EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-151
PARTIES
Eugene Hogan
-V-
The Young Women’s Christian Association (YWCA)
(Represented by Cormac O’Ceallaigh & Co, Solicitors)
File reference: EE/2014/268
Date of issue: December 2015
HEADNOTES: Employment Equality Acts Sections 6 (2) (e) as amended by section 4 the Employment Equality Act 2004 S 8 (a) Access to employment - Religion.
1 DISPUTE
1.1 This dispute concerns a claim by Mr Hoganthat he suffered discrimination in relation to access to employment by virtue of a requirement for the position at the YWCA facility at Coolnagreina, Greystones, Co Wicklow on the grounds of religion contrary to section 6 (2) (e) of the Employment Equality Acts in respect of access to promotion and grading under the terms of Section 8 (1) (d).
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 25th April 2014 under the Employment Equality Acts. On 2nd September 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Pat Brady, 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 were received from both sides and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on September 10th 2015.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2 COMPLAINANTS' SUBMISSION
2.1 The complainant was undertaking a FETAC level 6 course and had the job vacancy at the Respondent brought to his attention by a colleague. The position was at Assistant Manager level. He contacted the respondent and arranged to visit the facility. He was given a conducted tour by the Manager JE. He says that the description of the job given to him by JE was ‘entirely secular’ and that the only clue as to the ethos of the facility was in the library contents.
2.2 JE printed out and emailed the job description for the complainant and he noticed a requirement under the ‘Other’ criteria for the job that;
’This person will want to serve God in the area of hospitality and will have a personal and demonstrable faith in Jesus Christ’.
And
‘The person must subscribe to the ethos, aims and vision of the YWCA’
The complainant describes himself as a person of ‘no faith’.
2.3 The complainant says he was otherwise qualified to carry out the position but was excluded from applying because of his personal beliefs and that the provision excluded those of no religious faith, certain Christians and adherents of other faiths.
2.4 The complainant contrasted the YWCA requirements with other organisations with a religious or Christian ethos such as the St Vincent DePaul society and the Salvation Army and submitted examples of their equality statements. The former states that ‘volunteers are drawn from all walks of life, people of any faith or none’ and the latter requires that applicants are ‘able to work within the Christian ethos of the Salvation Army’.
He felt that having a religious faith would not bring anything extra to the position and that it was not a ‘genuine and determining occupational requirement’.
3 RESPONDENT'S SUBMISSION
3.1 The respondent outlined the nature of its ethos and the facility in Greystones. It said that the YWCA is an organisation with a strong Christian ethos and that is this evident from its website and constitution and several examples were given of where this is in the public domain. The job description refers to Coolnagreina as a ‘conference and retreat centre’. It described the purpose of Coolnagreina as being to give anyone coming there ‘an experience of the love of God through new strength and revived faith in the Lord Jesus Christ’.
3.2 In relation to the work of the facility JE gave evidence that it offers the opportunity for faith-based groups from Ireland and abroad to undertake residential visits. This accounts for 95% of its activity. It holds monthly or weekly prayer meetings and faith is an inherent and indispensable aspect of the role. It is not a hostel as, for example might be associated with the YMCA. It also provides community based services.
3.3 The Assistant Manager is also required to attend the monthly meeting of the Board whose main agenda is the mission for the following month. The meeting begins and ends with a prayer. (The complainant said he would absent himself from that part of the meeting.) JE also said that the Assistant Manager would be expected to participate in prayer services and the current incumbent has delivered faith-based material to residents.
3.4 Regarding the visit of the complainant to the facility he said that there is some Christian signage on the walls.
3.5 In its legal submission the respondent submitted that section 37 (1) of the Employment Equality Acts states;
‘A religious, educational or medical institution which is under the direction or control of a body established for religious purposes or whose objective includes provision of services in an environment which promotes certain religious values shall not be taken to discriminate against a person for the purpose of this part or Part 11 if
(a) It gives more favourable treatment on the religion ground to an employee or a prospective employee over that person where it is reasonable to do so in order to maintain the religious ethos of the institution, or
(b) It takes action which is reasonably needed to prevent an employee or a prospective employee from undermining the religious ethos of the institution
The respondent also offered definitions of ‘undermining’ which it said covered the circumstances of the instant case.
3.6 The respondent also challenged the locus standi of the complainant, as he had not formally applied for the position.
4 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to decide if the complainant was treated in a discriminatory manner on the grounds of religion. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.2 In relation to the complainant’s right to pursue the claim the Acts clearly provide at Section 8 (1) (a) for claims in relation to ‘Access to employment’ and therefore the claim is validly before the Tribunal.
4.3 Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.
4.4 In this case the complainant has established prima facie grounds for the claim of discrimination and the burden of proof passes to the Respondent.
4.5 I find that the nature of the YWCA and its work in this case is different from the organisations cited by the complainant. It is clear that the actual daily activities of the Centre have a focus on religious faith (unlike DePaul, for example, where the work as a social objective is only indirectly related to faith) and the post holder in this case is required to have a direct role in this.
4.6 It is hard to see how the complainant could deliver the service expected by his employer if he were to carry out only duties which did not involve the religious or faith based activities. While the job description may have listed the faith-based requirement under ‘Other’ requirements the job advertisement features this prominently in the body of the advertisement (although this aspect of the case only goes to when the complainant actually found out about this requirement).
4.7 I find that the YWCA and Coolnagreina fall within the exemptions permitted by Section 37 of the Acts and the characteristic required is a ‘genuine and determining occupational requirement’, and also meets the requirement of section 37 (2) (b) in that the objective is legitimate and the requirement proportionate.
5. DECISION
5.1 I have investigated the above complaints and make the following decision in accordance with section 79 of the Acts that:
· The Respondent falls within the exemption permitted by Section 37 of the Acts and therefore did not discriminate against the complainant contrary to the Acts and I dismiss the claim.
__________________
Pat Brady
Equality Officer
December 2015