knowledge | 22 August 2019 |
Irish Human Rights & Equality Commission v DAFT.ie – A Timely Reminder of Obligations of Organisations under the Equal Status Acts
The Workplace Relations Commission has recently ordered Daft.ie to refrain from publishing, displaying or permitting advertisements of a discriminatory nature, specifying that the organisation must “develop a methodology to identify, monitor and block discriminatory advertising on its website”. The WRC found that certain advertisements placed on the property website breached section 12 of the Equal Status Acts, which prohibits the publication or display of advertisements which might reasonably be understood as indicating an intention to discriminate.
Interestingly, the complaint comes on foot of a reference by the Irish Human Rights & Equality Commission, pursuant to their power under section 23 of the Acts. That section allows IHREC to refer a matter to the WRC for investigation where it appears to IHREC that a person has contravened or is contravening the Equal Status Acts. IHREC undertook a review of Daft.ie in 2016 and identified a number of advertisements published on the website which it considered to infringe the Acts. These included advertisements containing phrases such as “rent allowance not accepted”, “would suit young professional” or “suit family or professionals only”.
Daft argued that the Equal Status Acts did not apply to the services provided by it, since it was not an advertiser but an Information Society Service Provider (ISSP). On that basis, it sought to rely on the E-Commerce Directive and its transposing regulations. The Directive exempts ISSPs from liability for the content they manage if they fulfil certain conditions namely: (i) that they play a neutral, merely technical and passive role towards the hosted content, and (ii) that they remove illegal material on becoming aware of its existence. Daft therefore sought to argue that as an ISSP, it was under no obligation to monitor the information transmitted or stored on its website and, as such, could have no liability for advertisements placed by third parties. However, the WRC rejected this argument with the Adjudication Officer noting that she was not satisfied, based on the arguments of the parties, that the E-Commerce Directive shielded or protected Daft from its obligations under the Equal Status Acts. Instead, she considered Daft to be an agent of those individuals placing advertisements on its website and therefore vicariously liable for any discriminatory content uploaded by those individuals pursuant to section 42 of the Acts.
The effect of this decision, if followed, is that even where an organisation is exempt from monitoring information transmitted on its site by virtue of the E-Commerce Directive, it may still need to do so in order to avoid liability under the Equal Status Acts. The E-Commerce Directive provides that Member States cannot impose any general obligation on ISPPs to monitor the content they manage, provided those ISPPs play a neutral, merely technical and passive role towards the hosted content. While it was argued by the complainant that Daft did not come within this exemption, as it had both knowledge and control of the information transmitted on its website, the WRC decision does not appear to rely on this argument and does not deal with the potential conflict between the Directive and the Acts in this regard.
While Daft.ie may appeal the decision, the initiation of proceedings by IHREC indicates that the organisation may be taking a more proactive approach to monitoring compliance with the Acts and serves as a timely reminder to organisations that the obligation to refrain from discriminatory conduct applies both within and outside the workplace.
What are the Equal Status Acts?
The Equal Status Acts 2000-2015 deal with discrimination outside the workplace. In particular, the Acts prohibit discrimination, harassment and sexual harassment in the provision of goods and services, accommodation and in certain aspects of education. They also prohibit discriminatory advertising and require those providing goods and services to provide reasonable accommodation to facilitate access to such goods and services for individuals with disabilities, where necessary, unless to do so would lead to more than a nominal cost.
As with the Employment Equality Acts 1998-2015, the Equal Status Acts prohibit discrimination, harassment or sexual harassment based on (i) gender, (ii) civil status, (iii) family status, (iv) age, (v) disability, (vi) sexual orientation, (vii) race, (viii) religion and (ix) membership of the travelling community.
The Equal Status Acts also prohibit discrimination in the provision of accommodation services on the basis of receipt of rent supplement, housing assistance or social welfare payments.
Am I subject to the Acts?
The Equal Status Acts has a broad remit and essentially apply to any individual or organisation providing goods and services to the public, including the provision of accommodation and the sale of property. It also applies to clubs and educational establishments. The Act does however provide for certain limited exemptions.
Section 42 of the Acts provides that employers are vicariously liable for acts done by employees in the course of their employment whether or not those acts were done without the employer’s knowledge or approval. It is however a defence for an employer to provide that it took reasonable steps to prevent the employee from doing the act in question or acts of that description. That section also provides that individuals/organisations are vicariously liable for acts carried out by their agents with their authority. No defence of taking reasonable steps to prevent the act applies in this case.
The WRC, in the Daft case, referred to earlier High Court decisions which found that the Acts constituted remedial social statutes and should therefore be interpreted liberally. As such, any exemptions from the provisions of the Act are likely to be strictly applied.
What happens if I fail to comply?
Any person who believes they have been the subject of conduct which is prohibited by the Acts may take a claim to the WRC. Claims relating to gender may be taken directly to the Circuit Court. However, before doing so, the complainant must write to the organisation/individual who they believe to have engaged in the prohibited conduct informing that organisation/individual of the nature of the allegation and notifying them of the complainant’s intention to make a complaint to the WRC in the event a satisfactory response is not received. This notice is referred to as a Form ES1 and must it must be issued within 2 months of the prohibited conduct. It can also include questions to the recipient with a view to assisting the complainant in deciding whether to refer a case to the WRC. The organisation/individual to whom the complaint is made then has 1 month within which to respond, by means of a Form ES2. In general, complaints to the WRC must be made within 6 months of the prohibited conduct but this may be extended in exceptional circumstances.
Once the WRC has received a valid complaint the matter may be referred to mediation, however it is open to the parties to object to this. In the event the complaint is heard by an Adjudication Officer of the WRC, they may award compensation to the complainant or order that the respondent take a specified course of action. The amount of compensation which can be awarded is limited to the amount which can be awarded by the District Court in civil cases (currently €15,000). The decision of the WRC may be appealed to the Circuit Court and an appeal on a point of law may also be brought to the High Court. Obstructing or impeding the WRC in the exercise of its powers under the Act is a criminal offence.
How can we help?
The Employment, Pensions & Incentives Group has significant experience in advising clients on equality claims both in an employment and a non-employment context. Please contact any member of the team below for further information. Alternatively, your usual contact would be happy to assist.
Also Contributed By: Emma Libreri
This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.