Ms Maeve McElwee:

The point was made about the ability of the tribunals to make decisions on complex and widely defined grounds under the equality legislation, such as disability, but even in the case of disability, generally, somebody can rely on a qualified medical opinion to be able to make that decision.

That means there is a qualified ground there if there is a dispute or question as to whether someone has or does not have a disability or has one of the particular grounds under the Act. A qualified opinion can be sought to help everybody to decide and for the WRC to use to make its decision on any case. That will not be effective in terms of many of the grounds that will be captured under this proposed tenth ground of socio-economic status.

On the absence of knowledge, I can clearly see where Deputy Daly is coming from and, in some cases, it may be a defence to say that it was not on the applicant's CV and the employer did not know. However, what am I to do in the case of a claimant who asserts, for instance, that someone in human relations knows his or her mother and hence knows where he or she lives? It is those types of ambiguities and broader issues that make it very difficult to be able to determine whether some form of discrimination has taken place in that instance, because it would then have to be proven that nobody or anybody knew, or if someone's address was known, that it was also known that it was an area of socio-economic disadvantage. While the claimant does have to provide the prima facie case, that is, quite rightly, a relatively low bar in being able to present that, with the defence then falling back to the employer. In principle, we are not at odds in any way that we need to address the issue of socio-economic status, but addressing it under equality legislation, where an employer's hands are tied in many ways in terms of knowing in many circumstances across a wide range of criteria whether somebody ticks any of these boxes or anyone in the team has that knowledge, and then to prove that, is extraordinarily difficult and at a very high cost if discrimination is found to have occurred. It is a real challenge.

The member is correct, and I could not disagree, that if somebody has been unemployed for five years and has no independent means of wealth obvious to an interviewer, it may be obvious that the person is on a social welfare payment or unemployment benefit. The challenge remains to say whether they were judged on skills and ability or whether there was indirect discrimination in terms of skills and ability in that he or she has been out of the workforce for five years and the person who was hired has not been, so the fact they were on social welfare meant there was indirect discrimination. How would an employer manage a claim of that nature? The complexity within the legislation and the burden of proof that would fall is very significant and challenging in this area. That is why we feel this tenth ground gives no certainty at all to an employer as to how they would apply the legislation.

We have lots of other challenges. When we return to clarity of areas that are designated as disadvantaged, I reiterate the point that many people will not be aware of that unless we pin up a notice to say that these are areas of acknowledged disadvantage and regularly update them. We also have many people from other countries who have come here to work. I would guess that there are very few people who know what an area of disadvantage is in, say, Lithuania, Poland, France or Spain and how we would identify that for a candidate from a different jurisdiction who is coming here to work. We would have no knowledge necessarily, even if it was declared in an address or different format, that somebody has experience of one of these socio-economic grounds. That may not be understood here. Where would the obligation lie on an employer to determine whether any of these pieces of information provided in an application are grounds that the employer must consider under the equality grounds?

It is not the principle of what the legislation is trying to achieve but the absence of certainty in the legislation with which employers must comply and to which they must conform and how we would do that. How do we set the income thresholds? What is an income limit that makes someone part of a socio-economic disadvantaged group? How would I know that? Test cases will differ because an income limit in Dublin city centre might be very different from family income supplement in Monaghan, Cavan or somewhere in the midlands, for instance. There is a difference between what that income and background may be, and when we move out into a family background, the possibilities are innumerable. We can say that we know things intuitively, but intuition is not an adequate point of law when a case is being prosecuted or defended.