Religious Discrimination
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.”
Eweida and Others v. the United Kingdom
ECHR
“Article 9-1
Manifest religion or belief
Disciplinary measures against employees for wearing religious symbols (cross) at work or refusing to perform duties they considered incompatible with their religious beliefs: violation; no violations
Article 14
Discrimination
Disciplinary measures against employees for wearing religious symbols (cross) at work or refusing to perform duties they considered incompatible with their religious beliefs: violation; no violations
Facts – All four applicants were practising Christians who complained that domestic law had failed adequately to protect their right to manifest their religious beliefs. The first applicant, Ms Eweida, a British Airways employee, and the second applicant, Ms Chaplin, a geriatrics nurse, complained that their employers had placed restrictions on their visibly wearing Christian crosses around their necks while at work. The third applicant, Ms Ladele, a Registrar of Births, Deaths and Marriages; and the fourth applicant, Mr McFarlane, a counsellor with a confidential sex therapy and relationship counselling service, complained that they had been dismissed for refusing to carry out certain of their duties which they considered would condone homosexuality, a practice they felt was incompatible with their religious beliefs.
Law – Article 9 alone and/or in conjunction with Article 14: There is case-law of the Court and Commission which indicates that, if a person is able to take steps to circumvent a limitation placed on his or her freedom to manifest religion or belief, there is no interference with the right under Article 9 § 1 and the limitation does not therefore require to be justified under Article 9 § 2. However, given the importance in a democratic society of freedom of religion, the Court considered that where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate.
Where, as in the case of the first and fourth applicants, the acts complained of were carried out by private companies and were not therefore directly attributable to the respondent State, the Court must consider the issues in terms of the positive obligation on the State authorities to secure the rights under Article 9 to those within their jurisdiction.
As regards the applicable principles under Article 14 of the Convention, while generally for an issue to arise there must be a difference in the treatment of persons in analogous, or relevantly similar, situations, the right not to be discriminated against is also violated when States, without objective and reasonable justification, fail to treat differently persons whose situations are significantly different. Such actions are discriminatory if they have no objective and reasonable justification; in other words, if they do not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.
(a) The first applicant – The Court was satisfied that the first applicant’s insistence on wearing a cross visible at work was a manifestation of her religious belief, and that the refusal by British Airways between September 2006 and February 2007 to allow her to remain in her post while visibly wearing a cross amounted to interference with her right to manifest her religion. Since the interference was not directly attributable to the State, the Court examined whether the State had complied with the positive obligation under Article 9.
The Court did not consider that the lack of explicit protection in UK law to regulate the wearing of religious clothing and symbols in the workplace in itself meant that the right to manifest religion was breached, since the issues could be and were considered by the domestic courts in the context of discrimination claims brought by the applicants.
The aim of the British Airways uniform code, namely to communicate a certain image of the company and to promote recognition of its brand and staff, was legitimate. However, the domestic courts had accorded this aim too much weight. The first applicant’s cross was discreet and cannot have detracted from her professional appearance. There was no evidence that the wearing of other previously authorised items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image.
Moreover, the fact that the company was later able to amend the uniform code to allow for the visible wearing of religious symbolic jewellery demonstrated that the earlier prohibition had not been of crucial importance.
Therefore, as there was no evidence of any real encroachment on the interests of others, the domestic authorities had failed sufficiently to protect the first applicant’s right to manifest her religion, in breach of the positive obligation under Article 9. No separate examination of her complaint under Article 14 in conjunction with Article 9 was necessary.
Conclusion: violation in respect of the first applicant (five votes to two).
(b) The second applicant – The Court was satisfied that the second applicant’s determination to wear a cross at work was a manifestation of her religious belief and that the refusal by the health authority to allow her to remain in the nursing post while wearing the cross was an interference with her freedom to manifest her religion.
The restriction in question had a legitimate aim, which was to protect the health and safety of nurses and patients. The evidence was that the second applicant’s managers considered there was a risk that a disturbed patient might seize and pull the chain with the risk of injury, or that the cross might swing forward, and could, for example, come into contact with an open wound. The reason for the restriction in this situation was therefore inherently of greater magnitude than in the case of the first applicant. There was also evidence that another Christian nurse had been requested to remove a cross and chain; two Sikh nurses had been told they could not wear a bangle or kirpan; and that flowing hijabs were prohibited. The second applicant had been offered the possibility of wearing a cross in the form of a brooch attached to her uniform, or tucked under a high-necked top worn under her tunic, but she had not considered this would be sufficient to comply with her religious convictions.
This was an area where the domestic authorities had to be allowed a wide margin of appreciation. The hospital managers were better placed to make decisions about clinical safety than a court, particularly an international court which had heard no direct evidence. It followed that the Court was unable to conclude that the measures in question were disproportionate, and that the interference with the second applicant’s freedom to manifest her religion had been necessary in a democratic society. There had therefore been no violation of Article 9 alone or in conjunction with Article 14.
Conclusion: no violation in respect of the second applicant (unanimously).
(c) The third applicant – It was clear that the third applicant’s objection to participating in the creation of same-sex civil partnerships was directly motivated by her religious beliefs. The events in question therefore fell within the ambit of Article 9 and Article 14 was applicable. The relevant comparator in this case was a registrar with no religious objection to same-sex unions. The Court accepted that the local authority’s requirement that all registrars of births, marriages and deaths be designated also as civil-partnership registrars had had a particularly detrimental impact on her because of her religious beliefs. The requirement pursued the legitimate aim of protecting equal opportunities for those of different sexual orientation. In considering the proportionality of the measures, it was notable that the consequences for the third applicant were serious: she considered that she had no choice but to face disciplinary action rather than be designated a civil-partnership registrar and, ultimately, she lost her job. Furthermore, it could not be said that when she entered into her contract of employment she had specifically waived her right to manifest her religious belief by objecting to participating in the creation of civil partnerships, since this requirement had been introduced by her employer at a later date.
On the other hand, however, the local authority’s policy aimed to secure the rights of others which were also protected under the Convention and the Court generally allowed the national authorities a wide margin of appreciation when it came to striking a balance between competing Convention rights. In all the circumstances, the Court did not consider that either the local-authority employer which had brought the disciplinary proceedings or the domestic courts which had rejected the third applicant’s discrimination claim, had exceeded the margin of appreciation available to them. There had therefore been no violation of Article 14 in conjunction with Article 9.
Conclusion: no violation in respect of the third applicant (five votes to two).
(d) The fourth applicant – While employed by a private company with a policy of requiring employees to provide services equally to heterosexual and homosexual couples, the fourth applicant had refused to commit himself to providing psycho-sexual counselling to same-sex couples. As a result, disciplinary proceedings had been brought against him.
The Court accepted that the fourth applicant’s objection was directly motivated by his orthodox Christian beliefs about marriage and sexual relationships, and held that his refusal to undertake to counsel homosexual couples constituted a manifestation of his religion and belief. The State therefore had a positive obligation under Article 9 to secure his rights.
In deciding whether the positive obligation was met by achieving an appropriate balance between the competing interests, the Court took into account that the loss of his job was a severe sanction with grave consequences for the fourth applicant. On the other hand, he had voluntarily enrolled on his employer’s post-graduate training programme in psycho-sexual counselling, knowing that his employer operated an equal opportunities policy and that filtering of clients on the ground of sexual orientation would not be possible.
While an individual’s decision to enter into a contract of employment and to undertake responsibilities which he knew would have an impact on his freedom to manifest his religious belief was not determinative of the question whether or not there has been an interference with Article 9 rights, this was a matter to be weighed in the balance when assessing whether a fair balance was struck.
However, the most important factor to be taken into account was that the employer’s action was intended to secure the implementation of its policy of providing a service without discrimination. The State authorities had therefore benefited from a wide margin of appreciation in deciding where to strike the balance between the fourth applicant’s right to manifest his religious belief and the employer’s interest in securing the rights of others. In all the circumstances, the Court did not consider that that margin had been exceeded. There had therefore been no violation of Article 9 alone or in conjunction with Article 14.
Conclusion: no violation in respect of the fourth applicant (unanimously).
Article 41: EUR 2,000 to the first applicant in respect of non-pecuniary damage.”
McFarlane v Relate Avon Ltd
[2010] EWCA Civ 880 [2010] IRLR 872
Laws LJ
‘The general law may of course protect a particular social or moral position which is espoused by Christianity, not because of its religious imprimatur, but on the footing that in reason its merits commend themselves. So it is with core provisions of the criminal law: the prohibition of violence and dishonesty. The Judaeo-Christian tradition, stretching over many centuries, has no doubt exerted a profound influence upon the judgment of lawmakers as to the objective merits of this or that social policy. And the liturgy and practice of the established Church are to some extent prescribed by law. But the conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled. It imposes compulsory law, not to advance the general good on objective grounds, but to give effect to the force of subjective opinion. This must be so, since in the eye of everyone save the believer religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence. It may of course be true; but the ascertainment of such a truth lies beyond the means by which laws are made in a reasonable society. Therefore it lies only in the heart of the believer, who is alone bound by it. No one else is or can be so bound, unless by his own free choice he accepts its claims.
The promulgation of law for the protection of a position held purely on religious grounds cannot therefore be justified. It is irrational, as preferring the subjective over the objective. But it is also divisive, capricious and arbitrary. We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion – any belief system – cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other. If they did, those out in the cold would be less than citizens; and our constitution would be on the way to a theocracy, which is of necessity autocratic. The law of a theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law; but the State, if its people are to be free, has the burdensome duty of thinking for itself.
So it is that the law must firmly safeguard the right to hold and express religious belief; equally firmly, it must eschew any protection of such a belief’s content in the name only of its religious credentials. Both principles are necessary conditions of a free and rational regime.’
M v A State Authority
EC-E2006-015
“1. DISPUTE
This dispute involves a claim by Mr. M. that he was (i) discriminated against by the respondent on grounds of religion, in terms of section 6(2) of the Employment Equality Acts, 1998-2004 and contrary to section 8 of those Acts in respect of his conditions of employment and (ii) subsequently victimised in terms of section 74(2) of the Acts for having referred his original complaint to the Equality Tribunal. The complainant requested anonymity in this Decision and the respondent had no objection to same. Given the sensitive nature of aspects of this case I have decided to accede to the request.
2. BACKGROUND
2.1 The complainant is a Roman Catholic priest and is employed as a Chaplain at an institution under the aegis of the respondent. He alleges that the respondent treated him less favourably than other personnel employed by it in respect of certain of his conditions of employment and that this treatment constitutes discrimination of him on grounds of religion contrary to the Acts. He further contends that the respondent penalised him in circumstances amounting to victimisation under the Acts for having referred his original complaint. The complainant also referred a claim of equal pay under the Acts but withdrew this element of his complaint on 14 June, 2005.
2.2 The respondent denies all of the complainant’s assertions and notwithstanding this submits that his claim of victimisation was referred to the Equality Tribunal outside of the six month timelimit prescribed at section 77(5) of the Acts. It contends therefore that the Equality Officer does not have the jurisdiction to investigate this element of the complaint.
2.3 The complainant referred his original complaint under the Employment Equality Act, 1998 to the Equality Tribunal on 20 January, 2004 and his complaint of victimisation under the Employment Equality Acts, 1998-2004 on 22 February, 2005. In accordance with her powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer, on 23 March, 2005 for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Written submissions were received from both parties and a hearing of the complaint took place on 28 April, 2005, 4 July, 2005 and 13 December, 2005. A number of issues arose at the final hearing which required further clarification and gave rise to correspondence between the Tribunal and the parties until end January, 2006.
………………..
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me are whether or not the respondent (i) discriminated against the complainant on grounds of religion, in terms of section 6(2) of the Employment Equality Acts, 1998-2004 and contrary to section 8 of those Acts in respect of certain of his conditions of employment and (ii) victimised him in terms of section 74(2) of the Acts for having referred his complaint to the Equality Tribunal. In addition, I must decide whether or not the complainant’s claim of victimisation was referred to this Tribunal within the timeframe prescribed at section 77(5) of the Acts and consequently whether or not I have jurisdiction to investigate that element of the claim. In reaching my decision I have taken into account all of the submissions, both oral and written, made by the parties.
5.2 I propose to deal with the complainant’s allegations of discrimination in the first instance. The first point to be examined here is what is meant by “religious belief” for the purposes of the Acts. The complainant argues that section 6(2)(e) of the Acts must be read in conjunction with the definition of “religious belief” at section 2 of those Acts and I concur with him. In my view such an interpretation prevents a person from being treated less favourably than another person where that person has a religious background or outlook and the other person either has a different religious background or outlook or has none at all. However, I do not accept that it permits a distinction to be drawn between people who profess the same religious background or outlook because one is an ordained minister/priest and the other is not. If one was to follow the complainant’s argument a person could arguably claim a different religious belief to another person on the basis that s/he was more devout in practicing his/her religion. If such an interpretation was permitted on the ground of religion under the Acts it is arguable that it would also apply to the other discriminatory grounds. Such a proposition is not sustainable as it could lead to absurd arguments that a person who has three children under eighteen years of age has a greater degree of protection on grounds of “family status” to a person who only has one child. Similarly, is a person with a severe mental or physical disability to be afforded a different degree of protection to someone with a relatively minor visual impairment? I cannot accept that the legislature intended such a distinction to be drawn between persons protected by the legislation and I am satisfied that discrimination on grounds of religion can only occur where a person is treated less favourably to another because s/he has a different religious belief to that person, or has none at all and I have applied such an interpretation to the relevant areas of this decision.
5.3 Both this Tribunal and the Labour Court have consistently applied an approach in respect of the burden of proof in non-gender claims of discrimination which requires that the complainant must, in the first instance, establish facts from which it can be inferred that he suffered discriminatory treatment. It is only when the complainant has established those facts to the satisfaction of the Equality Officer and s/he regards them as being of sufficient significance to raise a presumption of discrimination, that the burden shifts to the respondent to rebut the inference of discrimination raised and I propose to adopt that approach in the instant case.
5.4 I note that the compensation scheme referred to by the complainant in the first element of his treatment claim originated through discussions with a trades union some twenty years ago and applied only to staff for which the union had recognition. I further note that this recognition did not include Chaplains, regardless of their religious belief and consequently all Chaplains are excluded from the scheme. Other personnel employed by the respondent (medical officers), who number around twenty, are also excluded. I am satisfied therefore that the complainant’s religious belief was not a factor in denying him access to the scheme and he has failed to establish a prima facie case of discrimination in respect of this element of his claim. In the interests of clarity I would point out that authority for deciding if an applicant under the scheme is in fact covered by the scheme does not rest with this Tribunal and the scheme sets out the appropriate authority in that regard. As regards access to the post of Head Chaplain I note that the person appointed to the post (Fr. A) is a Roman Catholic priest and consequently any difference in treatment between him and the complainant cannot be on grounds of religion. I accept the complainant’s assertion that the appointment is effectively determined by an organisation which is completely external to the respondent. However, I also accept the respondent’s argument that the post of Head Chaplain is atypical and does not conform to standard public service recruitment practices. I am of the view that the nomination process is far from ideal. However, I cannot conclude that it is discriminatory on grounds of religion and it appears to me that issues around the nomination process might be better addressed through other avenues. Finally, my comments in respect of the post of Head Chaplain apply equally to the process of appointment as a Chaplain. I find therefore that the complainant has failed to establish a prima facie case of discrimination in respect of both remaining elements of his claim of discriminatory treatment on grounds of religion.
5.5 I propose to deal with the complainant’s allegation of victimisation and the respondent’s arguments that the claim was referred out of time together as they are inextricably linked. It is the complainant’s assertion that the disclosure of personal information about him by the respondent to Fr. A was directly responsible for the decision (in April, 2004) by his bishop to remove him as a Chaplain – which eventually took place on 1 September, 2005 – and the deterioration of his relationship with his fellow Chaplains and bishop over that period. It is also his assertion that this constitutes victimisation of him contrary to the Acts. The complainant referred his claim of victimisation on 22 February, 2005 at which time the Employment Equality Acts, 1998-2004 were in operation. Section 77(5) of those Acts provides that ” a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence”. Section 77(6)(A) of the Acts provide that the date of discrimination or victimisation occurs “if the act constituting it extends over a period, at the end of the period.”. For reasons I will set out later I find that the treatment of the complainant constitutes unlawful victimisation of him in terms of section 74(2) of the Acts. I am satisfied that this victimisation of him commenced in March, 2004 and was in effect on the day he referred his complaint – 22 February, 2005. I therefore find that his complaint is within time and I have jurisdiction to investigate it.
5.6 It is agreed by the parties that appointment to the position of Chaplain with the respondent is contingent upon the appointee receiving a nomination from his bishop. I note this process has operated for many years and that it has been the respondent’s and the relevant Minister’s practice to merely appoint the nominee. I accept the respondent’s comment that if the bishop withdrew a nomination the Minister would again merely act on this – which he did in the complainant’s case. I also accept that it is within the gift of the bishop to exercise his nomination in whatever way and in support of whomever he wishes. That been said, the exercise of that discretion cannot legitimise the actions of the respondent, if those actions are unlawful under the employment equality legislation. In the course of the hearing officials from the respondent stated that (i) there was never any indication from the complainant’s bishop that he (the bishop) was contemplating withdrawing the complainant’s nomination as Chaplain prior to his letter to the CEO on 19 April, 2004 and (ii) to their knowledge a nomination had never been withdrawn previously. It was also accepted that the respondent did not have occasion to raise any matter of a disciplinary nature with the complainant during his time as Chaplain.
5.7 The meeting on 10 March, 2004 was convened at the request of the respondent’s CEO. I note at that time there were discussions ongoing between the church authorities, the respondent and the Department of Finance regarding the terms and conditions of employment of Chaplains generally. Whilst evidence was given at the hearing that the meeting was arranged to brief the negotiating team on developments in these discussions, I note that the respondent in setting the meeting sought an open agenda. The meeting was attended by the respondent CEO, (Mr. X) another senior official of the respondent, Fr. A (who was leader of the Negotiating Group) and two of his colleagues. It was established at the hearing that that in the course of this meeting the respondent CEO made reference, inter alia, to the fact that the complainant had referred a claim to this Tribunal and that his local representative had raised the issue of his employment with the respondent in the Dáil. Fr. A was unable to confirm whether or not this Tribunal was mentioned but recalled that the CEO stated he had concerns about the complainant taking the “legal route”. Evidence was given by Mr. X that he was instructed by the respondent CEO to copy documents, which he believed to cover the complainant’s referral form to this Tribunal, to Fr. A and these were enclosed with a letter to Fr. A dated 12 March, 2004, which was signed by the CEO. This evidence was corroborated by Fr. A who added that he did not request the documentation – the CEO suggested he should have it. Evidence was given by Mr. X that he believed Fr. A was meeting with a bishop the following weekend and it was his (Mr. X’s) understanding that these matters would be raised with the bishop. Fr. A confirmed that he met with the bishop the following weekend and apprised him of developments in a number of areas raised at the meeting, including those in respect of the complainant. He added he did so because he understood that the respondent wanted the bishop to know what was happening in the Chaplaincy. He also confirmed at the hearing that he forwarded all of the documentation received from the respondent on 12 March to the bishop within days of receiving them, at the bishop’s request.
5.8 The respondent states that any documents copied to Fr. A were released to him because it felt he was entitled to have them in his capacity as Head Chaplain and Leader of the Negotiating Team. It adds that the subsequent issues detailed by the complainant concern his dealings with his bishop, Fr. A and his fellow Chaplains and submits that any subsequent actions by those individuals cannot constitute victimisation of the complainant contrary to the Act. I cannot accept such a proposition. It is accepted by the respondent that Fr. A is its employee. It is also accepted by the respondent that whilst Fr. A was not the complainant’s Line Manager in the normal understood sense, he was the Head Chaplain and the conduit between the respondent, the Chaplains and the Church authorities and it was in this capacity that the material was released to him. I am satisfied therefore that section 15 of the Acts places liability for his (Fr. A’s) actions with the respondent, whether or not they were done with its knowledge or approval, unless it can show that it took reasonably practicable steps to prevent him from doing those acts. The respondent should have been aware of the practices as regards confidentiality surrounding claims before this Tribunal and indeed the statutory requirement that investigations are held in private, given the fact it was in receipt of the complainant’s original claim. Yet it released confidential material to Fr. A, who by his own admission was not au fait with the operations of employment dispute machinery, without cautioning him that access to the documentation should be restricted and in the clear knowledge that he intended to discuss the matter with a person totally outside the respondent’s control. In addition, I note the comment of one of the respondent’s officials in the course of the hearing that he had concerns about copying the material to Fr. A but he was instructed to do so. Consequently, I find that the respondent cannot avail of the defence available at section 15 of the Acts
5.9 In the course of the hearing Fr. A confirmed that he alone decided to disclose the fact the complainant had referred claims under employment legislation, along with the comments expressed by the respondent CEO (on 10 March, 2004) about the “legal route” and the implications for same to the negotiations concerning the future of Chaplains in the respondent organisation, to the AGM of the Chaplains on 27 April, 2004. Fr. A also stated that the Chaplains present were concerned about the approach adopted by the complainant and decided to dissociate themselves from his actions and write to the bishop informing him of their views. I note that this letter post-dated the bishop’s letter to the CEO in which he advised that the complainant would be re-assigned to diocesan duties in July, 2005 and I am satisfied that the Chaplains’ letter did not therefore influence that decision, although it clearly prompted the bishop to admonish the complainant at the meeting on 14 May, 2004. In addition, disclosure of the information by Fr. A clearly portrayed the complainant in a bad light with his fellow Chaplains. The respondent rejects the complainant’s assertion that he was subsequently ostracised by his colleagues and I believe that to be the case to some extent as he made informed decisions not to attend certain meetings and functions. However, I consider it perfectly understandable that the complainant might keep contact, particularly social contact, with his colleagues to a minimum, following the letter of 27 April, 2004 and the subsequent blanket silence from them to his communications seeking to discuss that letter with them.
5.10 In light of my finding at paragraph 5.5 above that the treatment of the complainant was continuous and was in existence after the coming into operation of the Employment Equality Acts, 1998-2004, it follows that the definition of victimisation contained in those Acts is applicable. Section 74(2) of those Acts define victimisation as follows:
“…dismissal or other adverse treatment of an employee by his…employer as a reaction to-
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant, ……..”
In the course of the hearing an official from the respondent (Mr. Y) confirmed that certain comments were made by the respondent CEO to the complainant in late 2003, although he felt they were made in a jocular fashion. However, jocular or not, I believe they indicate a disposition by the respondent towards the complainant – at this time the complainant had exercised rights under other pieces of employment protection legislation. Evidence furnished by Fr. A and Mr. X in the course of the hearing re-affirm my views as regards the respondent’s opinion of the complainant. Having examined all of the evidence I am satisfied, on balance that the respondent’s decision to release the information it did to Fr. A without any restriction whatever was a factor which contributed significantly to the decision made by the complainant’s bishop to withdraw his nomination and remove the complainant from his Chaplaincy.
5.11 Evidence was given by the respondent that there was never any indication from the complainant’s bishop that he (the bishop) was contemplating withdrawing the complainant’s nomination as Chaplain prior to his letter to the CEO on 19 April, 2004 and (ii) to their knowledge a nomination had never been withdrawn previously. Whilst the nomination can be withdrawn at any time, I note that only five weeks had elapsed between the release of the information by the respondent to Fr. A and the complainant’s bishop informing the respondent CEO by letter that he had decided to re-assign the complainant to diocesan duties. I cannot accept that the timing of these events is coincidental and find, on balance, that this treatment constitutes adverse treatment of the complainant and that he was victimised by the respondent in terms of section 74(2) of the Acts. In the interests of clarity I am satisfied that this adverse treatment continued until 1 September, 2005, the date on which the re-assignment took effect as during the intervening period the complainant lived with the threat and uncertainty of where his future lay.
6. DECISION
6.1 I find that –
(i) the complainant’s claim of victimisation was referred within the timelimit prescribed at section 77(5) of the Employment Equality Acts, 1998-2004 and I therefore have jurisdiction to investigate that claim,
(ii) the complainant has failed to establish a prima facie case of discrimination on grounds of religion and his claim must fail,
(iii) the respondent victimised the complainant in terms of section 74(2) of the Employment Equality Acts, 1998-2004 when it released information
concerning him at a meeting on 10 March, 2004
6.2 In accessing the redress which might be ordered in this case I note that Equality Officers have tended to put complainants in the position they would have been in had the unlawful treatment not occurred. However, I am mindful of the fact that the respondent has little, if any, authority over the bishop’s nomination process. In the circumstances I consider compensation to be the most appropriate form of redress and I therefore order, in accordance with section 82 of the Employment Equality Acts, 1998-2004, that the respondent pay the complainant €40,000 for the effects of the victimisation. This award does not include any element in respect of remuneration.
Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV,
Djemma Tsourova v ICON Clinical Research Ltd
EED054
Labour Court
11 March 2005
[2005] 16 E.L.R. 250
Determination
Background
The claimant was employed by the respondent as a clinical data co-ordinator from July 22, 2002 until July 11, 2003, when she was summarily dismissed. The claimant is a native of Chechnya and member of the Muslim faith. She had made a number of complaints alleging harassment on the grounds of her nationality and religion against a number of her work colleagues. Two managers appointed by the respondent investigated these complaints but the claimant refused to co-operate with this investigation claiming that the investigators were not independent. The investigation nonetheless proceeded and concluded that none of the complaints made by the claimant were well founded. The investigation further found that a number of the complaints were malicious and/or vexatious. Acting on that report the respondent dismissed the claimant on grounds that certain complaints were of a vexatious/malicious nature and that her behaviour in that regard constituted gross misconduct.
The claimant contends that she was dismissed in circumstances amounting to discrimination on the race/religion grounds and/or in circumstances amounting to victimisation within the meaning of s.74(2) of the Employment Equality Act 1998 (the Act). At the hearing before the court the claimant did not pursue her claim of discrimination on the race/religious ground and this Determination is solely in relation to her claim of victimisation. For the sake of completeness the court determines that there is no evidence to support the contention that the claimant was dismissed by reason of her race or her religion and her claim of discrimination in that regard is dismissed.
The facts
The material facts as admitted, or as found by the court, are as follows.
In a letter dated February 24, 2003 the claimant made a number of complaints to her employer alleging various forms of harassment on grounds of her religion by a number of named employees. By letter of April 17, 2003 the claimant made further complaints of harassment on grounds of her race and religion against other named employees. The letter dated February 24 coincided in time with correspondence from the respondent to the claimant with regards to a performance review meeting, which was scheduled to take place on February 28, 2003.
Upon receipt of the first letter of complaint the respondent appointed two members of its management team, Jacinta Tuite, human resources manager and Tom O’Leary, director of data management to undertake an investigation into these complaints.
The claimant refused to co-operate with this investigation claiming that the persons appointed to conduct it were not independent.
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Ms Emer Kenny, the respondent’s vice-president of human resources met with the claimant to consider her complaint that the appointed investigators lacked independence. A meeting was held for that purpose on April 11, 2003 at which the claimant was represented by a friend. It appears that a number of questions were put to the claimant during the course of this meeting in relation to the basis for her assertions regarding the independence of the nominated investigators. The claimant declined to answer these questions but she did indicate that she would subsequently respond to them in writing. No written response was subsequently received from the claimant. It also appears that the claimant’s representative indicated at the meeting that the claimant might withdraw her allegations as an issue which had previously arisen in relation to her contract had been clarified.
Following further discussions and correspondence with the claimant Ms Kenny issued a report on her investigation into the independence of the nominated investigators. As a result of this report Ms Tuite and Mr O’Leary were directed to proceed to investigate the claimant’s complaints. The claimant declined to co-operate with this investigation. She indicated that she wished to have her claims investigated by the Equality Tribunal and subsequently instituted proceedings under the Act before the tribunal. The investigation proceeded without the co-operation of the claimant.
On July 10 the investigators issued their report in which they found that a number of the complaints were malicious /vexatious. The report was presented to Ms Kenny but not to the claimant. The claimant was then dismissed on grounds of having made malicious or vexatious complaints amounting to gross misconduct.
The claimant had not been given a copy of the report before the decision to terminate her employment was taken nor was she given any opportunity to respond to the allegations against her contained in the report.
Claimant’s case
The claimant denied making malicious and/or vexatious complaints. It was submitted on her behalf that as a general principle an employee is entitled to bring complaints to the attention of her employer and have them dealt with without fear of penalisation. It was further submitted that the bringing of a complaint per se cannot constitute malicious or vexatious conduct. The claimant contended that she was never given an opportunity to deal with the allegation that certain of her complaints were of a malicious or vexatious nature.
The claimant disagreed with the findings of the investigation. She contended that she did not consider it to be independent in that she had previously directed her complaints to Mr O’Leary who took no action in relation to them. The investigation was not established to enquire into the conduct of the claimant and its conclusions cannot be relied upon as grounds for her dismissal. It was *254 submitted that the dismissal of the claimant constituted victimisation within the meaning of s.74(2) of the Act.
Respondent’s case
It is the respondent’s case that an extensive investigation was conducted into all of the allegations made by the claimant. Two reports were prepared, one arising from the claimant’s letter of February 2003 and a second arising from her letter of April 2003. Both of these reports were furnished to Ms Kenny by memo dated July 10, 2003. The respondent contends that at all times the claimant was given a fair and ample opportunity to participate in the investigation and that her right to fair procedures was fully respected and vindicated.
Ms Kenny told the court in evidence that she received the report on July 10, 2003, on which date she was working from home. She read the report and supporting documentation twice and concluded that the claimant was guilty of gross misconduct in making malicious and vexatious complaints against other employees. She decided to dismiss her with immediate effect. Ms Kenny did not discuss the content of the report with its authors. Ms Kenny believed that the company’s disciplinary procedure permitted her to dismiss the claimant for gross misconduct without notice and without warning. Moreover, the claimant had less than one year’s service and the disciplinary procedure was not applicable to her. Ms Kenny had consulted a member of the board of directors before finally deciding on the dismissal.
The respondent contended that in making malicious and vexatious complaints the claimant had irretrievably damaged the essential relationship of trust and confidence between employer and employee.
The respondent referred the court to a decision of the Employment Appeals Tribunal in the case of A Worker v A Company Employment Appeals Tribunal Decision No. UD258/2002 heard under the Unfair Dismissal Acts. It was submitted that this decision is authority for the proposition that an employer is entitled to rely on the findings of an enquiry into allegations of harassment of an employee in deciding if the employee had acted maliciously and with vexation.
Approach of the court
In this case the court is not concerned with the fairness or otherwise of the claimant’s dismissal per se. What is alleged is that the dismissal was wholly or mainly occasioned by the claimant having in good faith made complaints of harassment. The court did not consider it necessary to enquire into whether or not there was an objective basis in fact for the complaints made by the claimant. A person may believe that they are being harassed based on a misunderstanding or a mistaken perception of events or a misinterpretation of something which was said or done. If the purpose of their complaint is to stop the perceived *255 harassment they will have acted in good faith whether or not the veracity of the complaint is capable of objective proof.
In this case the respondent relied exclusively on the written report of the investigation in forming the belief that the claimant had not made her complaints in good faith but had acted with malice and/or with vexation. It is not the court’s role to reconstruct the internal enquiry or to seek to substitute its assessment of the evidence before that enquiry for that of the appointed investigators. Rather, its function is to establish if the report of the investigation provided a sufficient and sound basis, without further enquiry, for the conclusion that the claimant had acted maliciously and or with vexation upon which Ms Kenny relied in deciding to dismiss the claimant.
Burden of proof
Ms Bolger BL for the respondent submitted that the claimant must prove every aspect of her case and that it is not permissible for the court to apply a shifting burden other than in cases of alleged discrimination on the gender ground. Counsel argued that the principle of shifting the probative burden is derived from the ECJ decision in Enderby v Frenchay Health Authority and Secretary of State for Health Case C-127/92 [1993] E.C.R. I-5535; [1993] I.R.L.R. 591 and is based on a rule of European law which has no application in cases where the discriminatory ground relied upon is derived solely from domestic law.
The court has fully considered the careful and eloquent submissions of counsel on this point, but for the reasons which follow it is unable to accept her arguments. In many previous determinations the court has applied a shifting burden of proof in line with that set out in the Burden of Proof Directive, not only in gender cases, to which its wording is directed, but also to cases involving the other discriminatory grounds. In so doing the court has sought to construe the different provisions of the Act consistently with each other. That approach is in line with the practice in the UK in applying similar legislative provisions (see most recently the decision of the Court of Appeal in Igen Ltd v Wong [2005] E.W.C.A. 142; [2005] I.R.L.R. 258).
The court’s reasoning for this approach was set out in Massinde Ntoko v Citibank [2004] 15 E.L.R. 116 where the court stated:
“This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the claimant’s power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging claimants to prove something which is beyond their reach and which may only be in the respondent’s capacity of proof.”
*256 This, and other cases in which a similar approach was taken, related to discrimination within the meaning of s.6 of the Act. However, the court can see no reason in logic or in principle as to why a similar approach should not be applied in cases of alleged victimisation.
The matter has been further clarified following the enactment of the Equality Act 2004. Section 85A (1) of the Act provides as follows:
“85A.—(1) Where in any proceedings facts are established by or on behalf of a claimant 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.”
Subsection (4) of this section provides:
“(4) In this section ‘discrimination’ includes—
(a) indirect discrimination,
(b) victimisation,
(c) harassment or sexual harassment,
(d) the inclusion in a collective agreement to which s.9 applies of a provision which, by virtue of that section, is null and void.”
This section was enacted to give effect to Article 10 of Directive 2000/78 (Framework Directive) and Article 8 of Directive 2000/43 (Race Directive), both of which provide as follows:
“Burden of proof
1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.
2. Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs.
3. Paragraph 1 shall not apply to criminal procedures.
4. Paragraphs 1, 2 and 3 shall also apply to any legal proceedings commenced in accordance with Article 9(2).
5. Member States need not apply paragraph 1 to proceedings in which it is for the court or competent body to investigate the facts of the case.”
*257 Ms Bolger contended that this provision could not be applicable in the instant case since the events giving rise to the claim predated its enactment and a change in the law is presumed not to have retrospective effect. As the court understands it the common law presumption that legislation does not operate retrospectively applies where an Act changes the substantive as opposed to the procedural law. The nature of this presumption against retrospectivity was considered by the Supreme Court in Hamilton v Hamilton [1982] I.L.R.M. 290. Here Costello J, at p.302, adopted the following statement of the law from Halsbury’s Laws of England (3rd ed.), Vol.36, para.644:
“The general rule is that all statutes, other than those which are merely declaratory or which relate only to matters of procedure or evidence, are prima facie prospective; and retrospective effect is not given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature”
Earlier O’Higgins C.J., at p.293, explained the nature of the presumption as follows:
“This brings me to the subject of retrospectivity; it is necessary to state with some precision what I regard as such in a statute. Many statutes are passed to deal with events which are over and which necessarily have a retrospective effect. Examples of such statutes, often described as ex post facto statutes, are to be found in Acts of immunity or pardon. Other statutes having a retroactive effect are statutes dealing with the practice and procedure of the courts and applying to causes of action arising before the operation of the statute. Such statutes do not and are not intended to impair or affect vested rights and are not within the type of statute with which, it seems to me this case is concerned. For the purpose of stating what I mean by retrospectivity in a statute I adopt a definition taken from Craies on Statute Law which is, I am satisfied, based on sound authority. It is to the effect that a statute is to be deemed to be retrospective in effect when it ‘takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already past’ …”
In the same case Henchy J., at p.97, put the position thus:
“From a wide range of judicial decisions I find the relevant cannon of Interpretation at common law to be this. When an Act changes the substantive, as distinct from procedural, law then, regardless of whether the Act is otherwise prospective or retrospective in its operation, it is not *258 to be deemed to affect proceedings brought under the pre-Act law and pending at the date of the coming into operation of the Act unless the Act expressly or by necessary intendment provide to the contrary”.
In Dublin City Council v Grealy [1990] 1 I.R. 77 Blayney J. considered the circumstances in which a statute can operate retrospectively. He stated as follows:
“… the Act must express a clear and unambiguous intention [to operate retrospectively], or there must be some circumstance rendering it inevitable that the court should conclude that the Act is retrospective, or the change affected by the statute must be purely procedural.”
In the court’s view, even if s.85A is new law rather than a codification of preexisting law, it does not effect any change in the substantive law on discrimination. It merely provides a procedural or evidential rule (this seems clear from the wording of Article 8(2) of the Race Directive and Article 10(2) of the Framework Directive) which is applicable to proceedings in which discrimination is alleged. Section 85A(4) provides that for the purpose of the section the term discrimination includes victimisation. Moreover, the section applies to “any proceedings” and not just to proceedings initiated after the date of its enactment or to proceedings in respect of events which occurred after that date.
For all of these reasons the court is satisfied a rule requiring the shifting of the probative burden to the respondent where the claimant makes out a prima facie case is applicable in the instant case.
Even if the court is wrong on this point it would hold that since the respondent is asserting that the claimant was activated by malice or vexation, and in consequence the protection against dismissal afforded by the Act is not applicable, it is for it to prove that which it asserts and not for the claimant to prove that which she denies (see Constantine Steamship Line v Imperial Smelting Corp. Ltd [1942] A.C. 154).
Conclusion
The claimant made complaints alleging harassment on grounds of her race and her religion. She gave evidence that those complaints were made in good faith. She was dismissed as a result of having made those complaints. In the courts view these are facts from which victimisation may be inferred. The respondent contended that a number of the complaints were malicious and/or vexatious. It is for the respondent to establish that its belief in that regard was soundly based.
The court has carefully studied the two reports presented by the investigators. It is not entirely clear as to why the investigators found some complaints not *259 proven and others malicious or vexatious. Nonetheless that was the conclusion which the investigators reached on the evidence before them. The claimant had not cooperated with the investigation and in consequence her side of the story was not reflected in the report apart from what was contained in her letters. In that respect the report was, through no fault of the investigators, incomplete and unsatisfactory.
The investigation was established to enquire into the conduct of others on foot of complaints from the claimant. At no stage was the claimant told that the investigation would enquire into her own conduct or that she was on hazard of being found guilty of a dismissible offence. Yet Ms Kenny decided not to inform the claimant of the contents of the report adverse to her or to provide her with any opportunity to address the charges against her contained in the findings.
In that respect the instant case can be readily distinguished on its facts from that of A Worker v A Company Employment Appeals Tribunal Decision No. UD258/2002 to which the court was referred. In that case the investigation was conducted by an external investigator and the claimant cooperated with the enquiry. Moreover, the claimant was given an opportunity to make representations before any final decision in relation to her future employment was taken.
Ms Kenny told the court that having read the reports she accepted their content in full and concluded that the claimant was guilty of gross misconduct. She did not inform the claimant of her conclusions before deciding on dismissal because, she said, the company’s disciplinary procedure did not oblige her to do so in cases of gross misconduct.
Ms Kenny also told the court that the disciplinary procedures are only applicable to employees who have served one year with the company. She contended that since the claimant has less than the requisite service there was no obligation to observe any procedures before dismissing her.
In the court’s view these provisions of the disciplinary procedure, in so far as they purport to authorise the employer to act unfairly, are inconsistent with the basic requirements of natural and constitutional justice. The courts have consistently pointed out that in every case the irreducible minimum requirement which must be observed before an employee can be dismissed for misconduct is that he or she be informed of the charges against them and that they are given a opportunity to answer the charges and make submissions.
In Glover v BLN [1973] I.R. 388 Walsh J. stated at p.424 of the report:
“the dictates of constitutional justice require that statutes, regulations or agreements setting up machinery for taking decisions which may effect rights or impose liabilities should be construed as providing for fair procedures.”
On the next page he continued: *260
“The plaintiff was neither told of the charges against him nor was he given any opportunity of dealing with them before the Board of Directors arrived at its decision to dismiss him. In my view this procedure was a breach of the implied term of the contract that the procedure should be fair, as it cannot be disputed, in the light of so much authority on the point, that failure to allow a person to meet the charges against him and to afford him an adequate opportunity of answering them is a violation of an obligation to proceed fairly.”
In Mooney v An Post [1998] E.L.R. 238, Barrington J. stated at p.247 as follows:
“If the contract or the statute governing a person’s employment contains procedure whereby the employment may be terminated it usually will be sufficient for the employer to show that he has complied with this procedure. If the contract or the statute contains a provision whereby an employee is entitled to a hearing before an independent board or arbitrator before he can be dismissed then clearly that independent board or arbitrator must conduct the relevant proceedings with due respect to the principles of natural and constitutional justice. If however the contract (or the statute) provides that the employee may be dismissed for misconduct without specifying any procedure to be followed the position may be more difficult. Certainly the employee is entitled to the benefit of fair procedures but what these demand will depend upon the terms of his employment and the circumstances surrounding his proposed dismissal. Certainly the minimum he is entitled to is to be informed of the charge against him and to be given an opportunity to answer it and to make submissions.”
In this case the respondent, in the person of Ms Kenny, had the report of the internal investigators which found that the claimant had acted out of malice and/or vexation. However, that investigation was not established to enquire into the claimant’s conduct and Ms Kenny was required to come to an independent view. It was not open to her to determine that the claimant was actuated by malice or vexation without conducting the most basic form of enquiry in which the claimant would be told what was alleged against her and given a fair opportunity to respond. That was particularly so since the claimant had failed to participate in the investigation from which the charges emerged. The respondent did not provided any acceptable explanation for the decision to act with such haste and in disregard of the claimant’s right to fair procedure.
The onus of proof is on the respondent to establish that the real or dominant reason for the dismissal was that the claimant acted in bad faith in making her complaints. The court is satisfied that the respondent has failed to discharge that onus. In these circumstances the claimant is entitled to succeed.
*261
Determination
The court is satisfied that in the circumstances of this case the respondent could not have formed a reasonable belief that the claimant had acted in bad faith in making complaints of harassment. Accordingly the court finds that the claimant was dismissed in circumstances amounting to victimisation.
Redress
The appropriate redress in this case is an award of compensation. The court has measured the amount of compensation which is fair and reasonable at €15,000, which is made of €10,000 in respect of economic loss and €5,000 in compensation for the affects of the discrimination.
The court awards the claimant compensation in that amount.
Division of the Labour Court: Mr Duffy (Chairman), Mr Doherty, Mr O’Neill
Michelle McKeever v Board of Management Knocktemple National School and Minister for Education and Science
Equality Officer Decision
1 October 2010
[2011] 22 E.L.R. 86
(
1. Dispute
1.1 This dispute concerns a claim by Ms McKeever that she was discriminated against by the Board of Management Knocktemple National School and the Minister for Education and Science on the grounds of religion contrary to s.6(2)(e) of the Employment Equality Acts in relation to access to employment in terms of s.8(1)(a) of the Acts.
1.2 The complainant referred her claim to the Director of the Equality Tribunal on December 21, 2007 under the Employment Equality Acts. On November 25, 2009, in accordance with her powers under s.75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions *88 were received from both sides. In accordance with s.79(3A) of the Acts and as part of my investigation I proceeded to a hearing on May 26, 2010 and final information was received on July 5, 2010.
2. Complainant’s submission
2.1 The complainant submits that in May 2007 she applied for a permanent teaching post in Knocktemple National School. She was interviewed on May 26 and in late May or early June she was told that she was unsuccessful. On June 28, 2007 she received a phone call from the principal who told her the school had a new post and offered her a permanent post. The complainant submits that she verbally accepted this offer. She received a letter dated June 28, 2007 from the Chair of the Board of Management confirming the appointment.
2.2 The complainant submits that on July 5, 2007 she received a call from the Chair of the Board of Management as the local priest had asked her to check a few things. She was asked if she had a Catholic religious certificate. The complainant said she did not have a certificate but she was familiar with and willing to teach the Alive-O religious programme. She also told the Chair she was a member of the Church of Ireland and the Chair said it should not be a problem as she would be teaching fourth class which was not involved in Communion or Confirmation.
2.3 On July 9, 2007 the complainant wrote a letter accepting offer. On the same day she got a letter from the Chair stating that at a board meeting “a question was raised regarding compliance with proper procedure for this appointment. Unfortunately, as a result your appointment was not proposed or seconded” . On July 10, 2007 the complainant submits that she spoke to the Chair expressing her disappointment and she referred to their conversation about her religion. The Chair said it did not matter to her what religion the complainant was but she had been asked to enquire about it by the parish priest. On July 12, 2007 the complainant received a letter from the Chair writing in a personal capacity and not as Chair. The letter stated “The department regulations stipulate that permanent teaching posts must be advertised and only temporary or part-time posts may be filled from a previous interviews people” [ sic ] and confirmed that her appointment was not proposed or seconded. The Chair said she was told by board members that due process had not taken place and the post must be advertised. She also confirmed; “With regard to the question of religion. During the previous week to the meeting I was asked by my parish priest to seek clarification as to whether you had a religious education cert and as to your agreement to teach religious subjects. This apparently is also standard because a teacher may refuse to teach religion to a class.”
2.4 The post was subsequently re-advertised and the complainant submits that on July 16, 2007 she re-applied. In the same letter she requested clarification on the nature of the procedural error that led to the withdrawal of the offer of *89 appointment. The complainant was called for interview but did not attend. On July 26, 2007 the complainant received a letter from the Chair of the Board of Management which stated that the principal and herself offering the post “was a procedural error on my part as only the Board of Management has the right to appoint a teacher and in fact no meeting of the board had taken place. At a subsequent board meeting on Friday 6 where I informed the board that I had written to you to confirm the post it was agreed by the board that proper procedure was not in place.”
2.5 On July 26, 2007 an INTO representative contacted the principal who confirmed that the procedural difficulty was that the Chair wrote in advance of sanction by the Board of Management.
2.6 On July 27, 2007 INTO wrote to the Board of Management pointing out Appendix D of the “Boards of Management of National Schools — Constitution of Boards and Rules of Procedure” which states; “the advertisement may also state: … whether or not a list of suitable applicants may be set up from which suitable vacancies may be filled (valid for the four-month period from the date of the advertisement. This particular list may only be compiled if it has been referred to in the advertisement.” INTO pointed out that the advertisement had stated that such a panel would be set up and therefore there was no reason why the complainant could not have been appointed. The Chair of the Board of Management replied on August 15, 2007 which confirmed there had been a fundamental failure to follow procedure in offering the appointment “without the knowledge, approval or decision of my Board of Management.” INTO wrote again to the Board of Management on October 23, 2007 and to the patron of the school on November 30, 207 he replied indicating that he had asked the Diocesan Education Secretary to set up a committee to investigate the matter but nothing further was heard.
2.7 INTO also wrote to the Department of Education and Science on November 30, 2007 regarding procedures in relation to appointments but got no reply.
2.8 The complainant submits that the failure to confirm her appointment occurred within 24 hours of the Chair’s enquiries regarding religion and that this amounts to a prima facie case of discrimination.
2.9 The complainant submits that the Department of Education and Science is involved in the appointment process of teachers as the procedures are set out in “Boards of Management of National Schools — Constitution of Boards and Rules of Procedure” which is promulgated and issued by the Department. Also, the procedures specifically advise that the notification of a teacher who is appointed to a post should be accompanied by advice that the offer is “subject to the sanction of the Minister” . Furthermore, the complainant submits that the Department is a joint employer of teachers in national schools as it is a party to the contract of employment. The complainant relies upon Employment Equality Agency v Department of Education Labour Court Determination DEP3/1987 *90 and Sheils O’Donnell v Board of Management of St Baithin’s N.S. and Others Labour Court Determination DEE025.
First named respondent’s submission—Board of Management Knocktemple National School
3.1 The first named respondent submits that a post arising from the creation of an Autism Unit in the school was advertised on May 5, 2007 and the advertisement stated that “a list of suitable applicants may be set up from which future vacancies may be filled within a four-month period from the date of this advertisement” . The complainant applied for the post and was interviewed but was unsuccessful. The principal subsequently rang the complainant offering her a new vacancy which was not anticipated by the respondent when the advertisement for the post in the Autism Unit was advertised. On June 28, 2007 the Chair sent the complainant a letter confirming she had been appointed to the post of mainstream teacher in Knocktemple National School.
3.2 The first named respondent submits that neither the principal nor the Chair of the Board of Management had the authority to make such an offer to the complainant without their authority, the Board of Management of Knocktemple National School, as it is the statutory employer, pursuant to s.24(3) of the Education Act 1998. The procedures for appointing teachers are set out in Appendix D of “Boards of Management of National Schools — Constitution of Boards and Rules of Procedure” and the High Court decision in Brown v Rathfarnham Parish National School [2008] 1 I.R 70 found the application of these procedures to be mandatory.
3.3 The first named respondent submits that s.2 of Appendix D provides that the advertisement may state that a list of suitable applicants may be set up from which future vacancies may be filled. It is clear that this is a discretionary power. It is accepted that the advertisement contained the discretionary option but it is clear that a decision of the Board of Management needs to be taken in order for this option to be exercised. The respondent submits that s.5 of Appendix D deals with the procedures for interviews and appointments and these procedures were followed by the Board of Management. At no meeting did the Board of Management take a decision to exercise the discretionary function and set up a list of suitable applicants from which future vacancies may be filled.
3.4 The first named respondent submits that as no list was created it was not open to the principal or the Chair of the Board of Management to offer the newly created post and when they did make the offer it amounted to a fundamental breach of procedures. When this was realised the Chair wrote to the complainant on July 9, 2007 rescinding the offer of employment.
3.5 The first named respondent submits that where, as in this case, there is a question mark as to whether there was a fundamental breach of procedures *91 the prudent course of action is to re-advertise the post and relied on McGinn v Board of Management St Anthony’s Boys National School Equality Tribunal DEC-E2004-032. The complainant was notified of the breach of procedures at the earliest opportunity, then the respondent re-advertised the post. The complainant applied for the post but declined to be interviewed.
3.6 The first named respondent submits that the Chair did make an informal enquiry as to whether the complainant had a certificate in religious education. The complainant volunteered that she was a member of the Church of Ireland but she was not questioned about her religious affiliation or otherwise. The respondent denies that any discrimination occurred on the grounds of the complainant’s religion.
Second named respondent’s submission—Department of Education and Science
4.1 The second named respondent submits that they have no involvement in the recruitment of teachers and s.24(3) of the Education Act 1998 leaves no doubt that it is the board of management which has the responsibility for appointing “teachers and other staff” of a school. The second named respondent has no correspondence in relation to the complainant’s application for a teaching post in Knocktemple National School. There are agreed arrangements for the filling of teaching posts in national schools and it is the responsibility of the board of management to advertise for and recruit teachers. The procedures are set down in “Boards of Management of National Schools — Constitution of Boards and Rules of Procedure” and are drawn up in consultation with the education partners; school management authorities, teacher representatives and department representatives. Appendix D of the procedures sets out that all appointments shall be made by the board of management, subject to the prior approval of the patron of the school. Each teacher is employed under a contract of employment with the board of management and the respondent is not party to the contract.
4.2 The second named respondent’s role is confined to paying teacher’s salaries and superannuation benefits, determining the terms and conditions of employment and determining the required level of teacher qualifications.
4.3 The second named respondent has no role in the appointment of the board of management. Under s.14(1) of the Education Act 1998 this is the responsibility of the patron of the school.
4.4 The second named respondent relies on Bleach v Our Lady Immaculate Senior School and Others Equality Tribunal DEC-E2003-028 to support their submission that they have no role in the recruitment of teachers.
5. Correct respondent
I must first consider if both respondents who are named by the complainant could be responsible for the alleged discrimination. The alleged discrimination revolves *92 around the recruitment of the complainant as a teacher to Knocktemple National School. The Board of Management of Knocktemple National School have clear responsibility for the recruitment of teachers to Knocktemple National School and this is accepted by all parties to this claim. The complainant considers that the Minister for Education and Science is also responsible for two reasons: first, because the procedures for the recruitment of teachers to national schools are promulgated and issued by the Department of Education and Science. However, the department contends that the procedures are drawn up in consultation with the education partners and they co-ordinate the drafting and publication of the procedures and they have no role in the recruitment of teachers. This is carried out by the board of management, who issue the contract of employment. I conclude there is a clarity in relation to the recruitment of teachers to national schools. The procedures are issued by the department and are implemented by the board of management. This means that the department has no direct role in the recruitment of teachers. Furthermore the complainant did not take issue with the procedures; secondly, because the complainant contends that the procedures specifically advise that the notification of a teacher who is appointed to a post should be accompanied by advice that the offer is subject to the sanction of the Minister. Section 6 of Appendix 4 of the Procedures states: “(i) Having received approval in accordance with 5 (xii), the board shall notify the teacher of his/her appointment. The successful candidate should be advised that the offer is subject to the sanction of the Minister, registration with the Teaching Council, and vetting clearance. (ii) As soon as the board of management has received notification of the teacher’s acceptance of the post, all unsuccessful candidates shall be notified. Both the successful candidate and the chairperson shall complete the relevant appointment form and forward it to the Primary Payments Section of the Department of Education and Science. If the post is warranted and the chairperson of the board certifies that the teacher has met the criteria and the appointment has been made in accordance with the procedures outlined in this appendix, the Minister for Education and Science will sanction the appointment.” At the hearing the department clarified that sanction would only be withheld if the post had not been sanctioned by the department. I take this power to be an administrative tool and not one that is intended to have any role in the recruitment process. This a claim of discrimination in relation to access to employment and I conclude that the second named respondent had no involvement in the recruitment process which led to this complaint. Therefore it is not a body which could be responsible for the alleged discrimination in relation to access to employment.
6. Findings and conclusions of the Equality Officer
6.1 I must decide if the complainant was discriminated against in relation to access to employment on the grounds of religion by the first named respondent *93 (Board of Management of Knocktemple National School). In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties.
6.2 The facts in this claim are that the complainant was interviewed for a position in the Autism Unit and was unsuccessful. Approximately one month later on June 28, 2007 she was contacted by the principal and offered a new mainstream teacher post that had arisen following the initial interviews. The complainant verbally accepted the offer and received a letter dated June 28, 2007 from the Chair of the Board of Management confirming the appointment. On July 9, 2007 the Chair wrote to the complainant withdrawing the offer as “a question was raised regarding compliance with proper procedure for this appointment.” On July 12, 2007 the Chair explained the reasons for withdrawing the appointment she advised the complainant, in what she described as a personal note, that “The department regulations stipulate that permanent teaching posts must be advertised and only temporary or part time posts may be filled from a previous interviews people” [ sic ]. The post was then re-advertised and the complainant submitted an application but did not attend for interview.
6.3 The initial explanation given to the complainant was that only temporary or part-time posts may be filled from people who have been previously interviewed. However this is not correct as the procedures pertaining at that time contained no such proviso. Subsequently, the respondent contended that as names had not been submitted for their approval from the initial interviews to make a panel for future vacancies then the principal and the Chair of the Board of Management did not have the authority to offer the post to the complainant. They contend that this was a serious breach of procedures and meant they were unable to approve the appointment and the post had to be re-advertised.
6.4 Appendix D, s.5 of the Procedures states: “(ix) Having interviewed such applicants as present themselves, the selection board shall submit a written report to the board of management, nominating the applicant whom it considers suitable for appointment. (x) A list in order of merit of other candidates who are also deemed suitable shall be retained by the selection board for use in the event of the post not being filled by that nominee. (xi) The board of management shall appoint the teacher so nominated unless it has good and sufficient reason not to do so, in which instance the matter shall be referred to the patron, whose decision in this matter shall be accepted by the board. When offering the successful applicant employment the board should ensure that the applicant is vetted. School authorities shall ensure that vetting is only sought in respect of a person to whom it proposes to make an offer of appointment.” The principal gave evidence at the hearing that the complainant came second in the initial interviews for the post in the Autism Unit and would have been offered that post if the person who came first had turned down the offer. He also confirmed that no interview notes were available and no panel was drawn up for future *94 appointments. It was also confirmed that the interview panel did not prepare a report for the Board of Management to approve the complainant’s appointment but could give no explanation as to why it was not prepared. The respondent also contended that there was a difference between the two posts; the first being in the Autism Unit and the second being a mainstream position teaching fourth class. This was shown by only five applicants being received for the first post and 35 for the second.
6.5 However, I must consider why the respondent considers the actions of the Chair to be such a fundamental breach of procedures. The minutes of the Board of Management of July 5, 2007 do not clarify the situation they state: “Staffing; Ratification of Michelle McKeever for mainstream post. Post offered to her. Board affirmed/deferred their decision. Details sent to patron for approval.” At the hearing the respondent contended that the minute read “deferred their decision” whilst the complainant contended it read “affirmed their decision” . There is no mention of the procedural error or the need to re-advertise the post. The minutes of the next meeting on July 20, 2007 state: “Discussions regarding Michelle McKeever’s appointment for full-time post. Michelle’s position appointment has been declined and re-advertised. Closing date for application is July 26.” Given the respondent’s contention that they adhere to procedures it is surprising that major decisions made by the Board are not reflected in the minutes of their meetings.
6.6 Therefore I must look at the complainant’s contention that the matter of her religion became a factor that was taken into account at the meeting of the Board of Management on July 5, 2007. The complainant stated that the Chair rang her on July 5, 2007 as she said she had been requested to ask about the certificate in religious education by the parish priest, who was on the Board of Management, and she re-affirmed this in a telephone conversation on July 10, 2007 and in her personal letter written on July 12, 2007. The Chair was not available to give evidence at the hearing but the parish priest gave evidence that he knew nothing about the complainant’s religious certificate before the board meeting when her appointment was considered. He went on to say that it was usually on a candidate’s CV and they would be asked at interview. The principal confirmed that the complainant was not asked at interview. The parish priest stated that he was unaware of the complainant’s religion until a long time after she was considered for the vacancy. However, another board member stated at the hearing that the complainant’s religion was mentioned at the board meeting but was not an issue for the school. This was confirmed at the hearing by the principal who was also at the Board of Management meeting.
6.7 On the balance of evidence before me I conclude that the Board of Management meeting on July 5, 2007 was advised by the Chair that the complainant did not have a Catholic religious certificate but was familiar with and willing to teach the Alive-O programme and that she was a member of the *95 Church of Ireland.
6.8 What is less clear is why this discussion took place and then the board decided that there had been a fundamental breach of procedures. I would have expected the board to discuss the procedure of appointment from the first set of interviews before considering an individual’s suitability. If they had seen a difficulty in confirming an appointment that had been offered without their approval I would expect that to have been clearly stated in the minutes of the meeting of July 5, 2007. Furthermore they could have accepted the proposal of the Chair and the principal, who were both on the initial interview board and ratified the offer at that meeting, albeit retrospectively. However, given the different explanations provided by the then Chair, first, that permanent appointments could not be made from previously interviewed people and secondly that the principal did not have the authority to make an offer without the approval of the Board of Management, I conclude that not only was the complainant’s religion discussed but it influenced the Board of Management in withdrawing the offer that had been made. I therefore find that this amounts to discrimination on the grounds of religion.
7. Redress
7.1 Section 82(4) of the Acts states: “The maximum amount which may be ordered by the Director by way of compensation … where the complainant was in receipt of remuneration at the date of reference of the case …. shall be an amount equal to 104 times the amount of that remuneration, determined on a weekly basis … and in any other case be £10,000.” As this claim is in relation to access to employment then any redress ordered would be limited to £10,000 (€12,697) as the complainant was not in receipt of remuneration. The complainant argues that this level of redress awardable under the Employment Equality Acts is inadequate, ineffective and in breach of the Equal Treatment Directive 76/207 and the Recast Directive 2006/54. She relies on Von Colson v Land Nordrhein-Westfalen Case 14/83; [1984] E.C.R. 1891 which held that in order to ensure compensation awarded for sanction for the breach of prohibition of discrimination “is effective and has a deterrent effect” then that compensation “must in any event be adequate in relation to the damage sustained and must therefore amount to more than a purely nominal compensation.”
7.2 The first named respondent submits that the Directives and cases relied on by the complainant relate solely to the elimination of gender-based discrimination and therefore have no role in relation to claims made on grounds other than gender, such as this. They also submit that the Recast Directive states: “Such compensation or reparation may not be restricted by the fixing of a prior upper limit, except in cases where the employer can prove that the only damage suffered by an applicant as a result of discrimination within the meaning of this Directive is the refusal to take his/her job application into consideration.” This, *96 they contend, clearly limits compensation in access to employment cases.
7.3 The Labour Court in Irish Aviation Authority v CPSU Labour Court Determination ADE/06/6 EDA073 stated: “The supremacy of Community law over national law was established as long ago as the case of Van Gend en Loos v Nederlandse Administrate der Belastingen Case 26/62; [1963] E.C.R. 1 . National law must always give way to the Treaty articles and regulations provided they are sufficiently precise and unconditional…..It follows that where a provision of national law conflicts with the wording and purpose of the Directive and is in conflict with the aims expressed in the Treaty that provision cannot be regarded by the national court charged with implementing the provisions of the Directive as having any validity.” I conclude that the Employment Equality Acts do not conflict with the EU Directives in relation to redress in access to employment claims. The maximum redress awardable is not nominal and this together with the power under s.82 (1) to make orders in my view satisfies what was stated by the European Court of Justice in the Von Colson v Land Nordrhein-Westfalen case that the remedies proposed by national law and implemented by a national court when enforcing domestic legislation enacting the terms of a Directive should be “effective, proportionate and dissuasive” .
Decision
I have investigated the above complainant and make the following decision in accordance with s.79 of the Acts that the respondent did discriminate against the complainant in relation to access to employment on the grounds of religion contrary to s.8 of the Acts and in accordance with s.82 of those Acts:
I order the first named respondent to pay the complainant €12,697 in compensation for the discriminatory treatment suffered. This figure is the maximum award where a complainant was not in receipt of remuneration. It represents compensation for infringement of her rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable. I order the first named respondent to follow good practice in relation to the recruitment of staff; by following the procedures laid down, by keeping adequate records of all interviews and decisions by the interview board. Also that all decisions of the Board of Management are properly recorded in their minutes.