ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014412
Mark J. Savage
University College Dublin
Julie Galbraith Eversheds Sutherland
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000
Date of Adjudication Hearing: 07/03/2019
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
In accordance with Section 25 of the Equal Status Act, 2000following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant is an Evangelical Christian who is involved in litigation to vindicate his good name and uphold his beliefs including disapproval of abortion, and disapproval of aspects of the homosexual lifestyle. He is not entitled to legal representation in the litigation.
Summary of Complainant’s Case:
The Complainant is a mature student who has taken two 1 year leaves of absence from the Respondent’s University due to his involvement in litigation. He applied for a third 1 year leave of absence from the Respondent as the litigation is still ongoing, but this was refused. He had to withdraw from his studies.
The Complainant believes that the Respondent is aware of the religious beliefs that he holds, and that the Respondent has discriminated against him by refusing to grant him further leaves of absence that are necessary to vindicate his rights, including manifesting his religious beliefs. As an Evangelical Christian he is obliged to preach his religious beliefs and the neutral provision of the Respondent treating everyone the same limiting the length and number of leaves has a disproportionate impact on the Complainant. The Complainant also claims he has suffered direct discrimination.
He relies on the decision in John McAteer v South Tipperary County Council ref: EE/2011/019
Summary of Respondent’s Case:
The Respondent has raised a number of preliminary objections. It objects to the complaint as the title of the Respondent is not a legal entity and says it has no case to answer.
The Respondent informed the Complainant (when he applied for his second year leave of absence) by letter of 2nd September 2016, that it would not be possible to facilitate any future request for leave. On 19th October 2017 the Complainant was notified that his third request was denied. The Complainant on his complaint form alleges 29th November 2017 is the date of the last act of discrimination. The Respondent denies this and says the correct date of the last act of alleged discrimination is 19th October 2017, not when the decision was restated on 29 November 2017. The Respondent has raised 2 preliminary issues, firstly the Complainant’s ES1 was not provided within 2 months as required by S21 (2) a of the Equal Status Act 2000, and no grounds have been put forward to show reasonable cause for the time-limit to be extended.
Secondly, the complaint form lodged on 29th April 2018 is outside of the 6 month’s time-limit, and no reasonable grounds have been outlined in order to extend time.
Without prejudice to the preliminary submissions made, the Respondent says the first application for leave of absence advises that the Complainant is involved in litigation to vindicate his rights in 2015. It does not refer to his religious beliefs. In his 2016 application for a leave of absence he refers to his ongoing litigation with Google regarding a defamatory statement in search results, and that he cannot afford professional legal representation. In 2017 the Complainant applied for a third leave of absence and in this referred to civil legal matters of “discrimination, defamation and data protection, in pursuit of vindication and defence of the beliefs I hold as an Evangelical Christian, representing myself as I cannot afford legal representation”.
The refusal of the Respondent to grant a further leave of absence is based on the terms of their Leave of Absence Policy which has an option that if a third leave of absence is required, the student may opt to withdraw from the programme and apply for re-entry at a later date. A period of one third of the total length of the programme is recommended as the maximum leave of absence time.
The Respondent says the refusal of the 2017 application is because it is against policy, and is unrelated to the Complainant’s religion. The programme board was cognisant that the Complainant had not engaged with the course or earned any credits in the time he was registered. The Complainant received in excess of the recommended maximum leave of absences.
The Respondent refers to the decision of the Circuit Court on the Complainants appeal which relates to his concern that he was categorised as a homophobe and not to any alleged requirement to proclaim the word of God. The Respondent says that the Complainant must show he is personally disadvantaged by the policy and that the wider group he is part of is so affected and relies on Stokes v Christian Brothers High School Clonmel & Anor  IESC 13. The Complainant has failed to produce any evidence to show that Evangelical Christians are placed at a disadvantage compared to numbers of other religions or no religion. The Respondent’s policy is objectively justified by the need to ensure academic coherence (progression through modules in an approved structure in a timely manner for a continuous learning) of a student’s study and is legitimate for a third level institution.
The Respondent claims that the Complainant has not evidenced a prima facie case as set out in Southern Health Board v Mitchell  ELR 201 and Valpeters v Melbury Development Limited EDA0917.
Findings and Conclusions:
In accordance with Section 25 of the Equal Status Act, 2000 following the referral of the complaint to me by the Director General, I enquired into the complaint and gave the parties an opportunity to be heard by me and to present any evidence relevant to the complaint. Further written submissions were made by the parties in April and May 2019.
A Form ES1 was sent to the Respondent on 25th January 2018, and alleges prohibited conduct occurred on 29th November 2017, when the Complainant was refused a third year leave of absence by the Respondent. The Complainant alleges discrimination commenced on 29th November 2017 and is ongoing. The WRC complaint form was received by the Workplace Relations Commission on 29th April 2018.
The Respondent informed the Complainant (when he applied for his second year leave of absence) by letter of 2nd September 2016, that it would not be possible to facilitate any future request for leave. On 19th October 2017 the Complainant was notified that his third request was denied. The Respondent says the correct date of disputed act is 19th October 2017, not when the decision was restated on 29 November 2017.
The Respondent objects to the hearing of the claim and raises 3 preliminary issues, firstly the incorrect Respondent (which is a programme board of the Respondent) has been named on the complaint form, which is not a legal entity and says the Respondent has no case to answer. Secondly, the Complainant’s ES1 was not provided within 2 months as required by S21 (2) of the Equal Status Act 2000 (by 18th December 2017), and thirdly, no grounds have been put forward to show reasonable cause for the time-limit to be extended pursuant to S21 (6) (b) of the Equal Status Act 2000.
S2 of the Equal Status Act 2000 prohibits any person from discriminating against or committing any other act. The definition of person includes an organisation, public body or other entity.
The Respondent says they have no case to answer as the Programme Board of the Respondent which issued the decision is named rather than the University. I cannot accept this submission. The Complainant in this case is not legally represented. The Complainant named as Respondent the entity which issued a letter to him refusing the leave of absence he sought, which is the subject of his complaint. The Respondent has been aware from the initiation of this complaint that it was issued against the incorrect title of the Respondent. Further, the Respondent has submitted to the jurisdiction of this tribunal in fully defending this complaint.
I am also mindful of the decision in O'Higgins -v- University College Dublin & Anor [2013 21 MCA] in which Hogan J held “Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be). …In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts”.
I refuse the first preliminary objection, and amend the title of the Respondent to its correct name.
The preliminary objections of the Respondent rely on their submission that the correct date of the disputed act is the refusal of the third leave of absence on 19th October 2017.
At the hearing the Complainant did not seek an extension of time of 6 months pursuant to S21 (6) (b) of the Equal Status Act 2000-2015, but instead claims that discrimination was ongoing. The complaint form lodged by him claims that the first date of discrimination was 29th November 2017 and the most recent date of discrimination 29th April 2018.
Section 21 (6) of the Equal Status Act 2000 provides:
“( a ) Subject to subsections (3)(a)(ii) and (7) , a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.
( b ) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.
(11) For the purposes of this section prohibited conduct occurs (a ) if the act constituting it extends over a period, at the end of the period, ( b ) if it arises by virtue of a provision which operates over a period, throughout the period…… “
Mr. Justice McGovern in County Louth Vocational Education Committee v The Equality Tribunal v Pearse Brannigan  IEC 370 in interpreting the provisions of the Employment Equality Act 1998 S 77 6 (A)( which is a similar provision to that of the Equal Status Act) reiterated the applicable section envisages a case of continuing discrimination with the time-limit referable to the point at which the discrimination ended. He held the form EE1 was only intended to set out a broad outline of the nature of the complaint, and it is clear from the legislation that complaints made within an expanded period are not time-barred.
In the circumstances, I find the Complainant’s complaint is not time-barred.
The Respondent has also raised a preliminary issue that form ES1 was not provided within 2 months of 19th October 2017 as required by S21 (2) a of the Equal Status Act 2000. This provides:
“Before seeking redress under this section, the Complainant-
(a) Shall, within 2 months after the prohibited conduct is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the Respondent in writing of-
(i) The nature of the allegation,
(ii) The Complainant’s intention if not satisfied with the Respondent’s response to the allegation, to seek redress under the Act……”
I find the Complainant’s Form ES1 was served on the Respondent in compliance with S21 (2) of the Equal Status Act 2000 as this was served within 2 months after the last occurrence of alleged prohibited conduct.
The Complainant claims that he was discriminated against by the Respondent on grounds of his religion in terms of Section 3 (1) and S 3 (2) (e) of the Equal Status Acts 2000-2015 that one has a different religious belief from the other, or that one has a religious belief and the other does not, and contrary to S 5 (1) of the Acts in the Respondent failing to provide goods, service or facilities.
Section 3 (1)(a) of the Equal Status Acts 2000-2015 provides that discrimination shall be taken to occur where “A person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified”.
S38A of the Acts sets out the burden of proof which applies to a claim of discrimination under the Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. It is only where such a prima facie case of discrimination has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.
The Complainant is an Evangelical Christian. He was a student of the Respondent. He sought 2 leaves of absence of 1 year in accordance with the Leave of Absence Policy of the Respondent which were granted. In his application for leaves of absence in 2015 and 2016, he sets out the grounds for his applications being his involvement in litigation in order to vindicate his good name, and refers to his litigation against Google regarding a defamatory statement in search results. There is no reference to the religious beliefs of the Complainants contained in his application for leave of absence when the decision was made by the Respondent refusing a further leave of absence. The Respondent’s witness gave evidence at the hearing that she was unaware of Complainant’s religious beliefs when the decision was made and was not aware of the nature of the litigation in which the Complainant was involved.
It was 1 year later when the Complainant applied for a third leave of absence and in his grounds stated that the litigation ongoing was connected to his religious beliefs. At that time the decision had already been made by the Respondent to refuse a further leave of absence in accordance with their policy and the requirement for academic coherence for students in progressing their learning. Course modules and the course content may change while the student is on leave of absence. Where the leave of absence goes beyond the one third maximum recommended absence, the Respondent encourages the student to withdraw and to reapply under the CAO.
The Labour Court in Mitchell v Southern Health Board (Cork University Hospital)  12 ELR 201 determined that a Claimant must prove, on the balance of probabilities, the primary facts on which they rely on seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded as being of sufficient significance to raise a presumption of discrimination, does the onus shift to the Respondent to prove that there was no infringement of the principle of equal treatment following Wallace v South Eastern Education and Library Board  NI 38.
I find that the evidential burden resting on the Complainant has not been discharged and a prima facie case of religious discrimination has not been established. The complaint fails
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.
I find that the evidential burden resting on the Complainant has not been discharged and a prima facie case of religious discrimination has not been established. The complaint fails.
Dated: 16th October 2019
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Extension of time, continuing discrimination, correct date of discrimination, jurisdiction of Adjudication Officer, incorrect title of Respondent, prima facie claim