Complainant

Respondent

Parties

Declan  O'Malley

Eamonn Harty t/a Harty's Bar

Representatives

  Self-Represented

Diarmuid Falvey, Diarmuid Falvey 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-00048952-001

04/03/2022

The Complainant filed a complaint with the Workplace Relations Commission which was received on 4 March 2022.

At the outset of the hearing the Complainant swore an Affirmation as did the Respondent’s witness, Mr. Eamonn Harty.

Submissions were received from the Complainant on 4 and 19 August 2022 and again on 9 December 2022.

Both parties availed of the opportunity to cross examine each other.

It was the Complainant’s evidence that he was discriminated against by the Respondent on the grounds of his religious beliefs on 15 December 2021 and again on 30 December 2021. After sending the requisite ES.1 Form to the Respondent, to which there was no response, he filed his complaint with the Workplace Relations Commission.

The Complainant gave evidence of his religious beliefs based on his beliefs he chose not to take up the option of the Covid19 vaccine which was being offered at the time.

On 15 December 2021 he entered his local pub and was asked for his vaccine certificate. He explained he did not have it and the Bar person offered to serve him outside. It was the Complainant’s evidence that he was asked for his vaccine in earshot of the customers sitting inside the bar and later was subjected to abuse from those same customers.

The Complainant returned on 30 December 2021 and was again asked for his vaccine certificate by a member of the Bar staff. At this stage, the Complainant requested to speak with Mr Harty directly and explained his religious objection to the vaccine and requested indoor service. It was his evidence that Mr Harty told him he did not care about his equality rights, and he felt Mr Harty did not want to honour these rights.  

The Complainant quoted from his submissions which included case studies, the EU Charter of Human Rights, constitutional rights, and the Health Act 1947 (as amended).  

The Complainant was cross examined by the Respondent’s Solicitor and asked about the Respondent’s compliance with the Health Acts 1947 (as amended).

The witness for the Respondent gave evidence that he was not present on the first occasion the Complainant attend the premises but did meet him on 30 December 2021. He recounted the interaction with the Complainant on that date. It was his evidence that the Complainant was not refused service and he offered to serve him in the outdoor area.

Mr Harty explained that he was simply following the law. He gave evidence of visits from the HSE, An Garda Síochana to ensure he was complying. The Respondent had also achieved a Fáilte Ireland Covid19 Compliance standard.  Mr Harty explained in his evidence that he was concerned about the health and safety of his patrons.

The Complainant cross examined the Respondent on his compliance with the legislation at the time and questioned his approach to selectively applying the regulations to his disbenefit due to his religious beliefs.

The first issue to decide upon is whether the Workplace Relations Commission has jurisdiction to decide a complaint where the allegation of discrimination pursuant to the Equal Status Act occurred on a licensed premised.

Section 19 (2) of the Intoxicating Liquor Act 2003 provides :-

“(2) A person who claims that prohibited conduct has been directed against him or her on, or at the point of entry to, licensed premises may apply to the District Court for redress.”

Section 19 continues:    

“prohibited conduct” means discrimination against, or sexual harassment or harassment of, or permitting the sexual harassment or harassment of a person in contravention of Part II (Discrimination and Related Activities) of the Act of 2000 on, or at the point of entry to, licensed premises.

As these undisputed interactions occurred on a licensed premises the Workplace Relations Commission does not have jurisdiction to decide on this complaint pursuant to Section 19 (2) of the Intoxicating Liquor Act 2003.

The Workplace Relations Commission does not have jurisdiction to decide on this complaint pursuant to Section 19 (2) of the Intoxicating Liquor Act 2003.

Equal Status – Intoxicating Liquor Act 2003