Equality Authority: tackling discrimination in Ireland
While the UK is carefully moving towards a single body to promote equality and enforce anti-discrimination legislation, the Irish Republic's equivalent organisation, the Equality Authority, has been in place since 1999. Here, Carol Foster talks to Eilis Barry, the authority's head of legal services, about the benefits of a single equality body, the importance of single equality legislation and the success of the Republic's non-adversarial equality tribunal system.
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The Equality Authority in Ireland has seven years' experience of working as a single body dealing with all strands of discrimination legislation.
The authority deals with nine grounds of discrimination. It was created by expanding a single existing body that dealt with gender and equal pay, but this has not resulted in the gender focus being lost.
Being a single body has helped in applying principles established in relation to the established, stronger grounds of discrimination to the newer, weaker grounds, such as sexual orientation.
Being able to link the different discrimination grounds to deal with multiple discrimination is seen as very important to the work of the authority.
The different discrimination grounds are linked by common issues, and a single body makes it more practical to deal with those issues together.
An important part of the authority's work is promotional, and it has found it to be easier to promote equality and diversity as a whole, rather than concentrate on a single ground of discrimination.
The authority has adopted a three-pronged approach to casework: multi-ground, cross-ground and single-ground.
The legal strategy is to support cases that will have the most impact and establish criteria for the future. Casework also feeds into policy initiatives.
The Equality Tribunal system in Ireland is unique in that its equality officers investigate, hear and decide discrimination claims. It is also non-adversarial.
Problems with the Equality Tribunal system are that cases are subject to delays, and there is a limit to the amount of compensation that can be awarded.
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In Britain, the move to combine the equality commissions and create a joint approach to tackling all grounds of discrimination has been greeted with as much hostility as endorsement (Equality Bill establishes CEHR from October 2007 and CEHR moves ahead). The Commission for Equality and Human Rights (CEHR) is scheduled to be set up by October 2007, although the Commission for Racial Equality will not join it until 2009.
By contrast, the Republic of Ireland's Equality Authority's head of legal services, Eilis Barry, declares: "Speaking from practical experience, placing all the grounds together makes sense. I see the negatives of combining all the equality jurisdictions in one organisation as being more apparent than real."
Different situations
Barry accepts that the situation in Ireland was and is different from that in the UK. She explains: "Ireland had only the Employment Equality Agency, which promoted equal treatment at work relating to gender and equal pay, when the Equality Authority was set up under the Employment Equality Act 1998. The Act effectively increased the number of areas of discrimination covered from two to nine. So, for us, it was not so much combining existing equality bodies, but expanding the one that was already there."
In Britain, with its relatively long history of legislation and institutions that support different elements of the equality agenda, some campaigners have expressed fears about a single equality body bringing about a possible loss of focus on the issues of greatest concern to the people whose interests they serve. Barry acknowledges that there were teething problems when the Equality Authority was established in 1999 (see box 1). "There was a concern that the developments that had occurred in the gender area and the focus on gender would be lost. Those fears have not been realised, however," she says.
Benefits
Despite these initial fears, Barry is adamant about the benefits of a single equality body and single equality legislation. She highlights these as:
Same legal principles apply
All grounds are covered by the same legislation, with the same legal precedents and principles from which to work. Barry argues: "The burden of proof, for example, is not interpreted differently, whether the case involves race or gender or disability. We rely on the same case law, as well as on UK case law. On a pragmatic basis, you have the same forms and procedures, forums and standards dealing with the same issues."
Supporting newer grounds
Having the grounds linked means that the principles determined under the established and stronger areas of discrimination can be transferred to the newer and weaker areas. "For example," explains Barry, "the case law relating to the Traveller community broke new ground in terms of goods and services under the Equal Status Acts 2000 and 2004 in a manner that was of benefit to all the other grounds.
"It also equipped us with a language to deal with the disability ground. Interestingly, the arguments and defences we met in relation to disability were the same as those relating to Travellers: 'It's too difficult, it's too awkward, people will be upset, it's going to cost too much to do it that way.'
"In general, the newer groups, who were not that organised, benefited from the gender experience."
Transferring legal concepts
The grounds feed off one another. For example, the concept of reasonable accommodation in disability (equivalent to "reasonable adjustment" in UK law) is very useful in the other grounds. "Reasonable accommodation is stronger than the concept of indirect discrimination, because you can justify indirect discrimination," Barry contends.
"Reasonable accommodation, which is required under the disability ground, has begun to be displayed in cases under other grounds. For example, in a landmark employment case, the Labour Court in effect said that the employer should make reasonable accommodation to take account of the language and culture of the complainant, a migrant worker" (see box 2).
Multiple discrimination
Some of the authority's legal cases involve a number of grounds. "The ability to link the grounds is very important," says Barry, "because people may be experiencing discrimination on more than one level, such as black women, older women or black Muslims. With single legislation, people are freer to choose the grounds that accord with the reality of their lives and particularly their experience of discrimination."
Common areas
The different grounds are linked, sharing common areas such as discrimination in access to housing and education. This makes it more practical to tackle all the relevant grounds of discrimination together.
Promotional work
Barry insists: "An important strand of our work is promotional and to try to sell nine different equality policies is ludicrous. It is easier to promote equality and diversity when the grounds are together - this is the reality of the situation of employers and of people's lives."
Expense
Finally, Barry asserts: "It would just be too difficult, too awkward and too expensive to maintain different commissions."
Three-pronged approach
The Equality Authority has adopted a three-pronged approach to casework and development initiatives: multi-ground, cross-ground and single-ground (see box 1).
Multi-ground
This involves a joined-up nine-ground approach and is especially useful for promotional and development work. In particular, Barry cites the Equal Opportunities Framework Committee, which was set up to promote equality in employment and includes the social partners. This has produced common multi-ground guidelines on introducing employment equality and equal status policies and promoting equality and diversity training within enterprises.
The Equality Authority is also able to offer funding for small and medium-sized enterprises. Grants are given to buy in expertise to help implement the guidelines on equality policies and provide equality training across all nine grounds.
Resources have also been allocated to the social partners. For example, the Irish Business and Employers Confederation received funding to support its work in developing a capacity for diversity management among its members, and the Irish Congress of Trade Unions was given financial aid to promote gay and lesbian rights. An equality-proofing initiative covering nine grounds was developed with the city and county development boards (located within local authorities, which are equivalent to the local government structure in Britain). This produced guidelines on how to conduct equality impact assessments on their strategic plans and new programmes.
Cross-ground
Cross-ground issues focus on those groups at the intersection between the different grounds. The Equality Authority has done work to draw out the experience of gay and lesbian people with disabilities and to establish the identity, experience and situation of minority ethnic people with disabilities. This was part of a project that involved the three British equality commissions and the Equality Commission for Northern Ireland.
Single-ground
This involves initiatives around single-ground areas of discrimination. For example, it applies if an area of casework is identified as not developing, such as in relation to sexual orientation where people are extremely reluctant to come forward. In this instance, a consultative advisory committee of key players was set up to produce recommendations on implementing equality for gay men, lesbians and bisexuals. This gave a necessary visibility to the sexual orientation ground and established an important solidarity. Similarly, a consultative committee was set up to establish the equality agenda for older people, and there is also an annual Anti-racist Workplace Week.
Simple structure
Barry points out that the Republic of Ireland has a much smaller constituency than that covered by Britain's equality bodies, and this may make its working structure simpler. "The Equality Authority is small, so in our legal work we work along the basis of areas, rather than by dividing our work into the nine grounds," she explains. "For example, one person will deal with all types of discrimination in registered clubs, another with discrimination against migrant workers."
However, she stresses that all individuals are competent to work in every area of discrimination and that any person can deal with any case: "In practice, experience and expertise is shared across the authority, and all staff are keen to undertake training on new areas of development."
Legal strategy
Given the small size of the organisation, strategic casework is considered essential and the Equality Authority's board sets the guidelines for its strategic law enforcement policy. The overarching approach is to maintain the progress made under the gender equality legislation, while incorporating the legal principles established in that area to develop all discrimination grounds equally. The aim is to establish a culture of compliance across all grounds and in all areas covered by the legislation.
The authority is also interested in supporting cases that involve more than one ground, or cases involving a particular ground that is not coming forward. Barry states: "We look for cases that will highlight issues that will have the most impact and will establish criteria on how to handle areas of potential discrimination."
Legal casework is also used to feed policy initiatives and vice versa. For example, sexual harassment cases led to the authority developing a code of practice on sexual harassment, which has been relied on in court as a standard in several cases.
A key priority was to clear the backlog of legal cases (see below). In the last strategic law enforcement guidelines, priority was given to age discrimination, migrant workers, pregnancy discrimination, Traveller employment and sexual orientation cases. However, the guidelines for taking cases are constantly under review.
Inquiries
The Equality Authority is also exploring its powers to conduct inquiries. "We have not conducted one yet, but we are looking to do so this year," Barry says. "However, we have to learn from the experience of the former Employment Equality Agency in this regard. When the Employment Equality Agency sought to do hostile inquiries, it met with legal challenges. We need to ensure that our procedures will withstand any challenges."
The British equality commissions' experiences of conducting formal investigations also raise concerns about the amount of resources and length of time these take. Barry argues: "We do not want to put all our resources into a lengthy inquiry when, in the meantime, we could have won a couple of landmark cases."
Community advocacy
As always, lack of resources is an issue and Barry asserts: "While we will never have a big enough budget to cover the whole of the population, we have a strategy of training others, such as unions and voluntary organisations, to offer legal support to individual complainants." She adds: "We have very limited legal aid in Ireland, and this does not allow for representation in tribunals, so one of the approaches we have tried is to develop community advocacy with, for example, Traveller organisations."
Law versus promotion
While recognising that her views may be unpopular with some, Barry stresses the importance of development work in addition to legal enforcement: "History tells us that casework alone does not work - after 30 years of litigation, we still have colossal inequalities. There is still a significant pay gap and we are still supporting pregnancy discrimination cases. So in some ways legislation is deficient.
"We have a development section that provides the carrot approach, where we work to promote equality in a non-adversarial way."
The authority takes its promotional work forward by liaising with the social partners and by, for example, providing funding for equality reviews and producing guidelines for equality-proofing policies.
Positive duty
The Irish Republic does not have a positive duty to promote equality and diversity and the authority recommends that such a duty is the next step (see box 3). This need has been supported by an important judgment of the Labour Court (see box 2). Barry reiterates her belief that litigation by itself is not enough and that a positive duty to promote equality can enhance effectiveness. In particular, she commends a duty to promote equality as not being adversarial and removing the personal element: "You are not telling employers that they have breached the law and that they have done wrong. Also, an individual does not have to take a discrimination case to provide the impetus in an organisation to implement an equality policy."
Equality Tribunal
The Equality Tribunal in Ireland has a radical structure and is unique in that it has investigative powers (see box 4). It has the statutory function of investigating, hearing and deciding discrimination claims. Equality officers have the explicit task of investigating claims. So cases do not depend on the capability of the complainant or respondent to marshal the legal arguments themselves.
The equality officer takes evidence from those involved and must rigorously explore both accusations and potential defences. While equality officers come from the civil service and are not experienced in the demands of running cases, Barry considers that they "have acquired a level of expertise and deliver long, reasoned judgments, with comprehensive reference to European law, which you would not typically get in the District or Circuit Court".
Non-adversarial system
The Equality Tribunal system is non-adversarial in that it is the task of the equality officer to investigate, complainants are not generally cross-examined and the parties can remain anonymous. This has encouraged people to come forward and take cases, particularly with complaints relating to sexual orientation, harassment and disability.
Barry points out: "Although individuals can take employment cases relating to gender to the Circuit Court, where there is no compensation limit, they tend to not want to use this system. People appear to be more concerned with pursuing their claims in the less formalistic, inquisitorial setting where there is no risk of costs being awarded."
She insists: "I think we would find it very hard to persuade people to go to the Circuit Court, where there is sworn evidence, cross-examination and adjudicators who may not have had any training in discrimination law. In addition, the parties' names are usually anonymised in the Equality Tribunal in cases involving disability, sexual orientation and harassment." There is also an option for mediation, which is not available in the traditional court setting.
By contrast, appeals from the Equality Tribunal under the Equal Status Act are taken to the Circuit Court, which is completely adversarial, has no guarantee of anonymity and contains the risk of costs. Barry believes that this discourages people with discrimination claims pursuing or defending claims on appeal.
The legal system is a victim of its own success and there are severe delays. Barry says: "It can take three years for a case to be dealt with and then a successful complainant may receive a small amount of compensation. The effect is to undermine the realisation of a culture of compliance."
Given the length of time that complainants have to wait for remedies, the authority is arguing for an explicit power to hold an interim hearing. "We recommend that there should be some sort of interlocutory relief," contends Barry, "particularly in relation to discrimination claims involving recruitment and dismissal or cases of urgency. After a three-year delay in the Equality Tribunal, a complainant is not going to be recruited or be reinstated."
Compensation ceiling
It was expected that implementing the Race Discrimination Directive 2000 and the Framework Employment Directive 2000 would bring about the removal of the financial ceilings that exist in relation to the maximum compensation that can be paid under the Employment Equality Act 1998 and the Equal Status Act 2000. However, these ceilings were not removed by those acts or the Equality Act 2004.
Equality officers have stated that in cases involving sexual harassment of employees they have felt constrained by the maximum compensation that can be awarded under the Employment Equality Act 1998. The level of award available to a claimant on low wages often means that it is not an effective and dissuasive remedy.
The Equality Authority is extremely concerned with the delays and the level of remedy available, arguing that they can serve as a barrier to pursuing a case. It is likely to pursue a suitable case to challenge the compensation limit to ensure that remedies are "effective, proportionate and dissuasive" as required by European law (see Marshall v Southampton and South-West Hampshire Area Health Authority (No.2), which led to the removal of the maximum level of compensation in discrimination cases in the UK).
Cutting edge
Barry believes that the authority has realised significant victories for its size: "For example, in one year, we achieved five major successes in pregnancy dismissal cases, where the Labour Court awarded a year's salary in each case. It turned the remedy into something very dissuasive."
There have been successful cases involving age discrimination, migrant workers and sexual harassment. The newer grounds are coming forward, such as Traveller and sexual orientation employment cases. Sexual harassment cases have been used to develop an authoritative code of practice.
Barry asserts: "The cases the authority takes can raise issues that have at times sparked a national debate. Similarly, our awareness campaigns have led to major media coverage highlighting the issues relating to, for example, age discrimination and work-life balance. In particular, we have highlighted very effectively the position of migrants - a relatively new phenomenon in the Irish Republic. We are at the cutting edge in that the work we do is very new and can cause discomfort and debate."
Future action
The Equality Authority plans to commission research into the potential use of positive action, with a view to producing practical guidelines for employers. It is also seeking to support cases involving the discrimination grounds that have not been developed yet; for example, there is limited case law on sexual orientation or religion. It also wants discrimination on the grounds of economic status, criminal conviction, political affiliation and trade union membership made unlawful.
The authority receives very few equal pay cases and it would welcome some sort of obligation on employers to conduct workplace reviews on equal pay. It also plans to look at contract compliance and is recommending a positive duty to promote equality in the private sector. Barry says: "We advocate a positive duty on the private sector to make sure they have a planned and systematic approach to equality, alongside a positive duty on the public sector to ensure they have due regard to equality in carrying out their functions."
Enormous potential
Barry reiterates her belief that the benefits of combining all types of discrimination in one organisation far outweigh any pitfalls, declaring: "I do not believe in a hierarchy of rights. I do not believe that some areas of discrimination merit greater protection. I find that hard to justify. Equally, it would be untenable to have to go, for example, to one body for a race ground complaint and another for a religious ground complaint. It does not make sense.
"One possible problem is resources, but resources are going to be limited anyway," she says. "So you have to choose what is most effective and pick cases that will have an impact."
Barry concludes: "The marriage of enforcement and development within the nine-grounds approach has enormous potential."
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The Equality Authority was established in 1999 under the Employment Equality Act 1998, with an approved staffing level of 53. Its functions and powers were further expanded under the Equal Status Acts 2000 and 2004 and the Employment Equality Act 2004. It also has functions under the Intoxicating Liquor Act 2003. The legislation covers nine grounds of discrimination: gender; marital status; family status; age; sexual orientation; disability; race; religion; and membership of the Traveller community. The law The Employment Equality Acts 1998 and 2004 prohibit discrimination in the workplace. The Equal Status Acts 2000 and 2004 prohibit discrimination in the provision of goods and services, accommodation and education. Separate provision is made in relation to registered clubs. Claims of discrimination or harassment in relation to licensed premises are governed by the provisions of the Intoxicating Liquor Act 2003. The Employment Equality Act 2004 seeks to implement the provisions of the revised Equal Treatment Directive 2002, the Framework Employment Directive 2000 and the Race Discrimination Directive 2000. The Equality Authority is the specialised equality body required by the revised Equal Treatment Directive and the Race Discrimination Directive. EU Directives take precedence over Irish law, which must be interpreted in accordance with the provisions of the Directives. Powers The legislation provides the Equality Authority with a range of explicit powers to implement its functions. These include: To provide assistance, at its discretion, to those who consider that they have been discriminated against (under the Employment Equality Acts, Equal Status Acts and Intoxicating Liquor Act), if there is an important point of principle involved or if it is unreasonable to expect the person to represent themselves.
To take cases in its own name in certain circumstances.
To prepare, for submission to the minister, codes of practice that, if approved, can be relied on in relevant court proceedings.
To invite a business to carry out an equality review and to prepare and implement an equality action plan or, where appropriate and where the business does not have fewer than 50 employees, to carry out such a review and prepare such an action plan on its own initiative.
To conduct an inquiry for any purpose connected with its functions and to recommend actions as a result of the inquiry.
To undertake or sponsor research.
To undertake or sponsor activities related to the dissemination of information.
Integrated approach The Equality Authority has developed an integrated approach to its mandate and the nine grounds it encompasses. This involves the organisation in work that is multi-ground, cross-ground and single-ground: multi-ground work involves all nine grounds covered by the equality legislation;
cross-ground initiatives seek to address the situation and experience of those who are discriminated against on more than one ground; and
single-ground initiatives focus on particular groups that experience inequality and seek to ensure their visibility within multi-ground initiatives, addressing issues that are specific to that group.
Partnership Adopting a participative approach, the Equality Authority seeks to promote equality of opportunity and to combat discrimination in partnership with employers, trade unions, farming organisations, community and voluntary sector organisations and public sector institutions. Equality infrastructure The Equality Authority operates within a
wider infrastructure of public institutions that contribute to the promotion
of equality at national and international level. These include: the
Department of Justice, Equality and Law Reform; the Irish Human Rights
Commission; the National Disability Authority; the National Council on Ageing
and Older People; the National Consultative Committee on Racism and Interculturalism; the Equality Commission for Northern
Ireland; the Joint Equality and Human Rights Forum, involving Ireland,
Northern Ireland and Britain; the anti-discrimination unit of the European
Commission; and the EU advisory committee on equality of opportunity between
women and men. |
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The multi-party agreement signed in Belfast in 1998 provides a backdrop to the establishment and work of both the Equality Commission for Northern Ireland and the Equality Authority. In it, the Irish government committed to "further strengthen the protection of human rights in its jurisdiction" and to ensure "at least an equivalent level of protection of human rights as will pertain in Northern Ireland". This binding commitment places an obligation on the Irish government to take action to maintain this equivalence in the protection of human rights and, as a consequence, in equality rights. Niall Crowley, the Equality Authority's chief executive officer, explains: "Equality is a core human right and it is a value that can be seen to underpin the agreement. In such a context, an equivalence in the level of protection of human rights includes an equivalence of equality rights." Legal omissions Joint research published by both equality bodies in January this year identified a number of key areas where there is a greater degree of protection in Northern Ireland than there is in Ireland, and where no action has been taken to ensure equivalence*. The commitment to equivalence means: Positive duties to promote equality need to be incorporated into Irish equality legislation. Section 75 of the Northern Ireland Act requires public bodies to have due regard to equality of opportunity in carrying out their functions. This positive duty seeks to change how public authorities perform their functions by making equality a central goal of their day-to-day activities. There are no such provisions in Irish legislation.
Limitations in Irish equality legislation need to be addressed where:
- compensation that can be awarded in cases is limited by maximum levels established in the legislation. In Northern Ireland, there is no upper level on the amount of compensation that can be awarded; - the ground of political opinion is not covered. In Northern Ireland, fair employment legislation includes this ground; - the requirement on service providers to make reasonable accommodation for customers with disabilities is limited by a nominal cost exemption. This exemption needs to be interpreted having regard to the commitment to equivalence in the agreement. In Northern Ireland, employers and service providers are required to provide reasonable adjustments for people with disabilities and to incur reasonable expenses where necessary in doing so; and - the legislation does not explicitly apply to the performance of public sector functions, including immigration controls or policing. In Northern Ireland, race relations and disability legislation prohibit discrimination by public authorities in performing their functions. The rights of transsexual people and gay and lesbian people need to be further developed. In Northern Ireland, the Gender Recognition Act 2004 provides transsexual people with legal recognition in their acquired gender and the Civil Partnership Act 2005 legislates for the registration of same-sex partnerships. There are no matching provisions in Ireland.
*
Equivalence in promoting equality - the implications of the multi-party
agreement for the further development of equality measures for Northern
Ireland and Ireland by Colm O'Cinneide,
available at: www.equality.ie/?locID=107&docID=508. |
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The Equality Tribunal All claims (except for gender discrimination claims and claims involving registered clubs) must be referred to the Equality Tribunal. Gender discrimination claims have the option of going to the Circuit Court. The Equality Tribunal is the quasi-judicial body established to investigate, hear and decide on claims of discrimination. Investigation Investigations are held in private (people can represent themselves or be represented by a trade union, a lawyer or other representative). The equality officer will issue a determination, which is enforceable through the Circuit Court. In general, costs are awarded only where a person obstructs or impedes the investigation or appeal. Mediation The director of the Equality Tribunal can at any stage, with the consent of both parties, appoint an equality mediation officer to reach a legally enforceable settlement through mediation. If this is unsuccessful, the case is referred to an equality officer for investigation. Remedies Where the equality officer finds in favour of the complainant, the following orders can be made:
An order that a named person or persons take a course of action, which is set out.
The Circuit Court There is no limit to the amount of compensation that may be ordered by the Circuit Court in gender discrimination claims that are initiated in that Court. However, in equal pay claims that are initiated in the Circuit Court, the Court may order arrears of pay in respect of only six years before the date of referral. The Labour Court All decisions under the Employment Equality
Acts may be appealed to the Labour Court. A final decision of the director of
the Labour Court may be enforced through the Circuit Court. Where a
determination is made by the Labour Court on an appeal, either party may appeal
to the High Court on a point of law. |
