Complainant

Respondent

Parties

Maria Manuela de Almeida 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-00067900-001

05/12/2024

June 7th 2024 was polling day for the local and European elections in Ireland.  The complainant is a Portuguese native, and she has lived in Ireland for 30 years.  Around 7.00pm on polling day, she went to her local polling station in Ballybane in County Galway to vote, as she had done many times previously.

In her evidence at the hearing, the complainant said she was working in Cork that day and she drove home to Galway to vote.  She had her polling card and her Portuguese ID, which shows that she is a European citizen.  When she presented herself at the table to collect her ballot papers, the official who was checking the list of names remarked to her colleague that there was a letter E beside the complainant’s name.  The complainant was informed that she could only vote in the European elections.  The complainant said that she was standing in a queue of people and she was embarrassed about having to question the statement but she asked the poll clerk, “Are you sure?”  She told the official that she had been voting in Ireland for almost 20 years and that she was never refused the right to vote in the local elections.  The two officials consulted briefly and the complainant was handed a ballot paper for the local and European elections and she proceeded to a polling booth to vote.

When she arrived home, the complainant said that she was angry and upset and she told her husband what had happened.  He said that he had had the same experience, except that he only voted in the European elections.  The complainant said that it was about 8.00pm and she suggested to her husband that he should return to the polling station.  She said however, that he had been at work from 6.00am that day and was working the following day at 6.00am, and it wasn’t convenient for him to make a second trip.

The complainant did some research about how to make a complaint and she was advised to make a complaint under the Equal Status Act 2000.  She completed an ES1 form on July 16th 2024 and sent it by registered post to Galway County Council.  When she got no reply, on July 22nd, she sent the form again by email to the customer service email address in the Council.  She received a reply the next day from a senior executive officer, who advised her that she would forward the ES1 form to the returning officer at the courthouse in Galway.  The complainant replied and said that she read on the website of Galway County Council that the returning officer was a named employee of the Council.  In any event, she confirmed that she was happy for her complaint form to be sent to the returning officer at the courthouse.

At the hearing, the complainant said that the most upsetting aspect of this matter is that no one replied to her formal complaint on the ES1 form.  She said that she didn’t receive a phone call or an email or any correspondence acknowledging what had happened.  She said that the most difficult aspect of the incident is the fact that she and her husband were completely ignored.  She said that her sense is that the respondent hoped that she might “go home” and that they wouldn’t have to respond to her complaint.  But she said that Ireland is her home.

The complainant said that she understands the importance of the right to vote.  She was a child in Portugal when the country was a dictatorship under António de Oliveira Salazar.  She said that she understands the difference that living in a democracy means and the difference that one vote can make to the outcome of an election. 

Referring to the incident at the polling station, the complainant said that the job of the officials is “to do the right thing.”  She said that she has spoken with colleagues and she understands that other people had a similar experience and she wants the situation to change.  She said that she has good English and she works as a translator, but she said that for others, they may find it difficult to challenge what they are being told.  They may not be brave enough to make a complaint.

Responding to questions from Mr Higgins, the complainant agreed that the officials in the polling station didn’t ask her what race or nationality she is.  She said that one of the officials at the table where she collected her ballot papers remarked to her colleague that there was a letter E beside her name.  The other official then instructed his colleague to give the complainant her ballot papers.  She agreed with Mr Higgins that the encounter happened very quickly.

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.

A name with no letter adjacent to it 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 resident in Ireland 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 she was confined to voting in the European elections.  He said that this was a mistake, which was 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 officer 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.  He said that the poll clerk made a very unfortunate error and he apologised on behalf of the returning officer.  Mr Higgins said that he accepts in full the evidence of the complainant.  He said that the returning officer has been in her role for 19 years, and this problem has not arisen previously.  He said that the mistake made by the poll clerk was immediately corrected by the presiding officer.

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 she was treated less favourably compared to an Irish person when the poll clerk erroneously thought that she wasn’t entitled to vote in the local elections on June 7th 2024, an error which was corrected by the presiding officer.  My task therefore, is to consider the actions of the poll clerk when the complainant was informed that she wasn’t entitled to vote in the local elections and to determine if those actions were such that the complainant was discriminated against on the ground of her 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 she was discriminated against.  Although the complainant didn’t identify a specific comparator, the assumption at the hearing was that, as a Portuguese national, she was treated differently compared to an Irish person when the poll clerk made a mistake and thought that she wasn’t entitled 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 her name on the list of registered voters, she was entitled to vote in the European elections, but not the local elections.  In her evidence, she said that she asked, “Are you sure?” and following a brief discussion between the poll clerk and the presiding officer, she heard the presiding officer say “no, no, she’s allowed to vote.”  The complainant was handed the ballot papers for both elections and she proceeded to cast her votes.

Findings

The complainant is legally entitled to vote in the local elections and her allegation of discrimination arises from the poll clerk’s misinterpretation of the E beside her name on the list of voters.  I accept the submission of Mr Higgins, for the respondent, that this was a mistake. 

I understand that the complainant was embarrassed when she had to question the poll clerk about her mistake.  In her evidence however, she said that the conversation was brief and it is evident that the mistake was resolved quickly.  I agree with Mr Higgins who described the actions of the poll clerk as an unfortunate error and, had the complainant not challenged her assumption, a serious mistake would have been made.  While it may have been because of her own tenacity, I am satisfied that the complainant suffered no detriment.  When she challenged the poll clerk’s assumption, she was given ballot papers for the local and European elections.  The challenging of the mistake by the complainant and its correction by presiding officer had the effect of removing the risk of discrimination.

I agree with the complainant who said that the officials in the polling station should be properly trained.  They should know the meaning of the various letters and how they apply to the categories of voter, and there should be no risk that an individual might be denied their right to vote.

I note with disappointment that the respondent didn’t reply to the ES1 form, which was an opportunity to provide an explanation without the need for a hearing at the WRC.  I accept that the failure to respond compounded the complainant’s sense of unfair treatment and was disrespectful.

Because the erroneous assumption of the poll clerk was corrected when the complainant challenged that assumption, and, as she was given a ballot paper and proceeded to vote in the local elections, I have reached the conclusion that the complainant was not treated less favourably compared to an Irish citizen.  Taking account of all the facts, I am satisfied that the evidence of the complainant is not sufficient to show that discrimination occurred and the burden of demonstrating otherwise does not shift to the respondent.

For the reasons I have set out above, I decide that this complaint is not well founded.

Having reached that conclusion, because of the seriousness of the risk that members of the public could be prevented from exercising their franchise, in accordance with my authority under s.27(1)(b) of the Equal Status Act, I wish to make an order for the respondent to take a specific action.  I order the respondent to arrange for training for poll clerks and presiding officers to ensure that they understand the rights of voters based on their different entitlements arising from citizenship and residency.

Polling station, entitlement to vote