Complainant

Respondent

Anonymised Parties

Representatives

Mr Faisal Abib (the complainant)

Arthur Cox Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00027428-001

26/03/2019

The Complainant, Mr Faisal Abib, contends that he was subjected to discriminatory treatment at Dublin Airport on 24th October 2018 and again on 26th October 2018.

This complaint was received by the Workplace Relations Commission on 26th March 2019.

As per form ES1 the Complainant has raised the following points:

24th October 2018

1.       “Two officials who identified themselves as security pulled me aside right after the body and luggage search demanding that I answer what they called security questions and to perform another search of my bag.

26th October 2018

2.       After returning from my journey and while I was heading to the exit doors an official who identified herself as revenue approached me and pulled me aside demanding me to place my bag under a scanner.

I protested and when I asked her about the reason behind her decision to stop me she claimed that there is legislation put in place which allows any revenue officials to pull aside and chase any passengers for a search or luggage scanning without limit and / or restrictions”.

The following questions were asked by the Complainant:

1.       What are the duties if these two departments?

2.       What regulations are in place within these two departments?

3.       Are there any specific orders or instructions to stop and pull aside any person who is of a different race?

The Respondent submitted a comprehensive written submission.

The Respondent can address the incident on 24th October and will make a legal argument in that regard. In relation to the incident on 26th October 2018 the Respondent cannot speak on behalf of another government agency.

The Respondent points to the fact that it has a statutory requirement to take “all proper measures for the safety, security and operation of Dublin airport”.

In furtherance of this obligation, the Respondent is required to implement security measures in accordance with the relevant standards and recommended practices in this regard, including

a)       Standards set by the National Civil Aviation Security Programme (NCASP);

b)      Standards and recommended practices as set out by the International Civil Aviation Organisation (ICAO); and

c)       Baseline and enhanced security measures in accordance with the international best practice methodologies.

These standards are set in furtherance of the obligations of signatory states to the Convention on International Civil Aviation (the “Chicago Convention”) and the obligations of EU Member states under Regulation (EC) No 300/2008 of the European Parliament and of the Council to establish common rules and common basic standards on aviation security as well as mechanisms for monitoring compliance.

The standards mentioned above are classified standards that contain sensitive security information, and accordingly it is not lawfully permissible for the Respondent to exhibit these standards before the Workplace Relations Commission – only the designated security manager of an approved regulated entity is permitted to be given access to the National Civil Aviation Security Programme.

It was submitted that the implementation of relevant security protocol conducted in a proper fashion is not prohibited under the Acts by virtue of Section 14 of the Act. There is nothing in the Complainant’s allegations that would suggest that the search that allegedly took place on 24/10/2018 was carries out improperly and involved treating the Complainant less favourably than others on the grounds of race. It is a matter of critical importance that the Respondent is permitted to carry out its statutory obligations to protect the public by taking appropriate measures such as the implementation of appropriate security protocol. The Respondent does not treat persons with protected characteristics less favourably than persons without such characteristics when carrying out its statutory obligations.

Legal cases quoted:

·         Melbury Developments Ltd – v- Valpeters (EDA 0917)

·         Graham Anthony & Co Limited -v- Margetts [2003] EDA /038

A prima facia case of discrimination is established if a Complainant succeeds in discharging the evidential burden of proof. In the instant case the Complainant cannot discharge the burden of proof necessary to succeed in his claim against the Respondent. The Complainant has made assertions which are unsupported by evidence. He has gone no further that stating that incidents occurred and asserting that he possesses one of the protected characteristics contained in the Equal Status Acts. This is insufficient to discharge the burden of proof.

I have carefully considered the arguments presented by both the Complainant and the Respondent.

The Respondent has a statutory duty to implement “all proper measures for the safety, security and operation of Dublin airport”. In order to do so they have operational procedures that, for obvious reasons, have to remain confidential. These procedures also ensure compliance with National, EU and International regulations as pointed out by the Respondent representative.

There is case law to be considered. The cases quoted by the Respondent cannot be ignored. In Melbury Developments Ltd – v- Valpeters (EDA 0917) the Labour Court held that: -

“Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

In the case of Graham Anthony & Co Limited -v- Margetts [2003] EDA /038 the Labour Court stated: -

“….. the mere fact that the Complainant falls within one of the of the discriminatory grounds laid down under the Acts is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred”.

The Complainant is clearly aggrieved in relation to the alleged incident that forms the basis for his complaint however he has not discharged the burden of proof to establish a prima facia case of discrimination on the grounds of race.

The complaint is not well founded and therefore fails.

Outlined above.

Discrimination. Equal Status.