Employment Equality Act
A GUIDE TO EMPLOYMENT EQUALITY ACT, 1998
Parts I and II
DISCRIMINATION GENERAL PROVISIONS
The Discriminatory Grounds
The Act describes discrimination as the treatment of one person in a less
favorable way than another person is, has been or would be treated.
Discrimination is outlawed on nine distinct grounds - gender, marital status,
family status, sexual orientation, religious belief, age, disability, race
and membership of the traveller community (section 6).
Scope
The Act covers employees in both the public and private sectors as well as
applicants for employment and training. It outlaws discrimination on any of
the discriminatory grounds in all areas relevant to employment as follows:
* Discrimination by employers: Discrimination by employers with regard to
access to employment, conditions of employment, training and promotion
(section 8);
* Discrimination in collective agreements: Discrimination in collective
agreements with regard to access to and conditions of employment and equal
pay for like work (section 9);
* Discriminatory advertising: Discriminatory advertising or advertising
that might reasonably be understood as indicating an intention to discriminate
(section 10);
* Discrimination by employment agencies: Discrimination by employment
agencies against any person seeking employment or other services of the
agency (e.g. career guidance or training) (section 11);
* Discrimination in vocational training: Discrimination in the provision
of vocational training or any instruction needed to carry on an occupational
activity (section 12);
* Discrimination by certain bodies: Discrimination by trade unions,
professional and trade associations as regards membership and other benefits
(section 13);
The Act may not be construed as requiring the recruitment, retention or
promotion of anyone not available or willing to do, or fully capable of doing,
the particular job. In the case of a person with a disability, fully capable
of doing the job may include doing it with the assistance of special treatment
or facilities (section 16(1) - (3)).
NOTE: This explanatory leaflet sets out, in the main, the rights and
obligations of employers and employees under the Act. In general, these
rights and obligations apply with similar force to employment agencies and
agency workers, to vocational training bodies and trainees and, in many
cases, to trades unions, professional associations and their members.
PART III
SPECIFIC PROVISIONS AS TO EQUALITY BETWEEN WOMEN AND MEN
This Part of the Act deals in detail with the requirements of the EU Equal
Pay and Equal Treatment Directives which apply in relation to the gender
discrimination ground. The Anti-Discrimination (Pay) Act, 1974 and the
Employment Equality Act, 1977 are repealed and replaced in the Act (section 5).
Equal pay for work of equal value
In line with the existing provision in the Anti-Discrimination (Pay) Act,
1974, equal pay for work of equal value is made a term of every employment
contract. Like work may be shown by making a comparison between the work
of the claimant (who has less pay) and another employee (who has more pay)
of the same or an associated employer. The comparator must be employed at
the same time as the claimant or during the previous or following three
years. The provision has been broadened by comparison with the 1974 Act by
the removal of the requirement that the comparator be employed in the same
place as the claimant. The Act codifies for the first time in Irish law
indirect discrimination so far as remuneration is concerned. An employer
may show by way of defence that there are grounds, other that the gender
ground, for the different rates of pay (section 7 and 19).
SEXUAL HARASSMENT
The Act defines sexual harassment for the first time in Irish law. It outlaws
sexual harassment in the workplace and in the course of employment whether
by an employer, another employee or by clients, customers or business contacts
of an employer. It also provides that different treatment of a person in the
workplace or in the course of employment, because of rejection or acceptance
of sexual harassment, whether in the workplace, in the course of employment
or outside the workplace, constitutes discrimination on the gender ground.
Sexual harassment is defined to include all unwelcome and sexually, or
otherwise on the gender ground, offensive, humiliating or intimidating
actions involving acts of physical intimacy, spoken words, gestures, or
the production, display or circulation of written material or pictures, or
requests for sexual favours.
An obligation is placed on employers to take all responsible steps to ensure
sexual harassment free environment and to prevent a person being treated
differently because of rejection or acceptance of sexual harassment which
takes place in the workplace, in the course of employment or outside the
workplace (section 23).
Positive Action - Gender
The Act allows an employer to put in place positive action measures to
promote equal opportunities, particularly those geared to remove existing
inequalities which affect women's opportunities in access to employment,
vocational training and promotion (section 24). This provision is a
significant advance on the position in the Employment Equality Act, 1977
which confined positive action measures to training.
DEFENCE FORCES
The Act extends protection to the Defence Forces for the first time in
Irish law. While there are separate redress procedures for the Defence
Forces (section 104), a member of the Defence Forces may refer a claim
for redress to which the Equal Pay Directive or the Equal Treatment
Directive is relevant to the Director of Equality Investigations (section 77),
provided that the claim has been referred in the first instance under the
procedure set out in the internal Defence Forces mechanisms and either a
period of 12 months has elapsed since the referral or the claimant is not
satisfied with the recommendation given.
EXCLUSIONS ON GENDER GROUND
There are exclusions from the scope of the Act in the following circumstances:
* Where sex amounts to an occupational qualification (e.g. an artist's model,
for purposes of authenticity in entertainment or jobs outside the State
where laws or customs preclude women, etc.);
* Special beneficial treatment of women connected with pregnancy and
maternity or adoption;
* The performance of services of a personal nature (e.g. the care of an
elderly or incapacitated person in that person's home);
* Limited exclusions for the Garda Siochana and prison service in the
interests of privacy and decency, in violent situations, such as riots,
as regards height requirement and to allow for the maintenance of an
appropriate gender balance for the purposes of the both services.
PART IV
Specific provisions as to equality between other categories of persons
Part IV deals in detail with the new discriminatory grounds. An entitled
to equal pay for work of equal value is established from the date of coming
into force of the legislation. In addition, an equality clause is inserted
into every contract of employment and discrimination, both direct and
indirect, is outlawed (sections 29 - 31).
POSITIVE ACTION: NON-GENDERThe Act allows positive action specifically geared towards the integration
into employment of:
(a) People over the age of 50,
(b) People with disabilities, and
(c) Members of the traveller community.
There is also provision to give positive action status to certain State
training and work experience schemes (section 33).
HARASSMENT IN THE WORKPLACE
The Act outlaws harassment, related to any of the new discriminatory grounds,
in the workplace and in the course of employment whether by an employer,
another employee or by clients, customers or business contacts of an employer.
It also provides that different treatment of a person in the workplace or in
the course of employment, because of rejection or acceptance of harassment,
whether in the workplace, in the course of employment or outside the
workplace, constitutes discrimination. Harassment is defined as any act or
conduct which is unwelcome and offensive, humiliating or intimidating on a
discriminatory ground including spoken words, gestures, or the production,
display or circulation of written material or pictures.
An obligation is placed on employers to take all reasonable steps to ensure
a harassment free environment and to prevent a person being treated
differently because of acceptance or rejection of harassment whether in
the workplace, in the course of employment or outside the workplace
(section 32).
EXEMPTIONS GENERALLY
The following are the main exclusions which apply (section 36 and 37):
* Requirements as to residency, citizenship and proficiency in the Irish
language for public service employment;
* Requirements as to educational qualifications which are generally accepted
for particular jobs;
* Posts where the presence or absence of a particular characteristic
related to a discriminatory ground is an occupational qualification;
* Discrimination by religious, educational and medical institutions run
by religious bodies, or by bodies whose objectives include the provision
of services in an environment which promotes certain religious values,
where it gives more favorable treatment on the religion ground in order to
maintain the religious ethos of the institution or it takes action to prevent
an employee or prospective employee from undermining the religious ethos of
the institution;
* Employment for the purposes of a private household.
EXEMPTIONS ON THE AGE AND FAMILY GROUNDS
Discrimination on the age ground as between people in the age range 18
to 65 is outlawed or 15 to 65 in the case of vocational training.
Existing retirement ages will continue to apply and there is provision
to phase out age-related pay over a three year period. In general,
differences based on relative seniority will remain legal, as does
different treatment based on sound actuarial evidence. It will not be
unlawful to set maximum recruitment age limits which take into account
of the cost or period of time involved in training for the job and the
need for a reasonable period of employment in the job prior to retirement.
Certain benefits made available by an employer to family members or based
on family events are excluded from the scope of the Act (section 34).
Exemptions on the disability ground
Disability is broadly defined to include total or partial absence of
bodily or mental facilities; chronic disease, whether manifest or not;
and learning and personality conditions (section 2). An employer must
do all that is reasonable to accommodate the needs of a person with a
disability, unless the employer can show that there is a cost to him/her
other than a nominal cost (section 16). Different treatment based on
sound actuarial evidence remains lawful (section 34(3)).
PARTS V AND VI
Equality Authority
* Equality Authority: The Equality Authority replaces the Employment
Equality Agency. The Authority is charged with a statutory duty to
work towards the elimination of discrimination and the promotion of
Equality of opportunity in employment on the nine discriminatory grounds
covered by the Act (sections 38 and 39),
* Codes of Practice: New powers to develop codes of practice are assigned
to the Authority and will be given statutory effect by the Minister. The
new codes of practice will be admissible in evidence and taken into account
in determining any relevant case. The new arrangements will give a sound
legal basis to codes of practice for the first time in equality law
(section 56)
* Equality Reviews and Action Plans: These new powers for the Authority
will ensure the developments of a pro-active equality conscious approach
to equal opportunities in the workplace (section 69-72)
PART V11
Remedies and Enforcement
A new statutory office of Director of Equality Investigations is to be
established in the Department of Justice, Equality and Law Reform. The
Director, together with the equality officers and quality mediation
officers assigned to his/her staff will operate as the main locus for
redress under the Act. The investigatory powers of the Director (and
the labour Court) extend to entering premises in pursuit of information;
interviewing persons with relevant information and the securing of
documentary evidence (sections 75, and 94-97)
Right to Information
A Person who considers that he/she may have been the subject of
Discrimination will have a right to approach the person (for example
An employer) who may have discriminated, for information. In response,
the employer is obliged to give sufficient information (other
Than confidential information) so as to allow the person seeking the
information to formulate and present a case in an effective manner.
If an employer fails to give the information sought, the redress
authorities may draw inferences as seem appropriate. There are specific
arrangements covering the provision of information, in the case of the
Civil Service and Local Appointments Commissions, the Gardai and the
Defence Forces (sections 76 and 81).
REDRESS (Sections 77-80 and 82-84)
Cases Generally
All cases, other than those involving dismissal and gender discrimination,
must be referred in the first instance to the Director of Equality
Investigations. The Director will investigate each case (except those
resolved at mediation) submitted to him/her and will issue a decision.
The decision is binding and enforceable through the Circuit Court. All
decisions may be appealed to the labour Court within 42 days of issue.
Where the Director finds that there has been discrimination, he/she may
order:
in an equal pay case: equal pay and arrears in respect of a period not
exceeding three years preceding the reference of the case
in other cases: equal treatment and compensation of up to a maximum of
two years pay (or £10,000 where the person was not an employee).
In addition, the Director may order any person to take a specified course
of action to avoid future discrimination
Mediation
The Director, or an equality officer assigned to the case, may refer the
case for mediation, if it appears possible to resolve it in that way. A
case will not be sent for mediation if either party to the claim objects
to the case being dealt with in that way. If a claim is sent for mediation
and is not resolved, the complainant may re-lodge the claim with the
Director (section 78)
Enforcement by the Circuit Court
A decision of the Director or a mediation settlement which has not been
complied with may be enforced through the Circuit Court after the period
for the appeal has elapsed (section 91-93).
Dismissal Cases
A dismissal case may be referred in the first instance to the labour Court
for a determination. In that event, the procedure is analogous to that
above, including mediation and enforcement procedures. In addition to
financial compensation in a dismissal case, the Labour Court may order
re-instatement or re-engagement. There is a right of appeal to the
Circuit Court within 42 days of the issue of the Labour Court's
determination. The labour Court may, in a reference to it, either in
the first instance, or on appeal, refer a case to the Director for
investigation and a report.
Gender Cases
As an alternative to the redress procedures described above, a person
who considers that he/she has been discriminated against on the gender
ground may apply direct to the Circuit Court for redress.
In proceedings of this nature, the Circuit Court may require the Director
to have a report prepared for the court by an equality officer. In such
a case, the normal ceiling on awards of the Circuit Court will not apply
and it may order compensation as appropriate in the case. There will be
a right of appeal to the High Court in accordance with the Rules of Court.
This option is provided in order to ensure compliance with the requirements
of a recent European Court of Justice judgement (Marshall No 2 case).
Collective Agreements
A Provision of a collective agreement, which is discriminatory, is
rendered null and void under the legislation. The Director, on Application,
is empowered to identify the provisions of the agreement, which are null
and void and offer guidance as to alternative provisions that would be
lawful. Alternatively, these matters may be resolved by mediation (sections
86 and 87).
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