On 6th July 2021, Roderic O’Gorman TD as the Minister for Children, Equality, Disability, Integration and Youth launched a public consultation on the Review of the Equality Acts. On 18th August 2021 I provided a written submission as part of this process. The various sections within that submission are reproduced below. The focus of my submission related to the goal of the review to “examine the functioning of the Acts and their effectiveness in combatting discrimination”, and in particular my observations related to discrimination on the religion ground.
Section 3.2(e) of the Equal Status Act
The specific language used with respect to discrimination on the religion ground within the Equal Status Act, is being interpreted by the Workplace Relations Commission in a manner that seems inconsistent with the intentions of the Oireachtas. Section 3.2(e) of the Act states as follows:
“As between two persons, the discriminatory grounds are … that one has a different religious belief from the other, or that one has a religious belief and the other has not.”Section 3.2 of the Equal Status Act
It seems clear that the intention of the Oireachtas with respect to this clause, was to offer protection against discrimination on the basis of any person’s religious belief, and also to extend the same protection to those who have no religious belief, consistent with Article 9 of the European Convention on Human Rights. However, the Workplace Relations Commission has interpreted this clause as defining two separate and independent limbs. As such, a victim of religious discrimination is required to first understand that these two limbs are independent, and then to select the correct limb, in order to demonstrate that any discrimination is unlawful.
For example, the Workplace Relations Commission Adjudication ADJ-00017102 “John Hamill vs National Transport Authority”, relates to an allegation of religious discrimination in public transport pricing. On the day during 2018 when Pope Francis celebrated Mass in the Phoenix Park, Roman Catholics going to that ceremony were allowed to travel on buses and trains without paying, while non-Catholics on the same transportation services going to the same location at the same time to attend a non-Catholic ceremony, were required to pay full fare. In describing the Complainant’s case, the Adjudication states as follows:
“At the present adjudication hearing rather than arguing that he had been discriminated against because his religious belief (CCFSM), he contended instead that he was discriminated against as a non-religious person, i.e. as an atheist, which is illegal by virtue of the second limb of section 3 (2)(e) of the Equal Status Act 2000. He contended that while he may also be a member of the CCFSM, he is an atheist, i.e. someone who has no religious beliefs and section 3 (2)(e) of the Equal Status act 2000 does not require a complainant to specify which of the two limbs of section 3 (2)(e) is being relied upon.”Adjudication of “John Hamill vs National Transport Authority”
That is, since Roman Catholics were allowed to travel for free while all non-Catholics on the same Luas carriages at the same time had to pay full fare, the allegation was of discrimination against all non-Catholics. Given the historic hegemony of the Roman Catholic Church in Ireland, it seems that this is exactly the kind of discrimination that the Oireachtas intended to address in the Equal Status Act. Moreover, it appears clear that the language in the primary legislation is intended to protect to the same degree both religious non-Catholics, and also non-religious non-Catholics, in such circumstances.
However, the Workplace Relations Commission has determined that there are two independent and mutually exclusive limbs in the primary legislation, such that there is an onus on any victim of discrimination to correctly identify which limb their claim relates to. The decision in the case of “John Hamill vs National Transport Authority” states as follows:
“Section3(2)(e) has two limbs, which are mutually exclusive. The first relates to a complaint as between two persons with differing religious beliefs, where one person is treated less favourably to another. OR the second relates to a complaint where a person with a religious belief is treated more favourably than a person who with no religious belief. It is either one or the other. The use of the word “or” makes the section only being capable of being read as the complaint being one or the other … as the two limbs of section 3(2)(e) are mutually exclusive and as the Complainant’s ES1 notification did not set out the nature of the allegation that was ultimately proceeded with, I find that I have no jurisdiction to consider this complaint.”Adjudication of “John Hamill vs National Transport Authority”
Consequently, in the case where a service provider discriminates against all non-Catholics in Ireland, the Equal Status Act is being interpreted as imposing an onus on victims of discrimination to indicate whether they are a religious non-Catholic or a non-religious non-Catholic. This is inconsistent with Article 9 of the European Convention of Human Rights. In order for a citizen to vindicate their right to be free from religious discrimination, it is not acceptable that the State should require citizens to reveal the specific content of their own beliefs. There are many reasons why citizens may not wish to disclose which particular religious or non-religious beliefs they hold, and if a public body is discriminating against all non-Catholics then the State should combat that discrimination without requiring victims of it to reveal which specific non-Catholic group they may adhere to. As the European Court of Human Rights has stated in “Stavropoulos and Others vs Greece”:
“… the Court has also held that the right to manifest one’s religion or beliefs also has a negative aspect, namely an individual’s right not to be obliged to disclose his or her religion or beliefs and not to be obliged to act in such a way that it is possible to conclude that he or she holds – or does not hold – such beliefs. Consequently, State authorities are not entitled to intervene in the sphere of an individual’s freedom of conscience and to seek to discover his or her religious beliefs or oblige him or her to disclose such beliefs (see, Dimitras and Others v. Greece (no. 2), nos. 34207/08 and 6365/09, § 28, 3 November 2011; Dimitrasand Others v. Greece, nos. 42837/06 and 4 others, § 78, 3 June 2010; Alexandridis v. Greece, no. 19516/06, § 38, 21 February 2008, and Sofianopoulos and Others, cited above).”European Court of Human Rights
Moreover, a further problem arises from the interpretation of two mutually exclusive limbs for religious versus non-religious victims of discrimination, which relates to how it should be determined what is and what is not a religion.
Definition of Religion
The creation of a legal definition to distinguish religious versus non-religious beliefs is a notoriously difficult challenge, which has been addressed differently in various jurisdictions. For example, many different countries have many different attitudes to whether or not Scientology is a religion. Similarly, scholars on Taoism often disagree on whether these beliefs constitute a religion or a philosophy, and many other belief systems are not easy to categorise as a religion or otherwise.
Consider the situation whereby the National Transport Authority again decides to implement a pricing structure, whereby Roman Catholics travelling to Mass can use bus and rail services at no cost, while a Taoist travelling to a Taoist service must pay full fare. Would it constitute religious discrimination to allow Roman Catholics to travel for free on a train, while a non-Catholic such as a Taoist sitting on the adjoining seat must pay full fare? This seems like an example of religious discrimination that is so cartoonish and flagrant that proposing the hypothetical is redundant. Yet how would a Taoist victim of such religious discrimination against all non-Catholics vindicate their human rights using the Equal Status Act? At present, they would need to guess whether or not the Workplace Relations Commission might consider Taoism to be a religious or a non-religious belief, and if they guess wrong then their complaint will be rejected as using the wrong limb of Section 3.2(e).
This is not a fanciful or academic hypothetical either. Another belief system that is treated differently in various jurisdictions is Pastafarianism. For example, in New Zealand the Church of the Flying Spaghetti Monster is an approved religion for the purpose of the Marriage Act 1955, in exactly the same manner as the Roman Catholic Church. Some EU nations have determined that Pastafarianism is not a religion, but Mr Niko Alm won a legal case in Austria giving him a religious exemption to wear Pastafarian headgear in his driving license photograph. Mr Alm may now use this Austrian driving license to legally drive in Ireland.
The Workplace Relations Commission Adjudication ADJ-00011817 “John Hamill vs Dublin City Council”, relates to an allegation of religious discrimination in the disbursement of public resources towards mainstream religions, while treating minority groups less favourably due to their different beliefs about religion. Dublin City Council had allocated considerable resources towards the Dublin City Interfaith Forum, such that groups excluded from that Forum on the basis of their beliefs about religion, would also then be excluded from activities funded by Dublin City Council. Specifically, as a Pastafarian Mr Hamill fully accepted that when the Dublin City Interfaith Forum decided to exclude the Church of the Flying Spaghetti Monster based on the content of Pastafarian beliefs, it was entirely within their gift to do so. However, Mr Hamill did not accept that it was within the gift of Dublin City Council to allocate public resources only to those citizens with beliefs that are acceptable to the Dublin City Interfaith Forum.
Again the question arose within the case as to whether the Church of the Flying Spaghetti Monster is a religion or otherwise. In that case, Mr Hamill argued the complaint based on the religious limb of Section 3.2(e). In his ‘Findings and Conclusions’ the Adjudicator stated as follows:
“In assessing such a complaint, the role of the adjudication officer is to assess whether there has been less favourable treatment on the grounds of the claimant’s religious belief or lack of such belief. In carrying out the assessment, the adjudication officer must be satisfied that the claimant has a religious belief (or no religious belief) in order to consider the question of less favourable treatment.”Adjudication of “John Hamill vs Dublin City Council”
That is, the complaint did not assert that Dublin City Council had singled out those who adhere to Pastafarian beliefs in order to discriminate against them. The complaint instead asserted that Dublin City Council had discriminated against all minorities outside the mainstream religions represented within the Dublin City Interfaith Forum. Consequently, those discriminated against would have included both religious and non-religious minorities. Both of those groups were offered protection against discrimination by Section 3.2(e), but the Workplace Relations Commission does not view this as sufficient. Instead, the Workplace Relations Commission requires that a complainant must specify which of the two mutually exclusive limbs within Section 3.2(e) that a complaint relates to.
If a service provider discriminates against all non-Catholics or all minorities outside the mainstream religions, then the intention of Section 3.2(e) seems to be to prohibit such discrimination irrespective of whether the victim is a religious minority or a non-religious minority. However, the Workplace Relations Commission believes its role is to interrogate the content of a complainant’s beliefs to determine whether those beliefs are religious or not, and therefore whether their complaint has been taken according to the correct limb of Section 3.2(e) or not. In his ‘Findings and Conclusions’ the Adjudicator in the case of “John Hamill vs Dublin City `Council” goes on to state as follows:
“I accept the complainant’s evidence that he is not associated with certain uncouth statements attributed to Pastafarianism or FSM elsewhere. I note that the complainant emphasised that his church did not engage in humour, satire or parody. He said that his church did not use pirate-speak or wear pirate garb. He, however, acknowledged wearing a colander at home and that the Flying Spaghetti Monster was part of his belief system … The complainant is perfectly entitled to assert his adherence to “His Noodleness” but this does not mean that this espousal of Pastafarianism constitutes religious belief. It follows that the complaint of discrimination on the religious ground is not well founded.”Adjudication of “John Hamill vs Dublin City Council”
That is, the complaint failed because the complainant guessed wrong. As it turned out, the Workplace Relations Commission in Ireland disagrees with the relevant bodies in New Zealand and Austria about the religiosity of Pastafarians. So be it. The purpose of referring to this case within the context of the current Review is not to argue that the Workplace Relations Commission should have decided that the Church of the Flying Spaghetti Monster is a religion. I can accept entirely that the Workplace Relations Commission has made such enlightened legal distinctions on this point, that in the fullness of time both Austria and New Zealand will be embarrassed at their lack of attention to what citizens put on their heads while in the privacy of their own homes.
However, even accepting that the Church of the Flying Spaghetti Monster is now considered not to be a religion in Ireland, it remains the case that citizens should not be required to guess whether any particular belief may be considered either religious or non-religious in order to vindicate their human rights. If there is discrimination in favour of mainstream beliefs and against all minorities, then those minorities should be able to seek a remedy without having to anticipate whether the Workplace Relations Commission considers them to be a religious minority or a non-religious minority.
I would like to propose that the language of Section 3.2(e) might better read:
“As between two persons, the discriminatory grounds are … that one has a different belief about religion from the other.”Recommended Wording
This would be consistent with human rights law as described by the European Court of Human Rights. For example, the “Overview on the Court’s case-law on freedom of religion” states as follows:
“Whilst Article 9 of the Convention concerns freedom of religion in particular, the protection afforded by this provision is much broader and applies to all personal, political, philosophical, moral and, of course, religious convictions. It extends to ideas, philosophical convictions of all kinds, with the express mention of a person’s religious beliefs, and their own way of apprehending their personal and social life. For example, as a philosophy, pacifism falls within the scope of application of Article 9 of the Convention, since the attitude of a pacifist can be regarded as a ‘belief’.
Personal convictions are more than mere opinions. They are ideas that have attained a certain level of cogency, seriousness, cohesion and importance. It must be possible to identify the formal content of convictions.
The Convention institutions do not have competence to define religion, but it must be interpreted non-restrictively. Religious beliefs cannot be limited to the “main” religions. The religion in question does have to be identifiable, though an applicant’s wish to describe his or her belief as a religion will be favourably regarded in the event of an unjustified interference by the State. There is hardly any case-law concerning the main religions because the tenets are known and the relations with the States are well established. However, the issue is more delicate regarding minority religions and new religious groups that are sometimes called “sects” at national level. According to the Court’s current case-law, all religious groups and their members enjoy equal protection under the Convention.”European Court of Human Rights
If a service provider in Ireland is discriminating against all non-Catholics, the victims will therefore contain those who adhere to many different “personal, political, philosophical, moral and religious convictions”. Human rights law is clear that all such beliefs enjoy the same Article 9 protections and that there is a question as to which institutions have the competence to define religion. However, in cases where all non-Catholics are being discriminated against, the Workplace Relations Commission has decided that it has the competence to define religion, and moreover that it will require complainants to define their own beliefs as either religious or non-religious in order to successfully make a claim. Consequently, in advance of any changes to primary legislation, at the very least the Workplace Relations Commission should be required to indicate for citizens the basis on which they are distinguishing religious beliefs from non-religious beliefs. For example, in their “Guide on Article 9 of the European Convention of Human Rights” the European Court of Human Rights states the following:
“The word “religion” is defined neither by the text of Article 9 nor in the Court’s case-law. This omission is quite logical, because such a definition would have to be both flexible enough to embrace the whole range of religions worldwide (major and minor, old and new, theistic and non- theistic) and specific enough to be applicable to individual cases – an extremely difficult, indeed impossible undertaking.”European Court of Human Rights
Not alone has the Workplace Relations Commission decided that it can accomplish this “impossible undertaking”, it seems it can do so without publishing any guidelines or criteria. In the absence of such guidelines, how can Taoists and many other similar minorities be expected to know which beliefs the Workplace Relations Commission will consider to be religious, and which they will consider non-religious? The reality is that such determinations today, are entirely arbitrary. Adjudicators are not theologians, and yet they will spend just a few minutes in a hearing listening to the most brief high-level summary of a belief system, and immediately come to a determination on a subject that the European Court of Human Rights finds to be an “impossible undertaking”. The conceit that the Workplace Relations Commission is judging which beliefs “are ideas that have attained a certain level of cogency, seriousness, cohesion and importance” is absurd, given that those judgements are being made by adjudicators without any expertise in the subject matter, who often spend mere seconds to consider the issues. This is why the Workplace Relations Commission case law currently distinguishes religious beliefs from non-religious beliefs, in part through subjective judgements about the aesthetics of the hats that adherents to those beliefs might wear at home.
Moreover, the Workplace Relations Commission should also be required to change the online form that complainants use to initiate litigation. For example, the Workplace Relations Commission Adjudication ADJ-00017102 “John Hamill vs National Transport Authority”, states as follows:
“… if section 3(2)(e) is relied on in the WRC complaint but a different limb of the section is relied on at the Adjudication hearing from that identified in the ES1 form, is this a different nature of allegation? The answer is, that depends on what it being factually alleged.
The Complainant says no, he says he ticked the religion ground box in the WRC complaint form and this allows him free rein to argue on the basis of either limb of section 3(2)(e).
The Respondent argues yes. The two limbs of section 3(2)(e) are mutually exclusive because of the word ‘or’.”Adjudication of “John Hamill vs National Transport Authority”
Clearly, a large part of the confusion here is caused by the forms that are published by the Workplace Relations Commission. That is, the Workplace Relations Commission requires complainants to select the ground under which they are alleging discrimination and on their form there is only one box to tick concerning the religion ground. However, if in reality the Workplace Relations Commission requires complainants to state which limb of the religion ground their complaint relates to, then this should not be kept secret from complainants but should instead be reflected on the relevant forms.
Thank you for your Consultation process on this issue. I will look forward to the Review, and hope that at the very least the Workplace Relations Commissions forms relating to discrimination on the religion ground, can be updated to reflect the two independent limbs of Section 3.2(e) that their case law has established.
Consistent with this submission, when the Review of the Equality Acts is complete I will be looking at two specific issues with respect to the outcome:
- Will the definition of the religion ground be changed so as to remove the considerations that the Workplace Relation Commission has created around two independent and mutually exclusive limbs for the religious and the non-religious?
- In the event that the definition of the religion ground is not changed and the two independent limbs persist, will the forms published by the Workplace Relations Commission be updated to reflect their mutually exclusive interpretation of these limbs?