Mr. Niall Crowley:

It is important to bear in mind that this absence of certainty has not been an impediment to the introduction of other grounds of discrimination or to employers taking effective action to taking effective action to prevent discrimination in the other grounds. It is very evident in the religion ground, in race in terms of ethnic origin, and it is most evident in the disability ground. Not only is it broadly drawn in terms of other medical condition, which is not defined but has some indicators around it, but there are also issues of hidden disability that are not evident, such as mental health issues, where there have been successful cases in that regard. Consider the complexity of disability yet how effective and important a ground it has been. Consider how effective it has been in terms of people with disabilities being able to assert their rights not to be discriminated against and how effective it has been in the cultural change that Deputy Clare Daly spoke about in terms of how we view people with disabilities and their situation.

Looking briefly at indirect discrimination, first it must be acknowledged that there are very few cases, and even fewer successful cases, of indirect discrimination. They are very hard to prove. The data are usually not available, statistics are difficult to get, but also there is a defence that if the employer can objectively justify the policy or regulation, there is an exemption that indirect discrimination cannot be found. It is about groups rather than individuals.

That brings us back to how cases are dealt with and how they are argued, whether direct or indirect. "Do not know" and "Did not intend" are not good defences in cases, even if they can be made. There are much more effective defences which are used by employers. The applicant would have to prove first a prima facie case that he or she was less favourably treated. The employer then has to show that there was another reason that the applicant was treated less favourably. That is the way in which is happens. To take a very simplistic case, say a woman goes for promotion, proves that she was less favourably treated, and the employer shows that while she did not get the promotion, it was because the person who got it was more qualified. When I was in the Equality Authority we won many cases where the employer could not prove that and where the person who got the job was less qualified and therefore the case was won. That is my final point. When discrimination happens and is found to have happened, it is almost certain that the employer or service provider does know.

The arguments that IBEC is making relate to the complexity of anti-discrimination legislation and proving cases but we are well tried and tested in that regard, having had nine grounds over such a long period. Dealing with one further ground which is as complex as the other grounds, but no more complex, is not an argument for not introducing it. We have a capacity to do it, employers have done it on grounds of disability, race, and religion, and we have the capacity to support them to do it with a very strong and well-resourced equality and human rights body and with an increasingly effective Workplace Relations Commission.