Know Your Rights with Femi Daniyan
Generally speaking, many people who are discriminated against are often intimidated and resolved to the idea that they cannot remedy the matter. But there are avenues for redress via the equality regime in Ireland, which comprises the Equality Authority and Equality Tribunal, and rights under law to support you if you have suffered discrimination.
The Employment Equality Act 1998-2011 and the Equal Status Act 2000-2011 are the two main pieces of legislation that set out important rights for people and outlaw discrimination when it occurs in Ireland. Furthermore, Irish equality law is also driven by EU Directives and decisions of the European Court of Justice.
The Employment Equality Act 1998 specifically renders unlawful discrimination on nine grounds in an employment relationship: gender; marital status; family status; sexual orientation; religion; age (for those aged 16 or over); disability; race; or membership of the Traveller community.
Discrimination defined
Discrimination is defined as less favourable treatment. A person is said to be discriminated against if he or she is treated less favourably than another is, has been or would be treated in a comparable situation on any of the nine grounds.
Direct and indirect are the two forms of discrimination as defined by the 1998 Act. To establish direct discrimination, a direct comparison must be made between the person discriminated against and another; for example, in the case of racial discrimination, the comparison must be between a person of one race and one of a different race.
On the other hand, indirect discrimination occurs when practices or policies that do not appear to discriminate against one group more than another actually have a discriminatory impact. It can also happen where a requirement that may appear non-discriminatory adversely affects a particular group or class of persons. Indirect discrimination is usually difficult to prove and can be very subtle in reality.
Equality Tribunal
The Equality Tribunal is a quasi-judicial body established under the Employment Equality Act 1998. The director of equality investigations presides over a number of equality officers. A case referred to the director will be delegated to an equality officer for investigation and decision.
The equality officer will seek the views of both parties, initially by correspondence exchange. He or she may ask for further information relevant to the investigation and has extensive statutory powers to obtain it.
A hearing is then held, and the equality officer subsequently issues a detailed written decision, which is legally binding.
It is important to note that all equality officers are independent in the performance of their adjudication. There is a statutory right of appeal from a decision by the equality officer to the Labour Court or the Circuit Court, depending on the type of case that was being adjudicated by the equality officer.
The Equality Tribunal may provide one or more of the following remedies as it deems appropriate: an order for equal pay from the date of the referral of the claim; compensation in an amount of up to two years’ remuneration or €12,679; in an equal pay claim, compensation in the form of arrears of pay for up to three years before the date of the referral of the claim; or an equal treatment order.
Equality Authority
Many people often confuse the Equality Tribunal for the Equality Authority. Both bodies are distinct and separate.
The Equality Authority is a statutory body established under the 1998 Act to work towards the elimination of unlawful discrimination, to promote equality of opportunity and to provide information to the public on the equality legislation. It can advise and support you to bring a claim to the tribunal but it has no power to decide a case. The Equality Tribunal, on the other hand, investigates or mediates claims of unlawful discrimination under the equality legislation as already explained above.
If you have been discriminated against under the nine grounds as stipulated in the Employment Equality Act 1998-2011, you may initiate a complaint before the Equality Tribunal. Remember that time is of the essence as you only have six months from the date you last suffered discrimination to bring your claim to the Equality Tribunal. This time limit can be extended by a further six months in exceptional circumstances.
An accusation of discrimination against anyone or any organisation is serious therefore, it is important to ensure that such an accusation is not levied or made lightly.
If you are affected in any way by the issues raised in this article and would like advice, please consult your solicitor or employment adviser or expert. If you are an employee and your complaint of discrimination is against your employer you may consult your trade union if you are a member of one.
Femi Daniyan is a barrister who practices in the areas of employment, immigration, professional negligence, probate, succession and family law. He is an advocate on human rights issues affecting minorities. He holds an MA in International Relations from Dublin City University and speaks three west African languages.
