Employment Claims Equality and Discrimination

Two Discrimination Cases-Different Responses from Employer, Similar Outcome for Employee

employment claims
Cross examination notes

I have been involved in two discrimination cases which have been finalised in the last few weeks. The outcomes of the cases, coincidentally, are similar and have culminated in compensation for both employees.

The first one involved a case of sexual harassment in the workplace and resulted in a compensation payment, tax free, of €30,000. You can read more about that case, including the full decision of the WRC, here.

The other case, one you will not read about because it has been settled before ever going to the Workplace Relations Commission, has been settled for a similar sum of money. It was a discrimination case, not sexual harassment, as defined by the Employment Equality Act 1998.

The amount of work involved for me in both cases differed wildly, however.

The sexual harassment case involved a great deal of time and work and involved three days at the WRC: the first day was for mediation, the second day for the hearing, and the third day was to complete the hearing. Evidence had to be taken from two witnesses, cross examination of at least three witnesses, and booklets and submissions had to be prepared and submitted.

The second case, by contrast, only involved the submission of the complaint to the Workplace Relations Commission; shortly after this the solicitor for the employer made contact and the case was settled.

Responding to claims-professional or amateur?

I categorise responding to employment claims in two ways: professional or amateur.

When you bring any legal case or employment claim it is impossible to know how the other side will react.

One response is a pragmatic approach and a realistic attempt to settle the case by the party who is in the weaker position and is at risk if the case goes to a full hearing.

The risk, if you are the employer, involves an award of compensation against you, legal costs of representation, time taken to prepare for the case, and reputational damage.

The other response is to substitute cool analysis of the facts and the law with an emotional response to ‘fight the case’ to the end. This does not make much sense, quite frankly, but it is an easy reaction to embrace.

And if you have the money and are fully aware of the risks and costs, knock yourself out, if you want to. But the ‘professional’ approach, using logic and evidence rather than emotions, might serve you better in the long run.

Now, the professional response may be to fight the case in all circumstances, in order to discourage claims against you generally or copycat claims. But you should make this decision rationally after assessing all the relevant factors rather than responding emotionally.

The employee, too, must weigh up the chance of success versus the associated costs of representation, the probability of winning, and the potential remedies that can be gained. (This blog post, How to Make a Decision to Bring an Employment Claim to WRC or Not, might be worth a read.)

Equality and Discrimination

Discriminatory Dismissal Leads to €46,000 Compensation Award

workplace discrimination ireland

Could you afford an employment law award of €46,000 against you? Let’s face it you would be hard pressed to just take it on the chin and chalk it down to experience.

But that is what you could be facing if you are at the losing end of a WRC decision as occurred recently in a case involving a claim founded on discrimination.

An office manager in a software firm was awarded €46,000 in compensation by the WRC for her discriminatory dismissal.

The employee who brought the claim had an incurable degenerative disease (fibromyalgia) and was dismissed whilst on sick leave. This disease caused her muscle pain, fatigue, sleep and memory problems.

The €46,000 award comprised 2 parts:

  1. €23,000 in respect of the actual discriminatory dismissal and
  2. €23,000 for the failure of the employer to make reasonable accommodation in allowing the employee to continue in her job.

The award took into account the way the employer dismissed the employee: by telephone.


The background to the case is the employee was employed since 2015 and went on certified sick leave in May 2017; in November 2017 she was dismissed by conference call. Whilst she was out sick her occupational therapist made a number of recommendations as to how she could be accommodated in the workplace including:

  • Working from home
  • More rest breaks
  • Flexible working rosters
  • A temporary reduction in working hours.

The employee was then involved in a car accident in August 2017 and she was not expected to return to work until January 2018 as she required a spinal implant procedure.

However, in November 2017 she was told by phone that she was being given one month’s notice of dismissal but would be paid in lieu of notice and her termination was, therefore, with immediate effect. The employer mentioned incapacity and “the problems her absenteeism were causing.”

In her evidence at the WRC the employee told that she was not given any warning of her potential termination nor was she given the chance to appeal the decision. The employee was on certified sick leave at the time and was taken aback at the decision which had a significant impact on her from a personal and financial perspective.

She also spoke of the pride she took in being able to work despite her difficulties and she was anxious to show that sufferers from such diseases/disabilities can do things and take part in the workplace.

The employer denied it failed to offer reasonable accommodation and stated it could not hold her position open indefinitely.

Warning for employers

This case is further evidence, if any were needed, that employers need to be very careful about how they deal with their employees, especially when it comes to terminating employment on the grounds of incapacity.

Employers are perfectly entitled to terminate an employee’s job on the grounds of incapacity but only after looking carefully at the options, obtaining updated medical evidence, warning the employee his/her job is at risk of termination, and giving them the opportunity to appeal the decision.

Otherwise, the employer runs the risk of a discrimination-based claim either on the grounds of discriminatory dismissal or straightforward discrimination or failure to make reasonable accommodation for the employee’s continued employment.

Employment Claims

The Statutory Penalties for Breaches of Employment Law in Ireland

Are you aware of the range of penalties that are set down in legislation in Ireland for breaches of employment law?

There is a large number of statutes/acts dealing with all aspects of employment law in Ireland. These acts cover overnighting from unfair dismissal to working time to payment of wages to health and safety to annual leave and rest breaks, etc.

In addition to these penalties and employee can always go to the Civil Courts for common law claims such as breach of contract, personal injury, negligence, health and safety breaches, breach of constitutional rights, etc. That is another day’s work.

This piece is going to look at the penalties and redress for employees as set out in statute, that is, the various acts on the statute book.

Regardless of whether you are an employer or employee, you should find it useful.

Unfair Dismissal/Constructive Dismissal

The redress is set out in section 7, Unfair Dismissals Act, 1977, and in summary comprises

  1. Reinstatement or
  2. Reengagement or
  3. Compensation of up to 104 weeks’ remuneration in respect of the financial loss due to the dismissal.

If there is no financial loss an employee can be awarded 4 weeks’ remuneration.

Working Time/Rest Breaks

The penalties are set out in section 27, Organisation of Working Time Act, 1997:

  1. Require the employer to comply with the relevant provision of the act
  2. Compensation of up to 2 years’ remuneration.

Written Terms of Employment

Failure to provide a written statement of terms and conditions of employment within 2 months of starting can be punished as set out in section 7 of the Terms of Employment (Information) Act, 1994.

The WRC adjudicator can order the employer to give the statement to the employee and can award up to 4 weeks’ remuneration by way of compensation.

Protected Disclosures/Whistleblowing

The Protected Disclosures Act, 2014 provides severe penalties in section 11 for dismissal of an employee for making a protected disclosure:

  • 260 weeks (5 years) remuneration

The employee can also bring a tort action for having suffered detriment as a result of making a protected disclosure, as set out in section 13, Protected Disclosures Act, 2014, and can seek an order from the Circuit Court as set out in section 11 of the act preventing dismissal prior to the determination of a claim for unfair dismissal.

Payment of Wages

Section 6, Payment of Wages act, 1991 sets out the penalties for breaches of the act. These include

  • Compensation of the net amount of the wages which would have been paid the previous week prior to the deduction/non payment or
  • Twice the net amount of wages that would have been paid to the employee in the week immediately preceding the deduction or payment

Minimum Notice

Compensation can be awarded pursuant to Minimum Notice and Terms of Employment Act, 1973: “may award to the employee compensation for any loss sustained by him by reason of the default of the employer.”

Agency Workers

Penalties for breach of Protection of Employees (Temporary Agency Work) Act 2012 are set out in schedule 2 of the Act. It states that the WRC can order rectification of whatever breach of the act is proved, including reengagement or reinstatement, and/or order compensation of up to 2 years’ remuneration be paid to the employee.

Adoptive Leave, Carer’s Leave, Parental Leave

Breach of the adoptive leave provisions of the Adoptive Leave Act, 1995 can see compensation of up to 20 weeks’ remuneration awarded to the employee, or the WRC making whatever directive order it feels is expedient in the circumstances.

Carer’s leave: a WRC adjudicator can award a grant of carer ’ s leave to the employee of such length to be taken at such time or times and in such manner as the adjudication officer may specify, and/or up to 26 weeks’ compensation.(Carer’s Leave Act, 2001).

Parental Leave and Force Majeure Leave:  an adjudicator can award (a) the grant to the employee of parental leave of such length to be taken at such time or times and in such manner as may be so specified, and/or compensation of up to 20 weeks’ remuneration.(Parental Leave Act, 1998).

Maternity leave: breaches of the employees entitlement can lead to an award of compensation of up to 20 weeks’ remuneration and or grant of the leave to which the employee is entitled.(Maternity Protection act, 1994).

Transfer of Undertakings

Complaints about breaches of S.I. No. 131/2003 – European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 can lead to compensation being awarded depending on which regulation has been breached.

The compensation can range from a maximum of 4 weeks’ remuneration to 2 years’ remuneration.

Part Time Workers

The Protection of Employees (Part-Time Work) Act, 2001 is the relevant act for part time workers.

It provides that the WRC adjudicator can require the employer to comply with the relevant provision and/or award 2 years’ remuneration to the employee.

Fixed Term Workers

The Protection of Employees (Fixed-Term Work) Act 2003 is the relevant act for fixed term workers. Section 14 of the revised act provides the WRC adjudicator can:

(b) require the employer to comply with the relevant provision,

(c) require the employer to reinstate or reengage the employee (including on a contract of indefinite duration), or

(d) require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 2 years ’ remuneration in respect of the employee ’ s employment.


The Redundancy Payments Act, 1967, section 7 sets out the employee’s right to a redundancy payment. Section 39 allows you to appeal the amount you have been awarded.

The Protection of Employment Act, 1977 also obliges the employer to inform and consult with employees in a collective redundancy situation. Section 11 of the Act sets out the penalties for the employer’s failure to consult and notify: a fine of up to €5,000 on summary conviction in respect of a breach of section 9 or section 10.

Discrimination and Equality Based Claims

Breaches of the Employment Equality Act, 1998 can see redress being ordered pursuant to section 82 of the Employment Equality Act, 1998:

Various orders including for re-engagement, re-instatement or compensation of up to 2 years’ remuneration or €40,000, whichever is the greater.

€13,000 can be awarded in contravention of the law in relation to a discriminatory claim in relation to access to employment.

Equal Status Acts Breaches

Equal status breaches can be penalised in accordance with the Equal Status Act, 2000. This protects you in relation to discrimination in respect of the supply of goods or services.

The maximum amount that can be awarded is the amount of the District Court limit in civil cases in contract (€15,000).

Minimum Wages

The National Minimum Wage Act, 2000 protects employees in relation to minimum wage rates. Complaints can be dealt with under section 26 of the act. The adjudication officer can order that the shortfall be rectified and paid to the employee, and the employee can also be awarded reasonable costs in respect of bringing the claim.

The employer can also be prosecuted in the District Court for breaches of this minimum wage act.

Health and Safety

Breaches of the Safety Health and Welfare Act 2005 can see an adjudication officer awarding compensation of such amount as he feels equitable in the circumstances for breach of section 27 of the act, which protects employees from penalisation or dismissal for making a complaint in respect of health and safety in the workplace.


The list above is not definitive, but certainly covers the most common types of employment law claim that will be brought to the WRC (Workplace Relations Commission), or Labour Court. A WRC adjudicator has a wide range of discretion for breaches of any particular act, so the various acts referred to above set out the maximum awards possible.

Employment Claims Equality and Discrimination

Discrimination and Equality Based Claims in the Workplace Relations Commission (WRC)

equality in workplac

There are 9 grounds of discrimination recognised in Irish law:

  • Gender
  • Civil status
  • Family status
  • Sexual orientation
  • Religion
  • Age
  • Disability
  • Race (includes race, colour, nationality or ethnic or national origins)
  • Membership of the travelling community.

If your claim to the WRC cannot be based on one of these grounds you may have been treated unfairly or harshly or rudely or appallingly badly, but you have not been discriminated against.

If you have a discrimination based claim it may be one of the following:

  1. You have been discriminated against by an employer, potential employer, employment agency, or other body
  2. You have not received equal pay because of one or more of the 9 grounds (if your equal pay complaint cannot be based on a discriminatory ground you have no claim for discrimination as there is nothing unlawful about paying a different rate of pay for the same work)
  3. The Pensions Act, 1980 prohibits discrimination in respect of occupational pensions-you may not have been allowed to join an occupational pension of have been treated less favourably
  4. An employment agreement contains a provision which is discriminatory, contrary to sections 8 and 9 of the Employment Equality Act, 1998
  5. The Equal Status Acts 2000-2008 allows a discriminatory claim to be brought against a person or company who supplies goods or services or facilities.

Claims from 1 to 4 above are commenced by filling out a form, EE2, which you send to the person who you claim has discriminated against you. They reply on form EE3. If they don’t reply inferences can be drawn from this.

Once you have received their response you can then decide whether to bring a claim to the Workplace Relations Commission (WRC) under the Employment Equality acts.

Claims Under Equal Status Acts

Not a lot of people know this..

Most people think the WRC (Workplace Relations Commission) only deals with employment and/or industrial relations issues.

That’s not the case, at all.

The Workplace Relations Commission also deals with complaints about discrimination in the provision of goods and services, accommodation, and access to education under the Equal Status Acts 2000-2015.

Discrimination in the context of employment has 9 grounds of discrimination. But under equality legislation there is now 10 grounds of discrimination, thanks to the Equality (Miscellaneous Provisions) Act 2015, which created a 10th ground in respect of housing assistance.

The main thrust of the Equal Status acts is to prevent discrimination in relation to the provision of all services, including entertainment, banking, transport, travel, insurance, and more.

The 10 grounds of discrimination covered by the Equal Status acts are

  • Gender
  • Civil status
  • Race/colour/nationality
  • Family status
  • Sexual orientation
  • Age
  • Membership of the travelling community
  • Disability
  • Housing assistance in relation to the provision of residential accommodation

How to Make a Complaint to the WRC

The first thing you must do is to complete and send a form-ES1-which is a notification in writing to the person/company who you are complaining about. This form must specify the act of alleged discrimination and must be received by the other party within 2 months’ of the incident.

The other party does not have to respond, but if he chooses to do so may use form ES2.

If the other party ignores you and does not respond within 1 month, or you are not happy with the reply, you can then refer the complaint to the WRC for adjudication. This referral must be made within 6 months of the alleged discrimination.

In due course an adjudication hearing will be heard and both parties can put their side of the story forward and the adjudicator will make a decision.

Equal Status Acts in Ireland

The relevant legislation is:

  • The Equal Status Act, 2000
  • The Equality Act, 2004
  • The Equal Status (Amendment) Act, 2012
  • The Equality (Miscellaneous Provisions) Act, 2015.

The Law Reform Commission has published a consolidated version of the Equal Status Acts which you can access here.

Equality and Discrimination

Equality and Discrimination in the Workplace in Ireland-An Overview

equality in workplac

Have you been discriminated against in the workplace?

Do you know what the 9 grounds of discrimination are?

Equality and discrimination based claims to the Workplace Relations Commission (WRC) are common and costly  problems for Irish employers.

And it is a heartbreaking situation  for the employee who has been told she must retire because she is coming to a certain age, or the employee whose religion or country of origin or skin colour means they are treated differently to other workers.

And what about harassment, or sexual harassment?

Let’s take a look and see what remedies and reliefs are open to you if you feel you have been discriminated against.

And if you are an employer, let’s take a look at how to protect yourself against costly and time consuming claims.

The consequences of discriminating against an employee either in employment or in the appointment process can be catastrophic for Irish employers, and soul destroying for the employee.

Background to Equality and Discrimination Law in the Workplace

The main sources of Irish employment equality law are

  • the constitution
  • 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).

These directives, and others, have as 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 relation to:

  1. access to employment
  2. conditions of employment
  3. training or experience for or in relation to employment
  4. promotion or regrading, or
  5. classification of posts.

The Employment Equality Act 1998 prohibits discrimination in the workplace on the following grounds

• Gender (man or woman)

• Civil status (single, married, separated, divorced, etc.)

• Family status

• Sexual orientation (heterosexual, homosexual or bisexual orientation)

• Religion (includes having no religious belief)

• Age

• Disability

• Race/colour/nationality/ethnic or national origins

• Membership of the traveller community.

In this context discrimination is treating one person less favourably than another, in a comparable situation, on one of the nine grounds above.

Section 2 of the Employment Equality Act, 1998 defines the various discriminatory grounds eg

family status” means responsibility—
(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or
(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,
and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;

sexual orientation” means heterosexual, homosexual or bisexual orientation;

Transsexuals are not specifically covered by the legislation but it is almost certain that they will be covered.


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 thanks to the Equality Act, 2004 Act  unless there is a “disproportionate burden” on the employer (Section 9 Equality Act, 2004).

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, a lung infection, stress).

“Disability” is defined in the section 2 Employment Equality Act, 1998  as:

disability” means—
(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person’s body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;


The definition of the race ground is set out in section 6(2)(h):

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

Section 8 of the 1998 Act also provides:

8.—(1) In relation to—
(a) access to employment,
(b) conditions of employment,
(c) training or experience for or in relation to employment,
(d) promotion or re-grading, or
(e) classification of posts,
an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

The Equality Act, 2004 did away with the age limits of 18 and 65 which were in the 1998 Act; now there are no upper or lower age thresholds.

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

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

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.

Indirect discrimination on the gender ground was defined in section 22 of Employment Equality Act, 1998, which was then amended by section 13 of the Equality Act, 2004 as follows:

(a) Indirect discrimination occurs where an apparently neutral provision puts persons of a particular gender (being As or Bs) at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.
 (b) Where paragraph (a) applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to (including A or B), unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.


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.

However a recent decision in APPAREL SUPPLY SOLUTIONS LIMITED (FORMERLY TEAMKIT LIMITED)  AND  SUNDRA MULLEN shows that it is not enough “to reach conclusions of fact based upon mere supposition or speculation.”

In order to succeed in her contention that these acts amounted to acts of discrimination, the Complainant must produce some significant evidence of discrimination and not mere supposition in order to allow the Court to draw an inference that persons of a different race or nationality were or would have been treated more favourably

Section 38 of the Equality Act, 2004 sets out the burden of proof in discrimination cases:

85A.—(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘discrimination’ includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

(5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 ( S.I. No. 337 of 2001 ), in so far as they relate to proceedings under this Act, are revoked.”.

Requirement to work full time and job sharing

The Labour Court has found that a provision requiring an employee to go to working full time from part time working could be indirectly discriminatory on the grounds of gender. The employer would need to show

  1. this need is a real need of the employer’s business
  2. it is an appropriate measure to achieve a legitimate objective
  3. the provision is necessary to achieve the objective.

Equal Pay

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.

Section 19 and 20 of the Employment Equality Act, 1998 as amended by the 2004 Act insert an equal pay clause, on gender grounds, into every contract and expressly provide for indirect discrimination in equal pay. Section 29 provides the same entitlement to equal pay for members of protected groups, on non-gender reasons.

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.

Section 7 of the Act defines “like work”.


(a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work,

(b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or

(c) the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

The comparison of pay must be between an employee who is a member of one of the protected groups and an employee who is not.

However an employer can pay different rates of pay to different employees on grounds other than the discriminatory grounds.(Section 29(5) Employment Equality Act, 1998)

Red circling

Where an employee’s rate of pay is above the normal rate for the job due to personal factors related to the individual only he can be “red circled” and not used as a comparator for an equal pay claim.

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 section 8 of the 2004 act amended it to include harassment generally.

“Harassment and sexual harassment. 14A.—(1) For the purposes of this Act, where—

(a) an employee (in this section referred to as ‘the victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is—

(i) employed at that place or by the same employer,

(ii) the victim’s employer, or

(iii) a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,


(b) without prejudice to the generality of paragraph (a)—

(i) such harassment has occurred, and

(ii) either—

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II) it could reasonably be anticipated that he or she would be so treated,

the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.

(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable—

(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and

(b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects.

(3) A person’s rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person.

(4) The reference in subsection (1)(a)(iii) to a client, customer or other business contact of the victim’s employer includes a reference to any other person with whom the employer might reasonably expect the victim to come into contact in the workplace or otherwise in the course of his or her employment.

(5) In this section ‘employee’ includes an individual who is—

(a) seeking or using any service provided by an employment agency, and

(b) participating in any course or facility referred to in paragraphs (a) to (c) of section 12(1),

and accordingly any reference to the individual’s employer includes a reference to the employment agency providing the service or, as the case may be, the person offering or providing the course or facility.

(6) Where subsection (5) applies in relation to a victim, subsection (1) shall have effect as if for ‘in relation to the victim’s conditions of employment’ there were substituted ‘contrary to section 11’ or, as the case may be, section 12.

(7) (a) In this section—

(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.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”.

Source: Equality Acts 1998 and 2004

There is also a Code of Practice as to how employers should deal with harassment and sexual harassment in the workplace: S.I. No. 78/2002 – Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002


A victim of sexual harassment can bring legal action against the harasser or employer or both as the common law principle of vicarious liability is now on a statutory footing in section 15 of the Employment Equality Act, 1998.

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.


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.

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 Workplace Relations Commission (WRC) or the Civil Courts.

(You may also be interested in ‘Sexual harassment in the workplace-a quick and easy guide‘).

Positive Action

Sections 15 and 22 of the Equality Act, 2004 provide for positive action:

15.—The following subsection is substituted for subsection (1) of section 24 (positive action on equal opportunities) of the Act of 1998:
“(1) This Act is without prejudice to any measures—
(a) maintained or adopted with a view to ensuring full equality in practice between men and women in their employments, and
(b) providing for specific advantages so as—
(i) to make it easier for an under-represented sex to pursue a vocational activity, or
(ii) to prevent or compensate for disadvantages in professional careers.”.
22.—The following section is substituted for section 33 (positive action permitted) of the Act of 1998:
“33.—Nothing in this Part or Part II shall render unlawful measures maintained or adopted with a view to ensuring full equality in practice between employees, being measures—
(a) to prevent or compensate for disadvantages linked to any of the discriminatory grounds (other than the gender ground),
(b) to protect the health or safety at work of persons with a disability, or
(c) to create or maintain facilities for safeguarding or promoting the integration of such persons into the working environment.”.

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 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.

The relevant sections are 16(5), 34(3), 16(3), 36, 37(1).

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.

Section 25 of the Employment Equality Act 2004 made significant changes to section 37 of the 1998 Act as follows:

25.—Section 37 (exclusion of discrimination on particular grounds in certain occupations) of the Act of 1998 is amended by the substitution of the following subsections for subsections (2) to (6):
“(2) For the purposes of this Part a difference of treatment which is based on a characteristic related to any of the discriminatory grounds (except the gender ground) shall not constitute discrimination where, by reason of the particular occupational activities concerned or of the context in which they are carried out—
(a) the characteristic constitutes a genuine and determining occupational requirement, and
(b) the objective is legitimate and the requirement proportionate.
(3) It is an occupational requirement for employment in the Garda Síochána, prison service or any emergency service that persons employed therein are fully competent and available to undertake, and fully capable of undertaking, the range of functions that they may be called upon to perform so that the operational capacity of the Garda Síochána or the service concerned may be preserved.
(4) If—
(a) the Minister is of opinion that the age profile of members of the Garda Síochána, prison service or any emergency service is such that its operational capacity is or is likely to be adversely affected, and
(b) he or she by order so declares,
the age ground shall not apply in relation to such competitions for recruitment to that service as are specified in the order.
(5) In relation to discrimination on the age ground or disability ground, nothing in this Part or Part II applies in relation to employment in the Defence Forces.
(6) In subsection (4)(a) the reference to the Minister, in relation to an emergency service, is a reference to the Minister of the Government with official functions in regard to that service.”.

Enforcement and remedies

All cases used to commence before the Equality Tribunal but that changed in October, 2015-all cases now start with the WRC (Workplace Relations Commission). The decision may be appealed to the Labour Court within 42 days.

In gender discrimination cases the claimant may bypass the WRC and go straight to the Circuit Court and there is no ceiling on the amount that may be awarded to the successful claimant.

In cases which are not referred to the Circuit Court the following can be awarded:

  • in an equal pay case the ordering of equal pay and arrears up to equal pay for the preceding 3 years and
  • in other cases the awarding of equal treatment or ending of the discrimination and compensation of up to 2 years’ pay, or where the person was not in receipt of remuneration €12,700.

Injuries to feelings

Unlike in an unfair dismissal case where compensation is restricted to financial loss, in these discrimination cases awards for injury to feelings are compensatory, not just loss of wages or out of pocket expenses.

Awards tend to be high enough to ensure respect for the policy and objectives of the underlying anti-discrimination legislation.

Lessons for employers

Equality and anti discrimination legislation has had a huge impact on the workplace. Employers need to be very careful now about:

  • recruitment and promotion
  • terms, conditions and benefits
  • harassment policies
  • discrimination policies
  • positive action.

Employers also need to realize that it is not enough to merely have policies drawn up; they must ensure that they are implemented in the workplace to actively prevent discrimination and harassment.

They also need to be aware of the high awards that can be granted by the WRC or the Courts in discrimination cases.

Here is a useful booklet from the Equality Authority which deals with equality in the workplace in Ireland.


Do these issues affect you as an employee?

Do you require clarity concerning your particular circumstances in work?

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