School Admissions and the Equal Status Act

I have written a short piece for the Irish Times concerning school admissions and the Equal Status Act.  The article has been published here.  I may in due course develop this into a longer article for a journal in which I can provide evidence for each aspect, and tease out the issues in more depth. 

Some extra points:

The Supreme Court case is Stokes v Christian Brothers High School [2015] IESC 13.

My article only discusses the main judgment in the case, agreed by three judges. It does not discuss the other judgment in the case, in which two judges found that the Supreme Court did not have jurisdiction to hear an appeal in a case such as this.

The Equality Authority appeared as amicus curiae in this case.  See the press release of the Irish Human Rights and Equality Commission (which replaces the Equality Authority). 

Aisling Twomey writes in the Irish Examiner about how travellers would thrive if they were given the opportunity. 

The earlier stages  are as follows:

• Equality Tribunal - DEC-S2010-056
• Teehan J., Circuit Court - [2011] IECC 1
• McCarthy J., High Court, 3 February 2012 - http://tinyurl.com/stokes-HC 

Commentary on the High Court stage:

• Olivia Smith, ‘Perpetuating Traveller children’s educational disadvantage in Ireland: Legacy rules and the limits of indirect discrimination’ (2014) 14 International Journal of Discrimination and the Law 145 (Sage Journals)
• Mel Cousins, "Travellers, equality and school admission in the High Court: Stokes v Christian Brothers High School Clonmel" - http://works.bepress.com/mel_cousins/22
• Page at Northern/Irish Feminist Judgments Project 

 I previously posted on travellers in County Clare and the Equal Status Act.

Gender Equality in Promotions

The case of Dr Micheline Sheehy Skeffington, who successfully claimed gender discrimination concerning the senior lecturer promotions process in NUI Galway, has been widely reported in the media.  This case illustrates a number of key aspects of employment equality law, and I am currently discussing it in my Employment Law classes.  The full decision - DEC-E2014-078 - is available here and I would urge those interested to read the case in full.  By way of background, for those unfamiliar with employment equality law, a quick summary of the Irish legislation is here.  Some key principles to bear in mind are the differences between direct and indirect discrimination and the meaning of objective justification in s.22 of the 1998 Act as amended.  The current version of the legislation is here.

There is no need to prove an intention to discriminate under the Act.  Once an employee produces prima facie evidence of gender discrimination, the burden moves to the employer to prove that it did not discriminate.  The ground relied upon need not be the only or indeed the dominant reason for the impugned decision. It is sufficient if the discriminatory ground is anything other than a trivial influence in that decision.  At the initial stage, the employee is merely seeking to establish a prima facie case. It is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.  It has been noted that "discrimination is usually covert and often rooted in the subconscious of the discriminator. …the court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution."  (Nevins, Murphy, Flood v Portroe Stevedores - EDA051 - [2005] ELR 282). 

The decision includes detailed discussion of the procedure and scoring in the promotions round in question.  For purposes of my classes, I chose to highlight the following selected aspects (to understand all of these fully, you need to read the full case):

Prima facie evidence of direct discrimination in Sheehy Skeffington case (para. 4.3):

• No training for interviewers
• No marking schemes
• One male promoted even though not eligible 
• Only one woman on interview board of 7 people
• Registrar on interview board and involved in appeal
• Three successful males had less than minimum contact hours 
• Dr Sheehy Skeffington had supervised more PhDs than anyone else
• Some males received higher marks for contribution to School, etc., in anomalous manner

 Cumulatively, these were prima facie evidence of discrimination.

The employer provided rebuttals to many of these points (see paragraphs 3.1 to 3.12).  The Equality Tribunal responded to these rebuttals by making various points, which included the following:

• Statistical evidence showed women had a very low success rate in promotions.  From 2001 to 2009, men had a one in two chance being promoted; women had only a one in three chance.  
• The female candidate with the most glowing references was unsuccessful and came fourth last
• Dr Sheehy Skeffington had published well and had a fair record of grant funding   

The Tribunal therefore found that there had been direct discrimination on grounds of gender.

As regards indirect discrimination, the application form for promotions asked people to state when they were on maternity leave or other unpaid leave so that it could be discounted.  The Tribunal dealt with this issue as follows (see para. 4.6) :

• Males left this bank; Four females filled it in 
• The three females who left it blank ranked highest  
• The majority of female applicants drawing attention to their caring responsibilities outside the workplace disadvantaged them against the male applicants  
• The inclusion of the question on the form was a legitimate aim but it was not appropriate or necessary

The Tribunal therefore also found indirect discrimination.

The tribunal ordered that Dr Sheehy Skeffington be promoted to the post and awarded €70,000 compensation.  It also ordered that the employer conduct a review of its policies and procedures in relation to promotion to Senior Lecturer to ensure that they are in compliance with the Acts with particular reference to the gender ground. A report on progress of this review must be made to the Irish Human Rights and Equality Commission within one year.

Declaration of Interest: I am a male university lecturer.  I have attempted to highlight the grounds on which this case succeeded, for the information of readers of this blog. The employer's perspective is summarised fully in the case, but most of the employer's arguments were rejected by the Tribunal. 

Comments:  This case is best understood in the context of the principles established in earlier case-law, some of which are outlined above and in the full decision.  The Tribunal is not stating that if fewer women than men are promoted this automatically shows discrimination.  But since there were so many defects in procedure and anomalies in scoring, the statistics constituted evidence of direct discrimination.  It is also important to note that it was the cumulative impact of the various defects that lead to the prima facie evidence of discrimination. There will be those who will argue (as some students often do) that defects in procedure should not lead to findings of substantive breach.  However, if this does not happen, then the law is effectively providing a licence to breach procedure and sending a message that such procedures are unimportant.
As regards asking people to state if they had been on maternity leave, etc., this is only a minor aspect of the case and it is debatable whether this would always be discriminatory.  

On a related note, I spent a fascinating two days at the recent feminist judgments workshop here in UCC and look forward to reading the book which will result. 

Media stories on the Sheehy Skeffington case are available by doing web searches such as this. 

Call for submissions on section 37 of Employment Equality Act 1998 (Religious Ethos)

From www.equality.ie -

"Call for Submissions: 

Proposed amendment to section 37 of the Employment Equality Acts 1998 – 2011 

The Equality Authority is inviting submissions from interested parties as part of a consultation process in relation to a proposed amendment to s37 of the Employment Equality Acts 1998 – 2011. Submissions are welcome in electronic format to submissions@equality.ie  and should be no more than 2,000 words in length. The deadline is 5.00pm on Friday November 1st 2013. 

Background 

You may also be aware that The Programme for Government stated: “People of non-faith or minority religious backgrounds and publicly identified LGBT people should not be deterred from training or taking up employment as teachers in the State”. 

The s37 provision may also have an impact in institutions that have a religious ethos such as those in the health sector. 

The Minister for Justice and Equality has decided to merge the Equality Authority with the Irish Human Rights Commission. His letter of appointment to the members of the Irish Human Rights and Equality Commission (designate) (the “Commission designate”) sets out that he wanted to address the amendment of s37 of the Employment Equality Acts 1998 – 2011 with the Commission members as a priority matter.

 The Commission designate has agreed to review the issue and the Executive of the Equality Authority are leading this project. The Irish Human Rights Commission (IHRC) has also agreed to assist in this project.  For further information please contact Ms. Nuala Cuddy on 0505-24126 or 1890 245 545."

For some of the background on the religious ethos exception, see the following:

• Gerry Whyte, 'Protecting Religious Ethos in Employment Law: A Clash of Cultures' (2005) 12 Dublin University Law Journal 169   
• Mark Coen, 'Religious Ethos and Employment Equality: a Comparative Irish Perspective' (2008) 28(3) Legal Studies 452  
• Mark Coen 'Living the Ethos?' (2007) 101(6) Gazette of Law Society of Ireland 33    
• Mark Coen, 'Churches must not be immune from sections of equality law',  Irish Times, 4 August 2007 

The well-known Eileen Flynn case is available here - Flynn v. Power [1985] IEHC 1; [1985] IR 648.

 

Travellers - Clare, Equal Status Act

In 2008 I blogged about a complex case in County Clare concerning travellers bringing claims under the Equal Status Act 2000.


Thanks to Stare Decisis Hibernia, I see that High Court judgment was issued in July - Clare County Council v Director of Equality Investigations [2011] IEHC 303.
 
The Council made various complaints about ongoing Equality Tribunal hearings, e.g. that the claim forms submitted were not adequately completed. Hedigan J. refused various orders sought by the Council and allowed the hearings to proceed. Hedigan J. stated: "In establishing the Equality Tribunal, the Oireachtas did not intend to create a complex system of adversarial decision-making. The procedures before the respondents are not to have the formality of a court case."


Hedigan J. appeared to approve of the call-over system which was used to establish which claimants wished to proceed with their cases. He also emphasised that the claimants were entitled to be respresented by a non-lawyer (Ms Heather Rosen) and that "allowances must be made for the fact that lay persons and representatives do not articulate complaints in the same way as professionally qualified advocates".
 

Vacancy: Equality and Rights Alliance Campaign Coordinator

JOB DESCRIPTION
ERA Campaign Coordinator
http://www.eracampaign.org

Introduction

The Equality & Rights Alliance (ERA) is an alliance of 79 civil society groups seeking to ensure the promotion and enhancement of human rights, equality and social justice in Ireland. ERA formed in August 2008, following media reports of a proposed merger of five equality and human rights bodies in Ireland. Budget 2009 did not see the amalgamation of the five bodies, or indeed the full amalgamation of the Equality Authority and the Irish Human Rights Commission, which emerged as a more realistic merger possibility. However, savage budget cuts of 43% to the Equality Authority, coupled with fast-tracked decentralization, and 24% to the Irish Human Rights Commission rendered them unable to carry out their remit in any meaningful way. The ERA campaign has involved media communications, political lobbying and building of the Alliance itself as a strong voice of civil society organisations committed to a strong equality and human rights infrastructure in Ireland.

The ERA Campaign has now received funding to develop the Campaign into 2009; a planning day to set out an action plan for the alliance has taken place. The action plan envisages the continuation of lobbying and communications as well as capacity building for organisations locally and regionally to engage in lobbying actions. It also foresees the employment of a campaign coordinator.

JOB DESCRIPTION
Title: ERA Campaign Coordinator
Location: Dublin
Responsible to: ERA Steering Committee (delegated person)

Relationships: ERA Chairperson, Communications Adviser, ERA members

The main purpose of the Campaign Coordinator is to coordinate the effective implementation of the ERA Campaign.
ERA seeks a person with significant project management experience to co-ordinate the ERA Campaign, working with the Steering Committee to implement the lobbying, communication and alliance-building strategies of ERA.

Key Tasks

Given the nature of the Campaign, the post will require the Campaign Coordinator to be flexible and undertake duties, on occasion, in addition to or in lieu of those listed below. Under the direction of the ERA steering group, the Campaign Coordinator will:
- Provide administrative support to the Alliance, including preparing written correspondence, reports and funding applications.
- Coordinate general campaign activities including lobbying, protests, meetings with political parties, letter writing to TDs, etc.
- Organise logistics of ERA meetings, and public events as agreed e.g. advocacy training days, seminars, round-tables, conferences.
- Coordinate the delivery of the ERA communication strategy with the Communications Adviser
- Be the day-to-day spokesperson for ERA, linking with the Communications Adviser and the Chair
- Handle internal communications with ERA members, in liaison with the Steering Committee- Coordinate and oversee relevant research projects or polls commissioned by ERA, in liaison with the Communications Adviser and the Steering Committee
- Act as the key point of information for the ERA Campaign, handling enquiries from individuals, members of ERA, politicians and members of the public. Press queries will be referred by the Campaign Coordinator to the ERA's Communications Adviser and/or to other ERA spokespersons agreed in advance
- Be responsible for information management including the ERA website, telephone and email queries
- Maintain and update the content of the ERA website, including member lists and other relevant database lists and reports, and ensuring that up to date / relevant campaign actions are regularly featured on the web site pages
- Liaise with organisations and networks working for similar objectives, nationally and internationally
- Account to the Steering Committee for the day-to-day administration of the ERA's budget
- Attend monthly support and supervision sessions, providing written reports documenting work activities and outcomes
- Support fundraising activities, as required
- Make reports for Funders, as required.

Person Specification
Experience and Knowledge

Essential
- Experience of running office, administration and financial systems
- Experience in supporting communications strategies (inclusive of handling and referring media enquiries, building strategic alliances and information management)
- Experience of leading projects and proven success in delivery
- Knowledge of the human rights, equality and/or social justice sector in Ireland, preferably coupled with some experience of human rights, equality and /or social justice campaigning (in Ireland or elsewhere)

Desirable
- Experience of representing an organisation to the public or media
- Experience in conference and event management
- Experience of successful campaigning to achieve social change

Competencies
Essential
- Ability to manage a virtual office; familiarity with IT applications sufficient to update and maintain web site content and management of web blogs
- "Can do" attitude
- results driven, commitment and energy 'to go the extra mile'
- Demonstrated ability to think strategically and to identify opportunities
- Excellent interpersonal and communications skills
- Ability to work in partnership with individuals and organisations across sectors
- Proven problem solving skills
- Ability to prioritise and plan activities in a wide ranging work load
- Ability to communicate clearly and transfer complex information in a concise and accessible form
- Ability to draft briefing notes and other papers, as well as minutes of meetings
- Ability to maintain a high level of social, organisational and professional standards in job-related activities

Salary: Equivalent to HEO Standard Scale (€46,558 - €59,097)
Duration: this is a 6 month contract initially, with a probationary period of up to one month, which may be extended.
Application by CV and covering letter by email to recruitment@eracampaign.org or by post to

Equality & Rights Alliance Co-ordinator, DMG Business Centre, 9-13 Blackhall Place, Dublin 7
Deadline for Applications: Friday 6th February 2009
Shortlisting: Monday 9th February 2009
Interviews: 17th and/or 18th February 2009

http://www.eracampaign.org

Travellers in Clare - Equal Status Act 2000

An interesting recent case under the Equal Status Act 2000:

Mongans v Clare County Council - DEC-S2008-039
http://www.equalitytribunal.ie/index.asp?locID=140&docID=1844

The facts are complex, but it involves a series of cases brought by members of the travelling community surrounding the service provided by Clare County Council arising from the travellers’ applications for housing and related accommodation needs and linked issues.

In an unusual move, the Equality Officer (sitting as the Equality tribunal) required that the travellers attend for a series of "callovers/hearings" which would take place on two particular days. When families did not turn up, even though their representative was present, the Officer decided that no prima facie evidence of discrimination had been provided and therefore that the claims failed.

The travellers were represented by Ms Heather Rosen, and the Tribunal went on to decide that Ms Rosen had obstructed and impeded its investigation and hearing of the cases. The Tribunal was of the view that Ms. Rosen had wilfully abused the Tribunal process and had sought to manipulate the manner in which she carried out her investigative and decision making functions. The end result was that Ms Rosen was ordered to pay expenses of €200 in the main case and a large number of similar cases. (See particularly Paras. 6.1 to 6.13).

The decision raises important procedural issues as to whether the Tribunal took sufficient account of the difficulty involved for a representative in gathering together a large number of claimants who are members of the travelling community for a callover/hearing. The whole idea of a "callover/hearing" seems strange in any event. There is a reference in the decision [para.4.5] to a tragic death of a young traveller woman having occurred close to the time of the callovers, but an adjournment only being granted in the case of close family members.

All in all, it seems unfortunate that the Tribunal did not proceed to a full hearing of the substantive issues and a large number of traveller families may well be left with the impression that the state apparatus is acting against them rather than facilitating their claims.

UPDATE ADDED IN 2011:
See also this posting on a subsequent High Court case. 

Equality and the Sikh Turban Ban

Lord Lester facilitated a fascinating workshop this morning here at UCC on Equality Law, assisted by Colm O'Cinneide.

Among the many interesting points that arose concerning the recent ban on a Sikh turban in the Garda reserve were the following:

• Could it be argued that a member of the Garda reserve is engaged in an "occupation" (under the Framework Directive 2000/78/EC)

• Even though the particular person involved has withdrawn from the Garda reserve, could a Judicial Review be brought against the Garda Commissioner's decision?

• Could a JR application be made by the Equality Authority and/or the Human Rights Commission?

• If a JR were brought, an argument could be made that the Garda Commissioner's decision applies both to members of the reserve and ordinary Gardai, if need be, in response to any defence relating to the status of members of the reserve.

Transgender Law - Lydia Foy in High Court

As many people will know, the High Court has decided in the Lydia Foy case that it will issue the first declaration of incompatibilty of an Irish law with the European Convention on Human Rights. [update April 2008 - The full judgment is available on the Courts Service website at http://tinyurl.com/5v764b. ]

Sample news stories and blog posts:

"State in breach of ECHR in transgender case
www.ireland.com/newspaper/breaking/2007/1019/breaking49.html

The High Court has ruled that the State is in breach of the European Convention on Human Rights (ECHR) over its failure to recognise a sex change that a transgendered person underwent more than a decade ago. "

Sex change law incompatible with ECHR:
www.rte.ie/news/2007/1019/foyl.html

The Foy Case (CCJHR Blog - Fiona De Londras):
www.ucc.ie/law/blogs/ccjhr/2007/10/foy-case.html

Tanya Ní Mhuirthile, Time to respect the rights of all gender identities, Irish Times:
www.ireland.com/newspaper/opinion/2007/1101/1193444281616.html

Previous Lydia Foy case:
www.bailii.org/ie/cases/IEHC/2002/116.html

LRC Report on Spent Convictions

There've been quite a number of interesting reports over the past few weeks which I've been meaning to include in posts but am only getting around to now. The first one is the Law Reform Commission’s Report on Spent Convictions.

Here's an extract from the press release:

"The Report sets out in detail the elements of the proposed spent convictions law and it also includes a draft Spent Convictions Bill to implement the Commission’s recommendations. The key elements include:

• the types of offences which should be excluded completely from the proposed law: (a) any offence triable by the Central Criminal Court, such as murder; (b) any sexual offence as defined in the Sex Offenders Act 2001; and (c) any other offence where a sentence of more than 6 months (including a suspended sentence) has been imposed in court;
• the length of time a person must be conviction-free to qualify for the conviction to be regarded as “spent”: 7 years from the date of conviction where a custodial sentence of up to 6 months is imposed; 5 years from the date of conviction where a non-custodial order is made, such as a fine or disqualification;
• all convictions, including spent convictions, would still be disclosed at a sentencing hearing and in some non-criminal cases such as involving access to children.
• The system would be automatic, rather than requiring the person to apply to court to have their conviction declared to be spent, as an application-based system would not be transparent and consistent."

Full Report:
http://www.lawreform.ie/publications/reports.htm

Press Release:
http://www.lawreform.ie/REPORT%20SPENT%20CONVICTIONS%20PRESS%20RELEASE%20JULY%2007.pdf

Sample News Story:
http://www.rte.ie/news/2007/0731/justice.html

See also:
Extending the Scope of Employment Equality Legislation (2004)
http://www.ucc.ie/en/lawsite/research/research-projects/employment-equality/

(The above report included a section on the criminal conviction / ex-offender / ex-prisoner ground.)
Updates 2008-9 - See also:
Spent Convictions Group, Proposals on a Rehabilitation of Offenders Bill (2009)
Spent Convictions Bill 2007
Irish Human Rights Commission, Observations on Spent Convitions Bill (2009)
Irish Penal Reform Trust Position Paper on Spent Convictions

Update May 2012:
A new Criminal Justice (Spent Convictions) Bill 2012 has been published.
See
http://www.oireachtas.ie/viewdoc.asp?fn=/documents/bills28/bills/2012/3412/b34112s.pdf
and
http://www.irishtimes.com/newspaper/ireland/2012/0505/1224315651340.html 

Update July 2013:
See the recent Irish Times article by Remy Farrell S.C. here.