Workplace Relations Commission: Evangelical Christian loses religious discrimination case against UCD

About this case:

• Citation:
  ADJ-00014412
• Judgment:
  External link
• Court:
  Workplace Relations Commission

The man alleged that the discrimination led to him withdrawing from his course at UCD, and sought redress under the Equal Status Act 2000.

Finding that the man had failed to discharge the evidential burden resting on him as the complainant, Adjudication Officer Davnet O’Driscoll held that a prima facie case of religious discrimination had not been established.

Allegation of discrimination on the basis of religious beliefs

The complainant, Mark Savage, was a student at UCD until he withdrew from his studies in late 2017.

In the Workplace Relations Commission, Mr Savage sought redress under section 21 of the Equal Status Act 2000, alleging that he had to withdraw from his course after UCD discriminated against him in refusing to approve his third year-long leave of absence in October 2017. Mr Savage alleged that UCD was aware of his religious beliefs as an Evangelical Christian, and that by refusing to grant his leave of absence, UCD discriminated against him. He said that his periods of leave were necessary to vindicate his rights, including manifesting his religious beliefs.

Mr Savage took his first year-long leave of absence from UCD in 2015 due to his involvement in litigation to vindicate his rights. His application for leave did not refer to religious beliefs. Mr Savage applied for his second leave of absence in September 2016, referring to his ongoing litigation with Google regarding a defamatory statement in search results, and stating that he could not afford professional legal representation. UCD’s University Programmes Board approved this leave of absence, but informed Mr Savage that it would not be able to facilitate any future requests for leave.

At the start of the 2017-18 term, Mr Savage applied for his third leave of absence, in which he referred to 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 Programmes Board denied this request for further leave.

UCD maintained that the refusal to grant Mr Savage a third leave of absence was unrelated to Mr Savage’s religion, and was actually based on the terms of its Leave of Absence Policy. The Policy states that if a third leave of absence is required the student can opt to withdraw from the programme and apply for re-entry at a later date. Furthermore, the Policy recommends that the maximum leave of absence time should be one third of the total length of the programme.

UCD said the Programmes Board was aware that Mr Savage had not engaged with the course or earned any credits in the time he was registered, and that he had received in excess of the recommended maximum leave of absences.

Preliminary objections

UCD raised a number of preliminary objections, including that Mr Savage was out of time when he submitted his complaint and that no reasonable grounds had been outlined for the time-limit to be extended. At the hearing, Mr Savage did not seek an extension of time, but instead claimed that discrimination was ongoing.

Considering County Louth VEC v The Equality Tribunal & Pearse Brannigan [2009] IEHC 370, in which Mr Justice Brian McGovern interpreted similar provisions in the Employment Equality Act 1998 to have envisaged continuing discrimination and that complaints made within an extended period were not time-barred, Adjudication Officer O’Driscoll held that Mr Savage’s complaint was not time barred.

The adjudication officer also rejected UCD’s preliminary objection based on the Programmes Board being named as the respondent.

No prima facie case of religious discrimination

Mr Savage claimed that he was discriminated against by UCD on grounds of his religion in terms of section 3 (1) and (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 section 5(1) of the Equal Status Acts 2000-2015 for failing to provide goods, service or facilities.

UCD submitted that Mr Savage had to show that he is personally disadvantaged by the Leave of Absence Policy and that the wider group he is part of is so affected (relying on Stokes v Christian Brothers High School Clonmel & Anor [2015] IESC 13). UCD said that Mr Savage failed to produce any evidence to show that Evangelical Christians were placed at a disadvantage compared to numbers of other religions or no religion. It said that its 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.

Considering the first two leave of absence applications, Adjudication Officer O’Driscoll was satisfied that there was no reference to Mr Savage’s religious beliefs, and this was only referred to in the third application after the Programmes Board had already made the decision to refuse further leave.

Adjudication Officer O’Driscoll explained that Section 38A of the Equal Status Acts 2000-2015 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.

Considering Mitchell v Southern Health Board (Cork University Hospital) [2001] 12 ELR 201 and Wallace v South Eastern Education and Library Board [1980] NI 38, Adjudication Officer O’Driscoll found that the evidential burden resting on Mr Savage had not been discharged and that a prima facie case of religious discrimination had not been established.