Tag: sexual harassment

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Equality and Discrimination

Catering Assistant Awarded €30,000 for Sexual Harassment

The WRC have awarded €30,000 to our client arising from a claim of sexual harassment in the workplace.

The claim was brought under the Employment Equality Act 1998 and in a comprehensive 20 page decision the WRC Adjudicator awarded her €30,000, not subject to any statutory deductions, which was the equivalent of 18 months’ wages.

The hearing was held over two days and evidence given by both complainant and employer was well tested.

Background

The complainant alleged that she had been sexually harassed in the workplace over a period of time which culminated in an incident in which she alleged she had been pinched in the bottom.

The employer, when advised of the allegation, carried out an investigation and made certain findings and recommendations.

We argued, however, that the findings of the investigation were irrational and perverse and flew in the face of the facts and evidence of other employees.

We also argued that the response of the employer was inadequate and an offer to transfer the complainant was unfair as she had done nothing wrong.

The law surrounding sexual harassment

Several important legal aspects of this case are worth considering.

The first has to do with the burden of proof and the obligation on the complainant, in the first instance, to establish facts from which a reasonable inference of discrimination could be drawn.

Once this prima facie hurdle has been cleared by the complainant the burden of proof shifts to the employer; but it must be cleared in the first instance in all cases alleging discrimination.

The employer has a defence in section 14 A of the Employment Equality Act:

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.

Was this defence open to the employer in this instance?

We argued that this defence was not open to the employer by reason of his failure to take reasonable steps to prevent the harassment or reverse its effects.

The WRC adjudicator agreed with our arguments insofar as she found that the response of the employer was inadequate and ‘avoided the responsibility to take the right action and deal with Patrick’s behaviour’.

She also agreed that the findings of the investigation carried out to be ‘contrived and evasive’ and the appointment of an external investigator may have led to a more ‘balanced and reasonable’ outcome.

She also agreed that the evidence of the complainant was truthful and credible and the evidence of the manager ‘doesn’t stand up’;  the decision to impose the ‘beyond a reasonable doubt’ standard of proof was ‘unfair’ and what was required was the imposition of the civil standard of proof of ‘on the balance of probability’.

To be clear, the standard of proof being set at ‘beyond a reasonable doubt’ is the appropriate standard in a criminal case, but not in a civil case or employment dispute/complaint investigation.

Interestingly, the WRC adjudicator also made the point that ‘sexual harassment is as much about power as about sex and the harasser’s intention was to humiliate the complainant and retrieve for himself some of the power she possessed’.

Conclusion

For employees it is important to know that sexual harassment in the workplace is taken extremely seriously by the Workplace Relations Commission. You must discharge the initial burden of proof to prove facts from which a reasonable inference of discrimination can be drawn. If you can do this the burden shifts to the employer.

The employer must note that having a policy in place which deals with sexual harassment and/or discrimination is not enough; the employer must go further and ensure that the policy and procedure is applied rigorously and fairly and reasonable responses happen if a finding of discrimination is arrived at.

Having a policy/procedure and going through a box ticking exercise will not be sufficient if the findings are irrational or the response is inadequate.

You can read the full decision of the Workplace Relations Commission here.

Learn more about sexual harassment here and the employer’s defence in a discrimination case here.

Categories
Equality and Discrimination

A Sexual Harassment Story (Ana’s Story)

Ana came to Ireland from Croatia in 2014.

She knew a small number of Croats living in Dublin and they had told her she would find work here quickly enough.

They were right and she started a job in a coffee shop in the southside of Dublin within 2 months of arriving in Dublin. She quickly settled in Dublin and shared a house with 7 other people-2 Croats, 3 Poles, and 2 Irish.

Her English was not fluent but improving and she spoke well enough to get by, get her job done, and avoid too much confusion with anyone she came into contact with in the course of her days.

She spent a few weeks just clearing tables, cleaning, checking in orders, cleaning toilets, running to the cash and carry but soon she was pressed into service serving customers.

She found it difficult at first and was afraid of making serious mistakes.

But she learned quickly and was popular with the regulars who recognised her pleasant, friendly personality and smile, and her willingness to learn.

When she came to see me for the first time she fidgeted and played with a ring she wore.

She told me about her background, her 3 brothers and family in Zagreb. She never went into great detail when speaking with me about her time in Zagreb but her face darkened noticeably and I could see she was not comfortable speaking about it.

She did tell me, though, that she was on her way to primary school in May, 1995 when rocket attacks on Zagreb killed her uncle and aunt.

When she was sexually assaulted in the workplace, however, she made an oblique reference to her childhood in Croatia.

She said, “I’ve been through a lot at home in Croatia, I’ve seen most than most people my age, but this thing in the workplace was just a humiliation; I have put up with a lot of stuff before I came to Ireland but this was too much to expect me to take”.

She said the worst part wasn’t the assault, however, it was not being believed when she complained. And the investigation that was carried out being a complete whitewash and waste of time.

She had worked in the coffee shop for 7 months or so and was getting good experience under her belt. Her problems started when the manager of the coffee shop decide to go travelling for a couple of years with her boyfriend and the two of them went to Canada for a year.

The new manager, Seamus, was friendly at first; maybe too friendly. Always grinning at her like a shark.

Soon,however, Ana began to feel uncomfortable with Seamus’s attention. He was just weird and creepy.

At first he just made a small number of jokes with sexual innuendo.

Most people would probably consider them to be just part and parcel of the workplace, banter if you like.

But the “jokes” and innuendo got worse to the point where the situation was wearing Ana down.

She felt like quitting her job rather than face these dumb, offensive remarks every day-remarks about her appearance, her private life, her boyfriend, and so on.

Ana wasn’t in the job too long, however, and was still on probation so she felt the best thing to do might be to keep her head down, not rock the boat, and hope that Seamus would lay off or get fed up and just leave her alone.

She spoke to some of the other girls about it and they told her they had to put up with the same crap. They told her they were afraid to complain because they were not Irish and he was, and they were afraid they would not be believed and, anyway, who were they to complain to?

They weren’t sure of the whole situation, the legal situation, who was to help them; it was completely new to them but they were sure that the new manager would probably have more sway and influence with the owner than they had and would be more likely to be believed.

Besides it would be easier to replace one of the support or waitressing or retail staff rather than the manager. So they felt in a vulnerable situation.

What’s more, if they complained and were not believed the atmosphere in the workplace would be even worse, and they would feel like fools.

So they just stayed quiet and hoped he would get fed up and lay off.

Ana took the same approach and did nothing about the ‘jokes’ which were getting worse and more graphic.

Unfortunately this decision, however, backfired for Ana because Seamus took encouragement from her silence and her failure to make clear that his comments were unacceptable. He was emboldened. It got worse, not better, as time went on.

It was about 11 months after starting in this workplace that the final incident happened.

She remembered it well, it was a Tuesday afternoon at 3.45 pm. She could not believe it at first.

At first she was outraged but was so surprised and shocked that she wasn’t even sure it had actually happened.

What happened was Seamus had walked behind her back into the kitchen and put his hand on her bottom and whispered “you have a fine arse, Ana”.

Ana was stunned. She did not know what to do and went to the toilets, shook with anger and wept silently.

Her mind cleared, though, and then she was sure of exactly what he had done.

The bastard had put his hand on her bottom, treated her like a piece of meat, and ignored her dignity as a person. No respect.

This had gone on too long.

She dried her tears, gathered her courage as best she could and went straight to Seamus. She told him that what he had done was completely unacceptable, that she felt humiliated and demanded an apology.

Seamus’s face reddens and his mouth tightens and a little tic develops on the left side of his mouth. He denies it completely, tells her she is nothing but a troublemaker, and nobody will believe such a stupid allegation.

Ana felt faint, confused, could not think straight.

She goes into the little store at the back of the shop that passes for a staff room, takes her bag out of her locker, puts on her coat and heads for the bus stop to go home.

Ana sits in her kitchen for 90 minutes nursing a cup of coffee.

She debates with herself about what to do: should she leave or make a formal complaint or just forget about it and tough it out or start looking for another job?

She pulls out the staff handbook from underneath her bed and discovers how she is to make a complaint.

Two days later she receives a message from the owner of the business who tells her she has appointed an external HR person to carry out an investigation.

An investigation was quickly carried out and Ana made a statement about what happened and what had happened previously. She told the investigator that it was common knowledge what Seamus was like-all he had to do was check with the other girls.

The investigator called in the other 2 girls and asked them if they ever had any difficulty with Seamus.

They told of the long running difficulties that they had experienced with him: inappropriate remarks, comments about their clothes, how they looked, their make up, told them jokes that always involved some sexual comment, and so forth.

Ana reads the letter again for the second time and she can’t believe it. She has received it by registered post and it tells her the outcome of her complaint is that the investigator from the HR company does not uphold her complaint.

The reasons given are a “conflict of evidence” and one person’s word against another’s and the absence of any witness to the alleged incident.

The letter is worded really nice and professional and it tells her the employer values her greatly and hopes she will be able to come back to work soon and are sure that her relationship with Seamus can be rebuilt “going forward”.

Ana reads it for the third time. She cannot believe it. She’s thinks she is going to be physically sick. Really throw up.

She’s not sure what to do, or what she can do.

But she knows one thing: she cannot go back into that workplace.

Ana sits in my office now. She plays with her ring, a big blue stone of a thing. She is teary and weepy and I get a small box of tissues.

She is determined about one thing: she will not let this go. She wants to take it further and tell her story. She hasn’t come from a difficult upbringing in Zagreb to Ireland to have some deviant treat her like a piece of fine meat.

We submitted her claim to the WRC without delay. It was an Employment Equality act 1998 claim that she had suffered discrimination in the workplace by reason of her gender and had been the victim of sexual harassment.

Sexual harassment is defined in Section 14A Employment Equality Act 1998 as

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.

Now, it is 8 months later and we have received the decision of the WRC adjudicator. The WRC have found that Ana’s complaint was “well founded” and she has been awarded €27,000 in compensation.

It is open to the employer to appeal this decision to the Labour Court.

But Ana doesn’t care; she has told her story to an independent adjudicator and has been believed. Not alone that but the wrong that was done to her in the workplace has been recognised by an award of compensation. It wasn’t just a trivial, inconsequential, technical wrong.

It was a serious attack on her self respect and dignity.

The money is not the important thing to Ana, but it will give her time to get on her feet again, get another job, maybe send some home to her family outside Zagreb.

(Please note “Ana” and “Seamus” are not the real names of the parties involved in this case and some facts have been changed slightly to prevent identification).

 

Categories
Equality and Discrimination Unfair Dismissal

Manager Exploits Staff for Sex and Wins Case for Unfair Dismissal

sexual harassment

Did you ever read Oliver Twist by Charles Dickens?

Dickens introduced a great number of unforgettable characters to the world in this novel about the exploitation of orphan children by ‘the Jew’, Fagin to engage in criminality and picking pockets on the streets of London in the 1830s.

In Oliver Twist you had Oliver Twist himself (“please sir, can I have some more?”), John (aka Jack) Dawkins (‘the Artful Dodger’), Nancy, the good hearted lover/prostitute of the evil Bill Sikes, and a lad called Charlie Bates.

Charlie Bates spent a lot of his time on the floor laughing uproariously at the antics of the gang and exclaiming “What a game!” in reference to the criminality and picking of pockets in which the orphaned children were forced to engage.

I thought of Charlie Bates and his stock phrase “what a game!” when I read of a recent decision of the WRC in a case involving a male manager of a store in a restaurant chain who admitted to sexually harassing female staff under his management.

To cut to the chase he offered accomodation to female staff in return for sex.

The employer, on discovering this and after engaging the services of a HR person to carry out an investigation, summarily dismissed him for gross misconduct on the grounds of repeated sexual harassment in the workplace.

The dismissed manager brought a claim to the Workplace Relations Commission (WRC) for unfair dismissal.

And guess what?

He won on the grounds of the absence of fair procedures (“procedures hopelessly flawed”), the WRC Adjudicator having found that his conduct amounted to sexual harassment and the dismissal was substantially fair.

He was awarded €6,500.

As Charlie Bates might have said, “What a game!”

Lack of fair procedures

The grounds for finding that the procedures were “hopelessly flawed” included

  • The company ignored the employee’s direct evidence and relied on hearsay evidence
  • The employer failed to provide witness statements to the manager
  • The employer failed to advise him of the seriousness of the situation and the potential for dismissal
  • The employer failed to allow the manager defend himself or have representation
  • The employer failed to allow him to cross examine his accusers or challenge witness statements
  • The employer did not give him the specifics of the sexual harassment allegations against him.

However, it is reported that the company engaged the services of an external HR advisor to carry out an investigation and the manager “confirmed to the investigator that he offered accommodation to employees in order to have sex with them”.

Moreover, the manager had been involved in a relationship with one of the employees (who broke it off when she discovered he was married) and the report found he “was accused of unwelcome advances and offers of going to the cinema, restaurants or visits to the park. There were accusations of non-verbal conduct of a sexual nature including leering and making sexually suggestive gestures”.

Lessons to be learned

It’s difficult to understand, having read the facts and report of this case, what circumstances will give rise to a safe summary dismissal from an employer’s perspective. Therefore the safest bet appears to be to always afford fair procedures and natural justice no matter what the circumstances.

At the very least ensure the allegations are put to the employee in sufficient details and he has a chance to explain his version of events and side of the story.

This way might ensure you are not indulging in a Charlie Bates’ reaction of rolling around on the floor saying “What a game!” after reading about, or being involved in, an unfair dismissal.

You can read the full case here.

Categories
Equality and Discrimination

Sexual Harassment in the Workplace in Ireland-a Quick and Easy Guide

sexual harassment

Have you experienced sexual harassment in the workplace?

Maybe this is a problem you have to deal with on a regular basis?

What can you do about it?

Let’s have a look.

Definition of Sexual Harassment

Firstly, let’s be clear what sexual harassment is. Sexual harassment is defined in section 8 Equality Act, 2004 as

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,

or

(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.”.

 

There is a number of points you need to take from this definition:

  1. sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment;
  2. Sexual harassment can be carried out by the employer, a fellow employee, or a client/customer/business contact of the employer;
  3. It is a defence for the employer to show that he took steps that are reasonably practicable to prevent the harassment or reverse its effects;
  4. Sexual harassment is any form of of unwanted verbal, non-verbal or physical conduct of a sexual nature, which… has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

So, now that you are clear on what sexual harassment is and how it can occur, let’s take a look at some other vital legislation: the Employment Equality Act, 1998 (revised and updated to March, 2016).

Vicarious Liability of Employers

Section 15 Employment Equality Act, 1998 provides that the employer is vicariously liable for the actions of his employees, whether he was aware or not:

Liability of employers and principals.

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.

Burden of Proof

Section 85 A Employment Equality Act, 1998 sets out the burden of proof in employment 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.

 

You will see that once the victim can establish facts from which discrimination can be presumed the burden of proof shifts to the respondent/employer/harasser.

Redress

If you want to seek redress for sexual harassment you can submit a claim to the Workplace Relations Commission or the Circuit Court. The maximum award from the WRC is 2 years’ remuneration and the maximum from the Circuit Court is the maximum of its jurisdiction, which in 2018 is €75,000.

If the employee has suffered a psychological or psychiatric injury as a result of the harassment he/she may bring a personal injury claim against the employer, and as part of this negligence claim he/she would be also pleading breach of contract, breach of statutory duty, failure to provide a safe place of work in breach of health and safety obligations, etc.

The claim must be brought to the WRC within 6 months of sexual harassment incident, and, if the harassment has been continuous over a period of time, within 6 months of the last incident. This 6 months time limit can be extended to 12 months if reasonable cause for the delay can be shown.

The claim for a personal injury can be brought to the Injuries Board and then through the Civil Courts within 2 years of the injury.

Instructive sexual discrimination/harassment case, July 2018

In July, 2018 an extremely useful sexual discrimination/harassment case decision was handed down by the WRC. It involved a lesbian employee who was asked, amongst other things, why she did not want men and why she was not a normal person.

It is quite an extensive decision and you can see the various issues the WRC adjudicator will look at in arriving at a decision in this type of case.

The adjudicator also refers to other decided cases and legal text books concerning this topic.

You can read the full decision here in the case,  ADJ-00010217, involving a general store assistant and a large company.

Categories
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.

Disability

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;

Race

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.

workplace-harassment

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”.

if—

(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,

or

(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

Redress

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.

Defence

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 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.

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.

Employees

Do these issues affect you as an employee?

Do you require clarity concerning your particular circumstances in work?

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