New Report on Operation of Equal Status Acts An Important Analysis – Equality Authority.

The Equality Authority published a Report on ‘Selected Issues in Irish Equality Caselaw 2008-2011’ launched by the Minister for Justice and Equality, Alan Shatter TD in Dublin today. “The Equal Status Act is an important piece of legislation. It sets a benchmark as to how we want to function as a fair society. People have the human right to participate economically, socially, democratically and emotionally in society. This legislation makes an important contribution to tackling the barriers of prejudice often invoked to prevent such participation and to separate and exclude individuals and particular groups from the mainstream” said Renee Dempsey CEO, the Equality Authority.

“We acknowledge David Fennelly BL’s great work in producing this readable, accessible and reasoned analysis of key issues that affect the impact of the Acts in addressing inequalities in the provision of goods, facilities, services accommodation and education inIreland. The Report supported by the EU’s PROGRESS initiative, allowed us to select the themes for this study, arising out of our own engagement with the Acts and the redress fora over the years” she continued.

“The Equality Tribunal as a quasi-judicial body, was established to be a free and impartial service, accessible and less formal than costly, adversarial Court. It has served that purpose well. There is no requirement to have legal representation before the Tribunal as it does not award costs, regardless of the outcome. The Equality Authority can and does provide legal assistance in cases of strategic importance. The law’s no costs and mediation provisions, incentivise and promote resolution and the acceptance of a climate of compliance. As with any law, as it ages, other matters begin to emerge that impact on the effectiveness of the protection offered. Legal issues arising from the law itself, can take up the Tribunal’s time, on matters other than the specific circumstances of the claims of discrimination. David’s analysis of the impact of jurisdictional tests being argued before the Tribunal, is particularly helpful. It outlines the challenge to any claimant faced with such legal argument, without the benefit of legal support. It is important that a body like ourselves would scope this issue, as it impacts on accessibility for redress, which is why we launch this Report today”, she added.

“The original intent of the legislation was that a prima facia case of discrimination would be established by the claimant and then the ‘burden of proof’ would rest with the respondent to justify their actions, as a defence against the claim of discrimination. David’s analysis gives a helpful insight into how difficult a test the ‘burden of proof’ requirement has become, in practice” continued Ms Dempsey.

“It is clear in this Report that the specialisation of the Tribunal in grasping discriminatory matters is important and welcome. We hope that this specialisation can be used as a model by the higher Courts. We have taken some legal training initiatives in the past and this has always resulted in interesting debate and insightful lenses being put on previous practice and current legislative outcomes. His insights into selected substantive and procedural issues are also valuable, as this legislation proceeds through it’s second decade. In short, the Report is a good read!” she continued.

“The Employment Equality Acts have a higher level of effective remedy which involves and engages private practitioners in representing claimants before the Tribunal and beyond. There is less evidence of such engagement by private practitioners representing claimants in the Equal Status area. Most of the appeals to higher Courts have involved significant resources from ourselves or NGOs in seeking to tease out the meaning of the law and its application in specific circumstances. It is an expensive and challenging area, as our work in promoting equal access and treatment in education for example, testifies” she added.

“The Minister is aware of the Equality Authority’s additional work on reviewing and monitoring the legislation and this Report is the latest contribution to that mandate. We have also made submissions to the Law Reform Commission on the area of guardianship and family rights. We particularly welcome his awareness of the weakness of the protections for children whose parents are civilly partnered. We look forward to offering a constructive contribution to any legal changes that may be proposed in this area” continued Ms Dempsey.

“The circumstances around the rights of couples who have conceived and delivered a child through surrogacy are topical and increasing in the public domain. We have made some recommendations to the Minister on our own cases, arising out of disability, for his consideration. We have also contributed to the proposals to recognise and provide for the status of transgendered people and we appreciate his Department’s role in the updating of the Code of Practice on Sexual harassment and Harassment in the Workplace in recent times” said Ms Dempsey.

“The range of remedies provided by the Equal Status Acts, go beyond case law and into the area of enabling compliance. The Authority has always worked in partnership to build understanding and enable compliance. Yet we still note the ongoing difficulties that arise in the implementation of these Acts in some areas of the public sector.

The public sector is by far the greatest deliverer of services inIrelandand especially to vulnerable groups. The Authority is now fully engaged in the demanding task of merging ourselves with the Irish Human Rights Commission this year. It is an opportunity to reinvigorate these important agendas, to share resources and expertise in which we are fully engaged with our human rights’ colleagues” she added.

“We have long argued that, when it comes to the correct implementation of law, one arm of the State should not always have to litigate with another arm of the State, in order to ensure correct compliance. In that context, it is most helpful that the Minister proposes to introduce a ‘Positive Duty’ on the public sector in the new merger legislation. This welcome initiative has the potential to enable increased understanding and correct implementation of our equality legislation throughout the public sector” she continued.

“We also welcome the Minister’s commitment to review the Section 37 provision of the Employment Equality Acts. This was a specific exemption at the time. The review I hope will consider measures from deletion to ensuring the chilling effect on LGBT workers is no longer a barrier to well qualified people, making their contribution in education, health and other important sectors. Further immediate challenges lie ahead arising from the recent Council of Europe’s ‘European Committee of Social Rights’ finding, on the fact that there is a maximum compensation in our employment equality legislation is in breach of European human rights law. The Equality Authority pointed this out as far back as 2004. The preparation of our new legislation may be an opportunity to address that issue to ensure compliance with the European standards and other matters that have arisen in the working of this important legislation during its first decade” said Ms Dempsey.

“This report today is a very good review of how, after a decade of delivery, the Equal Status Acts are working. It is a useful indication as to where further clarity or improvement could be made, at a time when new legislation is being prepared. The principle of fair access to services and facilities is a good ambition andIrelandhas been a leader in this field.

Alongside our heavy merger based workload, we are very pleased to have an opportunity through this Report, to focus on our core mandate and to bring this legal analysis into the public domain. The more we inform the debate, the quicker the intent of the law is understood and the more opportunities arise to increase the customer base, while respecting the right to equal status of all service users inIreland” concluded Ms Dempsey.


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