Complainant

Respondent

Anonymised Parties

A Father

A Tribunal  

Representatives

Appeared In Person

Rosemary Mallon BL instructed by Mason Hayes and Curran Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00043736-001

24/04/2021

On 24 April 2021, the Complainant, a Lay Litigant submitted a complaint of Discrimination on the grounds of disability to the WRC.

This complaint contained a claim of discrimination against a Church Body in relation to the provision of the service of a Church annulment, which was concluded and reported on in January 2021.

 On that same day, the Complainant submitted a complaint of discrimination against the Appeals Body, ADJ 33060, which he withdrew on the date of the instant hearing.

As part of my preparation for hearing, on July 15, 2022, I requested sight of the ES1 form referred to in the presiding complaint. I also requested that the Complainant bring a copy of the Equal Status Act 2000 to hearing. I sought sight of any documentation on which the complainant intended on relying.

I copied this letter to the Respondent Solicitors, who were on notice in the case from September 2021.

The Complainant approached the hearing of 18 July 2021 to represent his own case. He submitted outline submissions.

The Respondent represented by Rosemary Mallon, BL instructed by MHC Solicitors denied the claim on behalf of the Respondent, a Church Body. Outline submissions were filed, and case law appended.

At the conclusion of the hearing, my sole request for outstanding documentation rested on a request for a communication dated 20 February 2021, relied on by the complainant as the genesis for his complaint of April 2021 before the WRC.

I returned documentation received peripheral to this request.

On July 19 ,2021, I wrote to the Complainant seeking the February 20, 2021, notification to the Respondent on which he relied at hearing.

“ ……….. At the conclusion of this hearing, I allowed you two days to produce a sole document referred to as a letter of February 20, 2021, in Section 11 of the Respondent booklet.

I explained the significance of my seeking this document and referred to notification requirements under section 20 of the Equal Status Acts 2000.

I am not in a position to accept the 9 emails you sent to PRU this morning.

Instead, I am prepared to extend the time allowed to you to furnish your response to my pursuance of the letter of February 20, 2021, to Friday, July 22 next at 5pm.

This document was received in the form of a record of an appeal of the declaration of annulment on July 19 at 18.11 hrs. It was promptly shared with the Respondent the next day at 14.45 hrs but did not generate a response.

Decision to Anonymise this Decision:

The Legislative changes which followed the Workplace Relations Miscellaneous Provisions Act, 2021 has steered proceedings at the WRC firmly to uphold the principle of “Open Justice “.

I am mindful of the extremely sensitive and private subject matter of the case, a religious annulment of marriage, where only one party, who was not the Petitioner, was present at hearing. I am mindful of the challenge mounted on the judging function of the Marriage Tribunal presided over by Priest A, who was present at hearing.

I heard both Parties on the matter of the respondent application for anonymisation of the Decision in the case.

I have decided to exercise my discretion contained within Section 30 of the Equal Status Act, 2000 and have anonymised the decision. I confirmed this to both Parties at hearing.

 In arriving at this decision, I am further strengthened by the findings of Faherty J at the High Court in Teaching Council of Ireland v SR [2018] IEHC 582

This was a case which considered the climate for anonymisation of the Parties, which resulted in an anonymisation as reflected in the acronym “SR “

 Para 99. I am satisfied, however, that if the respondent's name were to be publicised (or if the name of the principal and the name and location of the school were to be publicised), there is a strong possibility that the five students at the school, who, I am advised, are now in their Leaving Certificate cycle in secondary school, run the risk of being identified. I am satisfied that if that were to happen their constitutional right to privacy would be engaged disproportionately, (my emphasis) to the requirement that justice be administered in public to the fullest extent. In arriving at my conclusion, I also take account of the lapse of time that has occurred since the incident which triggered the inquiry. More importantly, I am satisfied that the prohibition on the publication of the respondent's name (and other details relating to the name and location of the school) does not impact on the public function of preserving confidence in the teaching profession and in the regulatory regime under which the profession operates.

Supply and publication of decision.

30.— (1) A copy of every decision of the Director of the Workplace Relations Commission under this Part shall be given to the complainant and the respondent and every such decision shall be published on the internet in such form and manner as the Director General of the Workplace Relations Commission considers appropriate and a copy thereof made available for inspection at the office of the Director of the Workplace Relations Commission

I accept that the facts of this case are of an extremely private and sensitive nature. I conclude that the Judge has been engaged in active decision making on behalf of a Marriage Tribunal and he will continue to operate in that vein. I recall that the Supreme Court in Zalewski v An Adjudication Officer and WRC did not name the Decision maker. I wish to follow that best practice model in this case.

I also find that the Complainant is actively engaged in living his life with shared care of his daughter. I appreciate that he did not have strong views on the motion of anonymity at hearing. However, he did acknowledge that he did not wish to harm the Judges career. I find that the Complainant is best served by an anonymisation of the Parties in his central role of carer for his daughter, whose mother was participant and initiator for the annulment. I find that the Respondent is best served by an anonymisation of the Parties to protect his decision-making role in a very private and sensitive matter.

The Complainant submitted a written narrative within his April 2021 complaint to the WRC.

In this narrative, he outlined that he was actively living with a declared medical condition. He submitted that in the context on his responding to an application for a Religious Marriage annulment by his ex-wife, that he had been discriminated against on grounds of disability, where the first incident was cited as 27 January 2021 and the most recent date of discrimination as 20 April 2021. The Complainant demonstrated an element of confusion regarding the distinction between the identities of the Irish Human Rights and Equality Commission (IHREC) and Workplace Relations Commission (WRC).

He submitted that on February 20, 2021, he had notified the Marriage Tribunal, which had declared his marriage annulled that he was dissatisfied with the personalised comments in relation to his motivation towards the marriage. He stated that he had requested an apology but had not received this.

The Complainant confirmed that he had received an acknowledgement for this notification on February 23, 2021. He shared the February 20 letter with a number of interested parties.

He outlined a complete rejection of the body of the declaration of marriage annulment and pointed to a number of omissions which were injurious and unfair to him.

The Complainant wished to demonstrate that he was not the person depicted in the report he received. He took issue with a number of remarks threaded through the report, which he contended were of a discriminatory nature.  

The Complainant declined the WRC earlier in time offer of Mediation in the case and outlined his reasons for this in May 2021.

I did request that the Complainant consider refraining from further publication of this matter, pending the natural evolution of decision in the case.

The Hearing:

1 Preliminary Issue: (notification requirements)

The Complainant struggled with this matter and required clarification. He was clear that he had satisfied the statutory notification requirements in his letter to the Marriage Tribunal dated February 20, 2021, and was happy to submit a copy of that letter. However, the follow up was quite fragmented as the picture emerged of the confused identities between IHREC and WRC. It was notable that as a lay litigant, the complainant struggled on ventilating what occurred in relation to action taken under the Equal Status Act 2000 as opposed to action taken in appeal of the Declaration of nullity dated January 27, 2021. It is my honest belief that he would have benefitted from a representative to help him identify both separate strata in the case. I found he got lost on this point.

Preliminary Issue 2

The Complainant rejected the respondent arguments that the Marriage Tribunal did not constitute a Service under the Act.

He said when he had appeared before the Tribunal, it “felt like a service” He confirmed that he had not been charged a fee. However, he had engaged in 4 meetings of interviews and submission of evidence. It was a process where a Relative attended twice.

He said that “it felt like a service on its own right “and made the analogy of a “conveyor belt process”

Substantive issue:

The Complainant disputed that he was motivated by the outcome of the annulment. He said it had no bearing in the case. He submitted that the case was directed at the specifics of what was said about him and two statements which diminished his real contribution to and participation in the marriage.

He submitted that the Respondent had assumed that his disability caused him to stay at home. He expected some empathy and rejected being mis cast as a dependent.

He explained that the impact of his experience had turned him “off the Church “He confirmed that he had approached Rome but did not pro-offer a letter, which he referred as having been sent to Rome.

He sought an apology from the Respondent

Evidence under Oath:

The Complainant stated that he was under the impression that the WRC would provide representation. He confirmed that he was prepared to give his evidence as a lay litigant. He outlined the chronology of his relationship with his former wife from getting together in 2003, to getting married in 2008 to the Separation in 2015. He also outlined the chronology of his illness and the challenges and triumphs he had endured in the management of same.

The complainant submitted that he had prepared for marriage and outlined a number of sensitive and supervening events which had affected the Marriage. He shared some very private details of accusations he heard during the process which led to granting of the annulment, with which he did not agree.

He confirmed that he had responded to the application for annulment. He had not opposed the application. He had informed the Marriage Tribunal of his medical condition but had not requested any special accommodation. Both Father A and he wore masks as a protective measure during the interview process.

The Complainant contended that the Tribunal had not regarded his input and responses and he was insulted by the wording contained in the eventual declaration. He submitted that during the process he had been treated less favourably than a fully capable person.

 He contended that he was wrongly depicted and his motives for marriage unfairly reported. He submitted that the couple had had “some lovely years “and all he was seeking was an honest, unbiased report, where all the evidence was included. He disputed the reportage of his financial and domestic dependence.

During cross examination, the Complainant agreed that he had been afforded an extensive process within the annulment framework.

During clarifications, the Complainant listed all the bodies he had approached, where he had highlighted his dissatisfaction with the reportage of the annulment. I did request that the complainant observe the integrity of the WRC Institution while awaiting his decision. The complainant confirmed that the external bodies had all told him that they couldn’t advise him but told him to approach the WRC.

He clarified that he had not been represented at the year long annulment process, which he had found stressful. He confirmed that he had highlighted his stress levels but had not secured a response.

He confirmed that the offending statements in the reportage of the January 2021 declaration of annulment were the basis of his claim for discrimination.

In his closing remarks, the Complainant confirmed that the reportage attached to the declaration of nullity received in January 2021 had caused him weeks of unease. He contended that the reportage was “too personal “and had affected him greatly since then. He acknowledged Father As’ validation of his level of upset at hearing in this case. He was left with a sense that important issues which he had ventilated during the annulment process had not been acknowledged by the Tribunal. He maintained his claim that he had been discriminated against due to his disability.

The Respondent submitted a comprehensive written submission and denied the claim of Discrimination.

On May 10, 2021, Fr A for the Marriage Tribunal responded to the notification of the WRC complaint. He replied that as no employment relationship was in being between the complainant and the Tribunal, he suspected that the WRC was acting ultra vires. He clarified thatthe Tribunal had “rendered a decision “of nullity of an ecclesiastical sacrament on the status of marriage between two people. One of whom was the complainant. He clarified that the procedural framework was governed by Canon Law and the complainant had not been treated unfairly.

This was followed by notification of appearance by the Respondent Solicitors.

The claim concerns the annulment of the Complainants marriage, which was initiated by his ex-wife from whom he had already received a civil divorce.

Counsel for the Respondent outlined the background to the Complainants ex-wife application for a Church annulment as a separate and distinct process to the already granted civil divorce through the civil courts. She outlined the procedural framework surrounding the process of application for a church annulment under Canon Law, where, in this case, evidence had been heard at the Tribunal at First Instance.

The Respondent accepted that the Complainant possessed a disability.

The” Definitive Sentence” i.e., Annulment was granted by the Marriage Tribunal on 26 January 2021. The outcome was appealed onwards by the Complainant to the National Marriage Appeal Tribunal.

The Marriage Tribunal at first instance and latterly on appeal determined that the marriage was null on the grounds that both parties lacked a grave lack of judgement concerning the essential matrimonial rights and obligations Both outcomes were exhibited, albeit in highly redacted version.

1 Preliminary Issue: (notification requirements)

Counsel for the Respondent submitted that the ES1 pertaining to the Respondent in this case is out of time as it did not fulfil the 2-month window for notification. The Respondent accepted that the complainant could rely on the 20 February 2021 letter and the burden of proof rested on him to satisfy the notification requirements in that regard

The Marriage Tribunal issued the order of annulment on 27 January 2021; The Appeal outcome was dated 12 April 2021. The ES1 notification followed on 23 April 2021.

Counsel submitted that the Complainant may well had been mistaken and directed his complaint to IHREC. She argued that the claim must fail on these arguments.

2 Preliminary Issue (Not a Provision of Service for the Purposes of the Act)

Counsel argued that the Marriage Tribunal did not provide a service as defined in section 2(1) of the Act and sought supporting application for the Authority provided in ADJ 9751 in the case of John Sherlock and Caroline Sherlock and 7 minors v Bishop Martin Drennan, where the Adjudicator, following extensive deliberations concluded that:

“ …. I find therefore that the services sought by the complainant, namely access to a first holy communion mass is not a service as defined in the Act and I, therefore, find that the Respondent did not engage in prohibited conduct “

Counsel contended that the process of decision making on the validity of a marriage in Canon Law could not constitute a service for the purposes of the Act. Consideration must be given to the examples of services in the Act and if the Oireachtas intended the definition of service to include the provision of religious services, inclusive of religious tribunals, it would have stated so.

The Tribunal was not providing a service within the meaning of the Act.

Substantive Case Response:

Counsel submitted that the Complainant was motivated in his claim taken before the WRC by an unhappiness with the declaration of annulment. This had amounted to an advancement of appeal to the National Tribunal which upheld the declaration of annulment in April 2021 the Complainant had not advanced this further forward to the Head of the Church, Papa Francesco in Rome.

Counsel explained the composition of the Marriage Tribunal, led by a Catholic Priest. She explained the process surrounding annulment and clarified that the process was not open to Judicial Review.

The WRC did not hold jurisdiction to make a decision about 2 lines in the declaration at first instance, in which the complainant had expressed dissatisfaction. The Complainant had erred in law.

Evidence of Father A by oath.

Father A outlined the process surrounding what occurs once a Petitioner applies for an Annulment. The parties appear on separate days. He emphasised that the process was probative and highest weighting was given to sworn evidence. The process is overseen by the Defender of the Bond and two other members. The decision is arrived by majority and provision for appeal follows within one month.

Father confirmed that he was sorry to see the complainant so upset, but the objective of the Tribunal was to do justice to both sides.

In the instant case, grounds were established by the Tribunal and an annulment was declared

Father A that Rome had the power to re-examine the process.

He submitted that the Tribunal had not furnished a response to the ES1 as he contended, they had not engaged in wrongdoing. He said that he was sorry for the hurt caused to the complainant but contended with conviction that the Complainant had been afforded his procedural rights.

He confirmed that he carried a “great admiration “for the life lived by the complainant, but he had not discriminated against him in finding in favour of the Petitioners application.

During cross examination, the complainant, emotionally directed a request for what evidence the Tribunal relied on to depict him in a diminished role?

Father A confirmed that there was a greater probative value in sworn evidence. Father A disputed disregarding the complainants’ responses and told him “I respected you “  

Father A clarified that the Marriage Tribunal did not operate a Policy on Discrimination

In her closing remarks, Counsel for the Respondent took some time to make a distinction between what she termed “legal “and “Personal “response to the annulment at the centre of this case.

She repeated the earlier arguments on time limits, that the Marriage Tribunal was not providing a service, Sherlock, applied.

Counsel contended that a Policy on Discrimination was not a valid requirement.

She summarised the variety of civil measures applicable to an unsuccessful marriage on a day one basis i.e. (no fault divorce) The process of religious nullity, ab initio, she said travelled a different path

Counsel contended with respect to the complainant that his declared unhappiness on annulment of his marriage must be viewed as “colouring his claim “on a very personal footing.

I have been requested to reach a decision in relation to this complaint which has centred on the complainant’s participation in the Catholic religion annulment process and in particular his dissatisfaction directed towards a number of the findings and conclusions incorporated in the “Definitive Sentence” that is the confirmation of annulment raised on 26 January 2021 and published for the interested parties on 27 January 2021.

The Complainant has claimed that he experienced discrimination by the respondent on grounds of his disability, in relation to his long-term medical condition, in terms of section 3(2)(g) of the Act in the provision of the service of Catholic annulment and contrary to section 5 of the Equal Status Act.

This claim has been opposed on preliminary and substantive grounds by the Respondent.

In arriving at my decision in this case, I have had regard for all oral and written submissions shared with me. I have also reflected on the oral evidence adduced at hearing in addition to the letter submitted as that of February 20, 2021.

At the conclusion of the hearing, I had made formal request for sight of the February 20, 2021, letter relied on by the complainant. I sought this document to satisfy myself as Adjudicator, that the notification requirements set down in Section 21 of the Equal Status Act, 2000 had been met. The Respondent came to hearing stating that this letter was not in their possession. The Respondent balanced that statement by submitting that the complainant could rely on that document, providing he satisfied the notification requirements.

 It was also their case that the ES1 served by the Complainant did not satisfy the notification requirements provided in Section 21 of the Equal Status Act. This has become an important issue for me to resolve.

The Complainant endeavoured to submit a number of documents in post hearing. I had not canvassed these documents and wrote to the parties on 19 July 2022, the day following the hearing and mentioned.

At the conclusion of this hearing, I allowed you two days to produce a sole document referred to as a letter of February 20, 2021, in Section 11 of the Respondent booklet.

I explained the significance of my seeking this document and referred to notification requirements under section 20 of the Equal Status Acts 2000.

I am not in a position to accept the 9 emails you sent to PRU this morning.

Instead, I am prepared to extend the time allowed to you to furnish your response to my pursuance of the letter of February 20, 2021, to Friday, July 22 next at 5pm.

I require this response to be incorporated in one email or one letter, please.

The Complainant submitted an undated letter on July 20, 2022, which was promptly shared with the Respondent on the same day but did not generate a response. This letter was accompanied by a note which confirmed that the Complainant was clear that he had posted this letter directly to the Tribunal. He added that he had received an acknowledgement.

This letter appeared at first glance, to at least to reflect the document referred to in the complainants’ own submissions and in his evidence. However, I was troubled by the references made to versions of the same letter which were shared with the media and other parties at that time.

My jurisdiction in this case is solely in relation to any reported contravention of the Equal Status Act. I appreciate that the Complainant is a lay litigant and welcome at hearing. However, I am mindful that the Complainant may have chosen to act on advice from parties not present at hearing and without a background in equality legislation or representing parties before the WRC. I note that the Complainant did not advance along the pathway of last instance appeal open to him via Papa Francesco, the head of the Catholic Church in Rome.

I would have preferred if the complainant had been more careful in his preparation of the notification papers. What I mean by that statement is that all correspondence should be dated and signed as a true record for investigative purposes. All documents should be authored specific to the intention of the reader and the law being applied.

In the instant case, it seems to me, at least, that the contents of the February 20, 2021, letter directed at the Marriage Tribunal has two purposes, one to appeal the very decision and one to anchor the notification requirements set down in Section 21 of the Equal Status Act. Their conflation in a unitary document was unwise.

I must now decide whether the letter submitted in response to my request for the letter of February 20, 2021, is at one with the statutory notification requirements under the Act.?

Preliminary Issue 1 (Notification Requirements, Section 21, Equal Status Act, 2000.

The Adjudication Service of the WRC is the independent body set up by law to investigate or mediate complaints of discrimination. We remain neutral and treat all complaints fairly and professionally and as quickly as we can

This is the preamble and mission statement in the Guide to the Equal Status Act for parties, September 2017.

It goes on to describe that the Equal Status Acts “make it unlawful to discriminate when providing goods and services. All services that are generally available to the public, whether provided by the state or in the private sector, are covered “, including access to and the use of any place, commercial, entertainment, cultural, transport, services provided by clubs and professional or trade services.

Section 21 of the Act sets out the course of action required by any complainant who is preparing to submit a complaint to the WRC under the Equal Status Acts.

Prior to submitting a complaint to the WRC under this legislation, the Complainant is obliged to notify the service provider in writing of their intention to seek redress under the Equal Status Act within 2 months of the incident in question.

Both parties accept that the incident in question in this case was the circulation of the Declaration of nullity, from where the Complainant took issue with the remarks made by the Tribunal.

Section 21 (2) Before seeking redress under this section, the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act,

and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court], question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

As Judy Walsh in her book Equal Status Acts 2000-2011 at chapter 12 pp330-331 states: A complaint that is referred in another written format will still be valid since the forms are administrative rather than statutory in nature

 A Female Employee v A Building Products Company DEC-E2007-036, refers.

I am clear that the complainant was quite shocked when he received the declaration of nullification of the catholic marriage dated 27 January 2021.I can understand and appreciate that this may well be a once in a lifetime experience for which it is difficult to prepare a response.

 I understand that he discussed   this widely both privately and publicly at that time. At the root of this reaction was that he disagreed with some of the Tribunal remarks made in relation to his participation in the marriage. He believed them to be discriminatory in nature and not reflective of the evidence he had presented at the Marriage Tribunal. He felt wronged.

His next step seems to have been in relation to contacting IHREC believing them to be WRC in addition to other bodies. He also appears to have contacted the Tribunal directly which led to an appeal of the “Declaration of nullity “being heard by a National Tribunal in April 2021. The outcome of nullity ab initio was upheld. An end stage appeal available to Pope Francis in Rome was not activated.

My interest at this point centres squarely on whether the complainant has satisfied the notification requirements to the service provider in accordance with the statutory definitions. To that end, I have revisited the entire file to check the chronology. The Complainant has referenced two communications back to the respondent post receipt of the declaration of nullity. The Respondent position centres on that they did not retain the letter referred to as February 20, 2021.

I agree with Counsel for the Respondent that the ES1 submitted does not meet the statutory requirements set down in Section 21(2)(a). The prohibited conduct relied on in this case centres on the 27 January 2021 Declaration of catholic nullity / The ES1 form presented in montage is dated 23 April 2021.

Within this ES1 montage, I was directed by the Complainant to the letter from the Tribunal Assistant, not a core member of the decision-making body, dated 22 February 2021, which stated:

“Your submission and letter have been received and its contents noted. It has been sent to the National Marriage Appeal Tribunal “

This confirms for me that the Respondent moved the letter of February 20, 2021, onwards to appeal, but was silent on references made to the Equal Status Acts.

I return now to the requested copy of the February 20, 2021, letter to the Marriage Tribunal.

I have read the document sent to me post hearing, which is undated and unsigned by the Complainant. I am also to consider that abbreviated copies seem to have been made for the media and other interested parties.

On a careful reading of the February 20, 2021, letter referenced during the hearing by both parties and presented to me post hearing, I have identified that the nature of the allegations of discrimination on grounds of disability were raised.

I also noted that the complainant also referred to seeking to make a complaint on behalf of all peoplewith a disability. This issue of the collective has previously been decided in the Equality Tribunal case of Gloria (Ireland) Lesbian and Gay Choir v Cork International Choral Festival ltd DEC -S2008-078. the Equality Officer held that the choir was an unincorporated association of persons, which did not have locus standi

While the term person is usually interpreted broadly to include corporate and unincorporated bodies, I am satisfied that a contrary intention is evident from the Equal Status Acts ………. I am therefore of the view that the legislative intent in this regard was to protect individuals and not bodies from discrimination

The complaint before me is therefore on behalf of one complainant and I proceed on that basis.

 I note that the Respondent received a copy of this letter from WRC and did not take issue with the version presented to me.

I have a number of reservations surrounding the differential in font at the conclusion of the letter. However, I am satisfied that the Complainant can rely on this as the statutory notification which satisfies the statutory requirement set down in Section 21 (2) (a)

He has notified the Respondent of the nature of the allegation and has stated his intention to seek redress within the Equal Status Act, 2000 if not satisfied with the respondent response. It is regrettable that the message was interspersed with the statement of intention aimed at appealing the declaration of nullity to a higher body within the catholic church.

The date of notification was February 20, 2021, and I am satisfied that at least one month elapsed prior to referral to WRC on 24 April 2021. (Section 21(4) applied)

I find that Preliminary Issue No 1 favours the Complainant. He has complied with the statutory notification requirements provided in Section 21 of the Act.

Preliminary Issue 2 (Is the Ecclesiastical Marriage Tribunal a Service in accordance with Section 2 of the Equal Status Act, 2000?

The Respondent has argued that the Marriage Tribunal has submitted that the Marriage Tribunal does not constitute a service as defined in Section 2(1) of the Equal Status Act 2000. Counsel relied on the precedent reached in the Sherlock cases and the distinction between Canon Law and the Equal Status Act, 2000. Counsel went further when she outlined that the Marriage Tribunal was not open to the civil remedy of judicial review procedures.

This was disputed by the Complainant, who argued that his experience as a participant of the application for catholic nullity caused him to reflect that it “felt like a service “.  

The complaint before me arose from a claim of discrimination in the provision of goods and services. I must consider this preliminary issue very carefully. In order to proceed with my investigation under Section 25 of the Act, I must be satisfied that the Marriage Tribunal provides a service in accordance with the legal definition in Section 2(1) of the Act.

I have found it useful for illustrative purposes to include the pre-amble to the Remedial Legislation known as the Equal Status Act, 2000, which serves as a Mission Statement.

AN ACT TO PROMOTE EQUALITY AND PROHIBIT TYPES OF DISCRIMINATION, HARASSMENT AND RELATED BEHAVIOUR IN CONNECTION WITH THE PROVISION OF SERVICES, PROPERTY AND OTHER OPPORTUNITIES TO WHICH THE PUBLIC GENERALLY OR A SECTION OF THE PUBLIC HAS ACCESS, TO PROVIDE FOR INVESTIGATING AND REMEDYING CERTAIN DISCRIMINATION AND OTHER UNLAWFUL ACTIVITIES, TO PROVIDE FOR THE ADMINISTRATION BY THE EQUALITY AUTHORITY OF VARIOUS MATTERS PERTAINING TO THIS ACT, TO AMEND THE EMPLOYMENT EQUALITY ACT, 1998, IN RELATION THERETO AND IN CERTAIN OTHER RESPECTS AND TO PROVIDE FOR RELATED MATTERS. [26th April 2000]

Section 2 of the Act defines a service for that purpose.

“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 the use of any place,

(b) facilities for—

(i) banking, insurance, grants, loans, credit or financing,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

(d) a professional or trade service,

but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies;

Section 4 of the Act covers claims of discrimination on grounds of disability.

Discrimination on ground of disability.

4.— (1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

“Provider of a service” means—

(a) the person disposing of goods in respect of which section 5(1) applies,

(b) the person responsible for providing a service in respect of which section 5(1) applies,

(c) the person disposing of any estate or interest in premises in respect of which section 6(1)(a) applies,

(d) the person responsible for the provision of accommodation or any related services or amenities in respect of which section 6(1)(c) applies,

(e) an educational establishment within the meaning of subsection (1) of section 7 in relation to any of the matters referred to in subsection (2) of that section, or

(f) a club within the meaning of section 8(1) in respect of admission to membership or a service offered to its members,

as the case may be, and “service” shall be construed accordingly.

Section 5 of the Act sets down the prohibition of discrimination in the provision of goods and services on the 10 grounds under the Act.

Disposal of goods and provision of services.

5.— (1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.

There are notable exemptions from provisions of section 5 in terms of:

Gender 5(2) (c) for example, in cosmetic services

Religion 5(2) (e), for example, a person may be treated differently in relation to religious goods and services where it is acceptable to facilitate people to observe religious occasions such as Christmas, Ramadan or Passover or to provide special places for prayer.

Religion and gender in terms of institutions which provide religious training to ministers od a particular religion may admit students of only one gender or religious belief

Age

Sporting events

Insurance, drama, entertainment, disposal of goods by will or gift, age requirement for adoptive of fostering purposes

This question of “provision of service” has prompted me to seek to understand just where the process or procedure operated by the Ecclesiastical Marriage Tribunal is comprehended by jurisdiction permitted within the Equal Status Act, if at all.

In seeking to reach in decision in this key preliminary issue, I seek to refer to the Preamble of the Irish Constitution, operational from 1937 as background. This contains a high regard and deference to the Most Holy Trinity.

This evolution of this Constitution in terms of Family Law from 1937. is of immediate note in this case.

While Article 41 and 42of the Constitution has always emphasised the special position of the family based on marriage, the statutory framework of family law has changed considerably since 1937 through the constitutional amendment and introduction of Judicial separation, Divorce and reduction in waiting period for access to divorce, same sex marriages and dissolution of civil partnerships (Source Jennifer O Brien, Solicitor, Questions and Answers: Overview of Family Law in Ireland ,2020)

Judicial Separation and Family Law Reform Act 1989 (1989 Act). Family Law Act 1995 (1995 Act). Family Law (Divorce) Act 1996 (1996 Act). Family Act 2019.

Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (2010 Act). Family Law (Maintenance of Spouses and Children) Act 1976.

The Guardianship of Infants Act, 1964 as amended by the 2015 Act (1964 Act).

It is important in the instant case to capture the fact that the complainant arrives in this case having already secured a Civil Divorce, which in his own words did not generate any residual challenge at that time. There was no application for a civil nullity, which in Ms O’ Brien’s analysis of chronology has been overtaken by applications for a civil divorce in Ireland.

The Marriage Tribunal has not incorporated a consideration of the pre-existing state divorce but all parties at hearing had a full awareness of this “first in time “development.  

In my reading for this case, I found a very informative Law Report on Civil Nullity in the case MK v F Mc C [1982] ILRM 277

The case is very interesting in terms of the order of events. The facts surrounded a marriage of two young people in 1972. The marriage was unsuccessful. Ultimately both parties had been granted a religious nullity (first in time) on parental duress, through a circuitous route which involved all three Marriage Tribunals of the Catholic church.

 I found the consideration of civil and religious nullity by Judge O Hanlon very insightful in the social space, which preceded Civil Divorce.  It seems to me that there was some persuasive impact from the interaction between the High Court and the influence of the Marriage Law of 1870

In considering whether, in the circumstances of the present case, I should adopt the more stringent approach to the law of duress as applied to nullity cases which is illustrated by the English and American cases, and by some of the comments of Haugh J in Griffith v Griffith, or the broader application of principles of duress evident in the decisions of Murnaghan J and Finlay P, I have regard to the fact that the High Court in exercising its jurisdiction under the Matrimonial Causes and Marriage Law (Ireland) Amendment Act, 1870, s. 13 is to proceed and act and give relief on principles and rules which in the opinion of the said court, shall be as nearly as may be conformable to the principles and rules which the ecclesiastical courts of Ireland have heretofore acted on and given relief.

The fact that the ecclesiastical courts in the present case concluded although obviously not without some difficulty that the facts and circumstances were sufficient to warrant the grant of a decree of nullity, is some indication that duress as understood under canon law may embrace, not merely violence or threats of violence to the person, but also moral pressures of the type illustrated by the evidence given in the present case. This is referred to also in a comprehensive survey of nullity cases by A. H. Manchester, MA (Oxon). in the Modern Law Review, Vol 29 p. 623, (Marriage or Prison: The Case of the Reluctant Bridegroom), at 626 n. 18:

Both parties were represented at hearing in this case and the facts which led to a finding of parental duress made for very sad reading.

The case before me centres on the circumstances surrounding the pursuance of a Catholic nullity (Religious nullity) by the complainant’s ex-wife and not a Civil nullity.

It has been important for me in my exploration of whether the Marriage Tribunal provides a service to understand the difference between a civil divorce, governed by statute and a catholic decree of nullity, which is governed by Canon Law and administered by the three Tribunals.

I found that distinction in 

1. the identification of fault and 2. date of operation.

A Civil divorce is granted based on living apart for a set period, no chance of reconciliation and proper provision made for the spouse and children or other prescribed persons. It is granted on a no-fault basis and operates on a “going forward “and “watershed “basis. Jurisdiction lies in the Circuit Court and the High Court.

The Catholic nullity is granted by means of a “Definitive Sentence “under Canon Law 1672 by a Regional Marriage Tribunal, sitting as an Ecclesiastical Tribunal, with right of appeal to a National Tribunal and a last instance appeal to the Pope in Rome.ie the Third Tribunal.

In this case, the Marriage Tribunal found that both parties to the marriage “suffered from a grave lack of discretion of judgement concerning the essential matrimonial rights and obligations to be mutually given and accepted “For me, this reads as if fault was assigned to both parties.

The marriage was declared null and void.

That means that the marriage was rendered invalid overall. This is a profound decision, which I can appreciate may well need to be followed by a period of profound reflection.

The Complainant in this case was very conflicted by the “Definitive Sentence”. On one level, he confirmed that he was not opposed to the “decision outcome “of annulment, yet his next steps followed in a parallel process of direct appeal within Canon law and a complaint of discrimination submitted within the Equal Status Acts in terms of his rejection of the remarks contained in that

“Definitive sentence”.

In the instant case, the last instance appeal available to the Third Tribunal in Rome was not exercised. The Complainant told me that he had written to Rome, but he did not exhibit that correspondence when requested.

It is the Complainant case that the Marriage Tribunal discriminated against him in the provision of service on grounds of his disability. The Respondent has been consistently strong on the submission that the claim of discrimination is denied and the Equal Status Act, 2000 does not recognise the Marriage Tribunal as a service.

I have spent an extended period considering both these divergent views and I now wish to share my findings in that regard.

Firstly, the Respondent has placed Sherlock forward as an authority in support of the maxim that “the celebration of Mass is not a service to its participants “and thus not at one with the examples of service provided in the Act. This decision is accompanied by a rider that had “the Oireachtas intended to apply the principle of equal treatment, enshrined in the Act, to all these situations, it would have said so in express terms “This referred to projected examples given of marriage for divorced people, or same sex couples.

The facts of Sherlock are distinguished from the facts of the instant case. Sherlock addressed a preliminary argument on a claim for discrimination taken on three specific grounds, taken when “attending or attempting to attend a first holy communion mass “

In the instant case, the Complainant did not raise any issue about accessing the procedure surrounding the nullification of his marriage. It was not disputed that the complainant had shared details of his disability directly with the Respondent as he confirmed that his stress levels were raised throughout the process. However, the complainant has not submitted that he was denied service at any time. His case centres on the remarks made in the eventual record of the decision and these run to the centre of the case.

The Complainant confirmed that he was not represented through his response to the application for catholic nullity. It may well have assisted him if he had been.

 I cannot find an analogy with Sherlock on this occasion. I note the wording in the O’Hanlon case, while relevant to Sherlock, is reflective and reverential to the preamble of the Constitution in the days preceding the multitude of Constitution amendments in the field of Family Law.

I have already referred to and set out the changed statutory framework surrounding Irish family law since 1937. I refer to this as the complainant has introduced himself to the hearing as a Divorced person.  I will now take some time to consider whether the Marriage Tribunal referred to in this case can be found to be operating a service within the remedial legislation of the Equal Status Act, 2000.?

Section 2(1) of the Act

Disposal of goods and provision of services.

5.— (1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.

“person”

Is set down in section 2 of the Act as including an organisation, public body or other entity

as that term is used in or in relation to any provision of this Act that prohibits that person from discriminating or from committing any other act or that requires a person to comply with a provision of this Act or regulations made under it, includes an organisation, public body or other entity.

I found some ambiguity in this in the face of the Marriage Tribunal, whose office and function predate the Equal Status Act 2000. I could not readily associate the Marriage Tribunal as constituting a service or not, as an organisation, public body or other entity. I had to look much further.

I recalled Counsels submissions at hearing on Canon Law as being separate and distinct from the mechanism of Judicial Review of a Public Body. I accept the clarity in that statement.

The Higher Courts have referred to interpretation and development of Canon law in Marriage Tribunals, MK, refers, but have not applied Canon Law, deemed private law.

Counsel remarked that some publications had referenced Islamic severance of marriages. I have read the very interesting “Preferring the stranger, Towards an Irish approach to Muslim Divorce Practice by Mairead Enright Irish Jurist, 2013 49(1) 65-97.”

This article reflects on a consideration of marital breakdown in the Muslim religion in Ireland and focuses on the parameters of the Sharia Councils.

Enright emphasises that the current Irish nullity in religion does not address property rights. She poses some consideration on a possible overlap with Gender Equality Legislation and rights of the parties in the face of marital breakdown. She emphasises that the State has not relinquished an interest in the inter play between civil and religious nullity: 

Religious divorces or equivalent proceedings conducted in Ireland do not have legal force. Religious courts do not have jurisdiction in the sense enjoyed by State courts. The State does not recognise religious law as law, unless it is transposed into legislation. So, while the decisions of sharia councils have no effect in law, they may dissolve marriages for religious purposes. This difference in treatment may generate so-called “limping marriages”, which are dead for religious purposes but continue to subsist in law. The notion of a non-State religious tribunal which considers the status of individual marriages is not entirely alien to Irish law. Consider that the marriage tribunals of the Roman catholic church operate on Irish soil without State intervention. There are four regional First Instance Tribunals in Ireland, which were established by the Irish Episcopal Conference in March 1975. The tribunals are empowered to call witnesses, make findings of fact and, ultimately, annul or dissolve marriages on the limited grounds provided for at canon law. Between them, they have a significant case load. The Irish marriage tribunals granted 517 decrees of nullity in 2007 and 710 in 2006 and, presumably, the number of applications for annulment is higher than the number granted.

This article originated in 2013, and followed another academic article of 2008 by Mary Fitzgerald on whether Sharia law would work in Ireland? In that article, two Muslim women, living in Ireland had obtained religious divorces with the assistance of the London based Sharia Council. There is no centralised religious authority which makes policy or law for all Irish Muslims. There was no definitive outcome in either article on whether Sharia law would work in Ireland.

I return to the concept of Marriage Tribunal and whether it constitutes a service under the Act?  As the Parties can appreciate thus far, I have struggled with the identification of the Marriage Tribunal as providing a service in accordance with section 2 of the Act. On one level, I can appreciate that the Marriage Tribunal operates within a soft and private law with no visible overlap to the statutory framework of family law. On the other a complainant who takes a case under Equal Status remedial legislation is entitled to be heard both at preliminary and substantive basis. It is vital that the question of the identification of service or not is resolved.

The Constitution as it stands today generates enormous individual human rights. The United Nations Convention on the Rights of Person with a Disability, 2010 has had an overarching influence in recent case law decision making in this jurisdiction in the Supreme Court case of Daly v Nano Nagle [2019] IESC 63. The EU Directives on Race, Gender and Goods and Services are also reflective of the changing law in this area.

 I have identified an ambiguity in the definition of service under the Equal Status Act against the facts of this case. I move now to statutory interpretation.

The Interpretation Act, 2005 provides some guidance in terms of construing a provision of the Act. I have found that the Respondent is not entitled to rely on an exemption contained in section 5(2) of the Act.

I have identified an ambiguity on the definition of service under both sections 2 and 5 of the Act vis a vis the function of a Marriage Tribunal. This has prompted me to consider the plain intention of the Oireachtas when the Act commenced. I have also had regard for the provisions of Section 6 in terms of changing circumstances.

5. Construing ambiguous or obscure provisions, etc.

(1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)—

(a) that is obscure or ambiguous, or

(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of—

(i) in the case of an Act to which paragraph (a) of the definition of “Act” in section 2 (1) relates, the Oireachtas, or

(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,

the provision shall be given a construction that reflects the plain intention of the Oireachtas, or parliament concerned where that intention can be ascertained from the Act as a whole.

(2) In construing a provision of a statutory instrument (other than a provision that relates to the imposition of a penal or other sanction)—

(a) that is obscure or ambiguous, or

(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of the instrument as a whole in the context of the enactment (including the Act) under which it was made,

the provision shall be given a construction that reflects the plain intention of the maker of the instrument where that intention can be ascertained from the instrument as a whole in the context of that enactment.

6. Construing provisions in changing circumstances

In construing a provision of any Act or statutory instrument, a court may make allowances for any changes in the law, social conditions, technology, the meaning of words used in that Act or statutory instrument and other relevant matters, which have occurred since the date of the passing of that Act or the making of that statutory instrument, but only in so far as its text, purpose and context permit.

I now return to the Equal Status Act 2000 as a remedial statute. It is my opinion that the State intended to prove a remedy to each citizen in the case of a proven discrimination.

As Judy Walsh, Equal Status Acts 2000-2011 outlines in the Overview:

This legislation does not provide an automatic right to obtain a particular item or service but rather that provision of goods and services is “cleared of bias “against members of social groupings.

 This law is clear and unambiguous in the detail outlined on exemptions permitted in section 5(2).

The Marriage Tribunal is not referenced or delineated amongst these exemptions. Of course, it would have helped me greatly to have a strict definition of service. I now must interpret whether a Marriage Tribunal constitutes a service under the Act. I have applied a purposive interpretation.

Equality Authority v Portmarnock Golf Club and ors [2010] 1 ILRM 237

I have found that aspects of the Marriage Tribunal constitute a service as an organisation and entity available to a certain cohort of the public.

“person”, as that term is used in or in relation to any provision of this Act that prohibits that person from discriminating or from committing any other act or that requires a person to comply with a provision of this Act or regulations made under it, includes an organisation, public body or other entity.

I have found that the Marriage Tribunal operates a service and is comprehended by the Equal Status Act in the provision of that service, in part.

  Service of facility …… of any nature which is available to the public generally or a section of the public,

I would now like to set out my supporting reasons for this. I have already confirmed that I did not find the set of circumstances in Sherlock, on point with the facts of the instant case.

I found an important consideration on the parameters of service in an Equality Tribunal case of Mike Fogarty and Employment Appeals Tribunal DEC S2009-087

This case involved a complaint of discrimination raised by a deaf man while pursuing his case before the former EAT. In that case, the complainant said that he understood his representative by exchanging notes, he had no opportunity to “tell the respondents the reason his complaint was submitted outside the statutory time limits “No request had been made for a Sign Language Interpreter. Submissions were made that the EAT constituted a service in accordance with the Equal Status Act.

The Respondent sought that the case be dismissed in accordance with section 22 of the Act as a second attempt to ventilate the case. On that occasion, the Respondent accepted that the definition of service encompassed “some limited aspects of its functions “the duty to adjudicate remained outside of that scope.

The then Equality Officer made a comprehensive examination of the statutory function of the EAT. Consideration was given to another Equal Status case of Donovan v Donnellan DEC S2001-011, which concluded that the investigation and the prosecution of crime by a member of the gardai does not constitute the provision of a service or a facility to the public.

Ms Duffy then pointed to the dichotomy in the provision of service as arose in the UK case of Farah v Commissioner of Police of the Metropolis [1997] 2 WLR 824

“…… differentiated between the duty of the Gardai to investigate and prosecute the commission of a crime and other functions of a Garda Siochana such as witnessing a passport application, giving directions or taking a complaint “

With reference to O’Donovan, she added

“… the legislation succeeded in excluding from the scope of the Act the controlling duties of the Gardai, including those of the investigation and the prosecution of crime, while at the same time legislating that the service aspects of policing come within its scope “

A dichotomy in the identification of provision of service has emerged.

Ms Duffy went on the consider the persuasive authority from an Australian High Court case of

IW v City of Perth and ors [1997] 146 ALR 696

This case involved an appeal of a public body refusal to grant planning permission in support of a HIV designated support centre

The Equality Officer in referring to the majority decision which referred “to the remedial purpose of the statute and stated that while a court or tribunal cannot give a statutory provision a meaning which is unreasonable or unnatural “

“If the term service read in the context of the Act and its object, is capable of applying to an activity, a court or tribunal should hold that that activity is a service for the purposes of the Act.”

The Court considered the following points:

(a)    whether the City Council provided a service while dealing with the application for approval; (b) whether the association rather than the complainant was the aggrieved person for the purposes of the statute; (c) whether the Council’s decision was tainted with bias; and (d) whether there was a sufficient comparator.

(b)    The Court ruled that the Equal Opportunity Act did not apply to the Council as such legislation is limited to the providing of services, the definition of which does not include a refusal to exercise the statutory discretion awarded to the Council to approve the use of premises. It therefore held that the Council of the City of Perth did not discriminate against the complainant. It also held that under the Act the "impairment" was applicable to individuals and not artificial legal personalities.

Fogarty then outlined the dichotomy between the administrative functions of the statutory body of the EAT.

1 Reception, processing, the organising and hearing of complaints.

These were identified as a service or a facility under the Equal status Act available to the public or section of the public

She then distinguished this from the adjudication and decision-making function of the EAT, which she declared was not a service or facility as the EAT exercised a quasi-judicial decision-making function not subject to the Equal Status Act.

I have also had regard for the persuasive value of the Victorian Civil and Administrative Tribunal, Tassone v Hickey [2001] VCAT 47

The facts of this case were interesting as they included a consideration of service in the context of equality legislation operational in the Australian jurisdiction.

In the named Parish, the festival of st Joseph had been hosted from 1992-1997 until Fr Hickey, as Parish Priest withdrew consent. The complainants attributed this withdrawal to their religious activity and made a complaint of discrimination.

The arguments advanced by the respondent in that case mirrored Sherlock, in part

 First, Monsignor Hickey's conduct, even if attribute-based, was incapable of constituting a breach of the Act; it was incapable of constituting services within the meaning of s.42 of the Equal Opportunity Act. Second, even if it is capable of constituting services, it is incapable of constituting direct discrimination under that Act. Third, even if it falls under s.42 and is capable of constituting direct discrimination, the conduct is not prohibited because it falls under a number of the exception provisions in the Equal Opportunity Act. These are the three bases on which the respondent argues that the complaint should be dismissed.

It is clear from the majority judgments in that case (IW v City of Perth) that "services" has its ordinary meaning and is capable of covering both tangible and intangible benefits. The court indicates that the inclusions in the definition in the West Australian Act did not limit that ordinary meaning.

Ms Mc Kenzie, sitting as Decision maker ultimately dismissed the case, but not before engaging an interesting balancing exercise on the topic of whether spiritual services is comprehended with the legal definition of services?

She found

“

My conclusion is that the complaints are not curable by amendment and should be dismissed under s.75 of the VCAT Act. I would add one final comment. On the material before me, the disagreement which has arisen between the complainants and some other parishioners and Monsignor Hickey has caused distress and disharmony. It would seem far better for all that this matter be resolved through private discussion or mediation rather than through the public forum of this Tribunal.”

I have set out the matters considered by me from both sides very strong arguments in this case.

I must conclude that the Interpretation Act, 2005 at SS 5-6 directs me to promote the purpose of the objective of the Equal Status Act 2000-2011 is to prohibit discrimination on all 10 grounds.

I find that I must give a wide and fair definition to service for this purpose, and I follow Fogarty in that regard. I find that the Marriage Tribunal must be capable of being identified as a service for the benefit (tangible and in tangible) it provides to the consumers.

However, this service is not without boundaries and a dichotomy and boundary wall has followed.

I can accept that the Marriage Tribunal can safely be viewed as providing a service in terms of its administrative function in access to a building or organising a hearing, receiving complaints and organising facilities for hearing, Sofiya Kalinova v PTSB PLC [2021] ADJ 26607 and Fogarty applies.

I find that the definition of service is not limited to secular or business, or statutory activities and the Marriage Tribunal operates as a service in accordance with Ss 2 and 5 of the Equal   Status Act as both an Organisation and an entity not restricted by exemption.

However, the decision making / Adjudicative function of the Marriage Tribunal is outside of that definition. It is not a service which is available to the public in accordance with either Section 2 or 5. While I accept that the Marriage Tribunal does not exercise a quasi-judicial decision-making function subject to Judicial review, I find that it is nonetheless operating an important Adjudicative function built on discretionary decision making, which places it outside of the parameters of “service “

I find that Marriage Tribunal operates as a dichotomous and boundary service for the purposes of the Equal Status Act, 2000.

In conclusion, I can investigate the instant complaint through the first administrative window but not through the secondary decision-making Adjudicative function.

Therefore, I find that any aspect of the complaint which comprehends the decision-making function of the respondent is misconceived in accordance with Section 22 of the Act and stands dismissed.

Dismissal of claims.

22.— (1) The Director of the Workplace Relations Commission may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.

Substantive case:

My remaining authority in this case is to consider the claim made for discrimination on grounds of disability through the administrative service of the Marriage Tribunal.

Section 38 A of the Act puts an onus, that is a burden of proof on the complainant to provide evidence from which it may be presumed that prohibited conduct occurred.

A prima facie case of direct discrimination establishes three things

1 complainant is covered by the relevant ground

2 there was specific treatment by the respondent

3 the treatment was less favourable than the treatment that was or would have been afforded to another person in similar circumstances.

This brings me to the final aspect of my findings.

I accept that the complainant is covered by the relevant ground of disability. However, I do not have jurisdiction to make a finding on the core aspect of his complaint that remarks made in the report of decision on religious nullity constituted discrimination.

The case has fallen on that step.

The Complainant has assured me that he did not experience less favourable treatment in terms of the administrative function of the Marriage Tribunal but rather in the “adjudicative stage “He was clear that he was not refused the service or denied reasonable accommodation, he participated fully in the process, which included his reference to experiencing stress as a result. This was a normal reaction in a challenging environment. He did not have difficulty in the application and response process, in accessing the building or explaining his case at the 4 annulment hearings.

The Complainant has not made out a prima facie case of discrimination and he cannot succeed.

I would take a leaf from Ms Mc Kenzie’s judgement in Tassone and echo her views on that being a private matter worthy of private discussion. I believe this has merit in the instant case, where both parties are hurt and sad by the turn of events as both parties honestly believed that they approached the work of the Marriage Tribunal with dignity and mutual respect.

I understand and appreciate that the complainant was devastated on reading the copy of the declaration of nullity. However, I have found that he got somewhat lost in the residual emotion which caused him to omit to exercise an appeal to the third Tribunal in Rome which may have assisted him. I am hopeful that the complainant will reflect on Fathers As statement of candour made at hearing.

I know that nothing I say here will negate the complainants hurt or disappointment at the life event of nullity. However, I have endeavoured to apply the law as I have interpreted it to the facts presented by both parties.

I thank the parties for their candour and honesty. I cannot put the matter further.

The Complainant has not raised a prima facie case of discrimination in accordance with the administrative operation of the Marriage Tribunal.

The aspect of the claim which refers to the Adjudicative function of the Marriage Tribunal stands dismissed as misconceived.

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

The Complainant has satisfied the statutory notification requirements as set down in section 21 of the Act.

The Complainant has not raised a prima facie case of discrimination on grounds of disability in accordance with the administrative operation of the Marriage Tribunal.

The aspect of the claim which refers to the Adjudicative function of the Marriage Tribunal stands dismissed as misconceived.

Complaint of discrimination on grounds of disability during an Annulment process.