Complainant

Respondent

Parties

Hilary Ellis

Araglen House Nursing Home

Representatives

  Self-Represented

 Mr. Frank Nyhan – Frank Nyhan and Associates Solicitors.

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-00048571-001

10/02/2022

The Complainant submits that she was discriminated against on the basis of her religious beliefs when she was denied access to employment by the Respondent because  she was not vaccinated for Covid-19. The Respondent denies discrimination and instead argues that the requirement for vaccination was a valid condition of employment based on a requirement to protect the health and safety of its nursing home residents, without any position on religious belief or otherwise.

The Complainant gave evidence under oath. The Complainant described herself as being brought up in the tradition of Christian Science and although there is no doctrinal prohibition on the Covid-19 vaccine by Christian Science, she is allowed to have her own position on the matter. She believes that she  has the right to personal autonomy, the right to a private personal life, the right to equality and the right to bodily integrity.  Ultimately, she submits she has the right to refuse medical treatment.

The Complainant applied for an advertised job of  "Multitask Assistant" and submitted a covering letter along with her CV to the Respondent nursing home.  On  9 February 2022 she  received an email from Ms. Chris Wood, HR Manager and Operations Manager  with the Respondent,  asking her to telephone her, which she  did. Ms. Wood said she'd read her  CV and asked if she would  like to attend the nursing home for an interview, to which she replied in the affirmative. Ms Wood  asked  the Complainant  if  she was vaccinated for Covid-19 and the Complainant answered in the negative. The Complainant stated that Ms. Wood said that because Araglen House Nursing Home is privately owned, the owner could determine conditions of employment and that vaccination for Covid-19 was obligatory for all employees and prospective employees. The Complainant was advised, therefore, that she could not be employed if she was not vaccinated.

 The Complainant asserts that she was discriminated against during the recruitment process. The Complainant submits that Covid vaccination is not, and has never been, mandatory in Ireland. She asserts that  it has  only been  recommended, even in healthcare settings and the HSE. The Complainant argues that the  fact that she  subsequently gained employment in a similar role and was deemed fit for that work following an occupational health assessment, proves that her  vaccination status was irrelevant.

In  cross-examination it was put to the Complainant that Ms Woods will say, in evidence, that it was initially stated in the phone call to the Complainant that she would be required to take an antigen and temperature test if she was to attend for interview at the nursing home, as is required of all attendees. The Complainant denied that this was said and stated that she would have been willing to take an antigen test. Furthermore, the Complainant stated in questioning that she did not consider the antigen test to be an intrusion on her bodily integrity, as was the case with vaccination. 

The Respondent submits that it was abiding by HSE guidelines when it required that all staff should be vaccinated during the Covid-19 pandemic and that the health and  welfare of its residents were paramount. The imposition of a term of employment requiring vaccination was objectively justified on the grounds of health and safety.

Ms Chris Woods gave evidence under oath. She described herself as HR and Operations Manager for the Respondent. She outlined the practices at the nursing home during the Covid-19 pandemic and specifically stated that there was no physical space in the nursing home where the Complainant would not be in contact with a resident at some juncture,  so therefore it was not practical to offer the Complainant employment if she was not vaccinated. The witness agreed with the content of the  telephone  conversation, as told by the Complainant, except in the matter of the requirement to take an antigen and temperature test before entering the nursing home for a potential interview.

In cross-examination the witness accepted that she did not carry out an individual risk assessment for the Complainant but insisted she was applying a general guideline as required by the HSE.  

Section 6(2)(e) of the Employment Equality Acts 1998-2020 (the Acts)  deals with religious discrimination where it states:-  

(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”),…

There is an obligation on a Complainant to make out a prima facie caseof discriminatory treatment, where it states at section 85A of the Acts:-

1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Commission to the [Director General] under section 85(1), facts are established by or on behalf of the Commission from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section “discrimination” includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

In Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how Section 85A is to be interpreted.:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. 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  Graham Anthony & Company Limited v Mary Margetts  EDA 038  the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established, was further outlined by the Labour Court when it stated :-

“The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act 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 occurred.”

The Complainant must therefore first establish a prima facie case of discrimination, in a twofold process, that: (1) she has a religious belief  and (2) she must adduce facts where an inference can be made that she was subject  to discriminatory treatment on foot of that religious belief. The Complainant  gave uncontested  evidence that she was brought up in the tradition of Christian Science therefore I am satisfied that the Complainant established the first part of the test. The Complainant then gave evidence that there was no doctrinal guidance given from her church with respect to vaccination but that it was left up to the individual choice of the member.  I am satisfied, therefore,  that the Complainant’s position on vaccination was not a religious belief as a protected characteristic nor was it a manifestation of that belief. Instead, it was a valid personal position commonly  held by people of every religion and none, but one that cannot be sustained as contrary to section 6(2)(e) of the Acts where  there is a  requirement that a particular belief conforms with and/or is connected to that of a particular religion.  

I note also that the Complainant gave no indication to the Respondent  of her purported  religious belief nor that her decision not to be vaccinated was  based on her personal belief of opposition  to vaccination, during the material telephone conversation of 9 February 2021. Therefore, I conclude that  the Respondent’s decision not to offer the Complainant an interview for the position in the nursing home  was based not on any discriminatory action contrary to the Acts, but instead was for the reason  that the Complainant was not vaccinated during the  Covid-19 pandemic.

After due consideration of the submissions and evidence from both sides, I find that the Complainant did not establish a prima facie case of discrimination under the Acts.

For the reasons outlined above, I find that the Complainant did not establish a prima facie case of discriminatory treatment on the grounds of religious belief and, therefore, the Respondent did not discriminate against her when refusing her an interview for a position in the nursing home.  

Employment Equality Act 1998, Religious Belief, Covid-19, Access to Employment.