A Polish national living in Ireland has lost a claim that he was discriminated against by the Department of Health over the requirement to take a Covid-19 test every time he passed through Dublin Airport during the pandemic.
The Workplace Relations Commission ruled that the claimant, Tomasz Pysz, has failed to establish a prima facie breach of the Equal Status Act on grounds of disability.
Mr Pysz complained that he was discriminated against by the department through regulations it had enacted which required him to have what he claimed were “expensive” and “invasive” PCR tests every time he sought to travel back from Poland to his home in Ireland.
The allegation was rejected by lawyers representing the department.
Mr Pysz, who had suffered injuries in a road traffic accident in 2020, opted to be treated in Poland which required him to travel to and from Ireland regularly, and sometimes twice a month.
He told the WRC that he had been advised by his neurosurgeon not to get vaccinated against Covid-19 but provided no evidence to support such a claim.
By being required to take a PCR test on arrival at Dublin Airport, Mr Pysz maintained he was treated differently to other passengers who only had to provide a certificate of vaccination or a certificate that they had just recovered from Covid.
He claimed he had to spend up to €80 each time he wanted to come back through Dublin airport.
WRC adjudicator, Penelope McGrath, said there was no doubt that Mr Pysz as an unvaccinated person objected to the requirement to take a PCR test when arriving into Dublin Airport.
Ms McGrath said she could understand that the alternative arrangement of quarantining for 14 days on arriving back in Ireland was not an option given the frequency of his return trips to Poland.
She claimed Mr Pysz had attempted to create a new discriminatory ground of “medical status” in his official complaint form under the Equal Status Act when the legislation only allowed for nine well-defined and known grounds for discrimination.
While Ms McGrath acknowledged the claimant might have hoped at best to have his claim fall under “disability” grounds, she said such a finding would be problematic based on the evidence.
She ruled that Mr Pysz, who has lived and worked in the Republic for over two years, had not established that he had any disability which prevented him from availing of the free vaccination programme.
The adjudicator said it was not possible to “shoehorn” the non-taking of a vaccine into any of the conditions that would constitute a disability.
The WRC heard that Mr Pysz wrote to the Department of Health in September 2021 outlining his travel arrangements and seeking guarantees on the effectiveness of the vaccine.
Ms McGrath noted the department in its reply was unable to guarantee that the vaccine would have no side effects.
She also observed that Mr Pysz ultimately got vaccinated at the end of last year which he stated was due to the expense of having to pay for PCR tests every time he travelled.
Ms McGrath said she also accepted the department’s argument that it was not providing a service to the public but was rather exercising a controlling function.
“These were unprecedented times and the Government opted to protect the citizens by ensuring, as far as was practicable, that persons travelling from outside the jurisdiction were not infected with Covid,” she added.
The WRC ruled the regulations introduced by the department were “rational and fair” which meant Mr Pysz’s claim would have failed even if he had established that he had a disability.
Under the Equal Status Act, the maximum amount which can be awarded by the WRC for a breach of the legislation is €15,000.