Complainant

Respondent

Parties

Liam  Lawlor

Cineworld

Representatives

  N/A

 Mason Hayes & Curran

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00046913-001

29/10/2021

The Complainant stated that he was discriminated against by the Respondent on 24 September 2021 when he was refused entry to a movie show because he did not produce a certificate to show that he had been vaccinated against Covid 19.

The Complainant stated that on 24 September 2021, he was refused entry to the Respondent’s cinema because he did not have a vaccine passport.

The Complainant stated that the Respondent was practicing medical apartheid and alleged that the denial of admission on the basis of his vaccination status was a direct violation of the Equal Status Act on the grounds of disability and medical status.

He also asserted that the guidelines which the Respondent claimed to be adhering to, in refusing him access to the cinema, had no basis in law.

On the morning of 24 September 2021, the Complainant sought to attend a showing of “The Many Saints of Newark” in Screen 11 of the Respondent’s cinema. As this was one of the higher capacity screens, all customers (except accompanying minors) were required to show their proof of immunity in order to gain entry, in accordance with the September 2021 Guidelines. The Complainant was unable to provide proof of immunity and was not permitted by the Respondent’s staff to enter the screen. The proof of immunity requirement was verbally explained to the Complainant at the time.

In an email on the evening of 24 September 2021, the Complainant wrote to the Respondent to complain about the practice of requiring proof of immunity and stated that the Government guidelines were unlawful as they violated an individual’s constitutional rights and the Equal Status Acts. In this correspondence, the Complainant expressly noted that the Respondent’s manager “handled [his] outrage in a professional and courteous manner”. The Respondent responded on 27 September 2021 and explained that it was obliged to follow all current Government guidelines and regulations. The Complainant emailed the Respondent again on 28 September 2021 and stated that the Government guidelines were discriminatory, and that the Respondent could not discriminate based on “medical status”. In its email response to the Complainant on 29 September 2021, the Respondent re-iterated that it was obliged to follow the Government guidelines and also explained that most of the screens in the cinema were continuing to operate with a maximum capacity of 50 people with no proof of immunity being required.

The Complainant emailed the Respondent on 30 September 2021 and outlined that he had been subjected to offensive and unjustified treatment, and that under the “discriminatory regulation”, he could not attend “No Time to Die” in the IMAX. On 1 October 2021, the Complainant attended a showing of “No Time to Die” in a smaller screen in the Respondent’s cinema which had a maximum capacity of 50 people and therefore did not require customers to show proof of immunity.

In the ES1 form dated 5 October 2021, the Complainant alleged that he was discriminated against on the basis of disability and stated that he was refused admission to a showing of “The Many Saints of Newark” because he did not have a “Covid pass”. 

The Respondent replied to the Complainant’s ES1 form by letter dated 3 November 2021. The Respondent outlined that Cineworld Dublin was following Irish Government mandated guidelines, which meant that it was only permitted to grant customers access to certain screens where they had provided suitable evidence of Covid 19 vaccination or that they had recovered from Covid 19 within the last 6 months. The Respondent denied that the Complainant had been subjected to any discrimination.

Section 5 (1) of the Equal Status Act 2000 provides:-

“5.—(1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”

For completeness Section 2 (1) of the Act defines what constitutes a “service”:

“service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—

(a) access to and the use of any place,

(b) facilities for—

(i) banking, insurance, grants, loans, credit or financing

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

(d) a professional or trade service, but does not include pension rights (within the meaning of the Employment Equality Act, 1998 ) or a service or facility in relation to which that Act applies;”

I am satisfied, having reviewed the above, that the Respondent, a cinema, is providing a service within the meaning of the Equal Status Acts.

Section 3(1) of the Act provides, inter alia, that discrimination shall be taken to occur where:

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘‘discriminatory grounds)’’

Section 3(2)(g) provides that: as between any two persons, the discriminatory ground of disability is,

(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),

Section 2 of the Act defines “disability”, inter alia, as meaning “ (a)the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body, (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness, (c) the malfunction, malformation or disfigurement of a part of a person’s body, (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or (e) a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour”

Burden of proof

Section 38A (1) provides that the burden of proof is: " Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary." It requires the Complainant to establish, in the first instance, facts upon which he can rely in asserting that the prohibited conduct occurred and it is only when a prima facie case has been established that the burden of proof shifts to the Respondent to rebut the presumption of discrimination.

The issue for decision is whether the Respondent discriminated against the Complainant on grounds of disability as set out at section 3(2) (g) above, as he alleged. While I note the Complainant’s assertion that the Respondent also discriminated against him on the grounds of his medical status, namely that he was not vaccinated against Covid 19, this is not one of the grounds of discrimination set out in the Act and an examination of this allegation is therefore outside of my jurisdiction.

Even if I accept that the Complainant suffers from a disability as he alleged, I must also be satisfied, in order for him to meet the burden of proof set out above, that the Respondent was aware of such a disability when he was refused entry to the cinema on 24 September 2021. It was highlighted by the Labour Court in A Worker v An Employer EDA 1927 in its decision on a complaint of discrimination under the Employment Equality Act, which is analogous to the instant complaint, that the Complainant was not discriminated against because the Respondent was “not provided with any medical evidence that the Complainant had a disability” and “could not have been expected to accept the Complainant’s assertions in the absence of medical evidence”

In the instant case, the Complainant provided no medical evidence or documentation in relation to his alleged disability either on the day of the hearing or to the Respondent at the time of the alleged discriminatory act on 24 September 2021.

In such circumstances, I am satisfied that the Complainant has failed to establish a prima facia case of discrimination on the ground of disability.  

Given that the Complainant has failed to establish a prima facie case of discrimination, I find that the Respondent did not engage in prohibited conduct under the Act.