How government has dismantled the equality infrastructure.

By Rachel Mullen.

The 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 version of the Labour Court. The Department of Jobs, Enterprise and Innovation has set the end of the year as the target for enacting 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 discrimination is not involved passes to the respondent once the complainant has made a prime facie case of discrimination.

There are high levels of under-reporting 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 discrimination are the least likely to report it. Less than 10% of those experiencing discrimination 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 particularly noteworthy in a number of areas of the Bill: in relation to the presentation of complaints and referral of disputes, appealing 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 current 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 prevent a complainant adequately arguing a claim and gaining an effective remedy.

Employment cases before the Workplace Relations Commission will not all fall neatly into one area. Where cases have a discrimination dimension alongside a general employment dimension it is unclear how Adjudication Officers will deal with them. For example, will the alleged discrimination, where a different burden of proof applies, be addressed separately from a general employment rights concern?  Will the complainant be forced to select between a discriminatory dismissal and an unfair dismissal claim? How will Adjudication Officers decide an equality claim where they have investigative powers under equality legislation, 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 without 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. •