ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00051321

Parties:

Complaint:

Date of Adjudication Hearing:  04/09/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015and/or Section 79 of the Employment Equality Acts, 1998 - 2015,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 contends that he was discriminated against by the Respondent on the grounds of his Catholic religion.

Summary of Complainant’s Case:

The Complainant submitted various documents and screenshots and gave evidence by affirmation summarised as follows:

The Complainant is a Bus Driver.  He commenced employment with the Respondent on 4 May 2022.  He contends that the Respondent discriminated against him on grounds of religion and that he was harassed in his employment. 

He had many complaints about various managers and he described a situation where he wrote a complaint regarding Expressway on the Company social media app and he was called in by management and accused of offending the Head of Expressway.

There was another incident involving an outside contractor employee and the Complainant was disciplined over this and the social media incident.  He appealed both sanctions and was partly upheld. 

He stated that he is a very Catholic person and he put a post on work Vivo which he did not consider to be offensive.  He submitted that the Company changed the social media policy after his post was deleted.  In cross examination, he first said his complaint was about bullying & harassment and then clarified it was a complaint of discrimination on the grounds of religion. 

Summary of Respondent’s Case:

The Complainant is a Bus Driver and is employed since 4 May 2022.  Originally attached to Cork, he transferred to Donegal, then to Galway and then to Athlone where he transferred in 2024.

Contrary to any claim he has made, he has not been discriminated against or impeded in his employment.

He has claimed he is discriminated against it appears, on religious grounds.  He has not put forward any particular issues which support his claim or described how his religious status has formed the basis for any alleged discrimination.   It is submitted that he has not identified a comparator and he has not established a prima facie case.

The background to the various moves the Complainant made in relation to Cork and Donegal was outlined.  At one point in January 2023 the Complainant indicated he was resigning as he had issues in Donegal about working nights.  He was dissuaded and thanked management for clarification provided.  There were a few complaints from customers about the Complainant’s attitude and the way he treated customers but no formal action was taken.  In August 2023 a formal complaint was made by a third party contractor about an altercation with the Complainant in which the Complainant told him to “go back to his own country”. The Complainant refused to address the matter in a meeting with management and said it had nothing to do with the Employer.  On foot of this, disciplinary action was instigated and a warning was issued.

In September 2023, in contravention of Company policy, the Complainant published material on the Company intranet which was critical of the Company Senior Management and the Head of Expressway.  The Company policy on social media is clear and states:

“disciplinary action may be taken including in circumstances where an employee posts material which is defamatory, abusive or offensive in relation to any employee, manager or customer or any individual or body which is associated with the business of Bus Eireann”.

At Easter 2024 the Complainant posted a message containing religious iconography and prayer.  The post was taken down as it infringed the Respondent policy.

Extract from Bus Eireann statement on acceptable user policy of Workvivo:

While as individuals we have a right to hold and express our own political views, we are semi state employees and remain neutral on political matters while at work and when using BÉ Online. As an organisation proud of our people, BÉ Online can be used to acknowledge days of cultural importance, such as Christmas Day, St. Patrick’s Day and Easter, and also to acknowledge significant holidays, such as Ramadan. To ensure a respectful and inclusive environment for our diverse community, which includes individuals from over 50 nationalities and various faiths, all users are asked to refrain from sharing religious content, such as religious iconography, images, quotes or scripture.

It is submitted that this case cannot succeed as the Complainant has not established a prima facie case.

Findings and Conclusions:

The Complainant had many complaints and this was distilled down in the hearing when he confirmed that his complaint was that the Respondent discriminated against him on the ground of religion.   He contends that as a Catholic, he was not allowed to post Christian or Catholic messages on the work vivo site.

The Respondent for its part submits that Work vivo is a work application, there is a social media policy which forms part of each employee’s contract and the Company has over 3,000 employees, of multiple faiths and nationalities and the post could have caused offence to the many non-Christian members of staff.

The applicable law

Section 6(1) provides, inter alia, that discrimination shall be taken to occur where:

(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) (in this Act referred to as the ‘‘discriminatory grounds)’’

Section 6(2)(e) provides that: as between any two persons, the discriminatory ground of religion is,

(e) that one has a different religious belied from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

In this instant case, the Complainant contends that the Respondent discriminated against him by not allowing a message and iconography in relation to his Catholic religion to be posted on the Company site which is used for employees.   In the first instant, the onus is on the Complainant to establish a prima facie case, that is to establish facts from which it may be presumed that the principle of equal treatment has not been applied to him.  

Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:

“(1) Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to her or her, it is for the Respondent to prove the contrary.”

In the case of the Southern Health Board v Teresa Mitchell, DEE011, the Labour Court considered the extent of the evidential burden which a complainant must discharge before a prima facie case of discrimination can be made out. It stated that the complainant must:

“…establish facts from which it may be presumed that the principle of equal treatment

has not been applied to them. This indicates that a Claimant must prove, on the

balance of probabilities, the primary facts on which they rely in 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 by the Court as being of sufficient

significance to raise a presumption of discrimination, that the onus shifts to the

respondent to prove that there was no infringement of the principle of equal treatment.”

In Melbury Developments v Arturs Valpeters, EDA0917, the Labour Court stated:

“Section 85A of the Act provides for the allocation of the probative burden in cases

within its ambit. This requires that the Complainant must first establish facts from which

discrimination may be inferred. What those facts are will vary from case to case and

there is no closed category of facts which can be relied upon. All that is required is that

they be of sufficient significance to raise a presumption of discrimination.

” Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.” 

Prima facie evidence has been held by the Labour Court in the decision of Rotunda Hospital v. Gleeson [DDE003/2000] to be "evidence which in the absence of any contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred". The Claimant therefore has to not only establish primary facts upon which they will seek to rely but also that those facts are of sufficient significance to raise an inference of discrimination.

In this instant case, the Complainant alleged that he was discriminated against on the ground of his Catholic religion.  His social media post on the internal site was taken down as it contained religious iconography and the Respondent’s policy specifically prohibits this.  The policy acknowledges that it is permissible to acknowledge days of cultural importance, such as Christmas Day, St. Patrick’s Day and Easter, and also to acknowledge significant holidays, such as Ramadan.  The Respondent has been consistent in the application of the policy.   

No facts have been presented to me that establish that the Complainant was treated less favourably than a person of a different religion or no religion. No comparator has been established and no evidence to demonstrate that messages and iconography from other religions exhorting to prayer was allowed on the social media site. 

The complaint is not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Based on the reasons above, I have decided that the complaint is not well founded.

Dated:   17th December 2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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