Lists the nine types of discrimination recognised by the Employment Equality Acts and explains the difference between direct and indirect discrimination. Also covers how harassment and victimisation are treated under the equality legislation. Then looks in more depth at disability discrimination, discrimination due to pregnancy and age discrimination. Finally explains where the burden of proof lies in discrimination cases and sets out the level of redress the Workplace Relations Commission can award.
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Equality in the field of employment is governed by the Employment Equality Acts 1998 to 2015.
Equality legislation prohibits discrimination on nine distinct grounds:
- civil status
- family status
- sexual orientation
- race (including colour/nationality/ethnic or national origin)
- membership of the Traveller community.
Discrimination is prohibited in employment, but also in relation to access to employment, conditions of employment, training or experience for or in relation to employment, and promotion or re-grading or re-classification of posts.
Equality legislation implies an equality clause and equal remuneration clause in respect of each of the nine grounds into every contract of employment.
Discrimination on the ground of gender is treated differently to discrimination on the other eight grounds in that gender discrimination claims may be brought directly to the Circuit Court, whereas claims on the other grounds must be initiated before the Workplace Relations Commission (WRC).
There is no cap on the amount that may be awarded by way of compensation in relation to a gender discrimination claim made directly to the Circuit Court. The disadvantage of going directly to the Circuit Court in a gender discrimination claim is that the employee is at risk of a costs order in the event they lose.
Equality legislation applies to all employees, regardless of length of service. It applies to candidates or potential candidates for employment. It also applies to partners in a partnership.
Discrimination can be both direct and indirect:
- Direct discrimination is treating someone less favourably than another on one of the nine grounds.
- Indirect discrimination occurs when an apparently neutral provision puts persons of a particular group at a particular disadvantage compared with other employees of their employer, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
Harassment is also prohibited by the equality legislation. Harassment is defined as any form of unwanted conduct related to any of the nine discriminatory grounds. Harassment occurs where the conduct 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.
Sexual harassment is any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which has the purpose and effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
Where an employee is harassed either in the workplace or otherwise in the course of their employment by their employer, a fellow employee or a client, customer or other business contact of the employer, that harassment constitutes discrimination. It is a defence, however, for the employer to prove they took reasonable practicable steps to prevent the harassment.
A recent decision of the Labour Court in January 2016 in A Store v A Worker (EDA163) resulted in an award of €15,000 against the employer even though the employer had an anti-harassment policy in place and displayed prominently for all employees to see. The case clearly shows the importance for employers of knowing the difference between harmless banter and actionable harassment.
The distinguishing factor in this case was that the comments were unwelcome and unwanted and as such constituted sexual harassment within the meaning of the Acts. The Labour Court then had to consider whether the employer could avail of the defence set out in Section 14A(2)(a) of the Acts - whether the employer had taken such steps as are reasonably practicable to prevent the sexual harassment of the employee. The Court found that it had not for the following reasons:
- It was not satisfied that the importance of the policy was properly understood by the employee's manager who was responsible for its implementation.
- The Court noted that the policy was only available in English, which was not the native language of the perpetrators.
- While the Court acknowledged that the employer had a handbook, that it contained an anti-harassment policy and that the policy was also displayed in the staff area of the store, it found that the policy was not properly or adequately applied in practice.
The message from the case is clear - the Irish courts will be guided by not only the policy that an employer has in place, but how effectively that policy is implemented.
Victimisation occurs where dismissal or other adverse treatment occurs as a reaction to:
- a complaint of discrimination made by the employee to the employer
- any proceedings by an employee
- an employee having represented or otherwise supported a colleague
- the work of an employee having been compared with that of another employee for the purposes of the equality legislation
- an employee having opposed by lawful means an act which is unlawful under the equality legislation
- an employee having given notice of an intention to take any of these actions
An employer is not required to recruit, retrain, train or promote a person who is not fully competent to carry out the duties concerned. A person with a disability is considered fully competent to undertake the duties attached to a job if the person could do the duties with the assistance of special treatment or facilities upon being reasonably accommodated by the employer.
Reasonable accommodation necessitates the taking of appropriate measures by the employer. Appropriate measures are any measures that do not involve imposing a disproportionate burden on the employer and include the adaptation of:
- premises and equipment
- patterns of working time
- distributions of tasks
- the provision of training or integration resources.
They do not not include any treatment, facility or thing that the person might ordinarily provide for themselves.
Factors to determine whether or not there is a disproportionate burden on the employer are as follows:
- the financial and other costs
- the scale and financial resources of the employer’s business
- the possibility of public funding or other assistance
For more information, see our factsheet on the law relating to disability.
A large volume of case law concerns pregnancy. The Court of Justice of the European Union (CJEU) has held that an employer who refuses to engage or dismisses a woman because she is pregnant commits an act of direct discrimination as pregnancy can only affect women.
Discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a female employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.
For more information, see our factsheet on maternity leave.
It is unlawful to advertise a job in such a way that the advertisement could reasonably be interpreted as indicating an intention to discriminate. It is no longer possible to advertise for a young and dynamic professional.
It does not constitute discrimination on the age ground to set a maximum age for recruitment which takes account of any cost or period of time involving or training a recruit to a standard at which the recruit will be effective in that job, and the need for there to be a reasonable period of time prior to retirement age during which the recruit will be effective in that job. This is a limited exception and should be used advisedly.
It does not constitute discrimination on the age ground for an employer to set a retirement age.
The recent Equality (Miscellaneous Provisions) Act 2015, which commenced in January 2016, makes some important changes to an employer's ability to set a retirement age. The Act still allows the setting of compulsory retirement ages, however, the employer must be able to objectively justify it.
This now brings the Irish position in line with the Grounding EU Directive on age discrimination, case law from the CJEU and the case law emanating from Irish courts and tribunals. There is a large body of case law which has made it clear that the setting of a compulsory retirement age must be objectively justified by the existence of a legitimate aim and evidence that the means of achieving that aim is appropriate and necessary. One of the consequences of the new law is that, if fixed term contracts are offered post retirement, the employer will have to demonstrate evidence of objective justification for the termination of employment when the fixed term contract expires.
Differences in treatment on the grounds of age and access to occupational benefits schemes are permitted under the legislation. In a 2013 case, Hospira v Roper and Ors (EDA1315), the Labour Court held that differences in the level of redundancy payments paid to the employees, as compared with their younger comparators, fell within the exception to age discrimination permitted by Section 34(3) of the Employment Equality Acts 1998 to 2015. As it fell within this exception, it did not require objective justification.
For more information, see our factsheet on retirement ages.
Burden of proof
Section 85A of the Acts says that where, in any proceedings, facts are established by or on behalf of a employee from which it may be presumed there has been discrimination, it is for the employer to prove the contrary. Once an employee can establish from the facts that they have been discriminated against, that is establish a prima facie case, then the burden shifts to the employer to prove that no discrimination took place. All the employee needs to do is raise enough concern for the court to draw an inference that discrimination has occurred for the burden to shift to the employer.
The WRC may award the following:
- In an equal pay case: equal pay and arrears of pay in respect of a period not exceeding three years before the date of referral.
- In discrimination and victimisation cases: an order for compensation for the effects of acts of discrimination or victimisation of up to two years pay or €13,000 where the person is not an employee.
- In a discriminatory dismissal case: re-instatement or re-engagement with or without compensation subject to a maximum award of two years pay.
The case of Julie O'Brien v Persian Properties trading as O'Callaghan Hotels (DEC-E2012-010) remains one of the largest awards to date from the Equality Tribunal (now the WRC). The employee was awarded a total of €315,000. €220,500 was for discriminatory dismissal and harassment (equivalent to 21 months' salary) and €94,500 was for victimisation (equivalent to nine months' salary). The Tribunal also made the point, as it has done on a number of occasions, that the penalty imposed is not only intended to compensate the employee but also to dissuade the employer from discriminating again.