How government has dismantled the equality infrastructure

36 November 2014

into one area. Where cases have a discrim-

ination dimension alongside a general

employment dimension it is unclear how

Adjudication Oﬃcers will deal with them.

For example, will the alleged discrimina-

tion, where a diﬀerent burden of proof

applies, be addressed separately from a gen-

eral employment rights concern? Will the

complainant be forced to select between a

discriminatory dismissal and an unfair dis-

missal claim? How will Adjudication Oﬃcers

decide an equality claim where they have

investigative powers under equality leg-

islation, and then proceed to hear other

aspects of the claim where they have no

such power?

There is much emphasis in the Workplace

Relations Bill on dealing with a claim with-

out recourse to an independent hearing.

The Director is allowed to refer the claim

for resolution to a case resolution oﬃcer,

mediation, or by way of written submission.

While the parties to the claim can refuse to

have the matter dealt with in this manner,

for complainants under equality legislation

who may be highly vulnerable, this adds

another layer which they must navigate

before they have the right to a hearing.

Finally, the Workplace Relations Bill 2014

proposes to delete sections in the equality

legislation that allow the complainant or

the respondent to appeal a decision of the

Equality Tribunal to the High Court on

a point of law. This is a diminution of the

redress previously available. •

HE Equality Tribunal has been an

important part of the Irish equality

infrastructure. The system whereby

the former Equality Authority provided

support to those taking cases of alleged

discrimination and a specialist Equality

Tribunal heard and decided these cases had

been lauded as best practice by the European

Commission. The Equality Authority has

been subsumed into the Irish Human Rights

and Equality Commission. Now the Equality

Tribunal is to be abolished.

The Workplace Relations Bill 2014

replaces the Labour Relations Commission

(including the Rights Commissioner Service),

the National Employment Rights Authority,

the Employment Appeals Tribunal and the

Equality Tribunal with a new Workplace

Relations Commission and an expanded ver-

sion of the Labour Court. The Department

of Jobs, Enterprise and Innovation has set

the end of the year as the target for enact-

ing the Bill.

Suﬃcient care has not be taken in drafting

the Bill to take account of the speciﬁc nature

of discrimination cases and to ensure the

particular role of the Equality Tribunal is

sustained. Cases of discrimination extend

beyond workplace relations. They cover

the provision of goods and services, under

the Equal Status Acts. Speciﬁc legislation

prohibiting discrimination draws from

European Union Directives and a body of

established case-law at European level. The

Equality Tribunal has years of specialist

expertise in the ﬁeld of discrimination.

The Equality Tribunal does not operate

like an ordinary court since it investigates

cases. It is not reliant on legal arguments

presented by the complainant or the

respondent. Cases of discrimination are

unique as the burden of proof that dis-

crimination is not involved passes to the

respondent once the complainant has made

a prime facie case of discrimination.

There are high levels of under-report-

ing of discrimination and it is important

that any new arrangements do not worsen

this situation. Research has shown that the

groups most likely to experience discrimi-

nation are the least likely to report it. Less

than 10% of those experiencing discrim-

ination took any formal action, including

taking a case. 60% of those experiencing

discrimination took no action at all.

The Bill is devoid of reference to claims

under the Equal Status Acts

and as to how these will be

considered. This is particu-

larly noteworthy in a number of

areas of the Bill: in relation to

the presentation of complaints

and referral of disputes, appeal-

ing the dismissal of complaints,

and enforcement of decisions by

Adjudication Oﬃcers.

The Adjudication Oﬃcer is

given discretion whether to

permit someone to accompany

the complainant or respondent

at the hearing or to represent

them at the hearing. There is no

equivalent provision under cur-

rent equality legislation. This

provision could be in breach of

EU Directives and the Charter of

Fundamental Rights. If lawyers

or any other representatives

are excluded this could pre-

vent a complainant adequately

arguing a claim and gaining an eﬀective

remedy.

Employment cases before the Workplace

Relations Commission will not all fall neatly

Bill fails to replicate Equality Tribunal’s investigative, equal-status,

representation and appeal provisions. By Rachel Mullen

How government has dismantled

the equality infrastructure

but missed

POLITICS EQUALITY

The Equality

Authority has

been subsumed

into the Irish

Human Rights

and Equality

Commission.

Now the

Equality

Tribunal is to

be abolished

“