Thursday, 26 February 2004

Questions (6)

John Gormley


6 Mr. Gormley asked the Minister for Justice, Equality and Law Reform his views on whether there will be an erosion of the requirement of EU directives that sanctions be effective in view of the fact that a single maximum award can now only be made under the Equal Status Act 2000, if section 55 of the Equality Bill 2004 proceeds as it stands, irrespective of the number of grounds of discrimination which have been proven; and if he will make a statement on the matter. [6375/04]

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Oral answers (3 contributions) (Question to Minister for Justice, Equality and Law Reform)

The changes proposed in the Equality Bill are necessary and wholly compatible with the race directive. Section 55 of the Equality Bill 2004 adds a number of new provisions to section 27 of the Equal Status Act 2000, including a new provision at section 27(3) of the Act to provide that the maximum amount specified applies, notwithstanding that conduct, the subject of the investigation, constituted discrimination on more than one of the discriminatory grounds.

At present, if a complainant takes a single case alleging discrimination on more than one ground, for example, on gender and age, the maximum award in respect of the entire complaint would be €6,350. However, if the complainant was to take two cases, one alleging discrimination on the gender ground and another alleging discrimination on the age ground, in respect of the one incident, it would appear that two awards could be made, each up to the maximum of €6,350.

I regard it as unsatisfactory that the amount of redress should depend on the number of complaint forms lodged. This section, therefore, provides that where the conduct of a service provider amounts to discrimination on more than one ground of discrimination, on one occasion, the complaint in respect of all grounds should be referred to as a single case and the total amount of redress which may be awarded should be the maximum set out in the Act.

However, if a complainant is victimised by the respondent for taking action under the Act, I consider that an aggravating circumstance, and I would regard it as a separate incident of aggravation requiring a separate award. It has long been the practice of the Equality Tribunal to treat multiple grounds cases, other than those involving victimisation, as single cases when awarding redress and section 55 of the Equality Bill reinforces that. The amendment is also required to keep in line with a similar amendment under the Employment Equality Act 1998.

I accept that there is an exception on the victimisation ground. Nonetheless, it seems like a breach of fundamental justice that Directive 202/73/EC calls on member states to provide for effective, proportionate and dissuasive sanctions, although that does not apply here. For instance, if someone from another member state of the EU is discriminated against as a lone parent with a disability, surely there should be an adding up of the grounds of discrimination in the case. It appears to be a breach of equality measures to state that all the grounds will be bundled together with a maximum award of €6,350. The Minister should reconsider section 27 of the Equal Status Act 2000 with a view to providing for a judge to be able to total up the grounds on which discrimination has taken place, and adjust the award accordingly.

That depends on one's philosophical outlook. If the purpose of this legislation is to prevent discrimination, then a single act of discrimination — for instance, the refusal of somebody to provide a service to an aged member of the Traveller community — is, nonetheless, a refusal to provide the service. The fact that he or she cited or relied on age and membership of the Traveller community, rather than if the discrimination arose from one count alone, should surely not be taken as a basis for doubling the amount of the award. If we applied that principle to court cases it would mean that where an offence could be committed in any one of five circumstances, if two such elements existed the penalties would be doubled. That would not necessarily have a dissuasive effect but it would have an artificial effect whereby people would look at the same incident from three different perspectives and claim they were discriminated against on grounds of nationality, membership of the Traveller community and age.

In certain cases, one could add a fourth ground of sexual orientation and, thus, quadruple the amount of damages arising from the fact that one was refused entry to a hotel. That is not a very defensible distinction to make. We want to prevent discrimination and have provided for dissuasive penalties against it. It really does not matter if the discrimination occurs on the basis of a simple, single ground or on multiple grounds because the person on the receiving end of it is not being granted access to the service. When it comes to assessing compensation, it does not matter if, in the mind of the perpetrator, there were two separate unlawful reasons for doing it.