Background
The applicant worked in a residential care centre, employed by the respondent, HSE. Her employer was made aware in the early days of the applicant’s employment that she is a Jehovah’s Witness. The applicant had asserted in the beginning of the employment that she does not participate in any religious observances that are not aligned with her faith. She had been assured in a number of meetings with management that she would not have to attend Mass and could instead take care of other duties. Applicant thus argued that this was a term of the contract of employment, express and/or implied.
Later on, the applicant was informed by management that the arrangement no longer stands, that she would have to accompany residents of the centre to mass and was given no reason for why the decision was made. She did not carry out the employer’s request but suffered severe stress and chest pain.
A preliminary issue arose as to whether making a simple request to do something could represent a breach of the Employment Equality Act 1998.
Decision
The adjudication officer decided a prima facie case of discrimination was not made out by the applicant, and her complaint was not well founded. Because of this, other considerations relevant to a discrimination case, such as whether a Catholic person is a valid comparator and whether the defense of proportionality arises were not examined.
Legal Reasoning
The adjudication officer expressed doubts as to whether asking a health care worker to support a service user to attend such an event could be equated to participation to the event.
In concluding that the a request cannot amount to discrimination, reliance was placed on Merriman v. St James Hospital, a Circuit Court decision from 1986, where an employee dismissed for refusing to carry religious objects to the bedside of a dying patient for the purposes of a religious ceremony was reinstated in the role on her undertaking to carry on her contractual duties, including every necessary assistance to patients in relation to religious rites.
It was also stated that asking the complainant to accompany residents to mass does not amount to ‘facts from which it may be presumed that the principle of equal treatment has not been applied’ (Southern Health Board v. Mitchell Labour Court).
The adjudication officer stated that the applicant was at least 3 steps behind having a prima facie case: the act complained of was an oral request, not adverse treatment in the normal meaning of the word; she did not actually carry out the request; and she suffered no adverse consequences, sanctioning or dismissal.
The adjudicator noted the potential ‘extraordinary consequences’ which may arise if inadvertent comments or instructions given in good faith might, of themselves and without any further consequences for a failure to be carried out, were capable of giving rise to a breach of the 1998 Act.
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