We have also circulated a paper to members. Rather than go through the detail, I will highlight some of the key areas, particularly the recommendations for change. In the current debate, employment rights and their effective enforcement in respect of migrant workers have emerged as a key theme. We welcome the opportunity to highlight the role of the equality legislation in this regard. We will also point to the challenges in terms of enforcing that legislation effectively and developing it further in the context of good practice and policy in this area.
The key elements in the legislation are the Employment Equality Acts 1998 to 2004, which prohibit discrimination in the workplace, and the Equal Status Acts 2000 to 2004, which prohibit discrimination in the provision of goods and services, accommodation and education. The Acts cover nine grounds for discrimination, including those of race and religion, both of which are centrally relevant to our discussions today. I will deal first with the issues and difficulties arising from the deficiencies in the legislation as we seek to maximise its benefits to migrant workers. Deficiencies exist in terms of exemptions, the scope of the legislation, positive duties, remedies and delays in interlocutory relief.
We have set out a number of the specific exemptions in the Employment Equality Acts that relate to migrant workers and some significant exemptions in the Equal Status Acts, which effectively seek to allow discrimination, particularly on behalf of the State, in regard to non-EU nationals. One of these is the statutory exemption which provides that anything required by another statute or EU law is exempted from the Equal Status Act. The Equality Act 2004 introduced a new exemption on the grounds of nationality and purports to allow a broad range of public authorities to treat non-nationals differently on the basis of their nationality, who are outside the State, unlawfully present in it, for the purpose of the Immigration Act 2004, or in accordance with any provision or condition made by or under any enactment and arsing from their entry to a residence in the State. These exemptions create significant gaps in terms of the coverage of the legislation. Another core issue in terms of applying the legislation is that the provisions of the Equal Status Act do not extend to the functions of the State that do not come within the definition of services. Therefore, matters such as immigration control or policing do not come within the scope of the legislation.
Probably the most significant gap relates to the absence of a positive duty. There is no positive obligation on the public or private sector to promote equality. The failure to include a positive duty to promote equality means the legislation has only a very limited capacity to tackle institutional or structural discrimination. In that we are at odds with developments in Northern Ireland in terms of the Northern Ireland Act and developments in England, Scotland and Wales in terms of the UK Race Relations (Amendment) Act.
The fourth area that has been problematic in implementing the legislation is that of remedies. It is important that cases taken have a dissuasive function. Awards need to be proportionate but also, crucially, they need to be dissuasive. In the Equal Status Act, awards are capped at €6,350. There is a significant cap in the Employment Equality Acts in regard to cases of access to employment where the claimant was not an employee — the maximum compensation there is €12,700. That can be problematic.
The final area I would flag in terms of difficulties in implementing the legislation relates to the fact that there is no provision for us or other bodies to apply for any type of interlocutory relief pending the hearing of a claim. Currently, the significant backlog of cases in the Equality Tribunal means parties will experience considerable delays in having their claims heard. In previous annual reports we noted delays of more than a year before an equality officer was appointed. There are significant issues there that are particularly relevant to migrant workers whose situation can be more transient.
We have important equality legislation dealing with the situation and experience of migrant workers. The challenge is to further develop that legislation. It is clear the legislation is hugely relevant to the current context of migrant workers. Complaints have arisen across the whole spectrum of areas covered by the Employment Equality Acts and the Equal Status Act. In 2003, 2004 and 2005 the ground of race was the largest category among the case files of the Equality Authority under the Employment Equality Act 1998. A broad range of issues was raised, including excessive working hours, non-payment for overtime, illegal deductions from pay, lack of holiday pay, harassment and dismissal.
We have also highlighted in the past the difficulties for migrant workers on work permits who can be vulnerable to exploitation. In a number of cases employees were unwilling to take action because they feared the employer would not reapply for a work permit or that they would lose their work permit. One interesting outcome in the casework was an important affirmation from the Labour Court in the case we mentioned, Campbell Catering v Rasaq, of the particular vulnerabilities of migrant workers. The Labour Court highlighted that migrant workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights together with difficulties of language and culture. The Labour Court went on, in effect, to require employers to provide reasonable accommodation for migrant workers in respect of language and cultural difficulties in the area of disciplinary procedures. That was a very important development.
That picture in the workplace is also replicated outside of the workplace in the areas covered by the Equal Status Act where the race ground emerged as the third highest area of case files with which we deal. Again a broad range of issues arose, including access to goods and services, access to accommodation and access to education. While the legislation is in place, there is a clear demand for it and for more effective development of that legislation to meet the very significant demands of migrant workers for the protections that legislation affords.
As these issues have arisen in the workplace, we also have been concerned to support and stimulate good practice and to work with the social partners. Enforcement of equality legislation makes a key contribution to maintaining workplace standards and to addressing some of the difficult experiences of migrant workers. Alongside enforcement it is crucial to put forward models of good practice and to get practical supports to enterprises and to companies to be able to apply those models in their particular setting. We have tried to do that through an annual anti-racist workplace week with the social partners and have developed guidance on the steps that could usefully be developed in workplaces to ensure they are anti-racist and effective in managing cultural diversity. These steps include supporting migrant workers to adapt to the Irish workplace, making allowances for the needs of particular cultures, creating a workplace ethos and environment that is positive to diversity and equality, supporting compliance with the equality legislation, reviewing workplace policies and procedures to ensure they take into account those cultural and linguistic difficulties identified by the Labour Court, developing equality action plans and, most important, embedding an equality focus into management. That is a very important area of work that needs stimulation and support. It requires an adequately resourced support infrastructure to ensure the resources and technical expertise are available to companies, and there is strong need to further develop that infrastructure.
The final element in the mix that we highlight is the importance of the policy context. We have quite a positive policy context provided by the national action plan against racism which covers the period from 2005. Its objective is defined as to provide strategic direction to combat racism and to develop a more inclusive intercultural society in Ireland. It contains a number of very important commitments in regard to supporting the Equality Authority and the Equality Tribunal in the performance of their functions, considering best international practice related to a positive duty, developing a major awareness and compliance initiative through the Department of Enterprise, Trade and Employment to provide accessible information to migrants and minority ethnic groups, developing a comprehensive policy on the integration of migrant workers, developing a focus on competencies within the public sector to promote equality and to combat discrimination, and putting in place equal status reviews and action plans by key service providers in the public sector.
These commitments have a hugely important contribution to make in creating intercultural and anti-racist workplaces, but clearly it will be a huge challenge to mobilise the resources and to mobilise the different institutions responsible to secure a full and effective implementation of those commitments. In that context we have set out a number of recommendations that emphasise the importance of the effective enforcement of equality legislation, the further development of equality legislation, the further development of an equality focus and capacity within public sector institutions with responsibility for migrant workers, and the importance of implementing current policy commitments.
The effective enforcement of equality legislation would benefit from an investment of resources in advocacy supports for migrant workers through trade unions or non-governmental organisations, from enhancing the resources available to the Equality Tribunal to address the delays and to the Equality Authority in providing the supports to migrant workers, and from an amendment of the legislation to enable the Equality Authority and others to seek interlocutory relief in cases involving migrant workers.
In developing the equality legislation, we would emphasise the importance of introducing positive duties on the public sector and on the private sector in using models developed in Northern Ireland and England in that regard, of expanding the scope of the positive action of the Equal Status Act to cover functions of public sector organisations and to explicitly require employers and service providers to make reasonable accommodation for employees and customers from across the nine grounds, including that of race, subject to this not imposing a disproportionate burden and, finally, of removing the cap on the level of awards that can be made in cases under the equality legislation. It would also be important to review the current exemptions that impact on migrant workers, including the statutory exemption.
The national workplace strategy is an important vehicle in supporting good workplace practice. It is being led by the Department of Enterprise, Trade and Employment. It has very good commitments in regard to equality and supporting a workplace of the future that can effectively manage cultural diversity. However, it is very important that those commitments are backed up by resources and action.
In terms of public sector capacity in regard to migrant workers, the provision of equality and diversity training for staff in institutions with responsibilities in regard to migrant workers is very important. A key contribution could be made by those institutions conducting equal status reviews on the provision of services and the implementation of the function of these institutions and preparing and implementing equality action plans on foot of these reviews. I mention that in particular. We have followed developments in FÁS, which has led the way, that could usefully be spread across other institutions.
On the implementation of current policy commitments, we emphasise the importance of the national action plan against racism and of implementing the commitments contained in it, particularly the information and awareness initiative in regard to migrant workers and the comprehensive policy on the integration of migrant workers and their families. These are two key commitments in that area.
Concerns have been expressed regarding the impact of migrant workers in regard to displacement and working standards. Enforcement of the rights of migrant workers has been usefully identified as a response to these concerns. It is important that this response includes a vigorous and well resourced enforcement of equality rights for migrant workers, alongside a further development of equality legislation. This should be reinforced with new supports for good practice at enterprise level, together with the urgent implementation of important commitments within the national action plan against racism.