Religion
Cases
ICTS ( UK ) Limited v Magdi Ahmed
ADE/03/11
Labour Court
“The complainant is a Sudanese national and is a member of the Muslim faith. The respondent is a pan European company, based in the United Kingdom, which is engaged in the provision of security services to certain airlines operating out of Dublin Airport. The complainant applied for a position as an aviation security agent with the respondent at Dublin Airport. He completed an application form and attended for interview on the 12th May 2002. He claims that at the interview he was subjected to questions and comments which were disparaging of his ethnic origin and religious beliefs.
Subsequently, the complainant referred a complaint to the Director of Equality Investigations (the Equality Tribunal) on the 4th December 2002 pursuant to Section 77 of the Employment Equality Act 1998 (the Act), alleging discrimination on the grounds of race and religious ground.
An Equality Officer of the Equality Tribunal investigated the complaint and in her report dated the 12th June 2003 she found that it was not well founded. Against that decision the complainant appealed to this Court.
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Burden of proof.
Both parties made submissions to the Court on how the burden of proof should be allocated in this case.
It is now the accepted practice of this Court that in all cases involving discrimination the probative burden will shift to the respondent in circumstances where the complainant establishes a prima facie case of discrimination.
The test normally used in determining when and in what circumstances the burden of proof shifts to the respondent is that formulated in the case ofMitchell v Southern Health Board [2001] ELR 201. This test provided that the complainant must first prove the primary facts upon which they rely in asserting discrimination. If those facts are proved and they are regarded by the Court as of sufficient significance to raise an inference of discrimination, the burden of proving the absence of discrimination shifts to the respondent.
This test is based on the wording of the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001. These regulations provide that the probative burden shifts where the complainantestablishes factsfrom which discrimination may be presumed. The wording used in the regulations, which is derived from Directive 97/80 EC (The Burden of Proof Directive), is now replicated in Article 8 of Council Directive 2000/43 on Equal Treatment between Persons Irrespective of Racial or Ethnic Origin.
InJayasena v R [1970] AC 618Lord Devlin observed that the obligation to adduce a prima facie case in relation to a fact in issue can be satisfied by such evidence as, if believed and left uncontradicted or unexplained, could be accepted by a jury as proof, or by adducing enough evidence to suggest a reasonable possibility of the existence of the fact in issue. This is authority for the proposition that in normal circumstances a prima facie case can be established on credible evidence which may stop short of constituting proof on the balance of probabilities of what it asserts. However, a strict construction of the words used in the Burden of Proof Directive indicates that a prima facie case of discrimination must be established by reliance upon facts which are either admitted, or proved by the complainant.
Whilst the Mitchell test is generally apposite in applying that procedural rule there are situations which suggest that it may not be universally appropriate. Situations frequently arise, as in the present case, in which the discrimination alleged consists of discriminatory questions or comments made in the course of a job interview. Where the interview is conducted on a one-to-one basis the only evidence which the complainant may be realistically able to adduce will be his or her own uncorroborated testimony. The complainant’s difficulties may be further compounded, again as in the present case, by the absence of any contemporaneous interview notes or other records.
In cases such as this what is ultimately in dispute between the parties is whether or not the discriminatory remarks alleged were actually uttered. This is what is often technically referred to as the fact in issue. Where the primary facts upon which the claim of discrimination is based are also the fact in issue, the application of the Mitchell test places the entire probative burden on the complainant. This may impose a higher standard of proof on the complainant then is envisaged by the law. In these type of cases it could cogently be argued, on the basis of the case law of the ECJ, that the burden on the complainant is an evidential one which could be discharged by giving credible (but not necessarily conclusive) sworn testimony of what is alleged. This approach, while attractive, may not be entirely consistent with the language used in the relevant Directives.
In this case, however, the Court does not consider it necessary or desirable to express a concluded view on this question as there are admitted extraneous facts which have evidential value relevant to what is alleged by the complainant.
It is common case that the complainant became agitated in the course of the interview, that he sought to speak to the interviewer’s supervisor and then that he then terminated the interview abruptly. This is evidence pointing to the occurrence of something untoward although both parties have totally contradictory versions as to its cause. When taken in the context of the evidence as a whole, the Court would not consider these facts as sufficient to establish a prima facie case of discrimination in this case. They may, however, be sufficient when combined with the complainant’s own testimony if the Court were to be satisfied that he is a reliable witness.
Conclusions.
In the circumstances of this case the Court should first consider if the complainant’s evidence is credible. In that regard the Court finds that the complainant’s recollection of the interview process is, to say the least of it, deficient. The Court does not accept that the interview process could have lasted for one hour, as is the complainant’s recollection. Moreover, the Court does not accept that it was suggested to the complainant that because he had originally entered the country illegally he would be disinclined to prevent others from so doing. The duties attaching to the post for which the complainant applied did not involve determining who could or could not enter the country. It is also of considerable significance that this issue was not raised by the complainant before the Equality Officer or on any previous occasion. Finally, the complainant told the Court that he had contacted FAS after the interview and had complained at the manner in which he had been treated. This was not confirmed in evidence.
In the circumstances the Court does not accept that the complainant’s evidence goes far enough to establish a prima facia case. Accordingly his case cannot succeed”.
Gina Davis v Dunnes Stores
DEC-S2005/022
“1. Dispute
1.1 This dispute concerns a claim by Gina Davis that on 27 September 2002, she was treated in a discriminatory manner by a member of the respondent’s staff, contrary to Sections 5 and 3(2) (e) and (h) of the Equal Status Acts 2000-2004 . The complainant referred a claim to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Acts 1998-2004 and under the Equal Status Acts 2000-2004, the Director then delegated the case to me, Dolores Kavanagh, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act.
2. Summary of Complainants’ Case
2.1 The complainant is an Irish national and a practicing Muslim. On the date in question she states that she was treated in a discriminatory manner by a shop assistant because she, the complainant, was wearing a distinctive head-scarf and Islamic dress (described by the complainant as a long black coat).
3. Summary of Respondent’s Case
3.1 The respondent denies that discrimination occurred and states that the shop assistant treated the complainant in a manner consistent with the way in which all other customers are treated and with store policy in relation to use of the store’s fitting room facilities i.e that only four items are allowed per customer and customers are not allowed to bring certain items into the fitting rooms with them e.g. panties.
4 Background
4.1 Complainant
The complainant states that she accompanied her mother, who was not wearing Islamic attire or a head-scarf, to the respondent store on the date in question to do some shopping. They selected some items of clothing and approached the fitting rooms. The complainant’s mother was slightly ahead of her as they neared the entrance to the fitting rooms. The fitting room assistant was talking on the phone as they approached. The complainant’s mother held some items out in clear view of the attendant and proceeded into the fitting rooms.
The complainant was pregnant at the time and was pushing a buggy in front of her. She made to follow her mother into the fitting rooms and states that the attendant addressed her in a rude fashion and told her to stand back and place any items which she was not going to try on on a nearby chair. The complainant did as the attendant requested and then held out the items which she intended trying on for the attendant to see. A queue of people seeking to use the fitting rooms had begun to form behind the complainant. The complainant states that the attendant then started to rummage through the items which she was holding out and asked the complainant whether she had any panties in through the items. The complainant protested at this and the attendant then stated that she was going to fetch security.
The complainant was extremely upset by the manner in which she was treated in such a public place and was shocked to hear that the attendant was going to fetch security when she had done nothing wrong. Her mother had not been treated in this manner and the only difference between them as far as the complainant could see was the manner in which they were dressed. The complainant feels that she was treated less favourably than her mother on the grounds of race and religion. It is the complainant’s contention that the manner in which she was dressed led the attendant to conclude that she was of another race or nationality, as well as a Muslim.
4.2 Respondent
The respondent states that the attendant referred to by the complainant is a senior and very experienced and respected member of staff who has always been polite and helpful in her duties and to customers.
On the date and at the time in question the attendant was occupied on the phone when the complainant approached. The attendant was assisting another customer by checking the availability of a particular item in other stores in the chain.
The attendant saw a “dark figure with a buggy in front”, the complainant, approach. The attendant asked the complainant to hold on a minute as she had to check her through. The attendant could not clearly see how many items the complainant had as they were partially wrapped over the customer’s arm. The complainant asked why she was being checked through in this manner as her mother had not been checked through in the same way. The attendant terminated her phone call in order to deal with the complainant. The complainant then accused the attendant of being racist. The attendant asked the complainant whether her mother had gone through to the fitting rooms and the complainant confirmed that she had. The complainant then called out to her mother and a lady came out of one of the fitting rooms.
The complainant then stated “Mom, she is a racist, she did not check you through but she is checking me through. The attendant asked the complainant’s mother to confirm that she had checked her through in the normal way and she did so. The complainant’s mother asked the complainant to calm down that the attendant “was only doing her job, she did check me through”.
The complainant repeated that the attendant was racist. The attendant was shocked at this and stated that she was going to fetch security as she was not going to deal with this. The attendant saw a colleague passing nearby and asked her to get somebody from security. A member of the security staff and a manager arrived and the manager took the attendant away out of the situation. The security officer spoke with the complainant and her mother and calmed the complainant down.
The complainant subsequently wrote to the store manager about the incident. The drapery manager wrote to the complainant indicating that she would like to speak further with the complainant about what had happened and inviting the complainant to contact her. The complainant declined to do so in a further letter. The store manager then wrote to the complainant refuting the complainant’s allegations and indicating that it was the complainant who was discourteous to the attendant.
At the Hearing of this complaint the respondent submitted a written statement from the security officer who attended at the fitting rooms on the day in question. The complainant confirmed that the statement was an accurate account of what occurred after the security officer arrived at the fitting rooms on the day in question. The statement indicates that the security officer calmed the complainant down and invited the complainant and her mother to have a cup of tea in the store’s restaurant. The statement also indicates that the security officer vouched for the fitting room attendant to the complainant and that the complainant’s mother agreed with the security officer that the attendant was “ a lovely person” and had been very helpful to her “on numerous occasions.”
The statement also indicates that the complainant’s mother asked the complainant, who was pregnant at the time, to calm down and that she, the complainant was “probably a bit touchy in your condition”.
5. Prima Facie Case
Prima Facie Case
5.1 At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a ) Applicability of a discriminatory ground (e.g. the race or religion ground)
(b) Evidence of specific treatment of the complainant by the respondent
(c) Evidence that the treatment received by the complainants was less
favourable than the treatment someone, not covered by that ground, would have received in the same, or similar circumstances.
5.2 If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the complainant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
6 Prima Facie Case – Complainant
6.1 Religion Ground
The complainant is a Muslim and this is not disputed by the respondent. This fulfils (a) at 5.1 above. It is common case that the complainant was asked by the fitting room attendant to wait until she checked her through. This fulfils (b) at 5.1 above. In relation to key element (c) above the complainant has indicated that she was pushing a child’s buggy and had more than the permitted number of items in her possession as she approached the fitting rooms. While it is clear that two of the items, i.e two pairs of baby tights, were not to be tried on by the complainant, the fact remains that she had additional items which her mother did not have. The attendant asked her to place the items on a nearby chair and proceeded to check the remaining items. While the method of checking these items is in dispute, it is clear from all of the evidence provided that the Islamic dress worn by the complainant, while distinctive, was not the only difference between her and her mother. The additional items and/or the fact that the complainant was pushing a buggy towards the fitting rooms are all matters which might have drawn the attendant’s attention in that, while the complainant states that she did not have the items to be tried on by her wrapped over her arm but was holding them in plain sight, it is difficult to accept that this was so when the complainant would have been controlling the buggy and holding the items at the same time.
I am further struck by the fact that the complainant compares what she sees as the difference in treatment received by her and her mother alone to arrive at the conclusion that discrimination occurred. Evidence was presented to the effect that the complainant’s mother is familiar with the fitting room attendant from visits to the store on “numerous occasions”. The complainant gave no indication that she was familiar with the attendant. It is possible that the attendant was simply more familiar with the complainant’s mother and was therefore less methodical in checking her through than she was with the complainant. In short, the method in which the complainant was checked through could be the norm while the manner in which her mother was checked through is the exception, and is not based on any discriminatory motive. The complainant did not out forward any other comparators from which to draw her conclusions.
In light of the evidence presented I am not satisfied, on balance, that the complainant has established that the treatment which she received was less favourable than the treatment which somebody with a different religion or no religion would have been treated in the same or similar circumstances. The complainant has failed to satisfy key element (c) at 5.1 above and has therefore failed to establish a prima facie case of discrimination on the religion ground.
6.2 Race Ground
The complainant is an Irish national, as is the fitting room attendant. The complainant contends that the attendant imputed a different race/nationality to her by dint of the complainant’s attire, something which the complainant states she has previously experienced, and which is not difficult to accept as something that might occur. The respondent disputes the complainant’s assertion in this regard.
The complainant is basing her assertion in this regard on previous experience and has provided no evidence to show that that is what happened on this occasion. Even if I were to accept that the fitting room attendant had imputed another race/nationality to the complainant and that the complainant was covered by the race ground in accordance with 5(a) above, and I am not satisfied that that is the case, the complainant would have to further show that she was treated in a specific manner and that this treatment was less favourable than that which someone not covered by the ground would be receive in the same or similar circumstances. In the instant case the complainant cites her mother as the direct comparator and states that she was treated in a less favourable manner than her mother on the basis that the attendant imputed that she was of another race/nationality by dint of her attire. For the reasons set out at 6.1 above, I am not satisfied, on balance, that this was the case, i.e the complainant’s attire was not the only thing that differentiated her from her mother at the time in question.
I am not satisfied, on balance, that the complainant, by dint of her attire, was identified by the fitting room attendant as being of another race or nationality. I am not satisfied that the treatment of the complainant by the fitting room attendant was such that it was less favourable than the treatment received by the complainant’s mother on the race ground as there were differences other than the attire of the complainant and her mother which could have given rise to the complainant having been stopped by the fitting room attendant. The complainant has failed to fulfil (a) or (c) at 5(1) above and has therefore failed to establish a prima facie case of discrimination on the race ground.”
Eweida v British Airways Plc
[2010] EWCA Civ 80
COURT OF APPEAL (CIVIL DIVISION) Sedley L.J.
“The question in this appeal is whether, by adopting a staff dress code which forbade the wearing of visible neck adornment and so prevented the appellant, a Christian, from wearing with her uniform a small, visible cross, British Airways (BA) indirectly discriminated against her on grounds of religion or belief. If the answer is that they did, a further question of justification arises.
In the light of the publicity which this case has received, it is necessary to say what the appeal is not about. It is not about whether BA had adopted an anti-Christian dress code, nor whether members of other religions were more favourably treated, nor whether BA had harassed the appellant because of her beliefs. All of these allegations were rejected by an employment tribunal which heard the evidence over 6 days in November 2007. In a well-organised and carefully reasoned decision the tribunal (Employment Judge Lewis, Ms Breslin and Mrs Grugeon) also held that no direct discrimination had occurred. All of these conclusions are now accepted.”
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The history
The background to this claim can be taken directly from the summary given by the employment tribunal.
3.1 The claimant, who is a devout practising Christian, has worked part-time as a member of check-in staff for the respondent since 1999. As her job is customer facing, she is required to wear uniform. As the respondent operates a 24 hour operation throughout the year, she is required to work in a shift pattern. The claimant complained of a number of incidents between 2003 and 2006 which she said showed anti-Christian bias on the part of the respondent.
3.2 Until 2004 the claimant’s uniform included a high necked blouse, and she wore a silver cross on a necklace underneath the blouse when she wished to. Starting in 2004, the respondent introduced a newly designed uniform, which we call the Macdonald uniform, which included provision for an open neck, but which prohibited the wearing of any visible item of adornment around the neck. Between 20 May and 20 September 2006 the claimant came to work on at least three occasions with the cross visible under her uniform. When asked to conceal it she did so. When on 20 September she refused to conceal the cross, she was sent home.
3.3 The claimant remained at home, unpaid, from 20 September until the following February. She initiated and pursued the respondent’s grievance procedures. A storm of media attention, much of it hostile to the respondent, led the respondent to reconsider its uniform policy and to introduce an amended policy on 1 February 2007. The amended policy permitted staff to display a faith or charity symbol with the uniform. The claimant returned to work on 3 February 2007 and is still employed by the respondent.
Indirect religious discrimination
Although Karon Monaghan QC for the appellant founds her case on larger sources of law, the key provision for present purposes is Reg. 3 of the Employment Equality (Religion or Belief) Regulations 2003:
3. Discrimination on grounds of religion or belief
(1) For the purposes of these Regulations, a person (“A”) discriminates against another person (“B”) if –
….
(b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same religion or belief as B, but –
(i) which puts or would put persons of the same religion or belief as B at a particular disadvantage when compared with other persons,
(ii) which puts B at that disadvantage, and
(iii) which A cannot show to be a proportionate means of achieving a legitimate aim.
By Reg. 2(1), “religion” means any religion and “belief” means any religious or philosophical belief.
In her claim form Ms Eweida put her case against BA’s dress code in this way:
“The Claim is for Indirect Discrimination on grounds of religion or belief …..
Particulars
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(b) This policy prevents the open wearing of a Cross by Christians. British Airways have applied their policy to permit adherents of other faiths to openly wear religious clothes that manifest their religious beliefs in the workplace;
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(e) The policy is a ‘provision, criterion or practice’ (PCP) which places i) Christians, and ii) the Claimant at a ‘particular disadvantage’; the ‘decision’ to refuse the wearing of a discreet Cross is a PCP; the disrespect of the Christian faith is a PCP;
……”
The tribunal concluded that the claimant had failed to show that Christians had been placed at a disadvantage. They said:
33.4. The tribunal heard evidence from a number of practising Christians in addition to the claimant. None, including the claimant, gave evidence that they considered visible display of the cross to be a requirement of the Christian faith; on the contrary, leaders of the Christian Fellowship had stated that, “It is the way of the cross, not the wearing of it, that should determine our behaviour”. (R1, 780). The claimant’s evidence was that she had never breached the uniform policy before 20 May 2006, and that the decision to wear the cross visibly was a personal choice, not a requirement of scripture or of the Christian religion. There was no expert evidence on Christian practice or belief (although that possibility had been canvassed at the PHR in June).
33.5. There was no evidence in this case that might support any suggestion that the provision created a barrier for Christians, and ample evidence to the contrary. Mr Marriott stated that this was the only case which he had encountered of a Christian complaining of the uniform policy. Certainly there was no evidence of Christians failing to apply for employment, being denied employment if they applied for it, or failing to progress within the employment of the respondent.
Ms Monaghan attacks this conclusion only briefly, contending that “it could and should have been inferred that there would on the balance of probabilities be at least some others like her”. The tribunal declined to draw any such inference, and I can see no tenable basis on which they can be criticised for so doing. As they record, no employee in a uniformed workforce numbering some 30,000 had ever made such a request or demand, much less refused to work if it was not met, and Ms Eweida herself described it as a personal choice rather than as a religious requirement. There was no reason whatever why the tribunal should infer that there were others whose religiously motivated choice, not of whether but of where they should wear a symbol of their faith, was of such importance to them that being unable to exercise it constituted a particular disadvantage.
It is therefore unsurprising that Ms Monaghan made little of this argument and concentrated her extremely able submissions on a different one. This was that the tribunal had erred in law in looking for evidence of any material group within the BA workforce, and that the EAT had erred in law in upholding them. On a correct reading of the regulation, Ms Monaghan submits, “persons” in sub-paragraph (i) includes a single individual. Even if on the evidence, therefore, Ms Eweida alone was disadvantaged by the dress code, the test of indirect discrimination is met.
This argument faces two major difficulties.
(1) The meaning of Reg. 3(1)(b)
The first is that, if it is right, no evidence of group disadvantage is ever necessary: one would simply read “persons” as if it were “any person”. In that event, however, sub-paragraph (i) could have been omitted entirely without changing the meaning of the regulation.
Moreover, while for my part I would not share the EAT’s view (§59) that “the whole purpose of indirect discrimination is to deal with the problem of group discrimination” (its overall purpose, as both counsel agree, is to deal with the discriminatory impact of facially neutral requirements), it is entirely right that the way in which equality laws on both sides of the Atlantic have for many years sought to do this is by seeing, first, whether an identifiable group is adversely affected, whether actually or potentially, by some ostensibly neutral requirement and then whether the claimant has in fact been disadvantaged by it.
This familiar model, originating in the US Supreme Court’s landmark decision in Griggs v Duke Power Co US 424 (1971), brought in its train considerable problems of implementation. In particular, the schematisation of it in the Sex Discrimination Act 1975 and the Race Relations Act 1976 required the isolation of “pools” within which the proportion of disadvantage could be gauged, a task which defeated three decades’ judicial attempts to find a workable formula. The Framework Directive 2000/78/EC avoided this snare by defining indirect discrimination as occurring “where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons”. The 2003 Regulations, designed to implement the Directive, adopted the formula set out in §6 above (a formula now replicated by amendment in the Sex Discrimination Act). Ms Monaghan does not suggest that this was an imperfect transposition: rather she submits that Reg. 3 is to be read so as to conform with the Directive.
I accept the correctness of this approach. But there is in my judgment no indication that the Directive intended either that solitary disadvantage should be sufficient – the use of the plural (“persons”) makes such a reading highly problematical – or that any requirement of plural disadvantage must be dropped. I see no reason, therefore to depart from the natural meaning of Reg. 3. That meaning, as Ms Simler submits, is that some identifiable section of a workforce, quite possibly a small one, must be shown to suffer a particular disadvantage which the claimant shares. This approach, unlike Ms Monaghan’s, gives value both to sub-paragraph (i) and to sub-paragraph (ii). If you look at s.4A of the Disability Discrimination Act 1995 as amended, you see how Parliament provides for indirect discrimination against a single individual: it defines it as arising when a provision, criterion or practice, or any physical feature of the premises, “places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled”. That is palpably not the case here.
The use of the conditional (“would put persons … at a particular disadvantage”), whether in the alternative, as in the domestic legislation, or on its own, as in the Directive, does not in my view have either the purpose or the effect with which Ms Monaghan seeks to invest it. Her contention is that “would put” requires the tribunal to aggregate the claimant with what may be – and in the present case would be – an entirely hypothetical peer-group to whom the same disadvantage is to be attributed. The effect of the argument is, as before, to permit a finding of indirect discrimination against a solitary employee.
The argument loads far too much on to the word “would”. Its purpose, in my judgment, is the simple one indicated at the end of §12 above: to include in the disadvantaged group not only employees to whom the condition has actually been applied but those to whom it potentially applies. Thus, if you take facts like those in the seminal case of Griggs, the group of manual workers adversely affected by the unnecessary academic requirement will have included not only those to whom it had been applied but those to whom it stood to be applied.
On the narrowest view, its practical application in a case like this would require evidence that other uniformed BA staff would, like the claimant, have wished to wear a cross in a visible place but were deterred by the code from doing so: the fact that, unlike the claimant, they had not chosen to provoke a confrontation would not count against them. On the widest view it would operate wherever evidence showed that there were in society others who shared the material religion or belief and so would suffer a disadvantage were they to be BA employees. On an intermediate view, it would operate by assuming, even if it is not the case, that the workforce includes such others and asking whether they too, or some of them, would be adversely affected by the relevant requirement. All three have difficulties. The narrow view excludes the solitary individual from the protection of the law against indirect discrimination – a result which the Disability Discrimination Act 1995 explicitly avoids but which the 2003 Regulations do not. The wide view places an impossible burden on employers to anticipate and provide for what may be parochial or even factitious beliefs in society at large. The intermediate view, despite its attractions, in practice risks becoming merged with the wide view by inviting proof that in the world outside the workforce are co-religionists or fellow believers, however few, who are to be assumed to have entered the same employment as the claimant and have become subject to the requirement to which the claimant objects.
We do not have to resolve this issue because Ms Eweida’s evidence failed all three tests. It is also possible that the meaning and effect of the formula differ depending on the form of discrimination alleged: it may be relatively simple, and within the legislative purpose, to aggregate a single female employee with a hypothetical group of other female staff in order to gauge adverse impact, but forensically difficult, even impossible, to do the same for a solitary believer whose fellow-believers elsewhere in society may accord different degrees of importance to the same manifestation of faith.
Part of Ms Monaghan’s argument has been a criticism of the tribunal for looking for some “barrier” to the manifestation of faith in BA’s uniform code, when all that is required is a disadvantage. I have quoted the passage at §33.5 in which the tribunal use the word, and the citation from Baroness Hale at §33.3 from which the word is taken. In my judgment this is a misdirected criticism. The word “barrier” is being used in both instances as a convenient metaphor for the kind of disadvantage described in the legislation; that is all.
Ms Monaghan cites Art. 9 of the European Convention on Human Rights in support of her case. Art. 9 provides:
Article 9
Freedom of thought, conscience and religion
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
But the jurisprudence on Art. 9 does nothing to advance the claimant’s case. The European Court of Human Rights in Kalaç v Turkey (1997) 27 EHRR 522, §27, said:
“Article 9 does not protect every act motivated or inspired by a religion or belief. Moreover, in exercising his freedom to manifest his religion, an individual may need to take his specific situation into account”.
In R (SB) v Governors of Denbigh High School [2006] UKHL 15, §23, Lord Bingham commented on this and other Strasbourg decisions:
“The Strasbourg institutions have not been at all ready to find an interference with the right to manifest religious belief in practice or observance where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are other means open to the person to practise or observe his or her religion without undue hardship or inconvenience”.
The EAT’s considered judgment on this part of the case can be found at [2008] UKEAT/0123/08/LA, §26-64. While my reasoning on it follows a slightly different course, and at one point differs from it, my conclusion is the same as theirs. In particular I would respectfully endorse what they held at §60:
“In our judgment, in order for indirect discrimination to be established, it must be possible to make some general statements which would be true about a religious group such that an employer ought reasonably to be able to appreciate that any particular provision may have a disparate adverse impact on the group”.
(2) A new issue
The second difficulty is that this was not how the claim was put to the tribunal. I indicated at the start of this judgment the intemperate sweep of the allegations initially made against BA. When I granted permission to appeal to this court on the single surviving issue, and again when dealing with cost-capping, I expressed my unease that a sectarian agenda appeared to underlie the claim. What we have been told by counsel about the claimant’s rejection of an open offer to settle the claim on generous terms seems to confirm this. It was entirely of a piece with this, and not merely a tactical forensic choice, that the claim should be framed and pursued on the footing that BA was indirectly discriminating not simply against the claimant but against all Christians in its uniformed workforce.
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Justification
Indirect discrimination, if it occurs, is not necessarily wrongful: the defendant employer may show that, in spite of its negative effect, the provision, criterion or practice, despite its unequal impact, constitutes a proportionate means of achieving a legitimate aim.
The employment tribunal explained why they would not have found the material requirement of the dress code justified if they had found that it placed Christians in general at a disadvantage. They considered that the aim of the uniform code was undoubtedly legitimate – a finding which requires no explanation. But they took the view that the prohibition of visible symbols was not proportionate because – with the admitted benefit of hindsight – it seemed to them that the eventual review which resulted in a relaxation of the code to permit the visible wearing of religious and other symbols could have taken place sooner had the (assumed) discriminatory impact of the code been analysed before November 2006.
They concluded:
33.11. We would not consider the requirement proportionate because it fails to distinguish an item which represents the core of an individual’s being, such as a religious symbol, from an item worn purely frivolously or as a piece of cosmetic jewellery. We do not consider that the blanket ban on everything classified as ‘jewellery’ struck the correct balance between corporate consistency, individual need and accommodation of diversity.
Ms Simler would have pressed her cross-appeal on justification even if the original claim of generic discrimination against Christians had been maintained. What has now to be justified is a rule which for some 7 years had apparently caused Ms Eweida, along with the rest of BA’s staff, no known problem. Nor had it done so as a result of the introduction of the Macdonald uniform in 2004. When the issue was raised by her, it was conscientiously addressed – not perhaps as speedily as it might have been, but then it had been raised by a single employee and had no apparent urgency. It was Ms Eweida who decided (on whose advice we do not know) to refuse BA’s accommodating offer to move her without loss of pay to work involving no public contact and instead to stay away from work and claim her pay as compensation.
In the situation now relied on by Ms Monaghan, in my judgment no tribunal could find that BA’s response was such as to make the introduction or maintenance of the rule disproportionate, either before or after the point of time at which the issue was raised by Ms Eweida. On the evidential basis now adopted on her behalf, it was an entirely personal objection, neither arising from any doctrine of her faith nor interfering with her observance of it, and never raised by any other employee. She had twice made her point between May and September 2006 not by seeking a revision of the code but by reporting for work in breach of it. She had twice been warned; she had lodged a formal grievance on 13 June; but without waiting for it to be resolved she again breached the code and on this occasion, 20 September 2006, was sent home.
The tribunal’s findings about BA put this history in perspective:
9.14. We accept that if invited to consider an amendment to the policy on religious grounds, the respondent generally saw the matter through the perspective of diversity, and sought to accommodate staff diversity where appropriate.
9.15. We find that other than the claimant every individual who requested accommodation of the policy observed existing policy until a change was authorised. The claimant was the only employee who ever raised an issue under the [Macdonald] policy and insisted on a departure from the [Macdonald] policy while the matter was still under consideration.
Moreover, the tribunal (§26.8) made this finding:
“We find that the procedures were properly followed, and where delays arose, they arose not out of the factual complexity of the issues, but partly due to the unavailability of individuals, and partly because the claimant’s insistence in introducing wide policy considerations forced the grievance investigators to seek a range of management views on broader issues. The press coverage which was, in the main, supportive of the claimant cannot have assisted any manager tasked with objective adjudication on an individual employment issue”.
I am bound to say that, in the light of these and other findings of the tribunal, I have considerable difficulty in seeing how they could hold that a previously unobjectionable rule had somehow become disproportionate once the claimant had raised the issue, even on the assumption that it was a rule that disadvantaged Christians as a group within the workforce. This is especially so in the light of Ms Simler’s well-founded submission that the tribunal’s reference to “the core of an individual’s being” has no place in the present argument. Neither Ms Eweida nor any witness on her behalf suggested that the visible wearing of a cross was more than a personal preference on her part. There was no suggestion that her religious belief, however profound, called for it.
But findings of this kind by an expert tribunal are entitled to considerable respect on the part of appellate courts, and it may be that despite my reservations about it interference would not have been justified. It is, however, no longer relevant. On the footing on which the indirect discrimination claim is now advanced, namely disadvantage to a single individual arising out of her wish to manifest her faith in a particular way, everything in the tribunal’s findings of fact shows the rule, both during the years when it operated without objection and while it was being reconsidered on Ms Eweida’s instigation, to have been a proportionate means of achieving a legitimate aim. The contrary is not in my view arguable.
It follows that, were Ms Monaghan’s new case on indirect discrimination to be sustainable in law, it would be defeated by BA’s case on justification.
……………….I would dismiss this appeal.”
EDA074
FULL RECOMMENDATION
ADE/06/10
DETERMINATIONNO.EDA074
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998
Irish Prison Service v Morris
Chairman: Mr Duffy
Employer Member: Mr Grier
Worker Member: Mr Nash
SUBJECT:
1. Appeal under Section 83 of the Employment Equality Act, 1998 Dec-E2006-015
BACKGROUND:
2. The worker appealed the Equality Officer’s decision to the Labour Court on the 26th May, 2006, in accordance with Section 83 of the Employment Equality Act, 1998. A Labour Court hearing took place on the 5th February, 2007, in Roscommon. The following is the Court’s determination:
DETERMINATION:
This case came before the Court in the following circumstances. Fr Morris (the Complainant) is a priest of the Roman Catholic Church. He was appointed as chaplain to a prison. It is not disputed that he was employed in that capacity by the Irish Prison Service (the Respondent). While his duties involve ministering to the spiritual care and welfare of prisoners he is classified as a Prison Officer for the purpose of the Prisons Ireland Act 1877 and the Rules for the Government of Prisons 1947. He claims that his conditions of employment are less favourable than those applicable to other prison officers in relation to the following: –
?Access to the Criminal Injuries Compensation scheme.
?Access to promotion
?The terms on which his appointment can be terminated.
The Complainant contends that he is the victim of discrimination on the grounds of his religious belief in relation to this less favourable treatment. In advancing that argument the Complainant relies on the definition of the expression “religious belief” contained at s 2 of the Act, as follows:-
“religious belief” includes religious background or outlook.
The Complainant says that his position as a priest is his religious background. He submitted that if he is treated differently because he is a priest, his complaint comes within the ambit of the religious ground as defined by Section 2 of the Act. The Respondent contends that the expression as defined is not capable of encompassing a person’s status or position within a particular religion but relates to the faith or religious beliefs which they espouse.
It was accepted by the parties that the case turns on the net point of whether or not being a priest is capable of being regarded as the Complainant’s religious background for the purpose of the Act.
Conclusions of the Court
There are two possible meanings which can be ascribed to the expression “religious background”. Firstly, it could be intended to refer to a situation in which a person was reared or educated in a particular religion but has ceased to practice or espouse that religion. Secondly, it could be interpreted as meaning the standing or position of a person within an organised religion or sect. This would ascribe to the expression a significantly wider ambit than if the former construction where to be applied. It would, for example, mean that a person who holds a position or status within a particular church could, on that account, claim to be discriminated against relative to other members of the same church. This could arise in circumstances in which there is no imputed or actual antipathy on part of the alleged discriminator towards the religion in question.
Dictionary definition.
The Oxford Dictionary of English, second edition, defines the word “background” as,inter alia, “a persons education, experience and social circumstances” There is no doubt that an ordained priest would have a different education, experience to that of a person who was never a priest. However, there are other considerations which must be brought to bear in considering if this is the meaning intended by the framers of the statute.
The words in context.
While dictionary definitions are of assistance in the process of statutory construction, a meaning must be attributed to words and expressions by reference to the context in which they appear. Stamp J explained the application of this principle inBourne v Norwich Crematorium Ltd[1967] 2 All ER 576, as follows: –
English words derive colour from those which surround them. Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases, and then put back again into the sentence with the meaning which you have assigned to them as separate words, so as to give the sentence of phrase a meaning which as a sentence of phrase it cannot bear without distortion of the English language.
That passage was quoted with approval by Henchy J inDillon v Minister for Posts and Telegraphs,Supreme Court, Unreported, 3rd June 1981, and by Hamilton P (as he then was) inUnited States Tobacco International Inc v Minister for Health1 IR 394.
The words “religious background” appear in Section 2 of the Act as a component of the term “religious belief”. They are followed by the words “or outlook”. It would thus appear that the word “background” should be construed in the same context as the words “belief” and “outlook”. Both of these words refer to an opinion or conviction which a person may hold, or to a point of view or an attitude to life. Neither word is capable of referring to a person’s status or position.
It must also be borne in mind that the Act must be construed in harmony with Directive 2000/78/EC establishing a general framework for equal treatment in employment and education. Article 1 of the Directive recites its purpose as being to lay down a framework for combating discrimination on grounds of,inter alia, religion and belief. Again, these words suggest that the protection given is for membership of a religious denomination or the espousing of a particular religious belief. It does not appear to extend to the status, standing or position of a person within a particular religious body or church.
Findings
What is at issues in this case is an arrangement or rules which applied a set of conditions to the Complainant when he was a chaplain working in a prisons which were not applied to others who were not chaplains. Thus the difference in treatment is grounded on the office or position which the Complainant held and not on the religion which he professes or practices. In that regard it would, in the Court’s view, be absurd to hold that as a matter of law a Catholic priest working in a prison is of a different religious belief to a Catholic lay person working in a prison.
This absurdity would, in the Court’s view, be compounded by the consequences which would flow from adopting the construction contended for by the Complainant. If, for the purposes of the Act, the Complainant is of a different religious belief to a lay prison officer who is a Catholic, and can bring a claim under the Act on that account, the converse must also be the true. This could mean that an ordinary prison officer, who is a practising Catholic, could claim to be discriminated against on grounds of religious belief, using a chaplain as a comparator, in such matters as being obliged to wear a uniform or in being required to undertake more arduous duties involving the maintenance of discipline within the prison. This could not have been intended.
Notwithstanding the careful and forceful arguments made on behalf of the Complainant, it appears to the Court that the reference to religious background in the definition of religious belief is intended to cover situations in which a person suffers discrimination because of their education or upbringing in a particular religion which they may no longer espouse. Had the Oireachtas intended to protect a person’s position or statues within a religion it would have said so in clear terms. The Court cannot interpret the Act in a way which has the affect of giving the provision a wider scope than that actually given to it by the legislature.
Accordingly, the Court concurs with the decision of the Equality Officer on this point and must disallow the Complainant’s appeal
Signed on behalf of the Labour Court
Kevin Duffy
28th February, 2007______________________
DEC-S2008-030 – Full Case Report
Equal Status Acts 2000 to 2004
EQUALITY OFFICER’S DECISIONS NO: DEC-S2008-030
A Parent on behalf of a child v A national youth work organisation
Keywords
Equal Status Acts 2000 to 2004 – Discrimination, Section 3(1)(a) – Religion ground, section 3(2)(e) – Disposal of goods and provision of services 5(1) – Vicarious liability, section 42 – Preferential treatment on religious grounds in relation to membership waiting list.
1. Delegation under the Equal Status Acts 2000 to 2004
1.1 A parent referred a claim on behalf of child on 21 March 2005 to the Director of the Equality Tribunal under the Equal Status Acts 2000 to 2004. In accordance with her powers under section 75 of the Employment Equality Act, 1998, the Director then delegated the case to me, Tara Coogan, an Equality Officer, on 1 November 2007 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under part III of the Equal Status Acts. A hearing was held on 22 January 2008. Subsequent correspondence was received from both parties, the last of which was received on 15 February 2008.
2. Dispute
2.1. The dispute concerns a complaint by a parent representing a child (hereafter the complainant) that a locally based service of a national youth work organisation (hereafter youth service) treated a child contrary to the Equal Status Acts 2000 to 2004 on the religion ground. The parent maintains that the youth service treated the complainant, a Roman Catholic, less favourably than a person who is a member of Church of Ireland when it indicated on 4 February 2005 that it gave preferential treatment on its waiting list to Church of Ireland members.
3. Anonymity of parties
3.1. As the complainant at the centre of this complaint is under the age of 18 and, therefore, unable to make a complaint in her own right I have anonymised all parties concerned to ensure that her identity and right to privacy is protected.
4. Case for the complainant (on behalf of child)
4.1. The complainant’s parent maintains that her daughter was discriminated against on the grounds of her religion (she is Roman Catholic) when she attempted to join a youth service in early February 2005. The complainant’s parent states that she was informed by one of the group’s local leaders that the particular local branch gives preference to Church of Ireland members on its waiting list over those who are not members of that Church.
4.2. The complainant was aged 8 at the time of the alleged incident. She had a friend who was a member of the youth service. In January 2005, that friend’s parent informed the complainant’s parent that there was a vacancy in the youth service and that she should bring her daughter along to the next meeting. The friend’s parent had allegedly received this information from the leader, Ms. A, of the youth service.
4.3. The complainant’s parent brought her daughter along to the next meeting. Despite the leader, Ms. A, not being present and the other two assistant leaders having not been informed that the child would be coming, the leaders – Ms. B and Ms. C – along with the members of the youth group, were welcoming and the child enjoyed herself.
4.4. A few days later, one of the assistant leaders, Ms. B, rang the complainant’s house and left a message for the complainant’s parent requesting that she ring her. The complainant’s parent did and was told by Ms. B that the youth service operated a waiting list and that there was another child ahead of the complainant. This meant that the child would have to wait until another vacancy became available. Ms. B then added that as the child did not belong to a named parish (associated with Church of Ireland) the complainant would have to wait until at least 2006 before she could have any chances of joining.
4.5. This statement of ‘not in the parish’ involving the complainant, according to the complainant’s parent, meant that Ms. B had clearly indicated that the complainant – who is Roman Catholic – was not a member of Church Of Ireland. This, she maintains, means that the complainant was treated less favourably than a person with a different religious belief from her own.
4.6. The parent further argues that some Church of Ireland members whom she is acquainted with would regularly use the phrase ‘in the parish’ to refer to people who are members of Church of Ireland and who attend the named parish.
4.7. The complainant’s parent subsequently made contact with the youth service’s Head Office and made her complaint to the CEO, Ms D, over the phone and in a letter dated 9 February 2005. She outlined her complainant and informed the CEO that she had made contact with Reverend Z from the named parish to enquire about the youth services waiting list. According to the parent, Reverend Z openly admitted that it is he who insists that priority be given to members of his church. Further, she maintains, that Reverend Z was unapologetic about this and quite trenchant in his view that this is and would continue to be his position. According to the parent, Reverend Z stated “you have the GAA”.
4.8. In a further letter dated 11 February 2005 addressed to the CEO, Ms. D, the parent rejected an offer of an immediate place the youth service operating in a named parish. The parent received a letter dated 23 February 2005 from the CEO, Ms. D with an offer for a place for the complainant. This was offer was declined by the parent. The reason for this refusal was because the offer had been made on ‘an exceptional basis’ and therefore, the parent believes, does not address the alleged discriminatory practice that had led to the incident in the first place. The parent had stated in her letter of 11 February 2005 that “I could not allow my daughter to accept such an offer unless and until I am assured by you that discrimination on religious grounds no longer influences the waiting list system for the youth service in this area”.
4.9. In a final letter dated 13 March 2005, the parent indicated that the reply she had received from the CEO, Ms. C, had not satisfactorily addressed the issue of the alleged discriminatory issue nor indicated what the youth service intended to do about removing it. In this letter, the parent acknowledges that the leader of the youth service, Ms. A, had assured her that the complainant was next on the waiting list but is adamant that because of her initial conversation with Ms. B, the assistant leader, she was left with the understanding that the complainant was a) not on the waiting list and b) that this waiting list was influenced by a person’s religious affiliation. While the parent was now told that the complainant would be able to join sometime in 2005 she maintains that the leader, Ms. A, also confirmed that the practice which the parent’s believed to be a discriminatory system of preferring members of the Church of Ireland of the said parish would remain in operation.
4.10. The parent argued at the hearing that any reasonable person would understand Ms. B’s statement that the child ‘was not in the parish’ to mean that the child was not a member of Church of Ireland. She does not accept that ‘parish’ could refer to a catchment area or to a locality. The parent submits that to infer that Ms B meant anything other with the phrase ‘not in the parish’ than the meaning of ‘not a member of the Church of Ireland’ is not credible and that to define it as ‘locality’ is just a way for the respondents not to accept the severe implications of actual significance of ‘not in the parish’.
4.11. The parent also argues that even if the youth service had only 11 Church of Ireland members in a group of 24, this is not inconsistent with the fact that the youth service prioritises its waiting list according to religious belief.
4.12. Having examined the geographical make-up of the said parish, the parent also submits that the complainant did, indeed, live in the geographical area of the named parish. This, she argues, means that Ms B’s statement that she used the term parish to distinguish the named area (shared with the parish) from other areas in the locality, such as the place where the complainant resides, is moot as the complainant clearly lives in the geographical area which covers the named parish.
4.13. The parent maintains that the letter in which the CEO, Ms. D refers to “external constraints being imposed” is a clear admission of the conditions of use attached to the parish hall. She does not accept that it could refer to insurance cover. She submits that Reverend Z, Ms. A and Ms. B all confirmed that such terms were imposed on the youth service for their use of the hall.
4.14. The complainant’s parent does not want to undermine the valuable work done by the youth service nationally. She believes that the named local youth service operates an on-going discriminatory policy because of its association with the named parish. If the group were to meet elsewhere, she argues, this problem may be eliminated.
5. Case for the respondent
5.1. The respondent is a non-profit, voluntary organisation for young people. It is independent from any political organisation or party. The organisation is faith based, open to all faiths. This is one of its core principles.
5.2. The youth service has an extensive constitution and by-laws outlining the organisation’s mission statement, its policies and aims and objectives. Centrally managed, the organisation is run from a number of locally based services. For this particular age category, the maximum number of participants for any meeting is outlined in the by-laws as 24.
5.3. When a local service is established, every effort is made to find a location that is not specifically linked with any particular religion. Across the country, meetings are held in a variety of locations including parochial halls of all denominations, community centres, school premises and sport facilities. Cost and health and safety aspects are important considerations for a voluntary organisation when it comes to decisions about where meetings are to be held.
5.4. The local youth service in question meets in a local a parish hall (Church of Ireland). This hall has, for a number of years, been and is provided free of charge. The respondent submits that no terms and conditions indicating that members belonging to that particular parish should be given priority have ever been suggested to it. The respondent openly admits that the fact that the hall is offered to the youth service free of charge is one of the reasons why the group meets in the hall. The arrangements for the hall are made through the parish secretary.
5.5. The leader of the youth service submitted at the hearing that she had taken over the running of the service after the previous leader had suddenly resigned in 2004. She stated that the previous leader had managed the group independently while she and the other two assistant leaders had helped with the running of the group. When the group resumed again after the summer, the three assistant leaders came along with a view of yet again offering support to the leader as parents of some of the members when the then leader suddenly resigned. This meant that unless one of the previous assistants took over the responsibility of running the youth service it would have had to close. Ms. A took on the mantle of the youth service leader but stated at the hearing that she preferred to delegate the various duties and share the responsibilities with the other two assistant leaders Ms. B and Ms. C. This means that, at the time, the youth group was really managed as a democracy rather than by one ‘central’ leader.
5.6. At the hearing Ms. A stated that it was unusual for a vacancy to rise in the group during the academic year. The places were allocated on a first-come, first-served basis. That year (in September 2004) there had been a good turn out for membership and the group’s quota was met at the first meeting. At this stage there was no need to establish a waiting list. During the year, one of the members indicated that her family were moving abroad. All of the leaders were informed of this.
5.7. A friend of the complainant’s parent approached Ms. A in January 2005 to enquire about a place for the complainant. Ms. A told the friend’s parent that the complainant could come along to the next meeting on 31 January 2005. At the time, Ms A was unaware that Ms B had offered the place to someone else. Due to family commitments, Ms A was unable to attend the meeting the day the complainant attended her first meeting.
5.8. At the end of the meeting, one of the assistant leaders mentioned it to the complainant’s parent that she did not think that there was a place for the complainant in the group as the vacancy had already been filled. She informed the parent that she would talk to the leader Ms. A and be in touch later in the week with the parent to confirm the situation.
5.9. Ms. A and Ms. B subsequently discussed the issue of the vacancy and realised that there had been a breakdown of communication between the two of them. Ms. A had not known that Ms. B had already told another parent several months previously that her child could have the next available place. As soon as she realised this, it was agreed that Ms. B ring the complainant’s parent and explain the reason for the mix up. Ms. B spoke with the complainant’s parent and, after apologising for the misunderstanding, told the parent that another child had been offered the place and as a result, the complainant would have to wait for another vacancy before she could become a member. Ms. B denies that she told the parent that the complainant would have to wait until “at least 2006” before she would be offered a place. She maintains that she told the complainant’s parent that the youth service would be able to take the complainant in June/September 2005 when some of the participants would be leaving.
5.10. Subsequent to the phone call, the complainant’s parent made a complaint to the youth service’s head office. She told the CEO that the youth service in question operated a discriminatory policy and that this policy was linked with religious affiliation.
5.11. As a result of this complaint, the CEO, Ms. D investigated whether any of the other nearby services had any available places for the child in question. A vacancy was discovered in a nearby service and an offer was made to the complainant. This was initially accepted by the parent but turned down 30 minutes later. The CEO, Ms. D then contacted the person responsible for the area to discuss the matter.
5.12. The youth service investigated the matter, including looking into other venue options as suggested by the complainant’s parent, and identified that the only reason why the group could not accommodate a 25th member (apart from the tradition of having a maximum 24 children to a group) was due to insurance cover. The group had three adult leaders and, allowing for child protection concerns, could therefore extend the numbers temporarily to allow for the child to join. The reason why the respondent went to these lengths to accommodate the child, according to the CEO, Ms. D was because the youth service did not wish the child to be left out.
5.13. The respondent submits that, at the time of the incident complained of, registration forms for the youth group reveal that only 11 out of the 24 females were members of the Church of Ireland. This means that 13 of the females were of another religion or none. The reason why the youth service enquires about church membership is outlined under the organisation’s religious policy which outlines that the religious beliefs of all members shall be respected and the following clauses observed:
A. If the group is composed of members of various forms of religion they shall be encouraged to attend the services of their own form of religion.
B. Any form of daily prayer should be of the simplest character, attendance being voluntary.
C. Where it is not permissible under a rule of the religion of any member to attend religious observances other than her own form of religion, the leaders of the group must see that such rule is strictly observed while the member is in their care.[1]
5.14. The respondent has never acknowledged, contrary to the complainant’s parent’s letter dated 11 February 2005, that a person’s affiliation determines a person’s position on the waiting list. The CEO, Ms D, absolutely refutes that she has ever stated anything of the kind. The respondent maintains that the misunderstanding arose from an unfortunate lack of communication between its volunteer leaders.
5.15. The respondent has no idea why Reverend Z would have made the comments that the complainant maintains he made. While the CEO, Ms. D and the leader Ms. A have since met with Reverend Z – who, according to the respondent, denies making any such statements to the complainant – the respondent is in no position to defend or explain his alleged actions. The respondent, however, categorically denies that Reverend Z has ever requested that it operate a preferential recruitment policy. The respondent also positively denies that it would ever give preference to any faith not that it would succumb to any pressure placed on it in that regard.
5.16. The respondent submits that it is a faith-based, non-denominational youth service. It categorically denies that it operates a policy of discrimination based on religious beliefs. The organisation has, in its view, taken every effort to explain the mix up in relation to the availability of places and made every effort to include the complainant. The respondent regrets that the miscommunication between the two leaders has been interpreted as something more sinister but is adamant that it has no case to defend before the Tribunal.
6. Conclusions of the Equality Officer
6.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting the she suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
6.2. In making my decision I have taken cognisance of both oral and written submissions made to me before, during and after the hearing.
6.3. The complainant at the centre of this complaint is Roman Catholic. Some of the other participants in the local youth service are members of Church of Ireland. It is also agreed that an incident involving the complainant did take place. Both parties agree that the complainant did attend a meeting and that her parent was subsequently informed that the vacancy had been offered to another child. The question that this decision must address it whether the young person was treated less favourably than another person of a different religious background or outlook is, has been or would be treated in a comparable situation.
6.4. No evidence was offered to the Tribunal to establish that the other child had not been placed on a waiting list prior to the complainant attending the meeting. Nor have I been presented with any evidence indicating that the other child’s religious outlook or background (or having none) had anything to do with her being ahead of the complainant on the waiting list. I also accept that a waiting list was established and that it was accepted by the other leaders that 1) Ms. B had the authority to do so and 2) that a waiting list was an acceptable practice.
6.5. I accept that this other child was indeed offered the place before the complainant attended the meeting in January 2005.
6.6. The parent also maintained that the letter she received from the CEO, Ms D, referred to the fact that the offer of a place was made in ‘exceptional circumstances’ and that this was a direct admission of the alleged discriminatory practise. I, having perused the youth service’s policies in relation to group size[2], accept that the fact that the number was extended to 25 created the ‘exceptional circumstances’. The CEO’s letter to the complainant’s parent dated 23rd February 2005 is clear in stating: “the only barrier to your daughter’s membership was the insurance cover for the number of girls in the unit. We agreed to make an exception and informed the leaders that they could have one more than the maximum number of girls in the unit.”
6.7. The remaining question that I need to answer is whether the use of the phrase “not in the parish” by Ms. B could be construed as a act of discrimination within the meaning of section 5(1) of the Equal Status Acts 2000 to 2004?
6.8. Having considered the phrase “not in the parish” I appreciate how subjective its meaning can be. While the respondent maintains that if such a phrase had been used it would have referred to the locality, the complainant’s parent believes that it is refers to a person’s religious affiliation. The complainant rejected the respondent’s interpretation of ‘not in the parish’ referring to a locality or a neighbourhood. She asked Ms. B how she knew where the complainant resided? When Ms. B replied that the parent has told her she lived in X, the parent did accept that she might have told Ms. B at the time. I do believe, on the balance of probabilities, that a parent leaving her child in care of another adult would divulge such information. Therefore, I do not accept that the statement about the complainant not being in the parish be intended to be interpreted as a religious reference.
6.9. Therefore, the phrase ‘not in the parish’ cannot on its own be viewed as sufficient evidence of discrimination within the meaning of the Acts. I accept that the place had been offered to another child before the complainant attended the meeting. I also find that the child at the centre of this complaint was welcome and made to feel so on the day she participated. As a result of the complaint brought up by the parent, the youth organisation took a number of practicable steps to ensure that the child could be included as soon as possible. Indeed, two offers were made. The first, in a nearby youth service, was declined. The second offer, made within three weeks of the complaint, was for a place in the local youth service. This offer, outlined in Ms. D’s letter dated 23 February 2005 to the complainant’s parent, could be made because the respondents had contacted their insurance company and extended their cover to allow for an additional member to be included.
6.10. I find that this admitted communication failure about the waiting list between the two leaders has, on the balance of probabilities, nothing to do with religious belief. As a result of it, Ms. B was placed in an uncomfortable situation where she had to explain the situation to the complainant’s parent and, during the conversation between Ms. B and the complainant’s parent, a regrettable utterance of geography was made. The complainant’s parent interpreted this statement as a reference to the Church of Ireland. This interpretation was deepened when the parent approached Reverend Z and received the alleged information from him.
6.11. Having regarded section 42(1) of the Acts: “Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval” I find no legitimate reason to hear Reverend Z as a witness. Reverend Z is not an employee or an agent of the youth service and thus anything that he did or did not allegedly say about the youth service has no relevance to the issue.
6.12. While I can appreciate the reasons why a parent would feel that she needed to go and talk to a person representing the parish, rather than the youth service, in her effort to investigate the policies of the youth service, it is obvious that the complainant’s parent’s decision to do so only deepened the conflict further. The youth service cannot be held liable for things that may or may not have been said by persons who are not linked with the organisation. As stated above, I find no liability between the youth service and the named individual. Even if named person had said what has been alleged, and it is important to emphasise that the person was not present at the hearing, I must stress that – within the meaning of the Equal Status Acts 2000 to 2004 – he cannot be held liable and is irrelevant to this decision
6.13. Having regarded the full facts presented to me in this case I must conclude that I have not found facts of sufficient significance to establish a discriminatory practice on the religion ground within the meaning of the Acts in the local youth service. The youth work organisation took many steps in its effort to rectify an inflamed and unfortunate situation. I find that a misunderstanding had risen due to a breakdown of communications between the local leaders. This lead to a difficult phone call to the complainant’s parent. I accept that any reference to ‘in the parish’ was intended as a reference to the locality. Having considered the entire case, I must conclude that, on the balance of probabilities, the complainant was not treated any less favourably than any other child associated with another religion or none would have been treated in a comparable situation.
7. Decision
I find the complainant has failed to establish a prima facie case of discrimination on grounds of religion, in terms of section 5(1) of the Equal Status Acts 2000 to 2004 and her complaint must therefore fail.
_________________
Tara Coogan
Equality Officer
May 2008
[1] I have changed the wording in a few places where the organisation would otherwise be immediately identifiable.
[2] The maximum group size for this age category is defined as 24.