WRC finds participation in public consultation process is a ‘service’ for purposes of the Equal Status Acts

The Workplace Relations Commission has found that a public policy consultation was a service for the purpose of the Equal Status Acts. In reaching this conclusion the adjudicator found that it was irrelevant no fee was charged. 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”. The adjudicator found the consultation could be understood to be a facility: members of the public who are selected following a public advertisement which invites expressions of interest get an opportunity to communicate their views to the government in a discursive structure set up for this specific purpose. The adjudicator also pointed to a second more indirect reason for reaching this conclusion. Public participation of this nature ultimately informs the provision of services which the government provides to the public. In that sense, gathering the views of a section of the public on any policy proposal, so as to ensure that benefits accrue to the public as intended, could be seen as an integral part of public service provision by the government, and hence be included in the definition of “service” as provided for in the Acts.

The WRC ruled against the applicant Mr A on the substantive issue in the case; religious discrimination. Mr A claimed he was refused participation in the consultation process owing to his religious beliefs contrary to Section 3(2)(e) of the Equal Status Acts 2000 to 2015.By way of background the complainant Mr A stated that he saw a policy consultation forum run by the respondent (a Government Department) advertised on 1 May 2015 and he applied to participate by email. He subsequently received correspondence from the respondent that he would not be invited to participate due to the fact that the number of participants in the policy forum would be limited initially however this would be kept under review. Mr A understood this correspondence to mean that he would be invited to participate in the future.

The adjudicator stated that the connection to any potential discrimination on the religion ground, as per Mr A’s own statement, was very convoluted: Mr A’s religious outlook makes him critical of a particular social minority. He claimed that these critical views have led to him being defamed online and his complaint to the Data Protection Commissioner was against a search engine provider for not removing links to the alleged online defamation. Mr A had speculated that the lack of a forthcoming invitation to participate may have been linked to his ongoing litigation. Ultimately Mr A claimed that his exclusion from participation and the subsequent lack of an invitation was a result of the respondent satisfying the relevant social minority who work for the government and ensuring that they would not feel uncomfortable when he, as a “God-fearing man” in his own words and would be compelled by his beliefs to raise these criticisms again.

The adjudicator found Mr A had failed to establish a prima facie case under the Acts and did not prove that a person of a different religion had been treated more favourably than him by being invited to participate in the forum. The religious preference of the named comparator was not known by Mr A and Mr A himself had not disclosed his religion to the respondent.

In its decision the WRC stated that based on all of the foregoing, pursuant to Section 25(4) of the Equal Status Acts that the respondent did not discriminate against the complainant, on the ground of religion or religious outlook or background, pursuant to Sections 3(1), 4 and 5(1) of the Acts.

Click here for a copy of the decision. 



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