Equality in employment and in provision of goods and services Employment Equality Act, 1998
This Act prohibits discrimination in employment based on any of nine protected grounds (gender, marital status, family status, sexual orientation, religious belief or lack of belief, age, disability, race including nationality, and membership of the Traveller community) and related conduct.
Significant amendments to the Employment Equality Act, 1998 (the 1998 Act) will occur on the enactment of the Equality Bill, 2004.
The Equality Bill 2004 contains a number of substantive and procedural changes to the 1998 Act partly to implement three recent EC Directives.
The main provisions of the amending legislation are:
• provision for the extension of the scope of the 1998 Act to persons employed in a self-employed 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 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).
Also the Social Welfare (Miscellaneous Provisions) Act 2004 will extensively amend the equality provisions of the Pensions Act, 1990. It prohibits discrimination based on any of the main protected grounds in regard to occupational pensions, with some exceptions, and it makes substantial procedural changes.
Employment Equality Act, 1998
The Act applies to employers, advertisers of employment, employment agencies and providers of vocational training. Broadly speaking, all stages and aspects of employment and employment-related training are covered.
The main exception is occupational pensions, which are specifically excluded from the scope of the Act and fall instead under the Pensions Act 1990. Agency workers are treated as employees.
Requirements of the Act
The Act prohibits:
• 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
It also requires employers to provide “reasonable accommodation” for an employee with a disability, i.e. to do all that is reasonable to provide any special treatment or facilities, which will render the employee capable of doing the job, provided that the cost of so doing is not more than nominal. Case law has interpreted “nominal” as 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 women would discriminate directly on the gender 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 long hair might discriminate indirectly against women 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: Defined as conduct which is unwelcome to the victim and may reasonably be regarded as offensive, humiliating or intimidating.
• Victimisation: arises where a person is penalised solely or mainly for seeking redress under the Act in good faith, or in related circumstances.
Exceptions and exclusions
There are a number of detailed exceptions to the Act, for example those aged under 18 or over 64 are excepted from protection on the age ground.
The main general exceptions are persons not competent, capable and available to do the job (except where reasonable accommodation applies), positive action (persons with a disability, aged over 50 or Travellers), and a limited exception where the protected ground amounts to an occupational qualification.
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).
The Equality Tribunal (formerly Office of the Director of Equality Investigations) is a new quasi-judicial body and is the main forum of first instance for deciding claims under the 1998 Act. It takes over, and extends, the role of Equality Officers previously attached to the Labour Court. Claims referred to the Director 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 on the Tribunal website at www.odei.ie
The Act provides two alternative fora:
• In any case of gender discrimination in employment, the claimant can opt for either the Tribunal or (with unlimited jurisdiction) the Circuit Court
• Discriminatory dismissals may not be referred to the Tribunal: jurisdiction over these claims remains with the Labour Court.
Further details, including text of decided cases, are available on the Labour Court website at www.labourcourt.ie
Decisions issued by the Tribunal are legally binding, with an appeal to the Labour Court. Mediated agreements are legally binding but are not published.
Redress available in Decisions includes:
• An order for equal pay and arrears up to 3 years
• Compensation for the effect of discrimination or victimisation (maximum limit of 104 weeks’ pay)
• An order that a person or person specified take a specified course of action
• Reinstatement or re-engagement (discriminatory dismissal)
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.