By Rachel Mullen.
Minister Richard Bruton has unveiled his proposals for merging the existing five employment redress fora into one two-tiered structure. The blueprint for the new ‘Workplace Relations Service’ announced by the Minister aims for it to be ‘world class’. However, from an equality perspective, the proposals of the Minister seem to fall well short.
The Equality Tribunal is to be merged within this new Workplace Relations Service. The starting point for the Minister in developing a ‘world-class’ structure should be to address issues of under-reporting and accessibility. In Ireland there are remarkably high levels of under-reporting of incidents of discrimination on grounds such as race, gender, marital status, disability and age. Data from the CSO, analysed by the ESRI and the Equality Authority in 2008, found that 12% of the Irish population over 18 years felt they had experienced discrimination in the preceding two years and 71% of these had experienced discrimination on more than one occasion. Only 6%, however, took any formal action.
Accessibility is key to ensuring the new Workplace Relations Service does not further aggravate this under-reporting. Some of what is being proposed, however, gives cause for concern.
The Equality Tribunal is committed to accessibility in a number of unique ways. Equality Officers dealing with cases before the Tribunal are required to play a more proactive and investigative role than in a traditional ‘court’ setting. This investigative role is the cornerstone of the equality legislation and means that claimants do not have to present complex legal arguments or require legal representation. The Blueprint proposals, however, suggest that adjudicators will simply hear cases rather than investigate them. Thus the body will be less accessible and claimants will be more likely to require legal representation.
There is a proposal to introduce a fee of €50 for making a complaint. This will be a deterrent to groups with limited resources. This is particularly problematic in cases of discrimination relating to access to employment, dismissal and access to goods and services.
The Blueprint usefully underscores the need to develop a culture of compliance among employers. This is vital in a context of under-reporting. However, it does not refer to the critical requirements of proportionate, effective and dissuasive remedies. Unless remedies are dissuasive, employers and service providers will not change their discriminatory practices.
A serious gap in the Blueprint is the absence of any mention of what is proposed regarding complaints under the Equal Status Acts, which prohibits discrimination against the public in the provision of goods and services. There is a danger that equal status cases could be transferred to the District Court. This would significantly undermine the efficacy of our equality legislation by diminishing access to justice for claimants. In 2003, cases under the Equal Status Acts involving licensed premises were moved to the District Court. The result was an almost total elimination of complaints under the Acts.
The adversarial nature of the District Court is in direct contrast to the more informal investigative model applied in the Equality Tribunal. There is a greater likelihood that claimants will require legal representation. There is no provision for granting civil legal aid in such cases. The procedures in the Equality Tribunal allow for claimants to be represented by an NGO or a trade union. In contrast there is no broad right of representation allowed in the District Court. Claimants before the District Court can also be liable for the costs incurred by the other party if they lose. This is not the case for parties seeking redress in the Equality Tribunal.
Finally the Blueprint makes no reference to a number of rights contained in equality legislation and EU equality Directives. These include the shifting of the burden of proof once a prima facie case has been established and the rights of people with disabilities to reasonable accommodation.
The Minister’s commitment to deliver a world-class Work Relations Service is welcome. He will not achieve it if he fails to address the hard-learnt and specific lessons of a generation spent grappling with the protection of equality rights.
Rachel Mullen is Co-ordinator of the Equality and Rights Alliance.