PART 3

Amendments to Equal Status Act 2000

47. —Section 2 (interpretation) of the Act of 2000 is amended—

(a) in subsection (1)—

(i) by substituting the following definition for the definition of “proceedings”:

“‘proceedings’ means—

(a) proceedings before the person, body or court dealing with a request or reference under this Act by or on behalf of a person, and

(b) any subsequent proceedings, including proceedings on appeal, arising from the request or reference,

but does not include proceedings for an offence under this Act;”,

and

(ii) by inserting the following definition:

“‘provision’ means a term in a contract or a requirement, criterion, practice, regime, policy or condition affecting a person;”,

and

(b) by adding the following subsection:

“(3) In any proceedings a respondent is presumed, unless the contrary is shown, to fail to do something when—

 (a) the respondent does an act inconsistent with doing it, or

 (b) the period expires during which the respondent might reasonably have been expected to do it.”.

48. —Section 3 (discrimination (general)) of the Act of 2000 is amended—

(a) by substituting the following subsection for subsection (1):

“(1) For the purposes of this Act discrimination shall be taken to occur—

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) where a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

or

(c) where an apparently neutral provision puts a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”,

(b) by substituting the following subsections for subsection (3):

“(3) (a) Treating a person who has not attained the age of 18 years less favourably or more favourably than another, whatever that person's age shall not be regarded as discrimination on the age ground.

 (b) Paragraph (a) does not apply in relation to the provision of motor vehicle insurance to licensed drivers under that age.

(3A) In any proceedings statistics are admissible for the purpose of determining whether discrimination has occurred by virtue of subsection (1)(c).”.

49. —Section 6 (disposal of premises and provision of accommodation) of the Act of 2000 is amended—

(a) by deleting subsections (2)(b) and (4), and

(b) in subsection (2), by substituting the following paragraph for paragraph (d):

“(d) the provision of accommodation by a person in a part (other than a separate and self-contained part) of the person's home, or where the provision of the accommodation affects the person's private or family life or that of any other person residing in the home, or”,

and

(c) by adding the following subsection:

“(7) (a) Nothing in subsection (1) shall be construed as prohibiting, in relation to housing accommodation provided by or on behalf of the Minister, different treatment to persons on the basis of nationality, gender, family size, family status, marital status, disability, age or membership of the Traveller community.

 (b) Nothing in paragraph (a) shall derogate from any of the obligations of the State under the treaties governing the European Communities within the meaning of the European Communities Acts 1972 to 2003 or any Act adopted by an institution of those Communities.”.

50. —Section 7 (educational establishments) of the Act of 2000 is amended by the addition of the following subsection:

“(5) (a) In this subsection ‘grants’ means grants to assist persons to attend or continue to attend—

(i) an institution providing adult, continuing or further education,

(ii) a university, or

(iii) any other third-level or higher-level institution,

whether or not supported by public funds.

 (b) The Minister for Education and Science does not discriminate where he or she—

(i) requires grants to be restricted to persons who are nationals of a member state of the European Union, or

(ii) requires such nationals and other persons to be treated differently in relation to the making of grants.”.

51. —Section 11 (sexual and other harassment) of the Act of 2000 is amended by substituting the following subsections for subsections (4) and (5):

“(4) A person's rejection of, or submission to, sexual or other harassment may not be used by any other person as a basis for a decision affecting that person.

(5) (a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which 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.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”.

52. —Section 14 (certain measures or activities not prohibited) of the Act of 2000 is amended—

(a) by inserting the following paragraph after “State,” in paragraph (a):

“(aa) on the basis of nationality—

(i) any action taken by a public authority in relation to a non-national—

(I) who, when the action was taken, was either outside the State or, for the purposes of the Immigration Act 2004 , unlawfully present in it, or

(II) in accordance with any provision or condition made by or under any enactment and arising from his or her entry to or residence in the State,

or

(ii) any action taken by the Minister in relation to a non-national where the action arises from an action referred to in subparagraph (i),”,

and

(b) by adding the following subsections:

“(2) In subsection (1)(aa)—

‘non-national’ has the meaning given to it by the Immigration Act 1999 and includes a category of nonnationals;

‘public authority’ means—

 (a) a Minister of the Government,

 (b) an immigration officer appointed or deemed to have been appointed under section 3 of the Immigration Act 2004 ,

 (c) the Commissioners of Public Works in Ireland,

 (d) a local authority within the meaning of the Local Government Act 2001 ,

 (e) the Eastern Regional Health Authority,

 (f) an area health board within the meaning of the Health (Eastern Regional Health Authority) Act 1999 ,

 (g) a health board,

 (h) a harbour authority within the meaning of the Harbours Act 1946 ,

 (i) a board or other body (not being a company) established by or under statute,

 (j) a company in which all the shares are held by, or on behalf of, or by directors appointed by, a Minister of the Government, or

 (k) a company in which all the shares are held by a board or other body referred to in paragraph (i), or by a company referred to in paragraph (j).

(3) Nothing in subsection (1)(aa) shall derogate from any of the obligations of the State under the treaties governing the European Communities within the meaning of the European Communities Acts 1972 to 2003 or any act adopted by an institution of those Communities.”.

53. —Section 20 (definitions) of the Act of 2000 is amended by substituting the following definition for the definition of “complainant”:

“‘complainant’ means—

(a) a person referred to in section 21(1), or

(b) where such a person is unable, by reason of an intellectual or psychological disability, to pursue effectively a claim for redress under this Part, his or her parent, guardian or other person acting in place of a parent;”.

54. —Section 21 (redress in respect of prohibited conduct) of the Act of 2000 is amended—

(a) in subsection (2)(a)(ii), by substituting “to seek redress under this Act” for “to seek redress by referring the case to the Director”,

(b) by inserting the following subsection after subsection (2):

“(2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.”,

(c) by substituting the following subsection for subsection (3):

“(3) (a) On application by a complainant the Director may—

(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction,

and, where such a direction is given, this Part shall have effect accordingly.

 (b) In deciding whether to give a direction under paragraph (a)(ii) the Director shall have regard to all the relevant circumstances, including—

(i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii) the extent of any risk of prejudice to the respondent's ability to deal adequately with the complaint.”,

(d) by substituting the following subsections for subsections (6) and (7):

“(6) (a) Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.

 (b) On application by a complainant the Director may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

(7) Where a delay by a complainant in referring a case under this Act is due to any misrepresentation by the respondent, subsection (6)(a) shall apply as if the references to the date of occurrence of prohibited conduct were references to the date on which the misrepresentation came to the complainant's notice.”,

(e) by inserting the following subsection after subsection (7):

“(7A) (a) Not later than 42 days from the date of a decision of the Director on an application by a complainant for an extension of time under subsection (3) or (7), the complainant or respondent may appeal against the decision to the Circuit Court on notice to the Director specifying the grounds of the appeal.

(b) On the appeal the Court may affirm, quash or vary the decision.

(c) No further appeal lies, other than an appeal to the High Court on a point of law.

(d) Unless otherwise agreed by the complainant and respondent, effect shall not be given to a decision of the Director on such an application until—

(i) the period of 42 days mentioned in paragraph (a) has expired, or

(ii) any appeal against it has been determined,

whichever first occurs.”,

and

(f) by adding the following subsection:

“(11) For the purposes of this section prohibited conduct occurs—

(a) if the act constituting it extends over a period, at the end of the period,

(b) if it arises by virtue of a provision which operates over a period, throughout the period.”.

55. —The Act of 2000 is amended by inserting the following section after section 21:

56. —The following section is substituted for section 22 (dismissal of claims) of the Act of 2000:

57. —Section 23 (references of certain matters to Director) of the Act of 2000 is amended by the addition of the following subsections:

“(4) The relationship between a solicitor employed by the Authority or any barrister retained by him or her and a person referred to in subsection (1)(a) shall be the same as the relationship between a solicitor or barrister and a client who is not such a person.

(5) Subsection (4) is without prejudice to the rights and responsibilities of the Authority and the obligations arising out of the relationship between the Authority and the solicitors employed by it.

(6) For the avoidance of doubt, it is declared that sections 59 (prohibition of solicitor acting as agent for unqualified person) and 64 (bodies corporate) of the Solicitors Act 1954 do not apply in regard to the relationship between a solicitor employed by the Authority and a person referred to in the said subsection (1)(a).”.

58. —Section 24 (mediation) of the Act of 2000 is amended in subsection (6)—

(a) by substituting “case, and” for “case,” in paragraph (a),

(b) by inserting “in writing” after “application” and substituting “case,” for “case, and” in paragraph (b), and

(c) by deleting paragraph (c).

59. —Section 25 (investigation by Director) of the Act of 2000 is amended by inserting the following subsection after subsection (1):

“(1A) (a) Claims to have been discriminated against on more than one of the discriminatory grounds (other than the victimisation ground) shall be investigated as a single case, and

(b) claims to have been discriminated against on discriminatory grounds which include the victimisation ground may, in an appropriate case, be so investigated,

but a decision shall be made on each of the claims.”.

60. —The Act of 2000 is amended by inserting the following section after section 25:

61. —Section 27 (redress which may be ordered) of the Act of 2000 is amended—

(a) in subsection (1)(a), by substituting “the prohibited conduct concerned” for “discrimination”, and

(b) by adding the following subsections:

“(3) The maximum amount specified in subsection (2) applies notwithstanding that conduct the subject of the investigation constituted—

 (a) discrimination on more than one of the discriminatory grounds (other than the victimisation ground), or

(b) both discrimination on one or more than one of those grounds (other than the victimisation ground) and harassment or sexual harassment.

(4) An order for compensation under this section may not be made in favour of the Authority in a case referred by it to the Director under section 23(1).”.

62. —Section 31 (enforcement of decisions and mediated settlements) of the Act of 2000 is amended—

(a) in subsection (1), by substituting “person” for “person affected”,

(b) by substituting the following subsection for subsection (2):

“(2) If a person who is a party to a settlement to which section 24 applies fails to give effect, in whole or in part, to the terms of the settlement, then, on an application under this section, the Circuit Court may make an order directing that person to carry out those terms or, as the case may be, the terms to which the application relates; but the Circuit Court shall not, by virtue of this subsection, direct any person to pay any sum or do any other thing which (had the matter been dealt with otherwise than by mediation) could not have been provided for by way of redress under section 27.”,

(c) by substituting the following subsection for subsection (4):

“(4) An application under this section may be made—

 (a) in any case, by the complainant,

 (b) in any case where the Authority is not the complainant but considers that the decision or settlement is unlikely to be implemented without its intervention, by the Authority with the consent of the complainant, or

 (c) in the case of a settlement, by the respondent.”,

(d) in subsection (5)(b), by substituting “any person” for “person affected”, and

(e) by substituting the following subsection for subsection (6):

“(6) (a) Where an application is made to the Circuit Court by the Authority under this section, the Court may make an order for costs in favour of the Authority.

 (b) Paragraph (a) is without prejudice to the power of the Court to make an order for costs in favour of a person who is bound by the terms of the decision or, as the case may be, a person who is a party to the settlement.”.

63. —The Act of 2000 is amended by inserting the following section after section 37:

64. —The Act of 2000 is amended by inserting the following section after section 38, but in Part III:

65. —Section 41 (regulations) of the Act of 2000 is amended in subsection (2) by deleting the words after “any such regulations the Minister” and inserting “shall consult with the Authority and the Director”.