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Traveller Legal Resource Pack 4 - Discrimination

Pack Contents:

Laws Relating to Discrimination

The Employment Equality Act, 1998 prohibits discrimination in employment and, in particular, access to, conditions in, and training in relation to, employment on nine separate grounds.¹

The Equal Status Act, 2000 prohibits discrimination in the supply of goods and services including social welfare, housing and other forms of social provision on nine separate grounds. ²

Nine grounds

gender
marital status
family status
sexual orientation
religion
age
disability
race/colour/nationality/ethnic or national origin
membership of the Traveller community.

Travellers and the legislation

Travellers are defined under the Acts as “….the community of people who are commonly called Travellers and who are identified (both by themselves and others) as people with a shared history, culture and traditions including, historically, a nomadic way of life on the island of Ireland.”

Definition of discrimination

The definitions of the forms of discrimination are set out in the Acts.

Direct Discrimination

Direct discrimination occurs where a person is treated less favourably than another person is, has been or would be treated in a similar situation on any of the grounds, such as membership of the Traveller community.

Indirect Discrimination

Indirect discrimination occurs where a rule or provision which applies to everyone, puts a person covered under one of the nine grounds at a particular disadvantage. The provision may appear on the face of it not to be discriminatory but its effect is discrimination.

Harassment and Sexual Harassment

Harassment and sexual harassment are also prohibited by the legislation. Harassment is defined as any form of unwanted conduct related to any of the nine grounds. Sexual harassment is any form of unwanted verbal, non-verbal or physical conduct of a sexual nature. Harassment occurs where the conduct in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

Discrimination by Association

This occurs where a person associated with another person who comes within one of the nine grounds is treated less favourably because of that association.

Defences/ Exclusions under the Acts

There are a number of defences to complaints of discrimination available under the legislation. The most common defence to discrimination relied on by pub owners is under Section 15 of the Equal Status Act, which provides that it is not discrimination to refuse to supply goods and services, where to do so would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property. Pub owners frequently claim they will not serve Travellers because they apprehended a risk of trouble even though the Traveller/s are not known to the pub owner.

While it is reasonable for service providers to refuse service to people who engage in disorderly behaviour on their premises it is discrimination to refuse Travellers service where there is no evidence to indicate that they would behave in an unreasonable manner.

Equality Infrastructure

There are three bodies that deal with the legislation; the Equality Authority, the Equality Tribunal and the District Court.

1. The Equality Authority

This is an independent body set up in October 1999 under the Employment Equality Act, 1998. The Equality Authority provides information to the public on the equality legislation.

Its aims to bring about positive change in the situation of those experiencing inequality by:

promoting and defending the rights established in the equality legislation
providing leadership in building a commitment to addressing equality issues in practice creating a wider awareness of equality issues celebrating the diversity in Irish society
mainstreaming equality considerations across all sectors.

In some cases it can, at its discretion, provide legal assistance to people who wish to bring claims to the Equality Tribunal. These cases are assessed on their merits.

For further information visit:

The Equality Authority
www.equality.ie

2. The Equality Tribunal

This is an impartial body set up by law to investigate or mediate complaints under Equality legislation. This office was previously known as the Office of the Director of Equality Investigations

Investigating Complaints

The process involves the following:

A person claiming discrimination under the Employment Equality Act or the Equal Status Act may lodge a complaint with the Equality Tribunal within 6 months of the occurrence of the act of discrimination
Cases can either be referred on the consent of both parties for mediation, or heard by an Equality Officer
If the claim goes to hearing the Equality Officer investigates the claim before the hearing through written submissions and at the hearing where each party will be given an opportunity to:

To present their case
To call witnesses
To respond to points raised by the other party
To answer questions from the Equality Officer

Equality Officer issues a written Decision
Compensation up to a maximum of €6,349 can be awarded and/or the losing party can be required to take a particular course of action.
Decisions may be appealed to the Circuit Court within 42 days from the date of the Decision.

Mediation

Mediation seeks to arrive at a solution through an agreement between the parties, rather than through an investigation. If the Tribunal offers mediation in a case, it will ask each party to respond in writing as to whether they have any objection to trying mediation.

Advantages:

Mediation is conducted in private
Either party may withdraw from the mediation at any time
Tries to reach an agreement
Less conflict between parties

Disadvantages:

Mediated settlements are not published so the benefit of a good decision cannot be shared

If an agreement is reached the Mediator will draw up a written record of the terms of the settlement. Once signed, this agreement is legally binding on both parties. A mediation settlement, which has not been complied with, may be enforced through the Circuit Court.

If a party withdraws from the mediation they may then re-lodge the complaint by requesting the Director in writing to begin (or resume) investigation provided that the request is received within 28 calendar days after the date when the Mediator issued the notice. A copy of the Mediator’s notice should be enclosed with the request.

For further information visit:
The Equality Tribunal: www.equalitytribunal.ie

3. District Court

In relation to the Equal Status Act, 2000 all cases of discrimination that occur after 29^th September 2003 on, at, or on the point of entry to, licensed premises must now be brought to the District Court (Intoxicating Liquor Act, 2003, section 19). You must be refused when you enter the premises or when you ask for the service to come within this section.

Accessing Rights

Taking a case to the Equality Tribunal

The Equality Tribunal hears cases all around the country and there are no costs involved in taking a case3. If an act of discrimination occurs the following steps should be taken:

Step one:

To start a case the ODEI 5 form (included in the Pack) must be sent to the owner (respondent) of the premises where the discrimination occurred or the employer or potential employer within 2 months of the date of the incident of discrimination occurred. Where more than one person was involved in the incident of discrimination each individual should complete a form.

The form will require you to:

set out what happened
ask them for a reason as to why they carried out the act
ask them what they are prepared to do to address the problem
ask them for any record they have regarding the incident of discrimination such as a log book of incidents and for a copy of their equality policy
inform them if you do not receive a response you will be taking the case to the Equality Tribunal

When sending the form to the respondent get a certificate of postage so you have a record of postage

Step two:

If you do not receive a response within one month, or you are not satisfied with the response from the respondent you must remember that there are strict time limits for the referral of cases to the Equality Tribunal under the legislation. A person has 6 months from the date of discrimination to take a case. Extensions will only be given in exceptional circumstances.

You must send your complaint in to the Equality Tribunal on the ODEI 2 form as attached. The form will require you to :

Present the facts of the case
Set out the nature of the compliant

Step three:

The Equality officer assigned to the case will write out to both parties maybe offering mediation and seeking further information

If mediation is not pursued, a hearing date will be set

Step four:

The hearings are informal and a person can represent themselves but can also have a legal representative or other person with them to assist

At the hearing the responsibility is on the person taking the case (claimant) to establish a strong case of discrimination (prima facie case). Three elements must be present in order for this to be successfully determined. These are:

The discriminatory ground applies to your case. For example, if a Traveller takes a case of discrimination they must first establish that they are a Traveller and they suffered the discrimination because of that fact. Many service providers will claim they were not aware of the fact that the person is a Traveller so often Travellers must prove that the service provider did know
You must show that the discrimination you experienced was carried out by the service provider (respondent)
You must show that the treatment you received was less favorable than the treatment someone, not covered by the ground, would have received in similar circumstances. For example, a settled person was allowed to eat in the restaurant at the time but you, as a member of the Traveller community, were denied service
If you can prove the above points the responsibility shifts to the service provider (respondent) to show they did not discriminate
You are entitled to call witness to support your case
The other side will present their evidence and the Equality officer will ask questions
A written decision will be given on the case.
There can be a significant waiting time in the Equality Tribunal for cases to be heard.

Other options - Using the courts

It is possible to consider taking a case directly to the Courts. The Equality Tribunal is not the only remedy open to those who are experiencing discrimination. If the matter is urgent and requires an immediate remedy, seek legal advice which will enable the person to determine whether to submit their claim to the Equality Tribunal or the courts.

1. Taking a case to the District Court:

All cases regarding licensed premises such as pubs and hotels will now be heard in the District Court. It is advisable to adhere to the same time limits in the District Court as the Equality Tribunal. The following steps should be taken to bring a case of discrimination to the District Court.

Step one:

To start your case first send a letter to the person who caused the discrimination (defendant) setting out what happened, asking them for a reason as to why they carried out the act and ask them what they are prepared to do to address the problem. Also, in the letter ask them for any record they have regarding the incident of discrimination such as a log book of incidents and for a copy of their equality policy.

Step two:

If you do not receive a satisfactory response you can instruct a solicitor to act on your behalf. This will involve costs. Apart from yourself only a solicitor or barrister can appear on your behalf in the District Court. An advocate without a formal legal qualification cannot act for you.
If you choose to represent yourself the option is to go to the District Clerks Office and prepare a civil summons which is an official notice sent to the defendant inviting them to attend a certain court on a certain date at a certain time to answer the claim of discrimination. This civil summons must be stamped in the Courts office which costs €18. A copy civil summons is attached.
The civil summons must be served on the defendant. A copy can be handed to the defendant at least 14 days before the date of the hearing or sent by registered prepaid post to the Defendant's last known residence or place of business at least 21 days before the date for hearing.
It is important to check the name of the licencee in the District Court licencing Office as if you get the name wrong the case will fail.

Step three:

At the hearing of the case you can put your case forward and the defendant will defend their case.
The judge will give their decision once all the evidence is heard.
Either party can ask for a written decision.

Step four:

If you are unsucessful in your case at the District Court, or successful but nothing has changed, you can challenge the licence of the pub owner. Every September there is a licencing court which issues pub licences. You can prepare a case in August and make the argument as to why their licence should not be renewed. In order to do this there is a standard form which you can get and lodge in the District Court Office which will then allow you to attend the court and put your case forward. There is no cost involved.

Incitement to Hatred Act 1989

This Act gives powers to the Gardaí to prosecute a person for incitement to hatred against a number of defined groups including members of the Traveller community. It is an offence for anyone to ‘produce, possess, distribute, publish, broadcast or display material or use words or behaviour’ if such acts are threatening, abusive or insulting and are intended, or are likely to stir up hatred.

This legislation is presently under review by the Department of Justice, Equality and Law Reform.

Remember Time Limits

Time limits are a crucial part of any case. From the date of discrimination you must:

Send the OEDI 2 form to respondent within 2 months
Wait one month for a response
Send the ODEI 5 form to Equality Tribunal within 6 months

A case may be appealed to the Circuit Court within 42 days from the date of the decision

Adhere to the same time limits in District Court cases, except remember to send the civil summons on time to the defendant:

if by hand 14 days before the date of hearing
if by registered post 21 days before the hearing

If a party withdraws from mediation you must re-lodge the complaint within 28 calendar days after the date when the Mediator issued the notice

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