Indirect Discrimination - Born Again Christian Awarded €70k for Religious Discrimination

Indirect discrimination is quite often an unintentional means of discrimination but it can be every bit as costly as direct and deliberate discrimination. Indirect discrimination generally occurs by means of rules, regulations or procedures that may appear to be neutral, but which actually discriminate against certain groups of people. Given the potential costs involved, it is important for employers to be aware of risks involved. Indirect Discrimination As noted, indirect discrimination occurs where an apparently neutral rule or provision puts a person who falls into one of the 9 discrimination grounds at a particular disadvantage as compared to other employees who do not fall under that same discrimination ground. A classic example would be where an employer sets a height restriction of 6ft for a job. Whilst not all men will meet the 6ft requirement, a lot more men than women will meet that height and thus women will be indirectly discriminated against. In such circumstances the rule or provision will be deemed to be discriminatory unless the employer can objectively justify why it is required. Tipperary County Council -v- McAteer (EDA153) In the recent case of McAteer -v- Tipperary County Council, the Equality Tribunal (and the Labour Court upon appeal) considered the potential discrimination of the claimant on the grounds of his religion. Mr. McAteer was dismissed by the employer after he had repeatedly failed to comply with instructions from senior staff members to stop speaking about his faith to workers and members of the public during office hours. Mr. McAteer maintained that a central tenet of his religion requires him to speak to others about Jesus and to share the Gospel with them. The employer received complaints about Mr. McAteer engaging in what it characterised as “preaching” in the office. Mr McAteer was instructed to desist from this practice and he was subjected to disciplinary interviews in relation to this practice in 2008 and again in 2009. He was given a final written warning in 2008 and in 2009 and he was suspended for two months without pay. His behaviour was classified as gross misconduct on both occasions. As well as being suspended in 2009, Mr McAteer was required to seek professional help to overcome his compulsion to speak to others about religion. He attended four counselling sessions. Labour Court Consideration The Court took particular exception to the fact that the Complainant was restricted from engaging in this practice during his lunch break. Whilst the Respondent maintained that the lunch break was considered working time, the Labour Court noted that no other employees were restricted in their conduct or activities during lunch and thus the Complainant was being treated differently and was therefore indirectly discriminated against. The Charter of Fundamental Rights of the EU sets out an article 10.1 stating “everyone has the right the right to freedom of thought, conscience and religion. The right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice bad observance”. The Labour Court said that in this case “the right to manifest religion, inter alia, in teaching and observance is inherent in the notion of religion itself. Consequently, if a person is treated less favourably on grounds relating to religious teaching or observance they are discriminated against on grounds of their religion.” As such, the court also ruled that this was indirect discrimination. When considering the matter, the Labour Court noted that “there was no evidence tendered which could indicate that any of the people to whom the Complainant spoke to about God or the Gospels considered his conduct disreputable or that it adversely affected their perception of the Respondent. Nor was there any evidence to show that the Complainant’s evangelism impacted adversely on his capacity to perform the duties for which he was employed.” Therefore, the employer could not objectively justify why this treatment had occurred. The employee was awarded €70,000 by the Equality Tribunal and this was upheld by the Labour Court. Employers are urged to seek advice on any internal rule or provision, bearing in mind the above case, and as such are encouraged to seek advice from our 24 hour advice service on 01 855 50 50.