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.