Equality and Discrimination in the Workplace in Ireland-An Overview
The question of equality and discrimination in the workplace in Ireland is a problematic one for Irish employers.
The consequences of discriminating against an employee either in employment or in the appointment process can be catastrophic for Irish employers.
The main sources of Irish employment equality law are the Employment Equality Acts, 1998-2011 and various EU directives such as the Equal Pay Directive (75/117/EEC), the Equal Treatment Directive (76/207/EEC), and the General Framework Directive (2000/78/EC).
And they can cause great difficulties for Irish business owners (who can also be held vicariously liable for the acts of their employees) who are hard at work in their business in a difficult economic climate and are unsure as to the nuances of employment law in Ireland.
Who could blame them?
These directives, and others, have their purpose the outlawing of discrimination on the grounds of religion or belief, age, disability, sexual orientation, race and also cover harassment in the workplace, victimisation, equal pay for men and women, access to the workplace for persons with a disability, measure to be taken to accommodate disability, and so on.
The Employment Equality Acts apply to employers, providers of vocational training, employment agencies, and advertisers of employment. For the purposes of the acts agency workers are deemed to be employees.
They also contain a less restrictive definition of indirect discrimination than the Equality Act, 1998.
Employment Equality Acts 1998-2011
These acts were brought into law to give effect to the issues referred to above in the various EU directives concerning discrimination and equality in the workplace.
The Employment Equality Act 1998 prohibits discrimination in the workplace on the following grounds
• Marital status
• Family status
• Sexual orientation
• Race/colour/nationality/ethnic or national origins
• Membership of the travelling community.
In this context discrimination is treating one person less favourably than another on one of the nine grounds above.
Note re disability ground: the protection available on this ground is not available where the person is not capable or willing to do the job in question. An employer can however pay a different rate of pay if the amount of work done by the person is less than normally done by a person without a disability.
The employer must also make accommodation (“appropriate measures”) to a person with a disability although the 2004 Act amended this with the proviso unless there is a “disproportionate burden” on the employer. It is worth noting also that the definition of “disability” in the act is wide ranging and has been held to apply to temporary and permanent physical and mental conditions (eg a whiplash injury which lasted for three months).
Employers’ Discrimination and Harassment Policies
It is advisable for employers to have policies in place to deal with many of the grounds for discrimination above, in particular a sexual harassment policy which would cover all grounds.
However having workplace policies on their own is not enough as the Labour Court has held; they must be proactively implemented and training provided for staff to ensure that the employer can point to having taken all reasonable steps to implement the policies in the workplace.
Types of Discrimination
Discrimination can fall into two broad categories:
1. Direct discrimination and
2. Indirect discrimination.
Direct discrimination is outlawed by the Acts in the following areas-
• Discrimination in collective agreements
• Discrimination by employers
• Discrimination by employment agencies
• Discriminatory advertising
• Discrimination in vocational training
• Discrimination by professional and trade associations and trade unions.
Indirect discrimination can occur where the employer applies a condition to everyone in the workplace but it is a condition that fewer people of one gender (or other discriminatory ground) than another is able to comply with.
However it will not be indirect discrimination if the employer can objectively justify (on grounds unrelated to the discriminatory ground) the condition or provision provided that it is in pursuit of a legitimate aim and the means of achieving that aim are appropriate and necessary to achieve a legitimate aim.
However the Employment Equality Acts outlaw
- Direct discrimination
- Indirect discrimination
- Harassment on any of the 9 grounds
- Failure to provide equal pay for equal work on discriminatory grounds.
- Burden of Proof
Harassment is conduct that is unwelcome to the victim and may reasonably regarded as intimidating, humiliating or offensive.
Victimisation is where an employees is penalised for seeding redress, in good faith, under the Acts.
Exceptions and Exemptions
There are some notable exceptions and exemptions to the legislation such as positive action measures.
Burden of Proof
In all cases where facts are established from which it can be presumed that there has been discrimination under any of the grounds set out in the Employment Equality Acts then it is up to the employer to prove otherwise. This can be a significant burden on employers so employers should examine all work practices to ensure that they are not leaving themselves open to a successful claim.
The Employment Equality Acts established a legal right to equal pay for men and women engaged in “like” work by the same employer and the comparator need not be employed in the same place as the claimant. He/she must be employed at the same time or during the previous or succeeding three years. The Acts insert into every contract of employment an equal pay clause and also outlaw indirect discrimination in relation to pay.
However an employer can pay different rates of pay on grounds other than the discriminatory grounds.
Sexual Harassment and Harassment Generally
Sexual harassment had, until the Employment Equality Acts, no well accepted legal definition. However the 1998 act introduced a definition of sexual harassment for the 1st time and the 2004 act amended it to include harassment generally.
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,
being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
Source: Equality Acts 1998 and 2004
The acts provide a defence for an employer if he can show that he took steps which were as reasonable as practicable to prevent the harassment and reverse the effects of it. It is important to note that harassment can be carried out by any number of persons, not just the employer or fellow employees, and the employer may still be held vicariously liable as a result.
The question of whether an employer has taken reasonable steps in the workplace and therefore whether he will be held liable or not will be influenced greatly by whether the employer has a code of practice in place for dealing with harassment.
SI 78/2002 (Employment Equality Act 1998 (Code of Practice)(Harassment) Order 2002, introduced a code of practice on sexual harassment and harassment at work. However this has been revoked in 2012 by SI 208 of 2012 which sets out an updated harassment code of practice order.
Employer Vicariously Liable
Section 15 of the Employment Equality Act, 1998 provides for the employer being vicariously liable for the actions of others, and not just employees.
15.—(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.
(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.
(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—
(a) from doing that act, or
(b) from doing in the course of his or her employment acts of that description.
It is strongly advisable for employers to have workplace policies in place to address equality issues as well as issues surrounding health and safety, bullying, and equal opportunities as the presence or absence of such policies in the workplace can be a significant factor if a dispute appears before the Equality Authority, Employment Appeals Tribunal or the Civil Courts.
Exemptions-where it is lawful to discriminate
There are certain circumstances where an employer can lawfully discriminate.
1. Benefits conferred on an employee’s family or on his/her marriage are not unlawful.
2. In the operation of occupational benefits schemes it is allowed to set ages for admission and to use age criteria when calculating actuarial benefits
3. Employees with disabilities can be paid a particular rate of pay if, by reason of the disability, the amount of work done is less than over a similar period by an employee without a disability
4. The Employment Equality Acts do not oblige an employer to “require an employer to recruit..an individual if the employer is aware, on the basis of criminal conviction of the individual or other reliable information, that the individual engages, or has a propensity to engage, in any form of sexual behaviour which is unlawful”
5. A religious, medical or educational institution established for a religious purpose may discriminate where it is reasonable to do so in order to maintain the religious ethos of the institution or is reasonable necessary to avoid undermining that ethos.
This is provided for in Section 37 of the Employment Equality Act, 1998.
37.—(1) A religious, educational or medical institution which is under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values shall not be taken to discriminate against a person for the purposes of this Part orPart II if—(a) it gives more favourable treatment, on the religion ground, to an employee or a prospective employee over that person where it is reasonable to do so in order to maintain the religious ethos of the institution, or(b) it takes action which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution.(2) Nothing in this Part or Part II applies to discrimination against C in respect of employment in a particular post if the discrimination results from preferring D on the ground that the relevant characteristic of D is or amounts to an occupational qualification for the post in question.(3) Without prejudice to the generality of subsection (2), in relation to discrimination on the age ground, the disability ground or the ground of race, the relevant characteristic of D shall be taken to be an occupational qualification for a post where on grounds of physiology or on grounds of authenticity for the purpose of entertainment, the nature of the post—(a) requires a person having the same relevant characteristic as D, and(b) would be materially different if filled by a person not having that relevant characteristic.(4) Without prejudice to the generality of subsection (2), in relation to discrimination on the religion ground or the ground of race, the relevant characteristic of D shall be taken to be an occupational qualification for a post where it is necessary that the post should be held by D because it is likely to involve the performance of duties outside the State in a place where the laws or customs are such that those duties could not reasonably be performed by a person who does not have that relevant characteristic or, as the case may require, by a person who has a relevant characteristic of C.(5) In relation to the discriminatory grounds specified in paragraphs (a) to (h) of section 28 (1), nothing in this Part or Part II applies to the employment of any person for the purposes of a private household.(6) In relation to discrimination on the age ground or the disability ground, nothing in this Part or Part II applies to employment—(a) in the Defence Forces,(b) in the Garda Síochána, or(c) in the prison service.
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