EQUAL STATUS ACTS
DECISION NO. DEC-S2017- 020
The Referendum Commission
File reference: et-159525-es-15
Date of issue: 7 June 2017
Background to the Claim
1.1 The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2011 on the 22 September, 2015. On the 14 March 2017, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 the Director General delegated the case to me, Valerie Murtagh, an Equality Officer/Adjudication 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, 2000 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 21 March, 2017.
1.2 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 84(3) of the Workplace Relations Act, 2015.
2. Case for the Complainant
2.1 The complainant states that on 27 April 2015 he contacted the respondent for information about putting up posters in advance of polling day of the same sex marriage referendum. He is alleging that in availing of this service, he was treated less favourably by getting a biased response to his query which he submits is discriminatory on grounds of religious belief. The complainant submits that he enquired by saying “I have a query about posters” and before he could utter another word, the person who answered the telephone to him who had a female voice said “oh yeah, the surrogacy posters; we are getting loads of complaints about them being phoned in”. The complainant contends that she said this in sympathetic tone of voice assuming that he was yet another caller complaining about the surrogacy posters. The complainant states that he was actually trying to find out if she had let him explain whether it was anyone who could put up posters or did a person have to be a member of an approved body for the purposes of the marriage referendum. The complainant states that she didn’t even know the answer and requested the complainant’s name and number for someone who might know to call him back regarding same. The complainant submits that this was appalling customer service and that it would be reasonable to expect a first point of contact would have this knowledge.
2.2 The complainant states that he was a NO campaigner against marriage redefinition and he believes the surrogacy posters made a very good point to why someone should vote NO. The complainant believes that this representative of the Referendum Commission who answered his call exhibited biased behavior towards him contrary to the assertion that the Referendum Commission is unbiased. Consequently, he believes that he was discriminated against on the ground of religion contrary to the Equal Status Acts.
3. Case for the Respondent
3.1 A representative of the Ombudsman’s Office contacted the WRC prior to hearing stating that the Referendum Commission does not exist. He stated that Mr. W who had been dealing with it had retired. He stated that this falls into abeyance now. No representative for the respondent was in attendance at the hearing. However, in its earlier submission, Mr. W stated that since the launch of the campaign in April 2015, its office received a huge volume of telephone calls on referendum issues. He stated that the same staff also provide Secretariat to the Standards in Public Office Commission and deal with telephone calls relating to functions of the Standards Commission. He submitted that all of the staff are well trained on how to deal with members of the public. He contends that while the complainant alleges that he received a poor service when he contacted the Referendum Commission, he did not deem it necessary or appropriate to raise the alleged poor service with the supervisor of the staff member in question. Mr. W submits that it took 9 days for the complainant to bring the issue to his attention by way of the complaint form under the Equal Status Acts. Mr. W submits that even if the telephone conversation happened as the complainant states (which Mr. W does not accept) then the worst case scenario is that the complainant would have received a poor quality service.
3.2 Mr. W states that it was perfectly reasonable for the staff member to request the complainant’s name and contact number and advise that she would get someone to call him back with a response to the question he raised especially in relation to a matter that was not within the remit of the Commission. Mr. W submits that this is the first time that many of the staff in this section would have dealt with a query relating to the Referendum Commission as referendums only happen occasionally and the previous one was held in 2013. Mr. W states that the offer to get a colleague to call the complainant back with an answer to his query was a totally acceptable and correct response. Mr. W totally rejects the implication in the complainant’s claim that the staff member was not impartial, neutral and unbiased. All of the staff are well trained in relation to handling telephone calls and this is the first complaint they have received. Accordingly, Mr. W totally rejects the complainant’s claim of discrimination on grounds of religion contrary to the Equal Status Acts and he believes that this complaint is an abuse of the complaint’s process under the Acts.
4. Conclusions of the Equality Officer
4.1 The matter referred for investigation is whether or not the complainant was discriminated against pursuant to Section 3(1)(a) and 3(2)(e) of the Equal Status Act and in terms of Section 5 (1) of that Act. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
4.2 A person making an allegation of discrimination under the Equal Status Acts must first establish a prima facie case of discriminatory treatment. Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination.
4.3 Section (2) of the Equal Status Acts defines “service” as
a service or facility of any nature which is available to the public generally or a section of the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes [various examples]
I am satisfied that the respondent was providing a service to the public and/or sections of the public in relation to information on same-sex marriage and therefore I am satisfied that the complainant’s claim comes within the above definition.
4.4 Having adduced the evidence in the instant claim, the complainant did not demonstrate how he was treated less favourably on the grounds of his religious belief. The complainant submits that the staff member assumed he was calling to complain about the surrogacy posters that were put up calling for a No vote in the Referendum. In this regard, the complainant submits the staff member was biased and prejudiced against him and this was connected to his religious belief. I note that the complainant had not given his religion, which is Roman Catholic, to the respondent although he argues that the No voters would be motivated by their religious beliefs in this regard. There is a conflict of evidence on the issue, however, I find that at any rate had the staff member made the statement attributed to her which is strenuously denied by the respondent, it would be a case of provision of a poor quality service on behalf of the respondent but I can find no evidence to demonstrate a nexus between the alleged treatment and the complainant’s religious belief or outlook particularly in circumstances where the complainant had not given his religion to the staff member in question. In the circumstances, I find that the complainant was unable to discharge the elementary probative burden and therefore , his complaint fails.
5.1 Section 25 of the Equal Status Acts, 2000-2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act. Based on all the foregoing, I find that the respondent did not discriminate against the complainant, on the ground of religion or religious outlook or background, contrary to the Equal Status Acts.
7 June 2017