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:
- access to employment
- conditions of employment
- training or experience for or in relation to employment
- promotion or regrading, or
- 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— |
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(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 |
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(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, |
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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— |
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(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, |
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(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness, |
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(c) the malfunction, malformation or disfigurement of a part of a person’s body, |
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(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or |
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(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, |
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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— |
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(a) access to employment, |
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(b) conditions of employment, |
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(c) training or experience for or in relation to employment, |
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(d) promotion or re-grading, or |
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(e) classification of posts, |
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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. |
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(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
- this need is a real need of the employer’s business
- it is an appropriate measure to achieve a legitimate objective
- 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: |
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“(1) This Act is without prejudice to any measures— |
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(a) maintained or adopted with a view to ensuring full equality in practice between men and women in their employments, and |
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(b) providing for specific advantages so as— |
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(i) to make it easier for an under-represented sex to pursue a vocational activity, or |
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(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: |
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“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— |
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(a) to prevent or compensate for disadvantages linked to any of the discriminatory grounds (other than the gender ground), |
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(b) to protect the health or safety at work of persons with a disability, or |
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(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): |
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“(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— |
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(a) the characteristic constitutes a genuine and determining occupational requirement, and |
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(b) the objective is legitimate and the requirement proportionate. |
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(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. |
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(4) If— |
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(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 |
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(b) he or she by order so declares, |
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the age ground shall not apply in relation to such competitions for recruitment to that service as are specified in the order. |
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(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. |
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(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?
If so you may be interested in arranging a consultation to see where you stand. Click here to learn more.
