Complainant

Respondent

Parties

Carlos Manuel Garcia da Silva

The Returning Officer for Galway County

Representatives

Self-represented

David Higgins, Berwick Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00067939-001

07/12/2024

June 7th 2024 was polling day for the local and European elections in Ireland.  The complainant is a Portuguese native, and he has lived in Ireland for 30 years.  Around 3.30pm on polling day, he went to vote in his local polling station in Ballybane, County Galway, where he had voted before.

On the ES1 form he submitted to the respondent on July 22nd 2024, the complainant said that when he arrived at the polling station after a long day at work, he provided his identification to one of the two officials seated at the designated table where he went to collect his ballot papers.  He said that the female official at the table checked his driver’s licence and, when she looked at his name on the list in front of her, she said, “there’s an E here!”  He said that the second official, a man, told him that he was only entitled to vote in the European elections.  The complainant was very surprised by this because he said he was almost 100% certain that he was entitled to vote in the local and European elections.  He said that he hesitated and thought that there may have been some new legislation that modified the voting rights of Irish residents.  He said that it never crossed his mind that the people appointed to hand out the ballot papers in the polling station were not trained and correctly informed of the procedures and regulations that applied on the day of voting.

The complainant accepted the ballot paper for the European elections and he didn’t vote in the local elections.  He said that he felt embarrassed, as if he had asked for something to which he wasn’t entitled, or as if he had done something reprehensible or incorrect.

Around 8.00pm that evening, the complainant’s wife arrived home from the polling station in Ballybane after driving from Cork where she had been working that day.  She was upset and angry because she had had a similar experience.  She was told that there was an E beside her name and that she wasn’t entitled to vote in the local elections.  When she asked the poll clerk if she was sure about this, the clerk referred the question to the presiding officer, who confirmed that she was entitled to vote in both elections.  The complainant said that he told his wife that her experience was better than his, because he hadn’t been permitted to vote in the local elections.  He said that his wife suggested that he return to the polling station.  However, he had been at work from 6.00am that day and was working the following day at 6.00am, and he said that it wasn’t convenient for him to make a return trip.

At the hearing, the complainant’s wife said that the most upsetting aspect of this matter is that no one replied to their formal complaints on the ES1 forms that they submitted to the respondent on July 22nd 2024.  Ms Almeida de Silva said that they didn’t get a phone call or an email or any correspondence to acknowledge what had happened.  She said that the lack of a response when she made a complaint and the fact that she and her husband were completely ignored compounded how they were treated at the polling station.  She said that her sense is that the respondent hoped that they might “go home” and that they wouldn’t have to respond to their complaints.  But she said that she that Ireland is their home.

In his submission, the complainant said that voting is a right and a small number of votes can be a deciding factor in getting a candidate elected.  He said that preventing an individual from voting for their preferred candidate is not only a breach of the voter’s right but may impinge on the democratic process of the election.

On behalf of the respondent, Mr Higgins said that the tables at which ballot papers are handed out in polling stations are staffed by a poll clerk and a presiding officer.  The presiding officer is the senior person.  The person with overall responsibility for the running of the polling station is the supervisory presiding officer. 

Beside each voter’s name on the list of voters are letters to indicate their voting eligibility.

P:  Indicates an entitlement to vote in a presidential election;

D:  Indicates an entitlement to vote in elections to Dáil Éireann (general elections);

E:  Indicates an entitlement to vote in European elections;

L:  Indicates an entitlement to vote in local elections.

The absence of a letter adjacent to a name indicates that a voter has the right to vote in all elections.  A pre-condition for voting in every type of election is that the voter must be over age 18, resident in Ireland and registered to vote.  Only Irish and British citizens are entitled to vote in a presidential and a general election.  Citizens of countries other than Ireland who are resident in Ireland may vote in local elections.  Citizens of European countries may vote in European elections.  The complainant is entitled to vote in the local and European elections.

Mr Higgins said that when the poll clerk saw the E beside the complainant’s name, she assumed that he was confined to voting in the European elections.  He said that this was a mistake, which was not corrected by the presiding officer.  He said that the polling card does not identify the nationality of voters and the poll clerk was unaware of the complainant’s nationality.

In advance of an election, poll clerks and presiding officers are trained by the returning officer and the deputy returning office and another member of their team.  They are also required to take an online course.  The significance of the letters is explained at the training. 

Mr Higgins said that the day of voting is very long, with the polling centres opening at 6.00am and closing at 10.00pm.  Mr Higgins said that he accepts in full the evidence of the complainant.  He said that the poll clerk and the presiding officer made a very unfortunate error.  On behalf of the returning officer, he said that he was very sorry that the complainant wasn’t allowed to vote. He said that the returning officer has been in her role for 19 years, and this problem has not arisen previously. 

The Legal Framework

The preamble to the Equal Status Act 2000 (“the Act”) states that its purpose is,

…to promote equality and prohibit types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public generally or a section of the public has access.

Discrimination is defined at s.3 of the Act as follows:

(1) For the purposes of this Act 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), (in this Act referred to as the ‘discriminatory grounds’) which -

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) where a person who is associated with another person - 

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and 

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination, or

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. 

Subsection (2) sets out the discriminatory grounds, one of which, at subsection (2)(h) is,  

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

Each citizen over the age of 18 who is registered to vote is entitled to do so in accordance with regulations published by the Electoral Commission.  The regulations provide that residents in Ireland over the age of 18 who are not Irish citizens are entitled to vote in local and European elections.  Voting takes place in polling stations, and the operation is overseen by a returning officer, who delegates responsibilities to presiding officers and, in some cases, supervisory presiding officers.  I am satisfied that these arrangements, whereby citizens are facilitated in the casting of votes, is a service, as defined at s.2 of the Equal Status Act 2000, under the heading, “interpretation:”

“service” means 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,

(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

(d) a professional or trade service[.]

Section 5(1) of the Act addresses the right of the public to access a service such as that provided in a polling station, without being discriminated against on any ground:

A person shall not discriminate in the disposing of goods to the public generally or to a section of the public, or in providing a service, whether the disposal or provision is for a consideration or otherwise and whether the service can be availed of only by a section of the public.

The complainant’s case is that he was treated less favourably compared to an Irish person when he was prevented from voting in the local elections on June 7th 2024.  My task therefore, is to consider the actions of the officials in the polling station when the complainant was informed that he wasn’t entitled to vote in the local elections and to determine if those actions were such that he was discriminated against on the ground of his nationality.

The Burden of Proof

Section 38A of the Equal Status Act sets out the burden of proof in discrimination complaints:

(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.

This provision mirrors s.85A of the Employment Equality Acts 1998-2015 with regard to the initial burden of proof for a complainant under equality legislation.  Much of the case law for deciding if the burden shifts to the respondent has been set down in precedents under the Employment Equality Acts which are frequently cited in Equal Status Act cases.

The established test for deciding if the probative burden shifts to the respondent was formulated by the Labour Court in Mitchell v Southern Health Board, [2001] ELR 201. Here, the Court considered the extent of the evidential burden that a complainant must discharge before the respondent is fixed with the burden of proof.  The Court held that,

“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.”

The effect of this is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Generally referred to as “prima facie” evidence, in the context of this adjudication hearing, the onus is on the complainant to present facts that are “of sufficient significance” to show that he was discriminated against.  Although the complainant didn’t identify a specific comparator, the assumption at the hearing was that, as a Portuguese national, he was treated differently compared to an Irish person who was permitted to vote in the local and European elections.

The Evidence

At the hearing, there was no dispute between the complainant and Mr Higgins, for the respondent, regarding the facts of what occurred on June 7th 2024 at the polling station in Ballybane.  The complainant was informed that, as there was an E beside his name on the list of registered voters, he was entitled to vote in the European elections, but not the local elections.  In his evidence, the complainant said that he was surprised at this, but he thought that the legislation had changed and he accepted the decision of the presiding officer. 

Findings

The complainant is legally entitled to vote in the local elections and his allegation of discrimination arises from the failure of the poll clerk and the presiding officer to be aware of that fact and to issue him with a ballot paper. 

As a fundamental right of people in democracies, voting is a serious matter and the public must rely on the expertise of the staff who manage the voting process to make correct and lawful decisions.  A mistake on the day of voting has an effect on the democratic process and, in the complainant’s case, the mistake denied him the right to exercise his franchise.  On the face of it, what occurred may seem like a minor issue, but, regardless of whether there was an intention to treat the complainant less fairly than an Irish person, the effect of the mistake is that he was so treated.  Because of the seriousness of the error, and, as it wasn’t corrected by the polling staff, I am satisfied that the facts are sufficient to raise an inference of discrimination.

I note with disappointment that the respondent didn’t reply to the complainant’s ES1 form.  This was an opportunity to provide an explanation for what occurred in the polling station in Ballybane on June 7th 2024 without the need for a hearing at the WRC.  The failure to reply compounded the complainant’s sense of unfair treatment and was disrespectful.

I am satisfied that, if he had been an Irish national, the complainant would have been issued with a ballot paper to vote in the local elections.  Considering all the facts, I have reached the conclusion that, when he was prevented from voting, the complainant was discriminated against on the ground of his nationality.  The explanation provided by the respondent, that the staff in the polling station made a mistake, is not sufficient to show that he was not treated equally with an Irish person and that discrimination did not occur. 

I decide that this complaint is well founded.  Considering the issue of redress, it is my view that compensation, which is provided for at s.27(1)(a) of the Equal Status Act, is not sufficient to remedy the nature of the discrimination that occurred.  I am mindful also of the fact that the complainant could have made enquiries of the person in charge of the polling station, or he could have returned before polling closed at 10.00pm and exercised his right to vote.

In accordance with my authority under s.27(1)(b) of the Act, I order the respondent to arrange for signage to be posted in the polling station to inform voters how to make enquiries about their voting rights.  This signage should include information about the name and contact number of the supervisory presiding officer or the person in charge of the polling station.  In this way, complaints or concerns may be resolved, and there would be a reduced risk that a member of the public who is entitled to vote is prevented from doing so.

Polling station, voting rights