ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017395
Parties:
| Complainant | Respondent |
Parties | Mark J. Savage | Musgrave Operating Partners Ireland Limited t/a Supervalu |
| Complainant | Respondent |
Anonymised Parties |
|
|
Representatives | Self | Mason Hayes & Curran |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00022542-001 | 09/10/2018 |
Date of Adjudication Hearing: 11/11/2019
Workplace Relations Commission Adjudication Officer: Marie Flynn
Procedure:
In accordance with Section 25 of the Equal Status Act, 2000, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant is an Evangelical Christian who is opposed to abortion and same sex marriage. |
Summary of Complainant’s Case:
The Complainant submits that a pro-life leaflet he placed on a noticeboard in Supervalu, Swords Pavilion Shopping Centre was taken down by the store security guard. The Complainant submits that he discussed the matter with the store manager. The Complaint submits that the store manager refused the Complainant permission to place his notice on the noticeboard notwithstanding the fact that the Complainant had informed the store manager that by refusing him permission to place his notice on the noticeboard, the store manager would be discriminating against the Complainant’s religious beliefs as an Evangelical Christian. The Complainant referred to other notices which had been placed by persons who were obviously Catholic as these other notices were seeking volunteers to assist with the then upcoming Papal visit to Dublin. The Complainant submits that the Respondent treated him less favourably by discriminating against him on the ground of his religion by allowing persons of another religious belief to place notices on their noticeboard while refusing him permission. |
Summary of Respondent’s Case:
The Respondent submits as follows: On 10 April 2018, a Security Operative employed by the Respondent at its Supervalu Store in Swords reviewed a notice (hereinafter referred to as the Notice) on the Store's noticeboard. After reading the Notice, the Security Operative removed it from the noticeboard. The Notice put forward the view that LGBT persons have a condition which would increase their chances of being aborted once the said condition is detected by their parents. The Security Operative was of the opinion that the Notice was entirely inappropriate for posting on the noticeboard. The Store's noticeboard has three headings "Looking For", “Local Producers" and "Local Charity". The noticeboard is used, at the discretion of the Respondent, generally by people living in the community to advertise and promote local community events (for example yoga classes or concerts) or to publish 'wanted ads' (for example maths grinds). The noticeboard is monitored by staff. Immediately after the Security Operative removed the Notice, he was approached by the Complainant. The Complainant demanded that the Notice be placed back on the noticeboard. The Security Operative refused to place the Notice back on the noticeboard and the Complainant asked to speak with his Manager. The Security Operative then spoke with the Assistant Manager of the Store in the presence of the Complainant. The Assistant Manager explained that the Notice would not be placed back on the noticeboard as it was a community noticeboard. The Complainant indicated that the Respondent, in refusing to allow him to post the Notice, was breaching his rights to express his religious beliefs. He did not mention what his specific religious belief as at the time. Furthermore, the Notice did not identify its producer as having any particular religious affiliation. |
Findings and Conclusions:
The matter for me to decide is if the Complainant was discriminated against pursuant to section 3(1)(a) and 3(2)(e) of the Equal Status Act and in terms of section 5(1) of that Act. Section 3 of the Act provides inter alia as follows: “(1) For the purposes of this Act discrimination shall be taken to occur—(a) 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) or, if appropriate, subsection (3B),] (in this Act referred to as the ‘discriminatory grounds’) which— (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or ……………. (2) As between any two persons, the discriminatory grounds (and the descriptions 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 5(1) of the Act provides as follows: “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.” Section (2) of the Equal Status Acts defines “service” as “a service or facility of any nature which is available to the public generally or a section of the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes [various examples]” I am satisfied that the respondent was providing a service to the public and/or sections of the public by providing a community noticeboard on its premises and, therefore, I am satisfied that the Complainant’s claim comes within the above definition Section 38A of the Acts sets out the burden of proof which applies to a claim of discrimination under the Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. It is only where such a prima facie case of discrimination has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised. The Labour Court in Mitchell v Southern Health Board (Cork University Hospital) [2001] 12 ELR 201 determined that a Complainant must prove, on the balance of probabilities, the primary facts on which they rely on seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded as being of sufficient significance to raise a presumption of discrimination, does the onus shift to the Respondent to prove that there was no infringement of the principle of equal treatment following Wallace v South Eastern Education and Library Board [1980] NI 38. The Complainant is an Evangelical Christian. He is alleging that he was discriminated against by the Respondent on the ground of his religious belief. At the hearing, the Complainant conceded that on the day of the alleged discrimination, while the Respondent was aware of his Christian beliefs, it was not aware of the fact that he was an Evangelical Christian. In his direct evidence, the Assistant Manager confirmed that, on the day of the alleged discrimination, the Complainant did not mention that he was an Evangelical Christian. The notice which the Complainant wished to place on the Respondent’s noticeboard was adduced in evidence at the hearing. I have read the Complainant’s notice and I am satisfied that it does not identify the author as an Evangelical Christian. Having given careful consideration to the submissions of both parties on this issue, I find that the evidential burden resting on the Complainant has not been discharged and a prima facie case of religious discrimination has not been established. |
Decision:
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.
Based on the totality of evidence adduced, I find that this complaint is not well founded. |
Dated: 12th August 2020
Workplace Relations Commission Adjudication Officer: Marie Flynn
Key Words:
No prima facia case of discrimination on the ground of religion |