Complainant

Respondent

Parties

Ieva  Bukauskaite

Laurel Lodge Nursing Home Housekeeping Assistant

Representatives

  Self -Complainant

 Self-Mr Hynes

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00047638-001

13/12/2021

This case is concerned with a complaint of discrimination on grounds of religion or belief. The issue at the centre of the complainant is an alleged failure of the Respondent, a nursing home, to accept an EU Covid digital certificate when the complainant applied for a position and attended for an interview.

Evidence was taken from all of those who attended and are identified in the text, under oath or affirmation.

On 9 December 2021, the complainant attended at the nursing home for an interview for the position of housekeeper which she had seen advertised online. When she arrived at the premises, she was told that the interview did not go ahead as she was told it could not go ahead because she did not have the vaccine. Nothing was said in the advertisement about having to be vaccinated against Covid. The Complainant said she told the person she met that she had a covid passport but was told that was not enough. She went home and was very depressed, so she sent an email that afternoon

‘If you are looking only for vaccinated staff you should inform before interview. I feel discriminated because your staff ask about my vaccine status. And I do have a covid certificate.’

In reply she received an email from Orla Poole, witness, that the interview could not go ahead as she had stated that she did not have a covid vaccine and in line with public health guidelines, it(a vaccine) is required to enter a healthcare setting. She added that they would be happy to arrange an interview when the guidelines changed.

The Complainant contended that she was discriminated against because they asked for her to have the vaccine.  She was discriminated against compared to other workers at the nursing home because she was not being allowed to work there when she had a covid passport and it was not accepted.

On the WRC form the complainant had indicated family status as the ground on which her claim of discrimination was based.  At the hearing, she clarified that this was an error when trying to complete the form. The ground on which she bases her complaint is that of religion, or belief. She felt that she did not need to be vaccinated, the covid passport was exactly the same and she was able to travel using the covid passport. There was no mandatory advice and no labour laws that meant the certificate could not be accepted if a person did not have the vaccine. She was not treated exactly the same as other employees who had a certificate for the vaccine.

Under cross examination from Mr Hynes the Complainant said that she was fully recovered from Covid. She was working at the time and is still working in fact. Asked how long she was recovered when she went for the interview, she said about two weeks. At the hearing she checked the certificate which stated that the first positive test was 22 November, and the certificate was valid from December 3rd, 2021.

Asked if she had completed the form at the entrance to the nursing home why did she not answer that she had covid within the last fourteen days and also tick the question indicating she never had a diagnosis of covid she replied that she did not understand the question at the time, English is not her first language. There followed some questioning about her awareness of a new strain of Covid at that time-the Omicron variant-she replied she was aware of it at the time and also replied to a question that she was aware that elderly people were particularly vulnerable to Covid and that strain of Covid. She added that when she arrived at the nursing home, she told the person she met that she had a Covid passport, but they did not want to know about it.

Asked to clarify if she was making the complaint on grounds of religion, the Complainant replied no, on a belief in relation to the Covid certificate that it had the same status or value as a vaccine, and she was discriminated against by not allowing her to be interviewed for work or to work there because she did not have a vaccine certificate.

Mr Hynes is a director of the nursing home. He gave evidence that at the time in question the nursing home was operating strict controls around Covid. It was not correct that a person could not work there without a vaccine-they had staff who for medical reasons could not get a vaccine. The ad did not specify that anyone applying had to have a vaccine. He spoke about the restrictions generally including those for visitors and relatives of the residents and how exceptions could only be made on compassionate grounds. They were under an obligation to query those arriving at the home regarding their vaccine status and make a judgment in all the circumstances, including requirements to wear full or partial PPE. The nursing home was looking for staff at the time and the idea that they could or would rule out a cohort of people entirely did not make sense. They were simply following strict public health guidelines which were monitored by HIQA, and they restricted access accordingly.

Orla Poole is the HR Manager. It was she who replied to the Complainants email on the afternoon of December 9th, 2021. In her evidence she confirmed that the nursing home was looking to recruit staff. They did not require that staff would all be fully vaccinated. There were protocols in place for all visitors with questions they had to answer. Visitors were required to provide proof of vaccination or immunity.  She explained it was a struggle to get staff at that time, as there was other work available around Christmas. Asked if she had offered to reschedule the interview, she replied yes that she had said made the offer in her email to the Complainant that afternoon, but she did not hear from her again.

In response to questioning the witness confirmed she had not met the Complainant at the nursing home. She confirmed that there was no question on the list to be completed inquiring if they had a certificate. She also confirmed that the Complainant had confirmed that she had a Covid certificate in her email on the afternoon in question, to which she replied yes, they were applying their understanding of the guidelines in place at the time.

The Respondent submitted that they were following public health guidelines at the time. At the time there was a heightened awareness and concern around the Omicron variant which was much more aggressive. At that time, it may have been viewed that any immunity was to the Delta and not the Omicron variant.

Given the circumstances of the case, it seems only fair to deal with the substance of the matter in terms of the conclusions to be drawn from the evidence.

Based on the evidence of the parties I am satisfied that the nursing home, for whatever reason, did not hold the valid EU Covid certificate which the Complainant had-one based on having recovered from Covid-in the same standing aa the one which was issued to those who had been vaccinated. Indeed, the very omission of a reference to that certificate from the questionnaire for visitors and the response of Orla Poole to the email on December 9th which confirmed that the vaccination was required, provide a sufficient basis from which to draw this conclusion. Rightly or wrongly the nursing home interpreted the guidelines in a way that meant the Complainant was not interviewed based on that interpretation. These conclusions also suggest very strongly that the Complainant did indeed say that she had a passport to whoever met her on the day of the interview but was turned away, because the policy of the nursing home did not allow for the certificate. It is not clear how answering the question that she previously had Covid would have assisted her in anyway-the policy was a vaccine or a medical condition which meant the employee could not be vaccinated. That she was upset and felt wronged in the circumstances is not surprising. She had a health passport and could travel or enter anywhere else-but could not get an interview for a job with an employer who had not prescribed the vaccine as a mandatory requirement in their advertisement.

Moving on to  legislation as it applies to the evidence, the difficulty for the Complainant and why she cannot succeed in this case, is that her situation, including her upset, do not provide a basis for a valid complaint of discrimination under the Employment Equality Act. The following is the extract from section 6 of the Act which contains the grounds on which discrimination may be said to occur or religious grounds if the facts support such a contention.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

At the hearing and in response to a direct question from the undersigned, the Complainant replied that there was no religious issue here, but rather one of belief. She may well be entitled to her belief that the nursing home was wrong in applying the guidelines in such a way that she was denied even an interview, but she has no basis for a complaint of discrimination on grounds of religion. The words religion and belief within the above extract from the legislation are inextricably linked. There is no pause between the two words, religious and belief. The clarification within the same sentence that this is ‘the religion ground’ could not be clearer-to be considered under this ground of discrimination, the alleged discrimination must be directly related to a religious belief. Another belief which, as in this instance, has no religious basis does not qualify for consideration as an act of discrimination under the Employment Equality Act. For these reasons, the complaint of discrimination fails.

As the complaint does not qualify for consideration on the ground on which it was based, It is not necessary therefore to examine whether there was less favourable treatment than other employees or whether there was objective justification for the stance adopted by the nursing home in relation to the acceptance of the certificate of recovery offered by the Complainant.

CA-00047638-The complaint brought by Ieve Bukauskaite against Laurel Lodge Nursing Home alleging discrimination on the religious ground, is not well founded.

Discrimination-grounds of religion or belief