Complainant

Respondent

Parties

Stephen  Delaney

Matt The Miller Ltd T/A Matt the Millers Bar & Restaurant

Complainant

Respondent

Anonymised Parties

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Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00045871-001

27/08/2021

The background to this complaint was the Covid-19 pandemic and the Respondent’s requirement for evidence of vaccination before entry to its premises. On foot of this the Complainant has alleged discrimination contrary to the provisions of the Equal Status Act [2000-2018]. The Complainant only  selected discrimination on the disability ground on his Complaint Form to the WRC of 27 August 2021 but in submissions and at the adjudication hearing he added discrimination on the religion and race grounds. The Respondent disputed and rejected the complaints on the basis of objective justification and that the Complainant was treated no differently to any other customer. Throughout, the Complainant made it clear that his complaint was confined to the requirement to produce evidence of vaccination and that he had no issue whatsoever with how he was personally treated by the Respondent.

Section 21 of the Equal Status Act [2000-2018] prescribes that a Complainant shall, “within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence…” notify the Respondent in writing of the nature of the allegation and the Complainant’s intention, if not satisfied with the Respondent’s response, to seek redress under this Act. In this regard I note the date of alleged discrimination was 26 July 2021 and that the Complainant hand delivered the ES1 Form to the Respondent on 27 July 2021 and subsequently emailed the form. This was accepted by the Respondent who stated that it didn’t reply to the ES1 Form. I am therefore satisfied that the Complainant complied with his obligations under Section 21 of the Act.

The Complainant stated that on 26 July 2021, he was prevented from entering the Respondent’s premises. The Complainant stated that he was accompanied by his five year old daughter, that he had a pleasant exchange at the door of the premises with the Respondent’s Manager who was “extremely polite” to them and explained the position.  The Complainant stated that he asked to be seated indoors but that when asked for his EU Digital Certificate/confirmation of vaccination he advised that he was not availing of that programme. The Complainant stated that he was then told  he would not be allowed inside.  The Complainant stated that he explained to the Respondent the provisions of Article 40.1 of the Irish Constitution that all citizens are equal before the law. The Complainant also stated that he had “pre-warned [his daughter] that entry might not be possible due to the new legislation passed by government”.  The Complainant left the premises without incident.

The Complainant stated that he was unvaccinated against Covid-19, he explained his objections to the vaccine/vaccine programme and the vaccination industry and provided written submissions including a post-hearing submission.  In summary, the Complainant’s position is that:

·       He was discriminated against on the disability ground on the basis that he was an unvaccinated person and that he should not have been treated differently by the state or the Respondent on the basis of an assumption that he had “a diminished or compromised health status”. In this regard, the Complainant stated that it was impossible to prove that an “unvaccinated person is less or more able than anyone else or is in anyway a threat to others on the basis of vaccination status”. The Complainant stated that the digital Covid pass was a tool of discrimination;

·       That he was discriminated against on the race ground as unvaccinated people were being treated by government as a different and less favourable class of persons. Unvaccinated people were a distinguishable class of persons targeted for the stance they held;

·       That he was discriminated against on the religion ground, that “large numbers of the unvaccinated were members of religious communities”  and were discriminated against – for example, by limiting their ability to congregate and pray.

The Complainant stated that he was seeking compensation of a minimal sum of a €100 which he intended to donate to charity and an enforcement order against the Respondent preventing any refusal of entry should a vaccine passport scheme apply in the future.

The Respondent stated that it was in business for approximately 26 years and that its business was highly regulated and inspected by various government departments and/or agencies such as the Health & Safety Authority, Bord Failte and the HSE. The Respondent stated that it had no option but to comply with the national regulations and guidelines issued for its sector. The Respondent stated that on the day the Complainant sought to be admitted to its premises, it was adhering to the relevant national guidance which had introduced/recommended temporary measures to combat the spread of Covid-19 including the requirement to show evidence of vaccination. The Respondent stated that notices to this effect were displayed in its premises. The Respondent considered this guidance necessary for health and safety reasons and for the protection of its customers during the Covid-19 pandemic. The Respondent stated that it offered to serve the Complainant and his daughter outside or in its smoking area upstairs but that this was not acceptable to the Complainant who only wished to be served inside.

It is the position of the Respondent that it did not discriminate against the Complainant on any ground and that it did not refuse service to the Complainant. The Respondent stated that the situation was not of its making and that its premises would have been shut down if it had not followed the national guidelines relating to Covid-19. The Respondent regretted any inconvenience caused to the Complainant as a result.

Section 2 of the Equal Status Act [2000-2018] defines disability as follows:

“disability” means –

(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”.

Section 3(1) of the  Act provides that discrimination shall be taken to occur –

“(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) or, if appropriate, subsection (3B)…..which ­­­---

(i) exists,

(ii) existed but no longer exists,

(iii) may exist into the future, or

(iv) is imputed to the person concerned,….”

Section 3(2) outlines the grounds of discrimination as may occur between any two persons and in that regard, subsections 3(2)(e),(g)and (h) provide as follows:

(e)“that one has a different religious belief from the other, or that one has a religious belief and the other has not  (the “religion ground”),……..

(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”),

(h)“that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”),……..

Section 5 (1) of the Equal Status Act [2000-2018] provides that “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.”

Section 2 (1) of the Act defines “service” as “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……”

Section 38A (1) of the Equal Status Act [2000-2018] provides as follows in relation to establishing the burden of proof:

“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.”

The import of Section 38A(1) is that it requires the Complainant – in the first instance - to establish facts upon which he/she can rely in asserting that the prohibited conduct has occurred. Accordingly,  the Complainant must first establish a prima facie case of discriminatory treatment 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. In Southern Health Board v Mitchell [2001] ELR 201 – the Labour Court considered the extent of the evidential burden imposed on a Complainant as follows:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64, the Labour Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

In light of the foregoing, I must decide whether or not the Respondent discriminated against the Complainant on grounds of his disability, religion or race in terms of section 3(2) of the Equal Status Act [2000-2018]. In reaching my decision, I have carefully considered the written submissions and the sworn oral evidence including from cross-examination, questioning and responses. I note that in response to questioning at the adjudication hearing, the Complainant stated that he did not suffer from a disability, that he was presumed to be suffering from a disability on the basis that he did not provide evidence of vaccination and that he was “perfectly healthy”. I further note that the Complainant did not provide any medical evidence of having a disability. In the course of questioning the Complainant accepted that the Respondent was following national guidelines and that he knew of no-one who had entered the premises without proof of vaccination. The Respondent reiterated that it treated all customers equally and that, as a public premises, its compliance with national regulations and guidelines in relation to Covid-19 did not constitute discrimination.

In all the circumstances, my findings and conclusions are as follows:

·       The Complainant has not demonstrated that he was suffering from a disability on 26 July 2021 in accordance with the definition of disability set out in the Equal Status Act [2000-2018]. Consequently I consider that his complaint of discrimination on the disability ground is not within the scope of the legislation and is outside my jurisdiction.  

·       The Complainant has not particularised his complaint of discrimination on the religion ground nor has he established sufficient facts relevant to his alleged treatment on this ground.  Consequently I find that he has not established a prima facie case of discrimination on the religion ground pursuant to the Equal Status Act [2000-2018].

·       The Complainant has not particularised his complaint of discrimination on the ground of race nor has he established sufficient facts relevant to his alleged treatment on this ground.  Consequently I find that he has not established a prima facie case of discrimination on the ground of race pursuant to the Equal Status Act [2000-2018]

CA-00045871-001

For the reasons outlined this complaint is not well founded.

Covid-19, Vaccine Passport, Discrimination