Strategies for Change - Equality Legislation with Damien Walshe
What is Equality Legislation?
Laws that prohibit discrimination in the provision of goods and services, accommodation, and education.
The legislation covers the nine grounds of gender, marital status, family status, age, disability, sexual orientation, race, religion, and membership of the Traveller community. An additional ground is to be added which means a landlord can’t discriminate against somebody because they are in receipt of the Housing Assistance Payment (HAP).
The Employment Equality Act – came into force in 1998 to look at the fact that women were paid much less than men for doing the same job. A lot of campaigning was done in relation to this, and this inequality must be prohibited; meaning that people cannot be treated less favourably.
Many civil societies / organisations then argued that if a law was to be created in relation to gender and the workforce, then other grounds where people are being discriminated against must be included.
Our current model of Equality Legislation is not ideal, it only works when someone has experienced direct discrimination or a violation of their rights. It requires individuals to be aware that they have rights and to be able to identify where they have been discriminated against – e.g., as a disabled person, I have been treated less favourably in trying to access a service, I think my rights have been violated. Then the person must know the pathways to take in order to seek redress.
Equality Infrastructure in Ireland (the laws and the bodies that can support people around where they’ve been treated less favourably).
Employment Equality Act – does not only cover you when you are employed but also if you have felt that you were less favourably treated in a job application process – you might feel that you should have been called for an interview, but you weren’t, you might think and feel that your identity as a disabled person has prevented it. If you have gone for a job interview and you were not successful and you think that you were the most qualified person and you did a really good interview – you can query this under the Employment Equality Act.
It also covers how a job is advertised, an employer can’t say we won’t employ x or y, but they might be more subtle. They can’t say we will only employ disabled people, but they can say we particularly welcome applications from disabled people, it’s against the law to advertise for someone based on their identity.
Equal Status Act – covers the right to access goods and services – hairdressers, shops, pubs, local authorities, HSE, education and training boards, public and private companies.
Irish Human Rights and Equality Commission (IHREC) – have a role to promote the knowledge base for people around the Equal Status Act. They also will give some advice over the phone. They have legal powers; they are the only organisation that could take cases ‘on behalf of’ and can take ‘collective’ cases under The Equal Status Act.
As a public body, legislation was passed to define what IHREC’s functions are, section 42 gives IHREC a duty to work with Public Bodies, (organisations that receive government/public funding) around how they are going to:
- reduce discrimination and promote equality
- set out clearly how they will promote greater inclusion of disabled people in their workforce.
There is a National Disability Inclusion Strategy – see – National Disability Inclusion Strategy 2017-2021 which has given targets for numbers of disabled people to be employed. There needs to be greater clarity, especially from public bodies around how they are going to promote the inclusion of disabled people in the workforce, but it is not necessarily an equality issue.
Workplace Relations Commission (WRC) – Formed in 2014 when The Equality Tribunal was being wound down. Anyone who feels they have been treated less favourably sends their complaint here. The WRC is now where the functions of The Equality Tribunal are heard. The process for complaints is through the WRC.
Limitations of Equality Legislation
- Challenges of taking cases: being aware of what discrimination is, pathways to challenging discrimination (there are timelines, for Employment Law you have to take a case within six months of experiencing discrimination, for Equal Status Act it is two months. The WRC can extend that to six months if you raise it with them)
- Resources: emotional investment, supports, legal advice (takes courage, resilience and time and energy)
- Power imbalances and fear of victimisation (what if they pursue costs or make my life difficult?)
Inequality and Discrimination
Definition of Discrimination: Under the Equality Legislation, discrimination is whereby someone under the ten grounds is “treated less favourably than another person is, has been or would be treated less favourably” based on their identity (or identities).
Intersectionality can have a big impact, when you can say there is more than one identity being discriminated against. For example, as a disabled person who is gay, or a disabled person who is a member of the Traveller community.
Discrimination in access to goods and services – shops, pubs, restaurants, state services – people trying to go about their daily life and not being able to access goods or services based on their identity.
Direct discrimination – easy to identify and prove, for example, lack of physical access, being denied jobs based on our identity.
Indirect discrimination – hard to prove, usually requires people to speak about:
- how they are feeling,
- and think about how a system needs to change, for example, a job advertisement saying you must have access to your own transport even though it’s not necessary, could be inadvertently discriminating against a lot of disabled people who don’t have access to their own vehicle.
Institutional discrimination – hard to prove but has a big impact, systems are set up that may not be specifically designed to deny disabled people their rights, but the outcomes are discriminatory and harder to define.
Note – Our Equal Status legislation is about individuals taking a case – big flaw, there is no grounds for collective complaints.
Successful Equal Status campaigns usually come from an organisation where there is a human rights and equality lens to support someone.
If a case is taken, it will have a big impact on us directly – as an individual – but can have a bigger impact on everyone else as well.
Disabled People and Equality Legislation: Specific issues
- Section 35 (1) Of the Employment Equality Act legislates for differential payment rates for disabled people. Differential payment rates for disabled people under Employment Equality Act need to be scrapped as they provide for de-facto discrimination of disabled people as they contravene Article 5 of the UNCRPD.
- IHREC 2020 annual report, disability discrimination was the highest area of public contact, representing 54% of all equality related concerns in 2020. The WRC annual report showed that in 2020, 91 complaints were made to the WRC under the disability ground of the Equal Status Act. (Albeit an increase from 73 complaints in 2019)
There is a gap between complaints raised with IHREC and cases taken with the WRC. There has been a decrease every year in equality cases being taken by the WRC, part of that is a lack of investment in spaces to talk about people’s rights and in addition, the WRC doesn’t promote its work under the Equal Status Act or the Equality Act as strongly as it does its work under the Labour Relations Court.
- In reviewing equality legislation, a new definition of reasonable accommodation needs to be updated to meet Ireland’s commitments under UNCRPD Article 2 and Article 5.3.
- The current time period to take cases (two months in Equal Status, six months in Employment Equality) is restrictive and places a burden not found in other forms of legislation
- Discrimination is felt at an emotional level, people need time to process it. Even if they are aware of their rights under this legislation, they need to consider, do they want to take a case?
- Have they got the energy and resolve?
- Will there be supports there?
- Can they talk to the legal aid board?
- Can they talk to Free Legal Advice Centres? Two months is not a long time to consider all of this.
- The definition of “Disability” under the Equality legislation needs to be reformed. The current legislation defines disability from an outdated medical model of disability. Ireland needs to adopt a social model, equality, and human rights definition of disability, as per the UNCRPD. The current definition inappropriately identifies disability as a medical deficit model as opposed to the disabling societal barriers that limit disabled people’s participation in society as equals.
- The Intoxicating Liquor Act, 2003, section 19 meant that instances of discrimination in a licenced premises are heard in a District Court rather than before the Equality Tribunal (whose function the WRC has now absorbed).
This has resulted in a significant drop in casework taken to challenge discrimination in licenced premises – for example, if we wanted to take a case against a licenced premises we must go to the District Court, in most cases this court requires people to seek legal advice, because you could have costs awarded against you. For example, you may take a case against a pub to say it wasn’t accessible, the case could go to the District Court, the judge may find against you and award the costs against you. A lot of people don’t have the financial resources to pay for a lawyer, they might get legal aid, but if they are ruled against, they may have to pay thousands of euros to pay for the pub’s solicitors. Most equality activists felt that this was a direct result of a lot of Travellers taking cases under the Equal Status Act and successfully prosecuting huge amounts of discrimination when they went to access pubs.
The Vintners Federation of Ireland are very powerful lobby group, and they lobbied the government to change this, because they knew that where people lacked the economic resources, they most likely wouldn’t take the cases. Following this Act, there was a sharp drop in the number of cases taken in relation to licenced premises (hotels, pubs, restaurants)
Q1. What does equality mean to you?
- Is it being treated the same 17%
- Getting the same chances 25%
- Equal access to resources 25%
- Not being discriminated against 33%
Q2. What does discrimination mean to you?
- Being refused entrance to a shop 17%
- Being asked to provide medical certification for insurance 0%
- Not being provided with supports in work based on impairment 58%
- Lack of physical access to a shop 17%
- Lack of accessible toilet in the pub 8%
- Lack of accessibility information on a website. 0%
The question asked was “what does equality mean to you?” The choice of answers includes four things that are equally relevant in relation to discussions around equality.
We are talking about equality in terms of the legal system, but we could talk about it in terms of
- Policy, or from a moral or ethical perspective
- When we are looking at the Equal Status Act or Equality Legislation, we are looking at it from the perspective of something that you can prove.
Importantly: There are often two views – one person may say, ‘for me, equality is treating everyone the same.’ But the Equal Status Act, or Equality Legislation says, ‘Equality is the absence of discrimination.’
We need to be careful when talking about equality legislation, it might sound like it is a good thing to treat everyone the same, but, everyone is not the same. And sometimes equality is about removing barriers, attitudes, systems, or structures that are preventing people from participating as equals, that are discriminating directly or indirectly against people. Discrimination can be about physical access, attitudes, or opportunities.
Note – around Recruitment – the recruitment process should be based on scores that the employer can stand over. They must be able to say, person A scored higher than person B here and here, and so we offered the job to person A. This is a legal requirement. It should be very clear that the chosen candidate meets the specific requirements of the job spec. In order to prove discrimination, it must be clear that the non-disabled person got the job but was not as qualified as the disabled person.
Note – around Discrimination – If a shop owner refuses entry because he doesn’t want a person using their mobility aids in his shop, that is a very clear example of direct discrimination.
A case could be taken against insurance companies who ask disabled people to pay for a medical certificate every time they renew their insurance as non-disabled people don’t have to do that – it is discrimination, it is being treated less favourably.
When government departments release information, it is often in a pdf format which is inaccessible to someone with a screen reader, somebody is being treated less favourably as they can’t access the information.
Online forms are often inaccessible, somebody could be treated less favourably as they can’t apply for certain jobs or courses because the material / information provided is not accessible.
A disabled person must renew their driving licence every three years, but this is a policy within a policy as older people must also renew their licence every three years. It could technically be challenged though, as there are exemptions within the Equal Status legislation, for example, there can be boys or girls’ schools, or schools may prioritise children from a certain religious ethos. For example, a school with a Catholic ethos can refuse to take children of a different religion, even if they live across the street, in favour of a Catholic child who might live much further away. Schools can also refuse to take disabled children if they think they may disrupt the other children.
An example of indirect discrimination would be the parent and sibling rule – schools could prioritise children whose parents or siblings had attended the school, while it doesn’t directly discriminate against any group on the ten grounds, it indirectly means that people who are new to the area, particularly migrants can’t send their children to that school as they hadn’t attended it themselves.
Damien was involved in an organisation that took a school to court, it went to the Supreme Court, on the basis that Travellers had never gone to that school so they could never get into it, the school said we are not discriminating against Travellers because this rule applies to everybody, but it clearly had a greater impact on Travellers because they would always be denied access. A clear example of subtle and indirect discrimination.
The role of the Ombudsman
ILMI produced a document available on their website called The Law in Relation to Disability. At the launch of this document people from the ombudsman’s office asked about the biggest issues from a rights violations point of view. ILMI said there is a whole cohort of young disabled people institutionalised in nursing homes for the over 65s and nobody has explored it. The ombudsman has since completed a report on this called “Wasted Lives”- see – www.youtube.com – Time for a better future for younger people in nursing homes
It was released last year and is a damning indictment of over 1500 young disabled people inappropriately placed in nursing homes due to lack of supports.
The Ombudsman has the power to investigate discrimination, and to make recommendations but they are not enforceable. You can make a complaint to the ombudsman, and they can investigate on your behalf but if you want to get a direct ruling on your basis then you should use The Equal Status Act.
Note – There may also be poor policies and systems that cause difficulties, distress, and bad feeling, but they may be poor policies for everybody, they may not be examples of discrimination or being treated less favourably. As a disabled person we need to look at the situation and say if a non-disabled person was in this situation how would they be treated?
- ILMI Submissions – Specifically, ILMI Review of the Equality Legislation
- ILMI – Submission to the Review of the Equality Legislation.docx – ILMI Guide to the Law in Relation to Disability
- ILMI Guide to the Law in Relation to Disability.pdf– ILMI Guide to the Law in Relation to Disability