FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 77(12), EMPLOYMENT EQUALITY ACTS, 1998 AND 2004 PARTIES : DEPARTMENT OF DEFENCE (REPRESENTED BY CHIEF STATE SOLICITOR) - AND - TOM BARRETT DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal under Section 77(12) of the Employment Equality Acts, 1998 and 2004.
BACKGROUND:
2. The Worker/Claimant referred his case to the Labour Court on the 28th November, 2007, in accordance with Section 77(12) of the Employment Equality Acts, 1998 and 2004. A Labour Court hearing took place on the 4th April, 2008. The following is the Court's Determination.
DETERMINATION:
This is an appeal by Mr. Tom Barrett (the Complainant) against the Decision of an Equality Officer in a claim alleging discrimination on the ground of religion by the Department of Defence (the Respondent). He alleges discriminatory treatment by the Respondent in relation to promotion, conditions of employment, harassment and victimisation amounting to discrimination on the ground of religion in terms of Section 6(2)(e) of the Employment Equality Acts 1998 and 2004 (the Act) and in contravention of Section 8 of the Act. The Equality Officer found that the Complainant had failed to state a case for less favourable treatment under Section 6 (1) and (2) and consequently the Equality Tribunal had no jurisdiction to investigate his complaint. Therefore, she dismissed the case as misconceived under Section 77 (a) of the Act. It was against that Decision that the Complainant appealed to the Court.
The Court notes that the Equality Officer held that the Complainant stated a valid case for victimisation pursuant to Section 74 (2) (a) of the Act and retained that aspect of his complaint with the Tribunal for investigation. Consequently, a claim of victimisation is not being investigated by this Court as part of this appeal.
Summary of the Complainant’s Case:
The Complainant appealed the Decision of the Equality Officer on the grounds that she had dismissed major elements of his claim without having a hearing. He held that he has been the subject of discrimination on a continuing basis for refusing to depart from his humanistic beliefs with regard to ethics, honesty and probity. He described himself as a Secular Humanist. He held that the Respondent discriminated against him on the basis of his beliefs when it showed favouritism to the Catholic religion and to its adherence to Catholicism in the workplace.
In his submission to the Court the Complainant referred to a number of occasions ranging from 1993 up to 2000, when he alleged that the Respondent had infringed his beliefs with regard to probity, honesty and duty of care to others and as a consequence he was transferred from one section to another in the Department. He claimed that arising from his refusal to compromise his beliefs, he experienced difficulties and was treated differently by reference to (i) compassionate leave; (ii) flexi-time application; (iii) annual leave; (iv) sick leave; and (v) continuously in the daily routine of the workplace. He also alleged that he was denied an up-lift in grade in April 2000.
The Complainant told the Court that on 11th February 2003 he made a number of complaints to the Department; these were investigated by two external investigators. (During the process of this investigation, an incident occurred which may be dealt with in any claim of victimisation, to be investigated by the Equality Tribunal).
The Complainant stated that he disclosed his beliefs to the Equality Tribunal on 31st October 2007.
Summary of the Respondent’s Case:
Ms. Rosemary Mallon, B.L., Counsel for the Respondent, contended that there was no substance to any of the Complainant’s claims on the merits. She held that rather than alleging that the Complainant was treated less favourably because of his religious beliefs he made a series of allegations that the Department improperly endowed a particular religious denomination, the Roman Catholic religion. It held that the vast bulk of his complaints were entirely unrelated to any of the grounds identified in section 6 of the Act.
In any event, the Respondent told the Court that at no point prior to the referral of the claim to the Equality Tribunal had the Complainant stated what his religious beliefs, if any, were and indeed it was not until he submitted his written submission to the Labour Court, on the appeal of the Equality Officer’s Decision that he stated that he was a Secular Humanist. His allegations were never linked to any suggestion of discrimination on the ground of his Secular Humanist belief nor can they sensibly be so linked now. The Complainant asserted that the Department discriminated against him“for refusing to depart from [his] humanistic beliefs with regard to ethics, honesty and probity”. The Respondent stated that this suggests that it is opposed to the values of ethics, honesty and probity or that he cherishes those universal values to a degree that other persons in general, and the Department in particular, do not.
The Department had sought the dismissal of the Complainant’s claim pursuant to the terms of Section 77A(i) of the Act on the grounds that it was“frivolous, vexatious or misconceived”.Furthermore, it submitted that the dates of occurrence of the alleged acts of discrimination were outside the six-month time limit prescribed by Section 77 of the Act. Ms. Mallon told the Court that by letter dated 11th February 2003 the Complainant wrote to the Department’s Human Resource Manager setting out his grounds of complaints. He referred to a number of “discriminatory actions” against him by the Department, which occurred in October 1998, with the most recent occurring in May 2000 and “ongoing”. It was not until 17th August 2005 that he referred a complaint under the Act to the Employment Equality Tribunal. When he was required to set out in writing the details of his complaints under the Act he submitted a seven-page statement dated 4th January 2007. Only a single section addressed any issue of religion or religious belief and these were a series of allegations that the Department had improperly preferred or endowed a particular religious denomination, the Roman Catholic religion.
His complaints were itemised as follows: -
- 25th August 1998, concerned a staff pilgrimage to Lourdes;
- a notice dated 24th February 2006, concerned an annual mass for deceased members of staff; and
- 30th September 1998, concerned the payment for entertainment associated with a presentation to a former Head Chaplin.
In their application of dismissal on the grounds of the complainant being“frivolous, vexatious or misconceived”the Respondent had stated that the Complainant was attempting to use the “religious belief” ground as the gateway to a hearing before the Equality Tribunal in relation to a whole plethora of complaints that could not fall within its jurisdiction.
Finally, Ms. Mallon stated that the matters which the Complainant sought to raise before the Equality Tribunal had already been the subject of a number of independent investigations under its policy“A Positive Working Environment – An Anti Harassment, Sexual Harassment and Bullying Policy for the Civil Service”,which resulted in none of his allegations being upheld.
Findings of the Court
The Court has carefully considered the oral and written submissions of both parties.
A person can only have a cause of action under the Act if he or she is treated less favourably in respect of their access to employment, conditions of employment, training or experience for or in relation to employment, promotion or re-grading, or classification of posts, on one of the discriminatory grounds that another person is, has been or would be treated.
Section 77(5) of the Act states that the complainant must refer a claim for redress in respect of discrimination or victimisation within six months from the date of occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.
The acts alleged to constitute the discrimination complained of relate to the period 1998 to 2000 and “ongoing”. The Court sought specific details of any alleged acts of discrimination, which may have occurred in the six-month period prior to the date of the claim. The Complainant was not able to point to any specific acts, however, he did refer to alleged ongoing victimisation. As stated at the commencement of these proceedings this Court will not examine a claim relating to any alleged act of victimisation as this may be the subject of further proceedings under the Act before the Equality Tribunal.
The Director of the Equality Tribunal dismissed the claim on the grounds that the complaint was misconceived as the Complainant did not demonstrate a connection between incidents in his workplace and his religion or the religion of another person; he had not established aprima faciecase on the grounds that he was treated less favourably than someone of another religion.
The Complainant told the Court that his beliefs may be viewed as universal but they are of paramount importance to him as a Secular Humanist. While the Court accepts this contention this of itself cannot disclose a cause of action. The beliefs, which the Complainant espouses, are common to every major religion. The Complainant must show that because of these beliefs he was treated less favourably. What the Complainant is in effect asking the Court to do is to find that first of all Catholicism which he has chosen as the comparable religion does not espouse these virtues and second, because he does, he was treated less favourably than his co workers. The Court finds that this contention is simply unsustainable. The Court is sustained in this view by the fact that the Complainant never disclosed his beliefs to the Respondent prior to the date he lodged his appeal, he has not demonstrated that he suffered any particular detriment due to his religious beliefs or lack of them and he cannot point to any discriminatory act which is alleged to have occurred in the six months prior to the date of claim.
The Court, therefore, concurs with the findings and Decision of the Director of the Equality Tribunal and dismisses the Complainant’s appeal.
Signed on behalf of the Labour Court
Caroline Jenkinson
20th_May, 2008______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.