Requesting proof of vaccination to attend course

faceman

Hopefully I’m posting this in the right place. Note I’m not trying to start a conversation on the ethics of it, just the hypotheticals of whether it can be done or not.

Lets say hypothetically someone was to start running classes in person in September. E.g. yoga, drama etc. It’s not affiliated with a college or institution so it’s privately run but open to the public. The service provider wants to make it a safe place and asks for people to provide proof of vaccination on registration.

Would this be something they can do or are they potentially open to claims of discrimination

well so far the courts have not been asked but the government is promoting vaccinated only indoor dining. So I doubt that this will be an issue.

Peregrinus

In general, discrimination is only legally problematic when it's based on one of the prohibited grounds - gender, sexual orientation, marital or family status, religious belief, race or ethnicity, etc. Even where it is based on one of the prohibited grounds, there are lots of exceptions that allow a measure of discrimination in certain circumstances. But, if you are treating people different on a basis that is not one of the prohibited grounds, you don't need to look for an exception — what you are doing is not unlawful.

Disability is one of the prohibited grounds - you can't treat people differently on the basis of whether they have a disability or not, unless you can bring yourself within one of the exceptions that allows this. But, apart from disability, health, health status or vaccination status is not a prohibited ground.

Somebody might try to mount a claim by arguing that the reason they were unvaccinated was because they had a religious belief that forbade vaccination. But they'd need evidence of facts to support the claim; they couldn't just invent a belief, label it "religious" and expect everyone to fall over backwards to defer to them.

amen

https://www.boards.ie/discussion/comment/117681085#Comment_117681085

But if they did have a religious reason for not getting a vaccine would the fact that you are excluding all people based on their vaccinations status not cover you ?

Liam32123

https://www.boards.ie/discussion/2058201352/requesting-proof-of-vaccination-to-attend-course

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Peregrinus

https://www.boards.ie/discussion/comment/117702685#Comment_117702685

Reg 2021/0953 isn't a general prohibition on treating people differently on the basis of whether they have been vaccinated or not. It just says that possession of a vaccination certificate indicating Covid vaccination shouldn't be a precondition to the exercise of free movement rights or the use of cross-border passenger transport services. So, if you don't require your own citizens to have a vaccination certificate to enter your country, you can't require other EU citizens to have one.

This reg has nothing to do with whether a provider of yoga classes can require class particpants to be vaccinated.

Atlantic Dawn

The sooner we just assume everyone is vaccinated the better, that way someone deciding the vaccines is not for them all the better, stats will reveal whether they were right or wrong. Being vaccinated I couldn't give a bollix who I share a personal space with, that's the attitude needed or else we fail to exist in any sort of normality.

Liam32123

https://www.boards.ie/discussion/comment/117702830#Comment_117702830

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listermint

No offence Liam but I don't believe you have any legal background.

Ash.J.Williams

https://www.boards.ie/discussion/comment/117702834#Comment_117702834

antivax couple near me are riddled with covid this week, i wouldn't wish it on them but they should have known it was coming

GM228

https://www.boards.ie/discussion/comment/117703077#Comment_117703077

You are quoting Recital 36 (there isn't even 36 Articles in the Regulation) which does not have direct effect and can not be taken to any court because Recitals are not binding, they are not part of the binding texts of EU instruments and create no rights or duties.

Peregrinus

https://www.boards.ie/discussion/comment/117703077#Comment_117703077

Para 36 is in the preamble to the regulation.

Did you fail to notice that, or did you fail to realise that it was significant?

Also, did it not occur to you to wonder whether, even if the EU wanted to impose a general ban on all forms of discrimination between vaccinated and unvaccinated people, it would have the competence to do so? And, even if it had the competence to do so, would such a ban be within the scope of this regulation, stated at the head, or its subject matter, stated in article 1?

In fact, did you read the operative provisions of the regulation at all? If you had, it's hard to see how you could maintain your belief in what para (36) of the preamble means.

If you can point to a qualified lawyer who is of the opinion that this regulation imposes or aims to impose a valid legal ban on all forms of discrimination between vaccinated and unvaccinated people, now would be a good time to do that. If you can't, maybe the lesson is not so much that you should take a law class before posting about this as that you should probably take more than just the one law class.

https://www.boards.ie/discussion/comment/117703095#Comment_117703095

You're not the only one there...

GerardKeating

https://www.boards.ie/discussion/comment/117702685#Comment_117702685

Not really. They can make most/any preconditions they want. With respect to Irish law, as long as they avoid the nine protected groups, most anything goes. And with respect to EU law, as long all EU citizens are treated the same, again anything goes.

I can organise a Yogo class, and mandate that only people who own Android phones can attend and iPhone users would have no grounds to complain.

seamus

"Discrimination" is thrown around a lot, but discrimination itself is not illegal. Or even immoral. Private businesses in particular do it all the time. Discriminating between customers who pay cash or card. Who have a subscription or don't have a subscription. Who is a regular/preferred customer and who is not.

Every business is entitled to say, "I do not want to do business with you", unless the basis of that rejection is on one of the nine grounds.

Even rejection on the nine grounds is not always illegal, if the business owner has a valid reason. If we imagine, for example, that someone runs a dance school for children. Just one person, running a few classes a week. A parent approaches looking to sign their child up, but notes that their child has a disability which not only puts them at risk of injury if they engage in inappropriate movements, but also requires a carer to be present.

The school/teacher can legally refuse to take the child on - to discriminate against them on the basis of disability - on 2 grounds:

1. They are not qualified to assess what is or isn't appropriate for this individuals' needs and thus they risk injuring them
2. They do not have someone to act as a carer, and thus cannot accommodate the child without considerable cost to the school

Without getting too deep into the hypothetical, it's just one example of where it is legal to discriminate. The school doesn't have to make changes to accommodate the individual (unless those changes are minor and reasonable), they can refuse their business.

In terms of the OP, it is perfectly legal to discriminate between vaccinated -v- unvaccinated persons. Some difficulties do arise in terms of the nine grounds - disability specifically - if someone is unable to get vaccinated. However, there still exists the get out clause of, "I cannot accommodate you as an unvaccinated person as that would require additional resources/measures which I do not have".

The religious ground is a pretty flimsy one, as the basis of the discrimination would need to be more specific. If it's a refusal of all unvaccinated people, then the fact that you're not vaccinated on religious grounds is incidental.

The main issue I see is the balance of privacy -v- need. That is, the individual's right to privacy against the business's need to be able to run. A business requires good reason to demand any private information of any individual before doing business with them. A recent example is the estate agents who were demanding to see proof of funds before accepting bids. This is private information for which the business needs to be able to strongly justify their demand. The individual who's been denied business could push back and claim that the demand is a breach of their right to privacy.

A demand to see a vaccination cert would be similar. In the context of covid, a business could rightfully say that they want to protect their staff/members and avoid the impact on their business that a covid outbreak could have. But if they were running a very low-risk activity (say a horse riding school), then they'd be on shakier ground than someone running, say an indoor dance class.

There is one big intersection on discrimination and privacy. And it's why vaccine certs have a limited shelf-life. If someone says, "I cannot get vaccinated due to disability", and the business then demands proof of that disability, you're veering into a privacy breach. The business does not have a right to know the details of someone's disability. The fact that they cannot get vaccinated is enough. If the business continues to refuse unvaccinated people - including those due to disability - after the entire population has been offered a full vaccination, then the Equal Status Act could likely be rolled out. Official "vaccine exemption certs" are a possible solution to this, but the administrative headache is so enormous, they're more likely to simply drop the vaccine cert requirement.

Victor

https://www.boards.ie/discussion/comment/117703420#Comment_117703420

On the last paragraph, the business should seek a letter confirming medical inability to be vaccinated, not that the person has X condition that means they can't be vaccinated. Of course, most bona fide cases of medical inability to be vaccinated wouldn't be insisting on going to an indoor dance class.

Liam32123

https://www.boards.ie/discussion/comment/117703147#Comment_117703147

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Liam32123

https://www.boards.ie/discussion/comment/117703115#Comment_117703115

https://www.boards.ie/discussion/comment/117704318#Comment_117704318

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Liam32123

https://www.boards.ie/discussion/comment/117703095#Comment_117703095

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GM228

https://www.boards.ie/discussion/comment/117704355#Comment_117704355

The preamble/recitals to EU instruments can be used towards interpreting EU ambiguous acts where they are not inconsistent with the primary articles of the instrument, that aside they are not legally binding in any way - source: the jurisprudence of the ECJ.

You could start by reading the Moskof or Nilsson cases (and there are many many more) for example and then re-write your two books.

“the preamble to a Community act has no binding legal force and cannot be relied on either as a ground  for derogating from the actual provisions of the act in question or for interpreting those provisions in a  manner clearly contrary to their wording.”

They are an interpretive tool for the ECJ (not their original intention) and a reasoning for the instrument (required under the TFEU), not a legally binding piece of text.

Liam32123

https://www.boards.ie/discussion/comment/117704677#Comment_117704677

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Liam32123

https://www.boards.ie/discussion/comment/117681085#Comment_117681085

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GM228

https://www.boards.ie/discussion/comment/117704735#Comment_117704735

The ECJ is saying two things, A it has no binding legal effect and B it can not be relied upon to derogate from an actual provision or be used to interpret something which is contrary to something already stated, no where has it said what you claim that otherwise it is legally binding.

The Nilsson case specifically held the preamble of an EU "act" was not binding, not an EU Directive, act covers both, but in case you are still unsure the Moskof case held the same and was in relation to a Regulation, but just to be sure also read the Casa Fleischhandels case which held "‘whilst a recital in the preamble to a regulation may cast light on the interpretation to be given to a legal rule, it cannot in itself constitute such a rule".

And there is countless other judgments of the ECJ which all say the same, you can argue all you want, but the case law is very clear and well settled on the matter.

Liam32123

https://www.boards.ie/discussion/comment/117704797#Comment_117704797

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Liam32123

https://www.boards.ie/discussion/comment/117704797#Comment_117704797

There is a user below that can give wonderful legal opinions learned at the University of Facebook. Please refer to this genius.

eltonyio

Do you lads charge higher fees for using capital letters?

GM228

https://www.boards.ie/discussion/comment/117705088#Comment_117705088

What part of a recital may cast light on the interpretation to be given to a legal rule, it cannot in itself constitute such a rule do you find hard to accept?

A recital can help interpret a rule, but can not itself constitute a rule, in other words the recital is not legally binding contrary to what you claim with absolutely nothing to back it up.

Helping with an interpretation and setting legally binding rules or rights are not the same no matter how you like to dress it up, the ECJ has consistently held that position since the 1970s that they are not legally binding, you can not rely on them to enforce a rule or obligation.