing again the following day. He recalls having a discussion with Mr Mathúin Ó Caoimh, Múinteoir i bhFeighil, about the incident. He was subsequently instructed by Ms Tina Kennedy, the Deputy Principal, to relocate the May altar in the entrance to the Gaelcholáiste, which he did. Mr Lonergan confirmed that as of the date he prepared his written witness statement that his recollection was that he had never placed the May altar in any location other than in the main entrance to the school except in 2012. He told the Court that nobody other than the Complainant had ever objected to the placement of either the May altar or the Christmas crib in the school.

The witness went on to state his version of the events of 1 May 2015. He told the Court that he checked with the School Principal as normal on that day before proceeding to erect the May altar in its usual place at the main entrance to the School. Later that morning he was confronted, he says, by the Complainant who asked him if the erection of the statue was ‘his doing’ and whether or not he had written permission to put it in place. The Complainant, according to the witness, then attempted to remove the statue and the witness asked him to back away. The Complainant refused to do so and the witness was shoved backwards, hit himself off an object and sustained minor injuries to his neck and hand. Ultimately, he retrieved the statue from the Complainant and replaced it on the altar. He accepts he was angry and stressed as a result of the incident and referred to the Complainant as ‘a disgrace’ for which he is apologetic. He confirmed that the altercation was broken up by Mr Jonathan Nolan who happened on the scene at that moment. The witness prepared a written statement in relation to the incident, reported the matter to the Gardaí and gave a statement to them. Finally, the Witness emphasised that he had no knowledge on 1 May 2015 of the mediation settlement concluded some days previously between the Complainant and the Respondent.

Mr Mathúin Ó Caoimh, Múinteoir i bhFeighil and Assistant Principal in 2012 (retired since 2013).Mr Ó Caoimh told the Court that he is a practising Catholic. He taught in the school for some forty years. His evidence is that CTI maintains a Christian ethos but on a multi-denominational basis. He recalled that the tradition of erecting a crib at Christmas and a Marian altar in May are traditions that have been observed in the school for decades and for the duration of his employment there. He stated that the May altar had been located outside the Complainant’s classroom door for a number of years and that it was the Caretaker’s duty to erect it.

The witness recounted an incident relating to the removal of the May altar from the location in which it had been placed in the main entrance by the Caretaker in 2012. He spoke to the Complainant when the issue came to his attention and advised him that he would report the matter to the Gardai if it was not returned. Although the Complainant made no admission at that point the altar was returned subsequently to the Caretaker’s office. The witness saw the Complainant tussling with the Caretaker the following morning in the main entrance; the Complainant was attempting to remove the statue from the location where it had been replaced by the Caretaker. The witness did not intervene but instead left a message for the Deputy Principal, Ms Kennedy. Ms Kennedy subsequently contacted the witness regarding a proposal to relocate the May altar to the entrance to the Gaelcholáiste. Although unhappy with that proposal – because he felt the Complainant’s views were being prioritised – the witness accepted it, mindful of avoiding potential disruption to school business at a very busy time of year, immediately prior to the commencement of examinations. The witness has no knowledge of where the statute was located in subsequent years but his expectation was that it would be returned to its original location.

Mr Jonathan Nolan, a colleague Teacher at CTI. Mr Nolan told the Court that, to his knowledge, the May altar had been a fixture in CTI annually since he joined the staff there and he expected it to be erected in approximately the same location each year in which it had been located in May 2015. Although he had no specific recollection of seeing the altar in any particular location in any year other than in 2015 – and then only because of the events that gave rise to these proceedings and his involvement in them – he told the Court he believed his experience to be that the altar was always located in the main entrance to the school building, including in 2013 and 2014. The witness said that he never regarded it as unusual that a May altar was erected annually in a state school or workplace; he regarded it as a normal activity by the religious education department and akin to a display of an item by the woodwork department. Mr Nolan recalled that he had seen a Buddha and various other religious symbols displayed in the school throughout the course of the year – for example, on the notice boards.

Mr Nolan recounted the events of 1 May 2015 as follows. He was returning from teaching a PLC course when he heard raised voices in the corridor and then witnessed an altercation between the Complainant and Mr Noel Lonergan who appeared to be in a tussle over an object around which they both had their hands. He then witnessed Mr Lonergan fall backwards while referring to the Complainant as ‘a disgrace’. The witness intervened to break up the altercation and directed Mr Lonergan to sit down as he appeared upset and unwell. He then alerted management to the incident and afterwards prepared a short written report of what he had witnessed.

Ms Tina Kennedy, the Deputy Principal at the material time.

Ms Kennedy confirmed that she joined the staff of CIT in September 2008 and was appointed to the post of Deputy Principal in January 2009. She told the Court that it has always been the case that the provision of religious education has been a key part of the curriculum as mandated by the Department of Education and Skills via statute and circulars. Ms Kennedy told the Court that no student is compelled to attend religious education classes and alternative arrangements are in place to provide supervision to students who decide to opt out of such classes.

To her knowledge, she said, CTI has always had a religious ethos and that ethos is Christian without being Catholic and with an emphasis on multi-denominationalism. She enumerated a number of examples of how that ethos was manifested over many years including the period prior to her involvement with the school, including: prayer at morning assembly; placement of a crib at Christmas; erection of a May altar; celebration of a graduation Mass for the sixth year pupils; the incorporation of prayers and readings from other religious beliefs such as by students of Jewish and Muslim faith backgrounds. The witness recalled that a figure of Buddha was placed at the main entrance to the school on one occasion in commemoration of victims of one of the Asian tsunamis.

Mr Charlie McGeever, the School Principal at the material time (now retired)

The witness confirmed his agreement with the description of the school’s religious ethos as outlined by Ms Kennedy in her evidence. He emphasised that the school advocates tolerance of diverse views and welcomes pupils of all faiths and none. The witness said he had no direct involvement in the 2012 incident when the Complainant objected to the presence of the May altar but that he did discuss the issue afterwards with Ms Kennedy and fully agreed with the manner in which she had sought to diffuse the issue by relocating the altar. The witness said he believed that neither Ms Kennedy nor anyone else had given any undertaking about relocation the May altar in subsequent years and to the best of his knowledge in 2013 and 2014 it had been placed back in the position from which it had been moved in 2012. The witness said he had no involvement in the 2014 ashes incident which was a departure from normal practice and one which he would not have authorised or condoned. The witness denied that there was any connection between the placement of the May altar in 2015 and the recently resolved mediation of the Complainant’s equality complaint arising from the ashes incident. He confirmed his agreement with Mr Lonergan’s evidence to the effect that he had contacted him in the usual way on the morning of 1 May 2015 before erecting the May altar for that year. He said the fact that a physical struggle had taken place between two staff members on the school premises was of grave concern to him as Principal and a matter which he was entitled to and did fully investigate. He outlined the disciplinary process to which Mr Lonergan and the Complainant were subject to as a consequence and the written warning administered to the Complainant against which he didn’t appeal.

The Witness told the Court that the Complainant – who had previously been a TUI shop steward in the school – had never agitated through his Union in relation to the presence of religious symbols in the school or to have such religious symbols removed from the school or to cease religious worship, assembly prayers or the annual Mass. Prior to 1 May 2015, the only issues raised in connection with religious symbols and religious practices in the school by the Complainant had been the May altar issue in 2012 and the Lenten ashes issue in 2014; the Complainant had never raised an issue about the Christmas crib, the statue of Buddha displayed on a number of occasions or about prayer services or Masses in the school.

The May Altar

Summary of the Parties’ Positions

The Complainant alleges that the placement of a May altar including a statue of the Blessed Virgin Mary at a location in his place of work where he inevitably would have to encounter it, constituted indirect discrimination on the religion ground. He submits that that statue is inextricably linked to Roman Catholic dogma and symbolic of oppression, cruelty and humiliation of women and children. He is of the view that the display of religious symbols in a state-run vocational school should be subject to consent and agreement.

The Complainant subscribes to Humanism – a worldview that eschews all religious dogma – and consequently, the placement of this particular religious symbol (but not others such as a crib, Christmas tree or statue of Buddha) was, he says, offensive to him and made him feel diminished, less worthy as a person who subscribes to Humanism and denied of equal respect. He submits that others ‘of his ilk’ feel similarly. He adduced evidence from Mr Chis Hind, an atheist and also a teacher – albeit in a school, one of the patrons of which is the Catholic Archbishop of Dublin – to demonstrate that he would likewise feel offended should a similar statue be placed in his place of work.

The Complainant submits that the judgment of the European Court of Human Rights inLautsi v Italy- where the Court considered whether the placement of a crucifix in school classrooms constituted discrimination on the religion ground- can be distinguished from the within case. InLautsi, the Court found that a crucifix on a wall is “an essentially passive symbol” which could not “be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities”. The Complainant asserts that the statue of the Blessed Virgin Mary – unlike other religious symbols such as the crib, Christmas tree and statue of Buddha he is prepared to accept – is not a passive symbol, for the reasons summarised above.

The Respondent’s case is that CTI is a multidenominational school and has a Christian ethos. The placement of a May altar annually in the school – a practice that has endured for several decades - is carried out in the preservation of that ethos and is expressly protected pursuant to section 37 of the Act.

Lautsi v Italy

As stated previously in this Determination, the Complainant has expressly sought to distinguish the facts of the within appeal from those that gave rise to the judgment of the Grand Chamber of the European Court of Human Rights inLautsi v Italy. It is appropriate, therefore, to recall at this point the findings of the Court in that case and the reasoning underpinning them as sumarised in paragraphs 71 and 72 of the judgment:“71. In that connection, it is true that by prescribing the presence of crucifixes in State-school classrooms – a sign which, whether or not it is accorded in addition a secular symbolic value, undoubtedly refers to Christianity – the regulations confer on the country's majority religion preponderant visibility in the school environment.

That is not in itself sufficient, however, to denote a process of indoctrination on the respondent State's part and establish a breach of the requirements of Article 2 of Protocol No. 1.

The Court refers on this point,mutatis mutandis, to the previously cited  Folgerø and  Zengin  judgments. In the  Folgerø  case, in which it was called upon to examine the content of “Christianity, religion and philosophy” (KRL) lessons, it found that the fact that the syllabus gave a larger share to knowledge of the Christian religion than to that of other religions and philosophies could not in itself be viewed as a departure from the principles of pluralism and objectivity amounting to indoctrination. It explained that in view of the place occupied by Christianity in the history and tradition of the respondent State – Norway – this question had to be regarded as falling within the margin of appreciation left to it in planning and setting the curriculum (see  Folgerø, cited above, 89). It reached a similar conclusion in the context of “religious culture and ethics” classes in Turkish schools, where the syllabus gave greater prominence to knowledge of Islam on the ground that, notwithstanding the State's secular nature, Islam was the majority religion practiced in Turkey (see  Zengin, cited above,  63).

72. Furthermore, a crucifix on a wall is an essentially passive symbol and this point is of importance in the Court's view, particularly having regard to the principle of neutrality (see paragraph 60 above). It cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities (see on these points  Folgerø andZengin, cited above,  94 and 64 respectively).”

For completeness sake, the Court notes that the Complainant extensively researched both the historical context in which the predecessor to CTI was established and the evolution of legislation governing the operation of technical and vocational schools in the State with a view to establishing, as part of his appeal before this Court, that the school must, as a matter of law, be secular in nature. This is a matter beyond the competence of this Court and, accordingly, one on which it declined to make a finding.

Complaint of Indirect Discrimination

Indirect discrimination arises where an apparently neutral provision, criterion or practice (‘a PCP’) puts persons having a protected characteristic at a particular disadvantage. In summary, the Complainant’s case is that the placement of the statute of the Blessed Virgin Mary in CTI on 1 May 2015 amounted to a practice that placed him, as a Humanist, at a particular disadvantage. He described the disadvantage he experienced as one of being made to feel disrespected and inferior. He adduced evidence, as stated earlier, from Mr Chris Hind, an atheist and a teacher, who told the Court that he would feel similarly were he to find symbols of religious dogma located in his school without prior agreement on his part. Neither the Complainant nor Mr Hind apparently object to the presence of other symbols associated with religious holidays such as the Christmas tree and crib.

The initial burden of proof in any claim of discrimination – direct or indirect – under the Act rests on the Complainant. Pivotal to the Complainant’s case on the appeal is that the presence of one particular religious symbol – the statue of the Blessed Virgin Mary – but not other religious symbols (such as a crucifix, a Christmas tree, a nativity scene or a statue of Buddha) places him at a particular disadvantage because of his Humanist beliefs. The Court finds that Complainant has not established any facts from which an inference of discrimination could be drawn in this case. He has put nothing before the Court in support of his complaint of indirect discrimination other than his own subjective feelings towards the statue in question and what he perceives it to represent. The evidence he adduced from Mr Hind – consisting largely of that witness’s hypothetical views on how he would react in similar circumstances – does nothing to further the Complainant’s case in this regard.

Complaint of Victimisation

Key to the Complainant’s complaint of victimisation is the issue of the location of the May altar in CTI in 2013 and 2014. It will be recalled that there is agreement between the Parties that a compromise solution was arrived at following the incident in 2012 when the Complainant unilaterally removed the May altar from the location in which Mr Lonergan had placed it. It is common case that the May altar was relocated that year. There is a clear conflict between Ms Rita O’Flaherty’s evidence about where the May altar was located in 2013 and the evidence given by the witnesses for the Respondent in relation to where they believed it had been placed in 2013 (and 2014). Ms Kennedy told the Court that the compromise arrangement entered into with the Complainant in 2012 related to that particular year only and she had no recollection of the statute being located other than in the entrance to the school in subsequent years. Mr Lonergan told the Court that his best recollection at the time he prepared his written witness statement in advance of the hearing was that he had placed the May altar in the same location each year other than in 2012 following the incident with the Complainant. Mr Nolan and Mr McGeever likewise told the Court that they regarded the placement of the May altar as a regular, annual event in the school year and, although it was not something either of them paid particular attention to, their expectation is that it would have been placed in the same location each year.

The Court is somewhat sceptical in relation to Ms O’Flaherty’s evidence and the manner in which the Complainant, according to her recollection, came to identify her as a potential witness in relation to a key issue in dispute in this case. The Court, despite asking probing questions of both Ms O’Flaherty and of the Complainant, was not provided with any credible explanation as to how the Complainant learned that the witness – being one of many hundreds of parents of children in the school in the period in question – was (some six years after the event) in possession of an allegedly perfect recollection of the location of the May altar in May 2013 arising from a single visit to the school that month. On the other hand, the witnesses for the Respondent – as one would expect – gave their evidence to the best of their recollection only and, in doing so, did not seek to make definitive assertions or claims. The Court finds the combined evidence of the Respondent’s witnesses to be more credible and their version of the facts in dispute to be more likely to be true than not.

Essentially, in advancing his complaint of victimisation, the Complainant is asking the Court to accept that the school Principal, Mr McGeever, and the Caretaker, Mr Lonergan, (and perhaps other members of staff also) conspired to place the May altar in a location other than where it had allegedly been placed in the years 2012 to 2014 inclusive for the purpose of causing distress and upset to the Complainant arising from a mediated settlement of an unrelated complaint under the Act that had been concluded some four days previously – a settlement which Mr McGeever said in evidence that he and the school management were very happy with. Neither Mr McGeever nor any of the other witnesses called by the Respondent (including Mr Lonergan) displayed any trace of animus or ill-will towards the Complainant in the course of their examination-in-chief or cross-examination. Quite the contrary, in fact. The Court finds, on the balance of probabilities and having regard to its assessment of the evidence adduced in relation to this complaint, that the Complainant was not the subject of victimisation on 1 May 2015 arising from the location of the May altar on that occasion.

Complaint of Harassment

The final element of the Complainant’s case is an allegation that Mr Lonergan’s intervention to prevent the Complainant removing the statue of the Blessed Virgin Mary from where Mr Lonergan had placed it on 1 May 2015 constitutes harassment within the meaning of the Act. Section 14A of the Act prohibits harassment on each of the nine grounds protected under the Act. Section 14A(7) provides:

“(7)(a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

(b) being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
(c) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”

Conclusion

For the reasons set out above in the body of the Determination the Court finds that all elements of the within appeal fail. The decision of the Adjudication Officer is affirmed.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
NJ	______________________
04 August 2021	Deputy Chairman