Complainant

Respondent

Parties

Judyta Zielinska

Health Service Executive HSE

Representatives

Nandika Seth B.L. instructed by Holohan Lane LLP

Conor White.  Comyn Kelleher Tobin

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00060786-001

02/01/2024

The complainant is a multi-task assistant employed by the respondent at Wexford Residential Intellectual Disabilities Services. The respondent, the HSE, has been the complainant’s employer since December 14th, 2015.

On January 2nd, 2024, she lodged a complaint with the Workplace Relations Commission seeking adjudication under section 77 of the Employment Equality Act 1998.

A preliminary issue arose in respect of whether a prima facie case had been made out, specifically whether a simple request to do something (which was not carried out) could represent a breach of the Act. Due to the late delivery of submissions the parties were invited to make specific submissions on this point and did so.

What follows (in each case) is a summary of the original submission of the parties followed by the submissions on the preliminary issue.

The complainant’s duties included ‘carrying out assigned and delegated responsibilities involving direct care and all activities of daily living under supervision, and to partake in all activities as part of the recreational, creational and diversional activity programme’.

She submits that in the initial days of her employment, she informed the management and her colleagues that she is a Jehovah’s Witness. She further asserted that she does not participate in any religious observances that are not in line with her faith. The complainant provides that over the years, she has had numerous meeting and conversations with the management and co-workers about her religious background.

The complainant had a meeting with Brigid Murphy in 2016 at which her role in assisting the residents during Mass was discussed. The complainant says that in this meeting, Ms Murphy confirmed with the complainant that she would not have to attend Mass, and instead, she could take care of other duties related to the care of residents in that time.

The complainant submits that it was an express and/ or implied term of her contract of employment that she would not have to attend Mass against her personal religious beliefs and that over a period of about seven years, she has worked in various care facilities under the HSE and always discussed her religious background at staff support meeting.

She was always assured that her religious background was respected, and she was never under any undue obligation to attend the Mass against her beliefs.

In April 2023, during her Sunday shift a Senior Nurse asked the complainant to attend the Mass. When she  refused, citing her arrangements with Brigid Murphy and Theresa Duffy, the  Senior Nurse expressed her dissatisfaction and said that she would  discuss this matter further with management.

On May 9th, 2023, in a meeting with the manager Theresa Duffy, the complainant was re-assured that there was no need for her to attend the Mass and that she could take care of other duties relating to the care of assistants. The complainant confirms that she also filled out a Staff Supervision Form on this day.

The complainant submits that on or about June 25th, 2023, she was asked to check the time for the upcoming Mass by Edel Breen. When the complainant clarified her position on attending Mass, the said Edel Breen responded “This is strange, This is new to me”. This incident left the complainant feeling severe stress and pain in her chest.

On July 5th, 2023, the complainant met with Theresa Duffy and expressed her concerns about the incident.  She says that the response indicated that the previous arrangements were irrelevant, and Theresa Duffy stated, “most likely you have to attend the holy mass and Brigid Murphy would talk to you”. The complainant, extremely stressed, requested for a meeting with Brigid Murphy the very next day.

The complainant submits that in the meeting on the July 6th, 2023, Brigid Murphy stated that the arrangement no longer exists, and that the complainant would have to Accompany residents to Mass. The complainant broke down to tears and when asked why such a decision was made, she received no answer.

Regan, Employment Law (Bloomsbury 2017, 2nd ed), at paragraph 17.07 notes, inter alia, that any discrimination by an employer in terms of conditions of employment is prohibited.

Section 8(6) of the Act provides that “an employer shall be taken to discriminate against an employee… in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee… the same working conditions”.

Section 6(1) of the Act, further defines “discrimination” as follows:-

(a)   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”) which –

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned

Direct Discrimination:-

Regan, at paragraph 17.12 notes that “less favourable treatment” is more commonly known as ‘direct discrimination’.

Article 2(2)(a) of the EC Directive 2000/78/EC (“the Equality Directive” hereafter) defines “direct discrimination” as “where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1”.

Regan further notes that “would be treated” allows for the use of hypothetical comparators in appropriate circumstances of alleged discriminatory treatment, other than in relation to equal pay where an actual comparator is required.

In the present matter, the complainant  has suffered direct discrimination on the grounds of religion. The complainant  has been treated less favourably than her colleagues in the same working conditions as she has been asked to attend the holy mass against her religious beliefs. The complainant  has suffered severe stress as a result of the respondent’s actions.

Indirect Discrimination:-

Section 31(1) of the Act provides that.

“where a provision (whether in the nature of a requirement, practice or otherwise) relating to employment –

(a)    Applies to all the employees… of a particular employer who include C and D…

(b)    Operates to the disadvantage of C, as compared with D…

(c)    In practice can be complied with by a substantially smaller proportion of the employees… having the same relevant characteristic as C when compared with the employees… having the same relevant characteristic as D, and

(d)    Cannot be justified as being reasonable in all the circumstances of the case,

Then… for the purposes of this Act the regulatory body shall be regarded as discriminating against C, contrary to section 13, on whichever discriminatory grounds give rise to the relevant characteristics referred to in paragraph (c)”.

Article 2(2)(b) of the Equality Directive provides that “indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, a particular sexual orientation at a particular disadvantage compared with other persons…”. 

In the present matter, the complainant has suffered indirect discrimination by being asked to attend the Mass with the residents. The complainant has submitted that there was an agreement in place with the management that she was under no obligation to attend the Mass against her religious beliefs. Instead, she could take care of the other responsibilities during that time. Therefore, the respondent has no reasonable justification to now alter the arrangement which would work to the disadvantage of the complainant, as compared with her colleagues. When the complainant requested for an explanation, she did not receive a proper or satisfactory response.

In establishing a particular disadvantage, the Labour Court noted in Inoue v NBK Designs Ltd [2003] ELR 98 the following:-

“The procedures of this court are intended to facilitate parties… It would be alien to the ethos of this court to oblige parties to undertake the matters which are obvious to the members of the court by drawing on their own knowledge and experience.”

Section 85A of the Act, in adopting Article 10(1) of the Equality Directive provides that “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 him or her, it is for the respondent to prove the contrary”.

The decision in Southern Health Board v Mitchell [2001] ELR 201 remains the leading decision on the shifting of the burden of proof. This test requires that facts relied upon by a complainant to establish a prima facie case, must be proved by them to the satisfaction of the court at the level of balance of probabilities.  The complainant has established a prima facie case, and the burden now shifts to the respondent to prove the contrary.

The quality of evidence necessary to rebut a presumption of discrimination was considered by the Labour Court in Portroe Stevedores v Nevins [2005] ELR 282. The Labour Court, following the decision in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332, held that, since the facts necessary to prove an explanation would usually be in the possession of the respondent, it required ‘cogent evidence’ to discharge the burden. Mere denials of discriminatory motive, in the absence of independent corroboration, had to be approached with caution since discrimination was “usually covert and often rooted in the subconscious of the discriminator”.

In the present matter, the complainant has submitted that there was an arrangement in place for a number of years in that she was not asked to attend the mass with the residents. She would undertake other responsibilities during that time. It was an express and/or implied term of the complainant’s contract of employment that her religious rights would be respected at her place of work, and she would not have to attend Mass against her religious beliefs. The respondent has failed, refused and/ or neglected to progress any reasons for unilaterally going back on the arrangement and asking the complainant to attend the mass against her religious beliefs. It is respectfully submitted that a mere denial of discrimination is not sufficient, and there is clear absence of “cogent evidence” on behalf of the respondent.

As noted above, the provision for “would be treated” in section 6(1) of the Act appears to allow for the use of hypothetical comparators.  Meenan, Employment Law (Round Hall 2023, 2nd ed), at paragraph 12-33, further provides that where one is considering discriminatory treatment in respect of conditions of employment, then a comparator may be actual or hypothetical.

In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285, it was held that in a case of direct discrimination, a hypothetical discrimination should normally be constructed by establishing the factual criterion for the impugned decision and considering whether that criterion would have similarly applied in the case of a person without the protected characteristics.

In Tipperary County Council v McAteer (EDA153) (30th January 2015), it was held that in cases of indirect discrimination, the court should consider whether a restriction of a type bears more heavily on a class of persons of which the complainant is one than it does on another body or class of persons whose circumstances are similar other than in respect to the impact on them of the impugned measure.   

In the present matter, the appropriate comparator would be a Catholic person employed in the complainant’s position. Such a person would not have to go against their religious beliefs and upbringing to attend the Mass with the residents. Therefore, any request by the management to attend the same would not bring distress and upset to such a person. The comparator would face no disadvantage and constant review meetings with the management, as the complainant had to due to her religious beliefs. 

Article 1 of the Equality Directive prohibits various forms of discrimination on “grounds of religious belief”. Section 6(2)(e) of the Employment Act also prohibits discrimination on religious grounds. Further, the complainant ’s right to freedom of religion is also protected under Article 44 of the Constitution of Ireland.

The decision in the case of Tipperary County Council v McAteer is of significance here. In this decision, the Labour Court observed that the complainant is a person who is enjoined by his religious beliefs to speak to others about Jesus and the Gospels. The respondent prohibited him from doing during working hours including his lunch break. This placed the complainant at a disadvantage relative to a hypothetical class of persons to whom the same restriction might be applied but whose religious beliefs do not enjoin them to evangelise in the same manner as the complainant. The court considered that the restrictions on the complainant placed him at a disadvantage relative to those of no religious belief or to those of a different religious belief. Therefore, the measures were indirectly discriminatory on the grounds of the complainant’s religion.  

The above decision is applicable in the present matter. the complainant, as a result of her religious beliefs, is at a disadvantage when compared to a class of persons whose religion and/ or beliefs do not restrict them from attending the holy mass. Due to the complainant ’s beliefs, she has suffered discrimination at her workplace, which has resulted in severe stress and anxiety for the complainant

In light of the foregoing, the complainant maintains that she has faced discrimination by the respondent.

Supplementary submission

In Cork County Council v McCarthy EDA 0821 (16 December 2008), the Labour Court, in considering the type of facts required to be proven by a claimant in seeking to meet his or her burden of proof of establishing discrimination, commented as follows:-

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may be appropriately drawn to explain a particular fact or a set of facts which are provided in evidence. At the initial stage, the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

Meenan, Employment Law (Round Hall 2023, 2nd ed), at para 12-36 provides that once the complainant has set out a prima facie case, it is for the respondent to prove the contrary. The court normally requires the complainant to establish the primary facts upon which the assertion of discrimination is grounded.

In the present complaint, the complainant has submitted that there was an “arrangement” in place since she started her employment with the respondent. She was assured on several occasions that she would not have to attend Mass that would go against her religious beliefs. This fact is not disputed by the respondent. Further, the complainant has provided that grounds for discrimination arose between April and July 2023 when numerous requests were made to the complainant to attend Mass with the residents as part of her employment. The occurrence of these requests is not denied by the respondents.

In light of the foregoing, it is respectfully submitted that the complainant has established prima facie facts in this case. The issue arises as to whether the said requests made in 2023 amount to discrimination. In that regard, the complainant submits that by requesting her to participate in activity which goes against her religious beliefs, the respondent has discriminated against her on religious grounds under section 6(2)(e) of the Employment Acts.

It is further submitted that the complainant has satisfied the prima facie burden of proof in that it can be sufficiently presumed within the range of inferences that there has been discrimination.

The complaint reserves the right to adduce further evidence in support of her complaint at the hearing of the action.

Can a request amount to discrimination under the law?

The most relevant decision here is that Judge Clarke in the case of Merriman v St James Hospital UD 365/1986, unreported, Circuit Court, Judge Clarke, 24, November 1986. In this matter, an employee was dismissed for refusing to carry religious objects to the bedside of a dying patient for the purpose of a religious ceremony. She was reinstated by Judge Clarke on her undertaking to carry out her duties in accordance with her contract, including every necessary assistance to patients in relation to religious rites and services provided for them, but with the proviso that:-

“She need not participate in any religious ceremony or rite; and allowing that her particular scruple as to the erection of crucifix or candles should be respected and this be dispensed with in her case.”

Bolger, Employment Equality Law (Round Hall 2022, 2nd ed), at paragraph 9-61 notes that this decision seems to suggest that the claimant’s right not to be unfairly dismissed on grounds of her religious opinions encompassed a right to be excused from participating in religious practices to which she might object due to her conscientious objection to what was being required of her by her employer. It goes on to suggest that if a particular requirement of employment was found to be indirectly discriminatory on grounds of religious belief, the actions of the employer in dealing with an employee who refused to undertake these duties would be closely scrutinised in order to determine whether they were objectively justified.

The complainant’s circumstances are similar. In light of the above decision, the respondent’s request to attend Mass against her religious beliefs amounts to discrimination. She is entitled to be excused from participating in religious practices to which she might object due to her religious conscience.

In the CJEU case of Samira Achbita v G4S Secure Solutions NV (C-157/15). In this case, the referring court asked the CJEU whether Article 2(2)(a) of Directive 2000/78 must be interpreted as meaning that the prohibition on wearing an Islamic headscarf, which arises from an internal rule of a private undertaking imposing a blanket ban on the visible wearing of any political, philosophical or religious sign in the workplace, constitutes direct discrimination that is prohibited by that directive.

That complainant was in the respondent’s employment since 2003. There was, at that time an unwritten rule that visible signs of political, philosophical or religious beliefs were not permitted in the workplace. In 2006, the complainant informed her line managers that she intended, in future, to wear an Islamic headscarf during working hours. The respondent informed the complainant that this would not be tolerated as it was contrary to the company’s position of neutrality. Shortly thereafter, the respondent’s workplace regulations were amended to reflect that “employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/ or from engaging in any observance of such beliefs”.

The CJEU found that such an internal rule of a private undertaking may constitute indirect discrimination within the meaning of Article 2(2)(b) of Directive 2000/78 if it is established that the apparently neutral obligation it imposes results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage, unless it is objectively justified by a legitimate aim.

It is of relevance to note that this case concerned a request by the respondent that the complainant not wear a religious headscarf at the workplace. This “unwritten rule” was later transposed in the workplace regulations. The CJEU found that this was in breach of the Directive.

In the present matter, the respondent has provided that all employees, irrespective of their religion, are obliged to carry out certain duties which may include attending Mass with the residents. In light of the above decision, this position of “neutrality” amounts to discrimination as this apparently neutral obligation puts the complainant at a particular disadvantage.

In Minister for Education and Science v A Worker EDA087, where a teacher complained that she was subjected to less favourable treatment on grounds of her disability, as she was not paid a lump sum payment for voluntary supervision and substitution which other teachers received as she was absent from her employment after having undergone transplant surgery. The Labour Court noted the following in relation to identifying the proper comparator for the complainant:-

“In the Courts view… the only appropriate comparator having the same relevant characteristic as the Complainant is an able bodied teacher who was willing to do the work but for one reason or another did not so.”

In relation to establishing an appropriate comparator where discrimination on grounds of religion is considered, Bolger provides useful guidance in accordance with the Framework Directive at paragraph 9-23:-

“[the requirement for less favourable treatment] may be demonstrated by reference to a comparator of no religion or belief or a different religion or belief, depending on the circumstances. In order to demonstrate this less favourable treatment, it may be necessary for an employee who is a member of a minority religion to compare themselves to a member of the majority religion, as the less favourable treatment may become evident from this view point.”

Section 31(1) of the Employment Equality Acts requires complainants who allege indirect discrimination to show that the discrimination involves a disadvantage as compared with other employees of a different religion or who hold no religious beliefs.

Further, Purdy, Equality Law in Workplace (Bloomsbury 2015) notes that by virtue of Article 2(2)(a) of the Framework Directive any comparator can be actual or hypothetical, as a complainant can argue that he or she has been treated less favourably than another would have been or would be treated in a comparable situation. This will allow an employee to compare himself or herself with hypothetical employees of a different religion.

In light of the above considerations, it is submitted that the appropriate comparator in the present complaint would be a person in the same situation as the complainant, but without the protective characteristics, i.e. belonging to a religion which does not recognise going to Mass in line with religious beliefs.

Therefore, an appropriate comparator would be a person of Christian faith who has been in the respondent’s employment and is requested to attend Mass with the residents. Such a person would not have to go against their religious beliefs to comply with the respondent’s requests, would face no disadvantage by attending Mass and would not have to face constant review meetings with the management due to religious conflicts. It is respectfully submitted that the complainant has faced discrimination on grounds of her religion when compared to such hypothetical comparator.

The complainant has been in the respondent’s employment since 2015. She has submitted that there was an arrangement in place for a number of years in that she was not asked to attend Mass with the residents. She would undertake other responsibilities during that time. Further, it was also an express and/ or implied term of her contract of employment that her religious rights would be respected at work, and she would not be required to go against her religious beliefs.

In 2023, due to certain changes withing the respondent workplace, numerous requests were made to her to attend Mass with the residents. When the complainant brought the abovementioned arrangement to the management’s attention, she was told that no such arrangement existed.

The respondent failed, did not consider alternatives to the complainant attending Mass, and also failed to consider that the complainant was not previously required to attend Mass without difficulty.

The respondent has no objective or legitimate reason to coerce the complainant to go against her religious beliefs to attend Mass when reasonable alternatives are available to the respondent. The complainant has discharged the burden of proof in establishing the facts leading to the alleged discrimination and has identified the appropriate comparator and  has established a prima facie case wherein discrimination on grounds of religion.

The complainant has not provided sufficient information to meet the standard required to shift the burden of proof to the respondent. She has not put forward any act or omission which could reasonably be described as discrimination.

The respondent has not punished the complainant for any conduct, nor has it excluded her from anything due to her religious beliefs. She has not been requested to participate in any religious service, rather she has simply been requested to support residents in attending Mass.

Section 85A(i) of the Employment Equality Acts deals with the burden of proof and states that:

“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 him or her, it is for the respondent to prove to the contrary”.

This has the effect of shifting the burden of proof but only once the complainant has proved a prima facie case that the difference in treatment alleged is due to discrimination on one of the discriminatory grounds.

In Southern Health Board v. Mitchell Labour Court AEE/99/8the Labour Court explained that the onus on the complainant in seeking to establish a prima facie case is:

 “The first requirement is 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 complainant  must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise the presumption of unlawful discrimination”.

In Minaguchi v. Wineport Lakeshore Restaurant DEC-E/2002/20the primary facts were defined by the Equality Officer as follows:

“It appears to me that the three key elements which need to be established by a complainant to show that a prima facie case exists are:

That s/he is covered by the relevant discriminatory ground(s).

That s/he has been subjected to specific treatments; and

That this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated”.

In Southern Health Board v. Mitchell, the Labour Court went on to say that:

“It is only if those primary facts are regarded…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”.

The complainant has not established a prima facie case of discrimination in respect of less favourable treatment owing to the fact that she was merely requested to attend mass with residents and asks the WRC to so find.

In the event of a finding that a prima facie case of discrimination on religious grounds has been established the respondent considers that the accompaniment of residents to mass is objectively justified as it represents a proportionate means to achieve legitimate aims of supporting the residents in the practice of their religion and the Complainant has only been requested to accompany residents where there is no other appropriate cover in place.

It is furthermore submitted that the complainant has failed to identify any conditions of her employment which represented discrimination against her. She has not produced evidence of any commitment to exempt her from accompanying residents to mass.

The complainant has not identified a comparator for the purposes of evidencing any party who is being treated more favourably to her.

In a National School v. A Worker ADE/15/7, the Labour Court held that a complainant is entitled to rely on a hypothetical comparator who would have been treated more favourably on account of being of a different or no religion. It is respectfully submitted that the complainant cannot rely on such a comparator as no such comparator exists, either in fact or hypothetically.

The complainant commenced employment with the respondent on December 14th, 2015, on a Contract of Employment. Her principal duties include that she must:-

Carry out assigned and delegated responsibilities involving direct care and all activities of daily living under supervision; and

Partake in all activities as part of the recreational, creational and diversional activity programme.

Normal practice within the WRIDS is for the on-duty senior Staff Nurse to delegate duties to staff on roster on a daily basis. This is based on the needs of the residents and can vary day to day depending on the residents’ needs and behaviour. Attendance at Mass was dependent on resident mood, behaviour, and staff on duty on any given shift. The Staff Nurse/CNM would risk assess all planned activities on a given day and delegate accordingly.

The respondent notes that in or about early 2016 the complainant was assigned to support residents to attend Mass followed by a party afterwards. She accepted the duty and accompanied the residents. When she reached the relevant service, she approached the Director of Nursing and advised that she did not want to go to mass. Ms Murphy confirmed that this was not a problem as other staff were available and the complainant instead was asked to help set up for the party.

The first documented interaction between the parties regarding mass attendance occurred on March 12th, 2020. It is noted that no issue arises and that she does not need to attend mass as it has no impact on residents’ ability to be supported.

In February 2023 the resident population within the house in which the respondent works changed with a change of resident who was more sociable and who enjoyed being out of the house and regularly attended mass.

In advance of joining the house, the complainant and her colleagues were made aware of the new resident’s profile and so she had prior knowledge of the new resident and was aware of her preferences, having worked with her previously.

In April 2023, the Respondent notes that the staffing complement on the day wasoneSeniorStaffNurseandtwoMultitask Attendants(MTAs).TheSenior StaffNurse,plannedforthecomplainanttoaccompanythreeresidentstomass onthatday.

Inresponsethecomplainantstatedthatshewasexemptfrom going to mass. The Senior Staff Nurse requested the complainant to travel to the church and wait outside, in case one of the three residents, who wouldnowbeaccompaniedbytwostaffonly,chosetoleavemass.

This would enable the complainant to support the resident outside of the church. She however requested that she accompany one of the residents for an alternative activity during mass time, which the Senior Staff Nurse agreed to. The outcome resulted in the resident not attending mass which is part of their normal weekly routine.

On May 9th, 2023, the complainant completed a performance review which reflected a largely positive report on her as an employee. On June  25th, 2023 the CNM1 asked the complainant to check mass times, in response to which the complainant replied saying she did not attend mass. The CNM1 raised this matter a superior as she was confused as to why the alleged agreement had not been communicated to her previously. Following further queries , it emerged that no such agreement had been reached.

On July 5th, 2023, the complainant spoke with Ms Duffy regarding her alleged exemption from attending mass. It was acknowledged that she had not had to attend mass before but the reason for the change was that there was no longer sufficient cover to facilitate her in not attending, owing to the fact that three residents now wanted to attend mass as opposed to just two.

She was advised that she was not being asked to engage in or participate in the mass but rather she was being asked to support residents to attend. In response the complainant asked that her concerns be escalated to the Area Director of Nursing (DoN).

On July 6th,  2023 the complainant met with the DoN who told her that she could no longerbe facilitated in not bringing residents to Mass and confirmed to her that accompanying residentstoactivitiessuchasmassfellwithinherjobdescription. She was offered an opportunity to meet with the CNM2to discuss how best to organise future such attendances.

Once again it was confirmed to her that she was not being requested to engage in the mass but rather to support the residents to attend. She was also told that in the event there were other staff available to support the residents to attend mass and if she was not required then she would not be asked to bring the residents to mass. A copy of the note of this discussion was submitted.

The complainant commenced sick leave on July 7th, 2023, and management has been in regular contact with her, seeking to make arrangements for her safe return to work but she remains on sick leave. On August 2nd,  2023 her husband made a complaint to the respondent via a platform intended for services users and a formal response issued to him on August 25th, 2023, which noted that fact.

On August 4th,  2023 SIPTU emailed a request seeking confirmation that the alleged agreement for the complete exemption of the complainant from the need to attend mass would be upheld. Re respondent did not respond to this request as no such exemption agreement was reached and this point had already been communicated to the complainant in July.

On August 8th, 2023, the complainant sought to supplement her Occupational Health Referral form with detailed allegations, which now form the basis of this complaint.

On December 11th,  2023 the complainant wrote seeking an update on a grievance. Despite extensive enquiries no such grievance could be located, which she was told on December 13th, no0r was any grievance subsequently received.

The complainant alleges that she immediately informed Brigid Murphy upon the commencement of her employment that she is a practicing Jehovah’s Witness. The Respondent has no record of any communication from the Complainant regarding this. The Respondent also notes that no objections were brought to the attention of senior management within WRIDS by the Respondent until April 2023.

The complainant has not raised a formal grievance regarding this matter as is outlined in the email chain attached at Appendix G referenced above. At no point has the Complainant been requested to engage in mass. She has merely been asked to accompany residents under her care to mass in accordance with her job specification. Furthermore, the Respondent has minimised these requests wherever possible in the past with the result that the Complainant has not previously had to bring a resident to mass.

The complainant has not identified a comparator against whom she can assert that she has been less favourably treated on the grounds of her religion.

The respondent employs a very diverse workforce nationally and at WRIDS. There are other staff members employed in WRIDS who are also Jehovah’s Witnesses and who have never raised similar objections to accompanying residents to mass.

It is respectfully submitted that, were the Complainant to be provided with a complete exemption from accompanying residents to mass, the impact would be that residents would be denied the opportunity to practice their religion.

The Respondent further submits that the HIQA National Standards for Residential Services for Children and Adults with Disabilities requires that the Respondent provides adults in their care with :-

a.     daily control in relation to their choice and preferences.

b.     Each person experiences care that supports positive behaviour and emotional wellbeing; and

c.     Staff have the required competencies to manage and deliver person cantered, effective and safe services to people living in the residential service.

 Essentially these requirements clearly oblige the Respondent to focus on the rights of residents to practice their religion and to facilitate same.

Section 6(1) of the Employment Equality Acts provides that: - ‘Discrimination shall be taken to occur where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in sub-section 2 (in this Act referred to as the ‘discriminatory grounds’).’

Section 6(2)(e) provides that: -

‘As between any two persons the discriminatory grounds  are

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

The Complainant argues that she has been treated less favourably than another person of a different religion by virtue of her being requested to accompany residents to mass (albeit she has not provided any basis for this assertion).

With regard to the importance of providing residents with the opportunity to attend mass, Regulation 9.1 of S.I. No. 415/2013 - Health Act 2007 (Care and Welfare of Residents in Designated Centres for Older People) Regulations 2013 requires the Respondent to:-

“carry on the business of the designated centre concerned so as to have regard for the sex, religious persuasion, racial origin, cultural and linguistic background and ability of each resident(Emphasis Added)”.

The complainant has not identified any less favourable treatment to any of her colleagues in respect of her being requested to accompany residents to mass. Rather, what the Complainant seeks is more favourable treatment by virtue of her religion excluding her from carrying out core duties of her role.

She has alleged that she was provided with an exemption from having to bring residents to attend mass. The respondent submits that no such exemption was provided and that in any event has no difficulty in facilitating her from avoiding mass where there is sufficient cover in place to enable her to be substituted by another staff member for the duration of the mass.

She has not been treated less favourably to any other person in relation to the alleged conduct which forms the subject matter of the Complaint and it should be dismissed.

Supplementary submission

The complainant has not established a prima facie case of discrimination and neither has she provided a valid comparator in accordance with the requirements of the Employment Equality Act.

She was asked to accompany residents in her care to mass. She  has not been punished for any conduct nor has she been excluded from anything due to her religious beliefs. She has not been requested to participate in any religious service, rather the Complainant has been requested to support residents in attending mass in line with their religious beliefs.

Both parties have already relied upon the decisions of the Labour Court in Cork City Council v. McCarthy (EDA0821) and Southern Health Board v. Mitchell Labour Court AEE/99/8. The Respondent notes that the mere acceptance of the fact that the complainant was asked to accompany residents to mass does not amount:-

To facts “from which it may be presumed that the principle of equal treatment has not been applied...” per the Mitchell decision; and

To a “fact of sufficient significance to raise an inference of discrimination...”, per the McCarthy decision.

The Equality Tribunal decision in Darguzis v. Lough Corrib Engineering Ltd. DEC-E2009-038, further supports the argument that a prima facie case has not been established as it was held that, in order for discrimination to be established by an employee, they must demonstrate a “difference in treatment” and not simply treatment of a manner which is “less than ideal”.

In Respondent must also highlight the earlier submission per Minaguchi v. Wineport Lakeshore Restaurant DEC-E/2002/20 the primary facts were defined by the Equality Officer as follows:

“It appears to me that the three key elements which need to be established by a complainant to show that a prima facie case exists are:

That s/he is covered by the relevant discriminatory ground(s); That s/he has been subjected to specific treatments; and

That this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated”.

While she might be said to meet the requirements of the first two elements in the Minaguchi decision, being requested to accompany residents to mass is not akin to less favourable treatment and the complaint must therefore fail.

The complainant has failed to identify any conditions of her employment in respect of which the respondent has discriminated against her nor has she  produced evidence of any commitment to exempt her from accompanying residents to mass.

The respondent does not accept that she was allowed not to attend mass and submits that she has significant ability to self-roster activities in general and was able to avoid accompanying residents to mass before 2023. 

However, due to the change in the complainants unit and by virtue of the preferences of residents in her care she was no longer in position to take up alternative duties while another colleague accompanied residents to mass. The Respondent accepts that she was advised that she would not have to engage in mass and where possible (depending on staffing availability) she could avoid accompanying residents to mass, so long as there was another staff member available to accompany the residents safely.

But in the absence of it having required the complainant to engage in mass, the complaint must fail.

The complainant has separately submitted that a request can amount to discrimination and has sought to rely on a decision of the Circuit Court in Merriman v St James Hospital UD 365/1986.

That case concerned an unfair dismissal as an act of detriment. The employee was dismissed following a refusal to accede to a request to bring religious objects to the bedside of a dying patient. As the complainant was not sanctioned for her refusal to accompany res- idents to mass the Respondent submits that the comparison is not appropriate, and the Complainant cannot reasonably submit that the requests are sufficient to meet this standard.

She has further submitted the decision of the Court of Justice of the EU in Samira Achbita v G4S Secure Solutions NV (C-157/15). That case involved an internal rule of a company aimed at establishing a ban on wearing any visible signs of political, religious or philosophical beliefs. The plaintiff was prevented from wearing her headscarf and was dismissed for refusing to abide by that rule.

Again, this is different as no adverse action has been threatened or taken by the Respondent in this instance.

The respondent has submitted that the Complainant was asked to accompany residents to mass. She was not required the Complainant to participate in mass but was merely asked to accompany residents to mass. These requests came from different staff members on different occasions. No formal exemption from accompanying residents to mass was agreed with the complainant. This position is significantly different to the actions of employers who have dismissed employees on the grounds of expressing their religion.

No Comparator

The complainant has not identified a comparator for the purposes of evidencing any party who is being treated more favourably to her and the respondent has not treated her less favourably than any other person in relation to the alleged conduct which forms the subject matter of the Complaint.

The Complainant seeks to rely on the decision of the Labour Court in Minister for Education and Science v A Worker EDA087 in support of the assertion that there is no need for a named comparator in support of a complaint. That case concerned an incorrect comparator having been selected by the complainant wherein the Labour Court determined that the appropriate comparator would have been an able bodied person who “was willing to do the work but for one reason or another did not so”.

In her submissions the complainant submits that the appropriate hypothetical comparator for the Complaint is a person of Christian faith who would not have to go against their religious beliefs to attend mass. The Complainant works with staff of other faiths and has elected to choose a hypothetical comparator without reasonably explaining why.

The Respondent has already submitted the decision from a National School v. A Worker ADE/15/7, in which the Labour Court held that a complainant is entitled to rely on a hypothetical comparator who would have been treated more favourably on ac- count of being of a different or no religion. It is respectfully submitted that the complainant cannot rely on such a comparator as no such comparator exists, either in fact or hypothetically.

The request of an employee to accompany a resident to mass does not give rise to less favourable treatment. The complainant has now also alleged that she has been subjected to “constant review meetings with the management due to religious conflicts”. Frankly this is misleading. WRIDS staff each engage in bi-annual staff support meetings. Any further meetings which the Complainant would have had with management were at her own request. The implication in the Complainant’s language is that meetings with management are some form of detriment which could amount to less favourable treatment. The respondent wishes to highlight the unreasonableness of that suggestion.

The complainant has been placed at no disadvantage by virtue of the requests to accompany residents and as such cannot reasonably assert less favourable treatment.

The respondent respectfully submits that the complaint should be dismissed and is disappointed at the submission that she was subjected to coercion to go against her religious beliefs.  This is not supported in any of the information set out to date and is entirely contested.  

The facts are well set out in the submissions of the parties above.

The complainant was asked to accompany a resident to a religious service and voiced her objection to doing so. In the event she was not required to, and did not do so. This has been characterised in her submission as a request to ‘participate’ in the service, a Catholic Mass.

It is doubtful whether asking a health care worker as part of her work to support a service user to attend such an event as ‘participation’ in it, in the normal meaning of that word which is to actually take part in something, and I return to this below.

There has been argument above about whether the complainant  had an agreement whereby she would not have to attend religious services with service users or that there was acquiescence in a custom and practise arrangement that she would not do so.

This is primarily an industrial relations argument which does not require a decision as part of an equality complaint.

It is not true, (as the complainant has submitted) that the alleged arrangement is not disputed by the respondent, and it has been challenged in the submission above. The respondent has stated that no such agreement existed and has drawn attention to the fact that the complainant has produced no evidence of any such agreement.

In any event, as just noted, nothing turns on this for the purposes of the statutory complaint. An alleged breach of any such agreement that a person may be exempt from carrying out particular tasks is entirely separate to a complaint of a breach of a statute. It can be one and not the other. But again, this is not relevant to the determination of whether a prima facie case has been made out.

As is clear from the submissions above there are a number of preliminary issues, the critical one, in my opinion being whether the act of asking a person to do something, a mere request to do something, can, of itself be a breach of the Act, and therefore whether in that regard a prima facie case is made out.

If it is not, then the other matters such as whether there is a valid comparator, or whether the defence of proportionality arises are not activated.

As both parties have correctly submitted the bar necessary to establish a prima facie case is a low one, and it is only necessary to establish facts from which the possibility of discrimination may be inferred.

The complainant asks the question above, a question indeed on which this decision now turns; ‘can a request amount to discrimination under the law?’

 In answering it reliance is placed on dicta of Judge Clarke in the case of Merriman v St James Hospital UD 365/1986, unreported, Circuit Court, Judge Clarke, 24, November 1986. (Indeed the respondent describes in the supplementary submission this as ‘the most relevant case’.)

In that case, an employee was dismissed for refusing to carry religious objects to the bedside of a dying patient for the purpose of a religious ceremony. She was reinstated by Judge Clarke on her undertaking to carry out her duties in accordance with her contract, including every necessary assistance to patients in relation to religious rites and services provided for them, but with the proviso that:-

“She need not participate in any religious ceremony or rite; and allowing that her particular scruple as to the erection of crucifix or candles should be respected and this be dispensed with in her case.”

The complainant proceeds to rely on the views of (now Judge) Bolger, in Employment Equality Law (Round Hall 2022, 2nd ed), at paragraph 9-61 where it is noted ‘that this decision seems to suggest that the claimant’s right not to be unfairly dismissed on grounds of her religious opinions encompassed a right to be excused from participating in religious practices to which she might object due to her conscientious objection to what was being required of her by her employer. ‘

The complainant continues that this suggests that if a particular requirement of employment was found to be indirectly discriminatory on grounds of religious belief, the actions of the employer in dealing with an employee who refused to undertake these duties would be closely scrutinised in order to determine whether they were objectively justified.

She has further submitted the decision of the Court of Justice of the EU in Samira Achbita v G4S Secure Solutions NV (C-157/15).

That case involved an internal rule of a company aimed at establishing a ban on wearing any visible signs of political, religious or philosophical beliefs. The plaintiff was prevented from wearing her headscarf and was dismissed for refusing to abide by that rule.

Again, this may be easily distinguished on its facts from this case as no adverse action has been threatened or taken by the respondent in this instance.

In its submission, the respondent has correctly drawn attention to the fact that that case concerned an unfair dismissal, which is a clearactofdetriment.Theemployeewasdismissedbecause they would not bring religious objects to the bedside of a dying patient.

The respondent further points out that the complainant in this case wasnot subject to any action orsanction followed refusaltoaccompanyresidents.

The respondent submits that the complainant cannot reasonably say that the requests are sufficient to meet this standard and I agree.

The case law submitted is very distinguishable on that key point.

Both parties above have relied upon the decisions of the Labour Court in Cork City Council v. McCarthy (EDA0821) and Southern Health Board v. Mitchell Labour Court AEE/99/8.

The respondent submitted that the mere acceptance of the fact that the complainant was asked to accompany residents to mass does not amount to facts “from which it may be presumed that the principle of equal treatment has not been applied...” per the Mitchell decision; and to a “fact of sufficient significance to raise an inference of discrimination...”, per the McCarthy decision.

I agree on both points.

It would potentially lead to extraordinary consequences if even an inadvertent comment in a conversation, or an instruction given in good faith might, of itself and without any further consequences for a failure to carry it out, give rise to a breach of the Act.

In this case the complainant is at least three steps away from a prima facie case.

In the first place the action complained of is a simple, oral request. It is not adverse ‘treatment’ in the normal meaning of that word. Indeed, in respect of the incident on June  25th, 2023 the nurse manager merely asked the complainant to check mass times, in response to which the complainant replied saying she did not attend mass. But she had not been asked to attend, simply to check the times. This may provide some insight into the complainant’s excessively sensitive reaction to any reference to a religious service of which she disapproves.

Secondly, she did not actually carry it out and therefore the alleged breach remained at the level of a request. She did not attend the religious service.

Finally, she suffered no adverse disciplinary consequences or sanction arising from the incident, such as is referred to in the legal authorities submitted on her behalf, purporting to ground her complaint and which are easily distinguishable on their facts from this case.

It is noted that she claimed to have suffered ‘severe stress and chest pain’ on being asked to carry out the request. But regrettable as that may have been for her personally, it is not sufficient to ground a case of less favourable treatment under the Acts.

She has failed to make out a prima facie case and her complaint is not well founded.

For the reasons set out above the complainant has not made out a prima facie case and Complaint CA-60786-001 is not well founded

Prima facie case, Is a request an act?