Complainant

Respondent

Parties

Ian  Kilroy

TU Dublin

Representatives

M.P. Guinness B.L instructed by Holmes Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 25 of the Equal Status Act, 2000.

CA-00043292-001

29/03/2021

The complainant is a member of the staff of the respondent and has at various times also been a student. He complains that he has been discriminated against on the grounds of his religion.

The Equal Status Acts 2000-2015, prohibit discrimination in the provision of goods and services and the provision of accommodation on any of the nine grounds set out in the Act. One of these is identified as ‘the religion ground’. 

This is acomplaint to the WRC on the grounds of religion, with specific reference to ‘the provision of goods and services’ and ‘the provision of accommodation’. This complaint relates to a specific instance of discrimination, but it is the latest example of ongoing discrimination, which forms the wider context for this particular episode.

The ‘goods and services’ referred to in the complaint are the provision of chaplaincy services by TU Dublin. The ‘provision of accommodation’ that features is the lack of amenities for religious minorities at the university. This context is necessary to understand the specific example of discrimination below.

TU Dublin has five chaplains. All are from a Christian background. None come from a minority religious tradition. TU Dublin spends about €260,000 annually on its chaplaincy service according to newspaper reports.

It subcontracts spending and appointments to the Catholic Archdiocese of Dublin which controls the chaplaincy, appoints chaplains and invoices TU Dublin for the services provided. Under this arrangement, there are only Christian chaplains provided and services are provided for Christians but are not for people of other faiths. 

In addition, TU Dublin is in the process of constructing a new campus at Grangegorman. At the centre of the ‘student hub’ is a consecrated Catholic church. For the many students and staff of other faiths (Muslim, Jewish, Buddhist, etc), there is no such dedicated accommodation or provision of space. There is clear inequality in the provision of space provided, which seems to be illegal under Equality legislation.

As a result of this exclusively Christian chaplaincy, and as the spaces for the practise of faith on campus favour Christians only, there have been numerous instances of discrimination.

The most recent example is the provision of religious services for Christians  around Lent and Easter. On February 15th, 2021, as a non-Christian member of staff, I was provided information, via an email from the Chaplaincy, about ‘Lent@TUDublin, where I was asked:‘Who is Jesus?’.

This proselytising notice was unsolicited. Similarly, Mass is offered every Thursday by the chaplaincy.  There are Christian services of remembrance for deceased staff and students and regular Christian services provided, but not for Muslim, Jewish or Buddhist students and staff.

Only Christian religious festivals are marked by the university. Passover, Vesak, Ramadan and other world religious festivals, which are celebrated by many Irish people (and staff and students of TU Dublin) are never marked, or even mentioned.

Quite simply, the ‘provision of goods and services’ is grossly unequal and discriminatory at TU Dublin. and led the complainant to close the DIT Zen society at the university (TU Dublin, formerly DIT), due to the poor accommodation that the university supplied; (all minority faiths have to share a tiny space).

That has led to tensions between faith traditions. Our Buddhist group had anti-Buddhist remarks left in this shared space, and meditation cushions and religious materials vandalised and replaced with a Koran. The university failed in its duty of care in this regard.

When the chaplaincy was up for review, the complainant made a submission for an unpaid ‘associate chaplaincy service’ for minority faiths.

This submission was not even mentioned in the final review as published. Therefore, the chaplaincy has persisted as Christian-only. The Dublin City Interfaith Forum (DCIF), - on which the complainant represents Buddhism; made a similar application to provide minority faith services to TU Dublin over a year ago.

However, this requires approval by the Archbishop of Dublin. But this never came. In any case, there is something wrong when the Catholic Archbishop of Dublin has to approve of (and controls) the provision of religious services to minority faiths in an institution. And in addition, what was being requested by DCIF itself falls short of true equality.

The recent Christian material sent by the TU Dublin chaplaincy is only the most recent example of inequality and discrimination in the provision of goods and service, and the provision of accommodation, at TU Dublin.

This complaint is a very clear case under Equality legislation. TU Dublin is in breach of this legislation in how it provides religious services and accommodation at the university.

The complainant has lodged a complaint under the Equal Status Act alleging that he has been discriminated against by reason of his religion in relation to the provision of goods and services and the provision of accommodation. He asserts the most recent date of discrimination as February 15th 2021 which arises from the complainant, (and all other employees and students) receiving an email in relation to Lent.

The complainant is a journalism lecturer and the alleged discrimination arises from the provision of chaplaincy services by TU Dublin. The provision of accommodation is the apparent “lack of adequate accommodation for religious minorities at TU Dublin”.

It is submitted that the complainant must satisfy the Adjudication Officer that he himself has been discriminated against. An alleged lack of adequate accommodation for “religious minorities” is general in the extreme. It should be understood that the priority of the respondent in the provision of pastoral care is towards its students.

The complainant says that there is a consecrated Catholic church (St Lawrence’s Church) at the centre of the student hub and that for many students and staff of other faiths (Muslim, Jewish, Buddhist etc.)

There is no such dedicated accommodation or provision of space.

Again, it is submitted that the complainant cannot complain about “students and staff of other faiths”. He can only do so in relation to himself and there have been no such formal complaints by students of TU Dublin.

The respondent listens to any feedback from students and actively engages to respond to it and works to find an acceptable solution to issues that arise. For example, it has been actively working with the Islamic society to ensure that the quiet spaces provided are fit for its needs and e.g. have foot washing facilities close by.

Roman Catholic staff and students have no dedicated accommodation on campus and the St Lawrence’s church is a multipurpose space that is bookable for any event which can be used for teaching, conferences, training programmes and meetings and is designed toallow flexibility in using the space.

it was refurbished as a multipurpose space in 2014 and used exclusively for academic teaching for the 2014/15 academic year. From September 2015 it is open for booking by staff, students and community for events and was used during the Covid 19 pandemic by the HSE as a vaccination centre.

The church is a protected structure and was used by the hospital community of St Brendan’s Psychiatric Hospital. The planning permission for the Grangegorman Campus stipulated that it remain in use as a church.  Typically, there is one mass a week held in the church.

In addition to that bookable space the respondent also provides dedicated, neutral spaces in each campus for reflection, prayer and moments of peace. The spaces have specific opening hours and operate on a drop-in basis. 

TU Dublin has approximately 28,500 students of all faiths and none. And the spaces are designed with storage so that students have space to store any objects required during the use of the quiet spaces.  

Each campus has students of Muslim faith who require regular time to pray, and these students use the quiet spaces on a daily basis. The most recent development of space in Bradogue included input into the design by the Dublin City Interfaith Forum, the Islamic Society, the Students Union and TU Dublin Student Services. The intention is that the spaces are welcoming to all students.

The priority is the provision of pastoral care of students and no student has complained in relation to provision of a space to reflect and/or pray.

The complainant alleges that all full-time chaplains currently at TU Dublin come exclusively from a Christian background  and that only Christians have full-time chaplains available, and no other faith tradition has such a service.

It is not clear what exactly the complainant is seeking in relation to himself.

Without prejudice to that, TU Dublin does not hire pastoral care and chaplaincy workers directly but provides a pastoral care service through an EU tender process. That pastoral care service is directed at students. The most recent tender took place in 2020. Only one response was received which was from the Archdiocese of Dublin and one valuation were awarded the tender to deliver the service.

The job title used by the staff is Pastoral Care and Chaplaincy Worker and specific requirements relating to this role are included in the contract such as:

providing support primarily to students and on occasions to staff concerning death, bereavement and serious illness including liaising with the bereaved family, organising appropriate rituals or services (in accordance with faiths traditions, if any, of the deceased and the family).

Supporting students and their family during and after bereavement.

Linking in with establishment networks e.g. hospitals, undertakers etc. to provide appropriate support.

Support students in the aftermath of getting bad news, arranging transport etc.

Provide “one good adult advocate” in the event of a crisis where a student may have no next of kin or is in a non-contactable situation. Students may be assisted directly and/or referred to other specialist services internally/externally to the university.

Provide support to friends, colleagues and classmates (on a one to one level and on collective level through events, for example, mindfulness/memorial events).

Promote greater understanding and mutual respect between people of different faith/religious traditions and between people with religious affiliations and people with no religious beliefs.

To work with the university to provide and manage appropriate quiet spaces for use for prayer and reflection. Ensure spaces are managed appropriately in line with the ethos of the space, planning guidelines and agreements with the local community and other stakeholders.

And there are other pastoral care elements of the service (of which details were provided at the hearing).

The current service providers have contracted support from the Dublin City Interfaith Forum which assists with providing multi-faith representation. It is submitted that it is unclear in what way the complainant has been affected or allegedly discriminated against in relation to this within 6 months of the date of the claim. Did he seek chaplaincy services?

The complainant appears to be under the misunderstanding that TU Dublin has an arrangement with the Catholic church only so that it can nominate chaplains to serve full-time and paid at TU Dublin. This is incorrect.

The university has a contract for services with the diocese to provide specific services as outlined above and this specifies the skillset required. The responsibility of ensuring that the appropriate services are provided is with the Head of Student Services and Wellbeing and the services are reviewed continually to ensure that they meet the requirements of the contract. The Roman Catholic Church does not nominate chaplains but identifies resources to be provided as part of the contract and theuniversity based on the skills and experience of the resources accepts the resource as part of thecontract.

The skills, knowledge and experience required for a pastoral care worker are clearly set out in the tender requirements which is submitted.

The complainant alleges that the respondent only provides religious services in support of Christian faith traditions, masses of remembrance, Christian blessings, services for and recognition of Christian festivals like Advent and Lent but not for other festivals from other religious traditions. He alleges that none of his religious festivals are observed. This is factually incorrect.

Festivals and occasions from a number of faiths are observed regularly throughout the year such as Diwali, Ramadan, Lent etc. A number of multi-faith events take place such as interfaith remembrance service, Covid remembrance and thanksgiving service which was run as a collaboration with the Student Union and the Dublin City Interfaith Forum.

The Pastoral Care and Chaplaincy Service is funded from student charge and is primarily a service for students. Where there are requests from students for supports to allow them to practice their faith the respondent endeavours to support this in a manner which does not discriminate against other faiths.

The social media and online presence of the service has in the past included information relating to the following: Nirvana day, Care day, Green week, Daffodil day, Lent, Ramadan, Vesak day. (The service posted a video on 13 May 2022 on their You Tube channel and Twitter account with the complainant himself discussing Vesak day).

The respondent appointed a Director of Equality, Diversity and Inclusion on November 1st 2018 to promote and manage equality, diversity and inclusion across all activities of the University.

Since March 2022 the Equality Diversity Inclusion Directorate has sent out regular updates highlighting upcoming seminars, events and commemorative days and it manages a schedule of various events to celebrate multifaith/diverse celebrations throughout the year.

Given the wide range of commemorative days and religious practices and festivals, the respondent only includes major events whose impact extends into the wider culture.

Currently the Buddhist holidays that the EDI plan to feature include Bhodi Day and Magha Puja, celebrated in December and March respectively. The Magha Puja for 2022 was celebrated in February this year a month before the EDIs notification was set up. The goal of the EDI update is to enable better understanding and awareness, in particular with regard to customs/practices of groups in Irish society who are marginalised and/or subordinated.

It would be impossible and/or impracticable to mark every event and therefore events that fall outside these parameters are not included.

The complainant refers to the DIT Zen Society ceasing its practice in 2017 but that is out of time as the complainant has six months within which to lodge a claim of discrimination under the legislation.

Without prejudice to that, the tender process that was implemented in 2020 resolved his complaints by ensuring that the service provided is multi-faith and there is a contracted service so that the university has control of the services provided.

The intention is to continue to develop this relationship and ensure that all faiths are supported. It should also be noted that the complainant’s complaints in 2017 were not communicated directly to the university management. A poster listing his complaints was simply posted on the wall of the quiet space where he worked as a journalism lecturer. The respondent only became aware of it when contacted by journalism students who were writing an article on the poster.

The complainant then makes a complaint that his suggestion of “an associate chaplaincy” was omitted from a report issued in 2019. Again, it is submitted that this is out of time. Without prejudice to that the respondent would simply note that the strategic review and planning activities which took place in 2016 and in 2018 to 2019 involved consultations with a total of 198 people.

The complainant’s incident of a discrimination as outlined in his complaint form is that he was sent an email in February regarding Lent. The respondent does not ask its employees or students to identify their faith, so emails are sent out to all members of staff and all students in relation to various religious celebrations that are occurring.

It is submitted that sending an email in relation to a faith to which the complainant does not adhere does not amount to discrimination under the Equal Status Legislation.

It is also noteworthy that the complainant is a lecturer and employee of the respondent, and the provision of pastoral services is, in the main, in relation to the studentsattendingtherespondentuniversity.Itissubmittedthatthereisnorequirementunderhis contract of employment to make a chaplain available to him.

It is denied that the complainant has been harassed in any way regarding his religion. As outlined above, the church is a bookable space for any group or any religion. There are numerous quiet rooms provided. The fact that the complainant chose to close down his DIT Zen society at the university in 2017 does not amount to harassment under the legislation and is in any event out of time.

The Equal Status Acts 2000 – 2018 prohibits discrimination in the context of using and/or providing services available to the public (or a section thereof). In general terms, discrimination is taken to have occurred where a person is treated less favourably than another person is (or would be) treated by reason of any of the discriminatory grounds outlined at Section 3 of the Act.

In that regard, Sections 3.1 and 2 of the Equal Status Act provide inter alia as follows:

3.1– for the purposes of this Act 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 in Subsection 2…in this Act referred to as the discriminatory grounds…

3.2         – as between any two persons, the discriminatory grounds (and the description of those grounds for the purposes of this Act) are… (E) that one has a different religious belief from the other, or that one has a religious belief and the other has not (the religion ground).

Section 2 of the Equal Status Act defines service as follows:

“Service means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing includes a, access to and use of any place”.

Section 38A of the Equal Status Act provides that where facts are established from which it may be presumed that prohibited conduct or discrimination has occurred, it is for the Respondent in the case to prove the contrary. Accordingly, for an allegation of discrimination to be upheld a complainant must, in the first instance, show prima facie evidence of the discrimination.

Once a prima facie case is established the burden of proof then shifts to the Respondent to show that discrimination did not take place. The test for shifting the burden of proof was considered in an employment context in Mitchell v Southern Health Board 2001 ELR201 which established that thecomplainant is obliged to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination.It is only if this initial burden is discharged that the burden of provingthat there was no infringement of the principal of equal treatment passes to the Respondent. If the complainant does not discharge the initial probate of burden which he bears, his case cannot succeed.

In its findings in the case of Tesco Ireland Limited v Grzegorz Kowalski determination EDA1812 the Labour Court cited the case of Cork City Council v McCarthy determination EDA0821 as follows:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The Legal Authority provides that the burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged or proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts.

The act of discrimination referred to by the complainant is the receipt of an email in relation to the festival of Lent. It is submitted that the receipt of an email in relation to this is not and cannot amount to an act of discrimination on grounds of religion.

In the light of the foregoing legal principles, it is submitted that no prima facie case of discrimination has been established by the complainant and therefore the onus of proof does not shift to the Respondent to rebut the inference raised. The sending of an email to the complainant does not amount to discrimination. It is submitted that the generality of the Complainant’s complaints is such that no prima facie case has been made out.

As can be seen, the specific trigger for this complaint was the sending of an email on February 15th, 2021. A number of other incidents referred to by the complainant were accepted as not containing sufficient substance to constitute a complaint.

Equally, it is clear that there is a background to the complaint illustrating the complainant’s significant sense of grievance, arising from how the respondent addresses the needs of those (in this case) of his or other minority faiths.

While the purpose of a WRC hearing is to apply the applicable law to any complaint made under statute, the process of the hearing will often result in the ventilation of other information, even if it is not directly relevant to a determination on the complaint, but which may actually contribute to a resolution of issues arising between the parties.

And so it was in this case. The complainant gave many examples of concerns about the treatment of minority faiths.

However, whether the most effective route to progressing some of these issues to resolution is by means of a statutory complaint is highly doubtful. This is especially the case as the respondent demonstrated at the hearing that it has a high level of commitment to the application of equality and diversity.

While there will always be room for discussion about how these ideals are to be implemented in practice a WRC adjudication will not always be the most effective place to conduct that conversation.

There is provision for dialogue which appears to be well established in the university and the complainant has perhaps failed to develop a sufficiently thought-out strategy to avail of the opportunity to engage in that dialogue as effectively as he might.

His explanation for not doing so to date was unconvincing but it is not top late for both parties to pro-actively find a way to do so. He referred to having raised a matter in 2013 and again in 2017; (this latter disputed by the respondent).

This does not look like a very determined or consistent pursuit of his issue by the complainant.

Turning to the specific complaint the complainant faced a number of difficulties.

In respect of the physical facilities and the chaplaincy arrangement he did not make out any case that he personally suffered either direct or indirect discrimination.

He made a reasonable point about the status of the Catholic church insofar as however it may be designated as a ‘multi-purpose’ space it was built as a church and retains the characteristics of a church, its iconography etc which may be regarded as uncomfortable or insensitive for those of a non-Catholic, or non-Christian faith.

For others this will not matter, of course, and the respondent submitted that the Dublin Inter-Faith Forum was consulted about its use and it also said that other spaces were available.

Both of these points also apply to his criticism of the chaplaincy service.

While the respondent says the chaplaincy service has a much wider brief for general student pastoral care than might appear from the close involvement of the Dublin Catholic Archdiocese, (and the complainant confirmed that he enjoys a good relationship with the service), what is colloquially described as ‘the optics’ of this are unfortunate. But in any event no specific act of discrimination could be discerned here.

The complainant’s case rests therefore on the email he received in February 2021. This related to activities around the season of Lent and advising of arrangements for marking it.

The respondent has submitted that this does not amount to a discriminatory act, and I agree.

Sections 3.1 and 2 of the Equal Status Act provide inter alia as follows:

3.3  – for the purposes of this Act 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 in Subsection 2…in this Act referred to as the discriminatory grounds…

There has been no act of less favourable treatment in this case, which clearly requires an act or omission which places the complainant at a disadvantage by reference to another person, and that this relates to a protected ground, in this case religion. There is no actual treatment in this case other than the receipt of an email.

While the use of a universal email list distinguishes it somewhat, (And there may be a case to provide for ‘unsubscribe’ options in respect of certain types of such emails) it is not much different to a poster being displayed on the campus to the same effect, for example. But there is no act of less favourable treatment in the ordinary and legal understanding of that term.

Again, it is probably necessary to see this incident as adding to the complainant’s sense of general historic grievance about the treatment of his faith, and I have confidence from the indications given by the respondent at the hearing that any issues arising in that regard will receive a receptive ear if pursued as suggested above.

However, the complainant has not made out a prima facie case under the Equal Status Acts in respect of the specific complaint within jurisdiction as set put above and it does not succeed.

For the reasons set out above I do not find in favour of the complainant and complaint CA-00043292-001 is not upheld.

Equal Status Acts, Religion.