Complainant

Respondent

Parties

John  Malone

The Prior of Silverstream Priory

Representatives

  In person

Benedict O’Floinn, SC instructed by Michelle Murphy Solicitor of James H. Murphy & Son Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00055103-001

15/02/2023

This complaint is one of discrimination (an alleged refusal to provide a service) under the Equal Status Act 2000, as amended.

The facts of this complaint are that having been offered a place to join a religious community of Benedictine monks in a monastery of which the Respondent was (as Prior) in charge, this offer was rescinded by the Respondent on alleged discriminatory grounds.

The facts as alleged by the Complainant are denied by the Respondent and the Respondent further submits that the WRC has no legal jurisdiction to investigate the complaint.

The Complainant gave evidence under Oath as follows:

1.      The Complainant alleges facts that he submits prove that a breach of the Equal Status Acts (ESA) took place in August 2022.

2.      On 21 June 2022 he emailed Silverstream Monastery, (a Benedictine monastery in Co. Meath) inquiring about the possibility of exploring a monastic vocation. This was aspiration that he had held childhood but had been prevented from exercising.

3.      He received a reply from the Master of Novices (“the Master”) of the monastery on 24 June 2022 asking him to provide some information about himself; his family background, his age, the state of his health, his formation in the Catholic faith and to identify the factors that led him to consider a monastic vocation. The Master invited the Complainant to visit and stay in the guesthouse at the monastery or if he wished for a longer stay to provide a reference from a priest so that his suitability for religious life could be assessed.

4.       The Complainant visited and stayed in the monastery as a guest for ten days (from early to mid-July 2022) during which he discussed with the Master possible options for him within the monastic life.

5.      At the end of this visit the Master offered him a place and told him that the next time he come to stay it will be for a longer period, for around 6 months. The Master also told him that he would recommend to the Respondent that on his next visit the Complainant would return to live in the Community enclosure rather than staying in the visitor guesthouse.

6.      By email dated 26 July, the Master wrote to the Complainant suggesting that he join a retreat in Co. Waterford, being directed by the newly appointed Prior of the monastery (the Respondent) from 26-31 July 2022. The Complainant accepted this invitation

7.      The Complainant attended this retreat, which in most part, was a silent retreat.  While the Complainant enjoyed the spiritual aspect of the retreat, early on, when in conversation with the Respondent, the Complainant disclosed that his father was a Traveller. After that the Respondent’s attitude towards him changed. He became cool and made no effort to engage with the Complainant thereafter. However, discussions that the Complainant had with another monk, the Superior, on the retreat were more positive and encouraging and he understood from these that it would be recommended (to the Respondent) that the Complainant would move into the Community accommodation (as the Master had already suggested.)

8.      The retreat ended on a Sunday and that night the Complainant was accommodated in a local hotel, whereas the rest of the retreatants were allowed stay on in the retreat house. He was disappointed by this.

9.      However in light of the positive conversations he had had, he left the retreat understanding that he would progress to the next stage of his vocation namely admission to the monastery to experience Community living.

10.   After he returned home on 2 August 2022 the Complainant emailed the Master to arrange the next stage of the process.

11.   On 5 August 2022 the Master replied by email, asking the Complainant to send a reference from a priest and a letter from a doctor describing his current state health, which the Complainant duly sent. In this email the Master also asked the Complainant if, on the retreat,  he had discussed with the Respondent the length of time of his next stay at the monastery be.

12.   On 6 August 2022 the Complainant replied saying that the Respondent had advised him to return to enter the monastery at a time when he, the Respondent, would be present.

13.   From internal emails that were subsequently disclosed to the Complainant, it is clear that the person who prevented the Complainant from entering the monastery and continuing with his training was the Respondent. This is proven by the Respondent ‘s email to the Master on 5 August 2022 (following the retreat) which stated “I have doubts about John. I will tell you when I get back.” Until this email was sent, the Complainant’s admission to the monastery was agreed, accepted and dates were being discussed.

14.   Thereafter the email communication between the Complainant and Master suddenly went silent.

15.   Also during the retreat, the Complainant had been invited to a Profession ceremony at the monastery on 15 August 2022, and even though this invitation was repeated to him by the Master after he returned home,  he was not contacted about this after 5th August 2022.

16.   He understands now that a hold was placed on his admission by the email that the Respondent sent to the Master  on 5 August after which date, all communication with him ceased.

17.   The Complainant emailed the Master on 16 August asking why he had heard no more about the Profession ceremony on 15 August, why the medical certificate and reference that he had sent had not been acknowledged and why no return dates to enter the monastery had been confirmed to him.

18.   The Complainant received an email from the Master on 16 August 2022 which stated as follows:

“After his return last week, I was able to speak to our Father Prior regarding a visit. I had the impression, from your previous email, that you and he had discussed your vocation in some depth and that he was entirely in agreement that you should return for a longer visit. However, Father Prior explained to me that after your initial conversation with him at the beginning of the retreat you did not approach him to speak any further, as would have been necessary for him to engage in serious discernment with you. In fact, based on his observations of your conduct during the retreat Father Prior judged that it would be not advisable for you to enter our community. Bearing in mind that as I mentioned several times, it would, in any case be, very exceptional for us to accept a candidate at your age, and having heard Father Prior’s observations, I am in agreement with his judgment.”

19.   Following receipt of this email on 18 August 2022 the Complainant wrote to the Master informing him that he was appealing the Respondent’s decision to the bishop on the basis that the decision was discriminatory.

20.   An ES1 form was sent to the Respondent on 14 October 2022. It alleges that the refusal to allow the Complainant to continue in his vocation to religious life constituted discrimination on the basis of age and on associated membership of Travelling Community.

21.   The ES1 form sets out that the admission decision had been already been made, that his accommodation (in the monks enclosure) had been agreed and he had been offered funding towards his education and vocation. He alleged that this showed that his admission to the Community was at an advanced stage but was cut short when the Respondent decided that he was not suitable for the post.

22.   An ES2 was received by the Complainant in which the Respondent denied any discrimination occurred. Within the ES2 form the Respondent inter alia, states as follows:

“Applicants apply to join a monastery to test their vocation to serve God by prayer and sacrifice, to take vows of poverty, chastity and obedience and to live in community under obedience.

A person’s family background or his ancestors’ status is irrelevant to our decision to accept or not accept him as an applicant to the monastery. The age of an applicant may be relevant in that the life of a monk and the discipline required in the monastic life is physically demanding and an older man (although he may be suited to other religious vocations) is generally unable to adjust to the schedule of prayer and the life in community in obedience, especially when it comes to joining a new foundation only 10 years old.

The stage is in the vocation procedure are as follows:

1st stage: An enquirer visits for one or two weeks living in the monastery’s guest house and attending Divine Office and Holy Mass.

2nd stage: After an initial discernment and discussion with the Novice Master and Prior, the enquirer returns for longer stay (generally from 3 to 6 months) before any decision is taken by the monastery in relation to acceptance; indeed the enquirer at this stage may leave or be asked to leave at any time for any reason.

It is only after these two stages that an enquirer becomes a postulant and then a novice. Even during these stages, which last for several more years, the postulant/novice may be asked to leave (or choose to leave.)

There is no obligation at all on either side after the period of the initial visit. There is never any offer of funding towards education and vocation, there is no “post” to be offered.

In Mr. Malone‘s case I was not aware of him being from the travelling community which in fact has no relevance to anything in his history with us. He did not discuss this with me nor would it have made any difference to me, had he done so. The decision not to allow Mr Malone to return to our monastery was based on other matters. His age was of some significance he admitted this (cf email of 28 June 2022) and it was discussed with him from the very beginning…

The Novice Master sent an email to Mr. Malone on 16 August 2022 detailing the various matters which led to the decision that it would not be advisable for him to enter the community. These are the reasons why we considered it was not in Mr. Malone’s interests or ours, that he continue in his discernment in our monastery…”

23.   In his evidence in the Adjudication hearing the Complainant pointed to the Respondent’s website which contains an upper age limit at entry, of between the ages 18-35. He contends that this evidence, together with the Master’s admissions about age in the email dated 16 August 2022 and the repetition of this admission by the Prior in the ES2 form, constitutes evidence that part of the reason that his application was discontinued because of the Complainant’s age. This is even though the Complainant was only in his fifties and (bar a managed regime in respect of a diabetes condition) he was fit and healthy.

24.   In respect of the second ground of discrimination (membership of the travelling community) the Complainant evidence was that up until the moment during the retreat when the Complainant told the Prior that his father was a Traveller, the Prior had been open to the prospect of the Complainant joining community life. However, immediately after that, the Respondent’s attitude towards him completely changed.

25.   The retreat in Waterford in July 2022 led to a U turn in the decision to admit him to the monastery. This U-turn was of the Respondent’s making because until the Master received the “I have doubts concerning John” email dated 5 August from the Respondent, his return visit was in the process of being arranged. The evidence is clear, it was the Respondent who vetoed his application.

26.   Even though the refusal letter dated 16 August refers to the Complainant’s “conduct during the retreat” (which is both unclear and unsubstantiated) the letter admits that the Complainant’s age was a factor and the change in the Respondent’s attitude towards him occurred when he told him that his father was a Traveller.

27.   The Complainant submits that the above this is prima facie evidence of discrimination.

28.   All his life he has been discriminated against for reason of his family background.

29.   Due to the offer being rescinded, he no longer had the accommodation that he understood he would have. He was forced to moved from Dundalk to Donegal where he registered to continue his studies in ATU.

Under cross examination the Complainant stated the following:

30.   He accepts that part of the purpose of attending the retreat in Waterford was to meet with the Respondent, who was the Prior in charge of the monastery in Meath.

31.   He accepts that when he was told that it would be recommended to the Respondent that he be accommodated in the monks’ enclosure, which suggests that the decision of whether the Complainant would be admitted had not yet been finalised and was one for the Respondent and no one else to exercise.

32.   He accepts that no other monk, the Master or anyone else could have offered him such admittance. That was a matter for the Respondent to decide and him alone.

33.   He accepts that the next phase of the process would have been to stay in the monastery where he would be interviewed to assess his suitability not only for religious life but for community religious life.

34.   He said that once he was asked to provide reference and a medical report, was when he felt that the offer to admit him was made.

35.   When asked admittance to what – he said admittance to further his journey towards a religious vocation.

36.   When asked if his references been approved by the monastery, he said that they were not and that receipt of them was not even acknowledged.

37.   When asked wasn’t he aware that age was a known factor to be considered for monastic life both for the applicant and for the Community, he said that it shouldn’t be and that the Master had discussed age with him and suggested that in light of his age, becoming a lay brother might suit him more, than being a monk.

38.   When it was put to the Complainant that being admitted to a monastery is not an entitlement but rather it is the commencement of a discernment process during which at any time during postulancy and/or noviciate, the applicant may either leave of his own volition or may be asked to leave, the Complainant accepted that, but said that he wasn’t even given a chance.

39.   When it was put to the Complainant that he has not identified what “service” (under the ESA) had been denied to him by the Respondent, he said it was the admittance into the monastery to continue his religious life journey as part of a community of monks.  

40.   When it was put to him that there was never any offer to admit him to the monastery and that there is no obligation on a religious order to admit a person to their Community, he said that he had been offered admittance which was rescinded.

41.   When it was put to him that entry to religious life does not constitute a “service” within the meaning of the ESA, he disagreed.

42.   It was put to him that the discernment process takes place when someone is considering to enter religious life. Discernment process is to decide if the applicant has a vocation or not, and either party may decide that he does not.

43.   It was put to him that the discernment process is not an interview process for either an employment contract or a service. Religious life, particularly one within a monastery, is more akin to a relationship which may at any time (until the marriage or religious vows have taken place) be ended by either party.

To this, the Complainant did not disagree.

44.   It was put to him that there needs to mutuality of agreement ie both applicant and community need to agree that an applicant is a suitable candidate for community life and if either party thinks – for whatever reason - that an applicant is not suited, the relationship ends. It is a form of mutual veto. To this question the Complainant said that everything was fine until he told the Respondent that his father was a Traveller.

RE Preliminary Application by Respondent that the WRC has no jurisdiction because the Respondent is not a service provider under the ESA.

In terms of the preliminary jurisdictional objection raised by the Respondent the Complainant submits (in written submissions dated 20 November 2023 and by way of oral submission) as follows:

45.   When the Complainant raised an appeal from the Respondent’s decision to the Bishop, the matter was not investigated by the bishop. This was in breach of Canon Law.

46.   Because his admission to the monastery had already been accepted it was also in breach of Canon law that a newly appointed Prior could simply change that decision.

47.   The Complainant is entitled to fair procedures and he gave evidence and was cross examined on the first WRC hearing date, whereas he was not permitted to cross examine any witness on behalf of the Monastery. This is a breach of administrative law.

48.   To have an age bar is not only discriminatory, it also is in breach of the Rule of St. Benedict, a fundamental rule which should underpin the Respondent’s decision making. It is noteworthy too that the Respondent himself was over 35 when he was accepted to join the monastery.

49.   The definition of “service” in section 2 of the ESA is broadly worded.

50.   The Respondent receives public funding.

51.   Life within a monastery constitutes a service that is open to “a section of the public” within the definition of section 2.

52.   The definition of service under section 2 encompasses the decision to admit or not admit a person to community religious life.

53.   The Respondent contains facilities that are open to the public to use; the chapel, the gardens etc. As such the monastery comes within section 2 of the ESA.

54.   Refusing admission to a religious community is the refusal of a service.

55.   The cases cited on behalf of the Respondent are distinguishable from the facts of the present case.

56.   McCalla v. Bishop of Lichfield is an employment law case not an equal status case.

57.   The Portmarnock Golf Club case is a more appropriate authority to consider.

58.   The offer of admission was made by the Master and the Superior but was retracted by the Respondent.

Conclusion

59.   After spending 10 nights in the Monastery Guesthouse the Complainant was offered a place to live in the monks’ enclosure. References were requested and provided. Due to the age bias (which is evidenced) and the anti-Traveller prejudice of the Respondent, this offer was rescinded. This constitutes the refusal of a service on grounds which are discriminatory.

The Respondent made a preliminary jurisdictional application that the alleged breach, did not come within the definition of service in section 2 (1) of the ESA.

Within this application the representative on behalf of the Respondent made the following submission points.

1.      Admission of an applicant to a monastery is to ascertain whether an applicant has a vocation or not. Admission is by way of invitation. There is no entitlement to admission.  Admission to the monastic life does not come within the within the ordinary meaning of “service” in section 2(1) of the ESA.

2.      A religious community may decide to admit or not admit an applicant who has expressed a desire to join the monastic life. There is no entitlement to be admitted. Similarly, a person might want to join or move into live with a person or family. There is no entitlement to do so even if the possibilities of that may be considered before being rejected.

3.      Joining a monastery is to facilitate those who wish to explore, whether or not a person has a true vocation (this is referred to as a discernment process.)

4.      Whether a person has a vocation or not, is not solely a personal decision. It is also a decision for the religious order or religious community to decide.

5.      The refusal of an applicant to a particular form of religious vocation, does not mean that a vocation in another monastic community or outside monastic life is denied to him.

6.      For discernment to take place within the Respondent community, akin to joining a family,  the decision to admit any applicant is a joint decision which lies both with the applicant and the Respondent who is the leader of the Community.

7.      Where an applicant wishes to join a Community, or, if already there, wishes to remain, it is not until he has taken solemn vows - (having already completed his postulancy, a novitiate and simple vows) that whether or not he joins or remains a member of the Community - is a decision for which the Respondent needs also to agree with him about.

8.      There needs to be mutuality on this point. It is akin to a relationship or friendship, if one party withdraws, the relationship ends. There is no obligation to continue with a relationship. There is no right of access to a relationship unless both parties seek it. Likewise, there is no entitlement to be admitted to religious community life.

9.      The admission to the Community is not a process that is open to the public generally or a section of the public (as per section 2(1)) of the ESA. Whether or not a person has a vocation is a discernment process. No one has an entitlement to become a member of the Community. In this respect this complaint is fundamentally misconceived.

10.   The Complainant erroneously has conflated two aspects of section 2 (b) of the ESA. Just because the monastery contains areas that are open to the public, such as religious services in the chapel or access to the gardens, this does not mean that the admission of an applicant to live, in community with the monks, is also a service or a facility under section 2(b).

11.   Section 5 of the ESA prohibits discrimination (on ten prohibited grounds) in providing a service. As there was no service, the Respondent cannot be considered as a service provider and there cannot be discrimination that is capable of being investigated under the ESA.

12.   Unless section 2 of the ESA is interpreted in such broad terms to mean that any action or any decision if it impacts another, is the provision of a service, can there be jurisdiction.

13.   What occurred here cannot amount to a service. By way of analogy, if a person opens their family home to guests, are they providing a service? If a person arranges a family holiday and doesn’t invite all the family, are they providing a service? The Complainant’s overly wide interpretation of section 2 would suggest so, but this would make a nonsense of the ordinary meaning of the definition of service in section 2.

14.   Also admission to a religious community is not covered by the “club membership” statutory provisions in the ESA because a religious community is not a club within section 8 (1) of the ESA (which requires a certificate of registration).

15.   It follows that even if there was prima facie evidence of discrimination (which is denied) if there no service provision “that is available to the public generally or section of the public”) the WRC does not have the jurisdiction to investigate the complaint. The WRC cannot reach into and consider the facts unless the Complainant proves that he was refused “a service” in breach of section 5 of the ESA.

16.   And even if the Adjudicator were to decide that the statutory definition of “service” does extend to embrace the facts as alleged by the Complainant, it is denied that the Complainant has proven facts from which a finding that discrimination occurred may be made. No prima facie case of discrimination has been proven.

17.   The test of prima facie discrimination is that a Complainant must prove facts which show, on the balance of probabilities, that discriminatory conduct occurred. A belief that discrimination has occurred without facts falls short of the test (see the Court of Appeal decision Smith v. The Office of Ombudsman and Adam Kearny and Bernard Traynor and Peter Tyndall [2022] IECA99).

18.   The Complainant contends that it was disclosure of his Traveller background that prompted a U turn to be made by the Respondent. Apart from the fact that no decision to admit the Complainant had in fact been taken yet (based on the Complainant’s own evidence) and as the Respondent set out in the ES2 form, he does not remember the Complainant’s father being discussed with him nor would membership of the Travelling Community present a bar to a admission, the Complainant’s own evidence is that he believed that the Respondent changed his mind from that point on. This is an unsubstantiated assertion. It is a belief. It is not corroborated. There are no proven facts which prove that discrimination occurred. The test for prima facie discrimination is proven facts not a belief or opinion.

19.   The oral evidence of the Complainant concedes that references were required. He suggests that once the provision was made that the transaction became quasi-contractual and that he then had permission to enter and live in the monastery, however this is not supported by the letters that he sent at the time, including the appeal that he sent to the Bishop, which shows that he understood the conditionality of the offer:  “it was made clear to me that both priests on the silent retreat have asked me back to the monastery for more interviews.”

20.   While it is accepted that discussions around the possibility of his admission to the monastery did take place, it is incorrect to say that an unconditional offer was made which was accepted. There was no agreement, nor could there have been given that the Respondent had not met him or decided yet. And as soon as he did have the opportunity of meeting him (at the retreat in Waterford) the Respondent decided against inviting him. And even if he did invite him, either the Respondent or the Complainant could have changed their mind. But it did not even get to that stage.

21.   In the absence of an agreement, there can be no rescission of an agreement. The reality is, the Respondent was entirely entitled to do as he did and the reasons for not inviting him to join the Community was set out in a letter dated 16 August 2022. The reasons were due to the Respondent’s observations about the Complainant’s conduct during the retreat, because he did not attempt to engage with the Respondent during the retreat and in light of his age. The reasons were entirely unconnected to his travelling membership status.

22.   In terms of evidence - of either age or traveller discrimination - the Respondent submits that the Complainant did not provide any comparator evidence in respect of either prohibited ground.

23.   Even if the email dated 16 August 2022 is treated as an admission that part of the reason was due to his age, that there are many reasons why age might influence whether a person is admitted to a religious community or not. Furthermore, there was no secret about this. These reasons were canvassed with the Complainant in discussions with the Master and this criterion of entry is stated on the Respondent website.

24.   The Respondent’s submissions conclude in synopsis:

(1)   To admit or not admit an applicant to live within a religious community does not constitute “service” within the meaning of section 2(1) of the ESA. There can be no discrimination found because there was no service provision

(2)   On the basis of the Complainant’s evidence alone, while there was an asserted belief that discrimination occurred,  no facts were proven from which a prima facie finding of discrimination could be found.

25.   The Respondent cited the following authorities in written submissions: Adj 43905 (A Member of the Public v. the Courts Service of Ireland); Ryanair Ltd v. Unister GmbH [2013] IESC 14; Trasporti Castelletti Spedizioni Internationali SpA v. Hugo Trumpy SpA [c159/97]; Doherty v. South Dublin County Council [2007] IEHC 4; Donnelly v. Minister for Social Protection; Meister v. Speech Design Carrier Systems GmbH [C-415/10]

Introduction and Approach

The two complaints of discrimination raised by the Complainant are:

Allegation 1:  That in August 2022 the Complainant was refused admittance to the Respondent’s monastery to commence religious life within a community of monks, because of his age.

The evidence he relies for this is three-fold (a) he was told that age was part of the reason for his rejection in an email sent on behalf of the Respondent dated 16 August 2022 (b) the monastery website states that entrants must be between 18-35 and (c) in the ES 2  form, the Respondent admitted to the Complainant’s age (53 years) as being “of some significance” in the decision to refuse him admittance and “was discussed with him from the very beginning.”

Allegation 2: That the Complainant was not admitted to a monastery under the charge of the Respondent to commence religious life within a community of monks because he disclosed to the Respondent that his father was a member of the Traveller Community.

The evidence that he relies for this is that having disclosed this information to the Respondent, the Respondent’s attitude towards him cooled and the Complainant was accommodated in a hotel the night that the retreat ended.

Process of Decision

I will now outline the decision process that I am obliged to follow.

1.      A decision is first required on whether the activity (admitting a person to live within a religious community) constitutes “service” within the meaning of section 2(1) of the ESA. If the answer to that question is no, I have no jurisdiction or vires to consider the substantive complaint further and a decision will issue on the jurisdictional basis alone.  If the answer is yes, I will then consider the next question, which is:

2.      Based on the evidence of the Complainant alone, having not heard any evidence on behalf of the Respondent, has the Complainant proven facts which evidence that either age-based discrimination or discrimination based on traveller membership occurred, or both?  If the answer to those questions is no, then a decision will issue that the Complainant has not proven a prima facie case of discrimination. If the answer is yes, then an adjudication hearing will be reconvened, to allow the Respondent to give evidence to defend the case, potentially including evidence of objective justification.

Adjudication Process

As a preliminary application on jurisdiction emerged after the conclusion of the cross examination of the Complainant on the first day, I deemed it necessary that the jurisdictional question be addressed by way of a preliminary application. I requested the parties to furnish me with legal submissions, which they did and, for which, I am very grateful.

On the next hearing day, on 8 October 2024, I heard the Respondent’s application with respect to jurisdiction and I heard the Complainant’s response, which went wider than the jurisdictional issue, for which he can be entirely forgiven, seeing as unlike the Respondent, he had no legal advisor to assist him.

During the preliminary application on day 2, I was requested by the Respondent representative to not confine my decision solely to the jurisdictional question and even were I to decide that I had no jurisdiction that I should then also address the question of whether a prima facie case of discrimination had been proven.

Having considered this request, I am satisfied that I do not have the vires within the ESA to do as the Respondent representative asks. If I have no jurisdiction under the ESA, that ends the complaint on the basis of jurisdiction. If I were thereafter, to reach into and evaluate the facts, that would be a continuation of an investigation which, if I have no jurisdiction, I have no business doing. Such an approach in my mind would be legally fragile and I am not inclined to do so.

Preliminary Application: Definition of Service within the meaning of section 2(1) of the ESA.

Having heard the parties and considered the oral and written submissions, I am satisfied that the Respondent in deciding to refuse the Complainant’s application to enter the religious community in the monastery did not constitute the refusal of a “service” within the meaning of section 2(1) of the ESA.

“Service” is defined in section 2(1) of the ESA 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 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;

I am satisfied that the ordinary meaning of “service” requires that whatever is being provided, that it  needs to be available to the public generally (which the Complainant does not contend) or a section of the public.

While I am satisfied that there are facilities within the Respondent monastery, such as religious services and gardens that are open to the public are capable of falling within the provision of a “service,” I am satisfied that the Respondent’s decision (and it is his decision) to invite an applicant to join the religious community is not a provision of a service. To find otherwise would, in my view, be too expansive an interpretation of the meaning of the word “service” within section 2 (1) of the ESA.

The challenge for the Complainant in this Adjudication has been to identify what actual service was denied to him by the Respondent.

To constitute a service, there must be a service or facility that is available to the public or section thereof. The word “available” is significant here, because the entry to “try out” religious life by joining a religious community is not an entitlement that is available to many. Entry is by invitation only, like an invite-only event, it cannot be accurately described as available to the public or a section thereof.

Analogies have been made by the Respondent to illuminate and limit what, it must be accepted, is a broadly worded definition of the word “service” in section 2. These have ranged from permission to enter a family home, being chosen to play on a sports team, deciding to rent a house with another; but none of these capture precisely what is at play here.

The recent UK Employment Tribunal case of McCalla v. Diocesan Board of Finance Inc and the Bishop of Lichfield [2022 UKET 1303655/2021] is instructive, even though it concerns the alleged discriminatory failure to provide employment services under section 5 of the UK Equality Act 2010 rather than the more general Irish provision service under the ESA. The facts of McCalla are that Professor McCalla wished to be ordained into the Church of England but having completed a portion of her training, the continuation of her training was ended. Her case was that she was discriminated against in the discernment process. Employment Judge Algazy dismissed the claim. He held that when the Claimant’s application failed, she was undergoing a Discernment Process, the purpose of which was for both the Claimant and the Respondents (the Diocesan Board and the bishop) to discern if she had a true spiritual vocation or a calling by God. This was not to be equated to a trade, occupation or personal office.

The “services” that were provided to Professor McCalla up to when her religious training ended were designed to assist all parties with the process of discernment and to determine whether she would be selected for ordination training. The Employment Tribunal held that not only was the termination of her discernment process not employment, it was also not an offer of ordination.

The Tribunal accepted the calling to holy orders is something that involves the whole person and the whole of the person’s life. Discernment is a “wholly collaborative two-way process” that involves a claimant and the Diocese via a Vocations Advisor. A Vocations Advisor works with a claimant and advises the bishop on the suitability of the candidate,  but it is the bishop who has the ultimate decision on whether or not an applicant is suited to the ordained or lay ministry. The Tribunal held that there were no employment services provided and the complaint fell for want of jurisdiction.

In the present case, there is no argument that the Complainant was in a potential employment relationship with the Respondent, however the analysis of the discernment process, involving as it does a whole person evaluation to determine suitability for religious life and where both the religious body and the applicant enjoy a veto, distinguishes the process not only from constituting recruitment for employment services but also from constituting a service under the ESA. Admission to live in a religious community is a mutually agreed arrangement. There can be no enforcement by one party. Both parties need to desire it.

Returning to the wording of section 2 of the ESA, I am satisfied that the admission of the Complainant to the monastery was not a service because I am satisfied that it was not available to members of the public or section thereof. It is only available for those who the Respondent, on behalf of the Community, deems to be a suitable candidate to join.

Based on the reasons recorded above I am satisfied that the decision not to admit the Complainant to the monastery in August 2022 was not the refusal to provide a service, on the basis that the process of discernment, is not available to the general public, or section thereof.

I am satisfied that I do not have jurisdiction to further investigate the substance of this complaint.

I find this complaint to be not well founded. 

This complaint is not well founded

Does the admission to or continued membership of a religious community constitute a service within the meaning of the Equal Status Acts