There are nine protected grounds that are covered by The Employment Equality Acts 1998 – 2011. These are:
- Civil status
- Family status
- Sexual orientation
- Religious belief or lack of belief
- Disability race including nationality and
- Membership of the Traveller community
A number of amendments of the Equality Act 2004 extended the scope of the 1998 Act with the introduction of the following provisions:
- Provision for the extension of the scope of the 1998 Act to persons employed in a selfemployed capacity
- Provision for the extension of positive action provisions to all nine grounds covered by the 1998 Act
- Provision for the extension of the age provision of the 1998 Act to persons under the age of 18 but over the minimum school leaving age and over sixty-five. Employers will still be allowed to set minimum recruitment ages of 18 or under and to set retirement ages
- Provision for the requirement on employers to provide reasonable accommodation for persons with disabilities to be, in future, subject to it not imposing a disproportionate burden rather than nominal costs
- Provision for the amendment of the redress provisions in respect of the defence forces in order to allow members of the defence forces access to the general redress mechanism in respect of all grounds covered by the 1998 Act (except age and disability)
In addition the Social Welfare (Miscellaneous Provisions) Act, 2004 extensively amends the equality provisions of the Pensions Act, 1990. Discrimination is prohibited based on any of the main protected grounds in regard to occupational pensions, (exceptions apply), and to make significant procedural changes.
Employment Equality Acts 1998 – 2011 (the “EEAs”)
Broadly speaking, it applies all stages and aspects of employment and employment-related training such as employers, advertisers of employment, employment agencies’ trade unions, professional and trade bodies and providers of vocational training and both public and private sector employment.
A noted exception is occupational pensions, which fall instead under the Pensions Act, 1990 (gender discrimination only.) Agency workers are treated as employees.
The Acts apply to full time, part time and temporary employees, self-employed contractors, partners in partnerships, state and local authority office holders.
Requirements of the EEAs
The EEAs prohibit:
- Direct discrimination
- Indirect discrimination
- Discriminatory failure to provide equal pay for equal work (or work of equal value)
- Sexual harassment, or harassment based on any other protected ground
The EEAs make it unlawful to discriminate in relation to employment, including:
- Promotion or re-grading or grouping of posts
- Vocational training
- Work experience
- Access to employment
- Collective agreements
As well as this, employers must provide reasonable accommodation for persons with disabilities. This means that an employer is obliged to take appropriate measures to enable a person who has a disability to have access to employment; participate or advance in employment; or to undertake training, unless the measures would impose a disproportionate burden on the employer. “What is disproportionate” will be relative to the size and resources of the employer.
Direct discrimination involves less favourable treatment based directly on the discriminatory ground. For example, a practice of not recruiting married men would discriminate directly on the family status ground.
Indirect discrimination involves less favourable treatment which is not based directly on a discriminatory ground, but on an apparently neutral factor. The claimant must show that, in practice, this factor operates to disadvantage substantially more people in a protected category. For example, a practice of not recruiting employees with shaven hair might discriminate indirectly against men or against members of certain religions. The Act provides a justification defence. In cases to which European Community law applies, the respondent must show that the practice is objectively justified, i.e. that it is appropriate and necessary for reasons unrelated to discrimination. In other cases, it is enough to show that the practice is reasonable in all the circumstances.
Harassment is defined as conduct which is unwelcome to the victim and may reasonably be regarded as offensive, humiliating or intimidating, related to any of the nine grounds.
In June 2012 a new Code of Practice was introduced in relation to harassment and sexual harassment at work entitled Code of Practice (Harassment) Order 2012. It revokes the previous Code of Practice dating from 2002 and sets out the most up to date best practice for employers in relation to taking steps to prevent and eliminate harassment and sexual harassment in the workplace.
Victimisation is prohibited by the Employment Equality Acts and the Equal Status Acts 2000 – 2001. Victimisation occurs where dismissal or other adverse treatment of an employee is a reaction by the employer to the employee in good faith complaining about or opposing unlawful discrimination, bringing proceedings or assisting another person in bringing proceedings.
Equal Pay – The Acts provide for equal pay for like work. Like work is defined as work that is the same, similar or work of equal value. Equal pay claims can be taken on any of the nine discriminatory grounds.
Exceptions and Exclusions
There are several detailed exceptions to the EEAs. The main general exceptions are persons not competent, capable and available to do the job (except where reasonable accommodation applies), positive action (which allows for positive action measures to prevent or compensate for disadvantages linked to any of the eight discriminatory grounds other than gender), and limited exceptions relating to family, gender, age or disability where the protected ground amounts to an occupational qualification, retirement or other benefits.
Under the Act employers may be vicariously liable for acts by their employees. There is a defence if employers can show they took “such steps as are reasonably practicable” to prevent conduct of this sort occurring.
Practitioners’ attention is drawn to the time limits for lodging claims under the Act (section 77).
Right to Look for Information
Where a person believes they may have been subject to discrimination the person may ask for certain information which will assist in deciding whether to refer a claim under the Acts. Employers are not obliged to reply, but an Equality Officer may draw such inferences as appropriate from an employer failing to reply or supplying false, misleading or inadequate information.
The Equality Tribunal is the main forum of first instance for deciding claims under the EEAs. Claims referred to the Equality Tribunal under the Act may be investigated and decided by a Tribunal Equality Officer, or, where both parties agree, may be referred to the Tribunal Mediation Service. Full details, including a database of decided cases, are available at http://www.workplacerelations.ie/en/
The EEAs provides two alternative fora:
- A person who is claiming discrimination, victimisation, discriminatory dismissal or equal pay under the Act can refer their claim to the Equality Tribunal. A claim for redress must be brought within six months of the most recent occurrence of the act of discrimination or victimisation (or within 12 months where reasonable cause can be shown to prevent timely referral). An appeal to the Labour Court from a decision of the Director may be brought within 42 days.
- A claim of discrimination or equal pay on gender grounds only may be referred to the Circuit Court directly.
Decisions of the Tribunal are legally binding, with an appeal to the Labour Court within 42 days from the date of the decision. Mediated agreements are legally binding but are not published.
Redress available in a decision of the Equality Tribunal can include:
- An order for compensation in the form of arrears of remuneration in respect of so much of the period of employment as begins not more than 3 years up to the date of the referral of the complaint
- Compensation for the effect of discrimination or victimisation (maximum limit of 104 weeks’ pay)
- An order for equal remuneration from the date referred of the referral of the complaint
- An order for equal treatment in whatever respect is relevant to the case
- An order that a person or person specified take a specified course of action
- An order for reinstatement or re-engagement with or without an order for compensation
The Circuit Court can award compensation of up to six years arrears of remuneration.
The Equality Authority is a separate and distinct body from the Equality Tribunal, charged with advocacy and public policy functions. It works with all those interested to develop equality policy and best practice. It can also provide advice and legal representation to any person who considers they have experienced unlawful discrimination. Further details are available on the Authority’s website at http://www.equality.ie/en/
The Equal Status Act 2000
Deals with discrimination and related conduct in the provision of goods, services or facilities to the public or to a section of the public generally and is therefore beyond the scope of employment relationships. The scope is very broad, including disposal of interests in premises, access to and the use of places, banking, entertainment, education, transport or travel, accommodation, private clubs, professional services, and public services.
The protected grounds are gender, civil status, family status, sexual orientation, religious belief or lack of belief, age, disability, race including nationality, and membership of the Traveller community.