VaxCheck and the law

Surely that’s discrimination!

Early on in the development of VaxCheck I got into a conversation with one of our contractors who is interested in law. He was convinced that our VaxCheck solution was illegal, specifically it was discriminatory and “it must be in breach of the equality legislation”. Having spent a chunk of cash and a lot of time even at this stage we quickly went and checked.

A Zoom meeting with a charming, and expensive, barrister followed!

So here is the law.

In Ireland there are two main pieces of legislation related to equality. One are the employment equality acts which relates to workplace discrimination. The other is the Equal Status Act(s) 2000 to 2018. 

This act outlaws discrimination on nine grounds. They are gender, civil status, family status, sexual orientation, religion, race, age, membership of the Travelling community and disability. 

Now if you are using our VaxCheck to go to, for instance, a pub and you are not vaccinated, the pub will place you in a part of the premises where social distancing is still practiced. By contrast your friends all go to the other part of the pub reserved for those vaccinated. Now that may feel discriminatory, but is it?

For it to be in breach of the law the discrimination must be based on one of the nine grounds. You aren’t separated from your friends in the pub due to; how old you are, whether you are gay or straight, because you are Catholic and so on. You have been separated because you have not been vaccinated.

But you may think that its discrimination on the grounds of disability.

The Equal Status Act has a wide definition of disability including  the presence in the body of organisms causing, or likely to cause, chronic disease or illness”. As a non-vaccinated person in a pandemic there is a reasonable chance that you may have COVID in your body and so, you think, you are disabled and therefore protected under the Equal Status Acts.

But to claim the presence of COVID as a disability and thereby trigger a case of discrimination would allow the proprietor to point out that section 4.4 of the 2000 Act states “Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination”.

In addition, the Acts allow for a general statutory exemption that does not prohibit difference in treatment if another law requires it. In this case the pub owner has a responsibility to his staff, for example, and under health and safety legislation he is duty bound to protect his employees.

So no, using VaxCheck would not be in breach of equality legislation.