Requesting proof of vaccination to attend course

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.

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

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.

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

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.

"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.

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

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

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

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.

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

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.