Discrimination

General Prohibition of Discrimination on Certain Grounds

Discrimination is now unlawful in employment, education, training, the provision of goods and services and collective agreements.  The original gender-based grounds of discrimination have  been broadened. They cover the following grounds

  • race (colour, nationality, ethnic or national origin);
  • gender;
  • sexual orientation (heterosexual, homosexual or bisexual);
  • membership of the travelling community;
  • disability (including the total or partial absence of bodily or mental functions or chronic disease);
  • ageism;
  • religious belief or outlook;
  • family status (whether the person concerned is a parent or not);
  • marital status (whether the person concerned is single, married, divorced, separated or widowed)
  • housing assistance (not relevant to employment).

It is unlawful discrimination to treat a person in a less favourable way, on the basis of any of the above grounds.


Unlawful Discrimination

Direct discrimination is unlawful, subject to very limited permitted exceptions.  Once it is shown that a person has been treated less favourably than a comparator on one of the prohibited grounds under equality law, the discrimination is unlawful, unless it can be justified under very narrow exceptions.

Unlawful discrimination occurs where a person is treated less favourably than another person is or would have been treated in a comparable situation, on any one of the discriminatory grounds, which either exist, formerly existed, may exist in the future or is imputed to the person.

Unlawful discrimination also occurs where a person who is associated with another, is treated by reason of that association, less favourably than a person who is not so associated, is, has been or would have been treated in a comparable situation, if similar treatment of that other person would constitute unlawful discrimination, on the statutory discriminatory grounds.


Discrimination by Association

In the case of discrimination by association, the person who is associated with the complainant, need not have been discriminated against, or been present on the relevant occasion. It is not clear to what extent the associated person must be an actual person whom the complainant knows.

Discrimination by association may occur where a person is refused a benefit because he is with another person or is known to be associated with another person, who is a person to which one of the prohibited grounds of discrimination applies.  Accordingly, if a person is refused employment on the basis of the race or disability of a spouse, then a clear case of discrimination by association would arise.

Discrimination may occur notwithstanding that the person concerned does not, in fact, fall into the relevant category, provided that he is assumed or perceived to be in that category.  For example, a person denied access to services because he is assumed to be of another race or a member of the travelling community, would be discriminated against by imputation.


Employment Discrimination

An employer shall not discriminate against an employee or prospective employee in relation to

  • access to employment;
  • the conditions of employment;
  • training or experience for or in relation to employment;
  • promotion or re-grading, or
  • the classification of posts

The provider of agency work shall not discriminate against an agency worker. Neither an employer nor a provider of agency work shall be taken to discriminate against an agency worker unless (on one of the discriminatory grounds) that agency worker is treated less favourably than another agency worker is, has been or would be treated.

An employer shall not, in relation to employees or employment have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the above employment matters or otherwise apply or operate a practice which results or would be likely to result in any such discrimination.


Deemed Discrimination I

An employer is deemed to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one

  • the same terms of employment (other than remuneration and pension rights);
  • the same working conditions, and
  • the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.


Deemed Disscrimination II

An employer is deemed to discriminate against an employee in relation to training or experience for, or in relation to, employment if, on any of the discriminatory grounds, the employer refuses to offer or afford to that employee the same opportunities or facilities for employment counselling, training (whether on or off the job) and work experience as the employer offers or affords to other employees, where the circumstances in which that employee and those other employees are employed are not materially different.

An employer is deemed to discriminate against an employee in relation to promotion if, on any of the discriminatory ground if

  • the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or
  • the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.

Right to Equal Remuneration I

It is a term of the contract under which a person is employed that he is at any time be entitled to the same rate of remuneration for the work which he is employed to do as another who is not a person on one of the protected categories, (the comparator) who, at that or any other relevant time, is employed to do like work by the same or an associated employer. The relevant time is any time which falls during the 3 years which precede or the 3 years which follow the particular time. The term is subject to the provision of equality legislation.

Where the comparator’s employer is an associated employer of the claimant’s employer, they shall not be regarded as employed to do like work unless they both have the same or reasonably comparable terms and conditions of employment.

Indirect discrimination occurs where an apparently neutral provision would put the claimant employee (or a direct comparator) at a particular disadvantage in respect of remuneration compared with other employees of their employer, not in the protected category.


Right to Equal Remuneration II

In this case, the complainant and direct comparator shall each be treated for the purposes of as complying or, as the case may be, not complying with the (discriminatory) requirement concerned, whichever results in the higher remuneration, unless the provision is objectively justified by a legitimate aim, and the means of achieving the aim are appropriate and necessary.  In any proceedings statistics are admissible for the purpose of determining whether this position applies.

The legislation does not prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees.

See generally the article in relation to equal pay on the basis of gender. The same broad principles apply to equal pay on the basis of the other protected grounds.


Right to Equal Treatment I

If and so far as the terms of a contract of employment do not include (expressly or by reference to a collective agreement or otherwise) a non-discriminatory equality clause, they are deemed to include one. A non-discriminatory equality clause is a provision relating to the terms of a contract of employment, other than a term relating to remuneration or pension rights.

The non-discriminatory equality clause has the effect that if the employee is employed in circumstances where the work done by him is not materially different from that done by the comparator in the same employment, and at any time the comparator’s contract of employment would (but for the non-discriminatory equality clause)—

  • contain a term which is or becomes less favourable to the employee than a term of a similar kind in the comparator’s contract of employment, or
  • not include a term corresponding to a term in comparator’s contract of employment which benefits the comparator,

then the terms of the employee’s contract of employment shall be treated as modified so that the term in question is not less favourable to the comparator or, as the case may be so that they include a similar term benefiting the employee.


Right to Equal Treatment II

A non-discriminatory equality clause shall not operate in relation to a difference between the employee’s contract of employment and the comparator’s contract of employment if the employer proves that the difference is genuinely based on grounds other than the statutory grounds of prohibited discrimination.

Where a person offers an person  employment on certain terms and, were that person to accept the offer on those terms, the non-discriminatory equality clause in his contract of employment would have the effect of modifying the terms in either of the ways specified above, the making of the offer shall be taken to amount to discrimination against that person in relation to his  conditions of employment on whichever of the discriminatory grounds is (or are) relevant to the difference (or differences) between him and the comparator.

See generally the article in relation to equal treatment on the basis of gender. The same broad principles apply to equal treatment on the basis of the other protected grounds.


Proving Discrimination

The employee making an allegation of discrimination must establish a comparator relative to whom, he or she is being discriminated against. In the case of direct discrimination, a comparison is made with a known employee in the same situation. The remuneration or treatment must be shown to be less favourable than that of the comparator.

Where facts are established from which it may be inferred that the prohibited conduct has occurred in relation to the complainant, a prima facie or presumptive case arises. Direct discrimination is presumptively or prima facie established where the complainant proves that he is covered by one of the relevant grounds, that he was treated in a particular way by the respondent and that the treatment is less favourable than was afforded to the comparator in the same circumstances.

The prima facie case is to be established on the balance of probabilities.  Once it is so established, it is a matter for the respondent to establish that there was not in fact discrimination, or that one of the limited exceptions apply.


Requirements for Comparator

A comparison must be made with a person in the same situation who does not share the requisite characteristic or status, the subject of anti-discrimination law, the comparator.  The treatment afforded to the complainant must be less favourable. What is less favourable will depend on the circumstances and the relevant ground.  Less favourable treatment may arise where a service provider affords different treatment, to that provided generally.

The difference in treatment must be adverse.  A difference in itself is not sufficient.  It must be less favourable.  Once a prima facie case of discrimination is shown, the respondent must prove that there is an explanation which is not discriminatory.  It may do so by showing that legitimate standard practice and treatment, was applied.  Statistical evidence may be produced make or rebut the claim.

The effect of the implied clauses upon establishing the discrimination is that the terms of the claimant’s contract are modified in the manner set out above.


Unlawful Indirect Discrimination

Indirect discrimination is treatment that arises from the application of an ostensibly neutral provision or treatment.  Treatment of persons which is apparently equivalent may operate to the detriment of a member of one of the protected categories.  The ground of unlawful discrimination focuses on the effect of the conduct or treatment concerned.

Indirect discrimination may be shown by proving that a particular treatment or practice impacts to a greater extent on the claimant relative to the another not in the protected class. This may lead to a presumption that there is discrimination. It is then a matter for the employer to show that the distinction is based on another factor, not related to a prohibited ground of discrimination.

Indirect discrimination may be found in the practices and policies, patterns and institutions of the employer.  There need not be any intention to discriminate.  In many cases, the practices will have arisen from historical practice.


Comparator in Indirect Discrimination

The complainant must show that a particular treatment or provision puts him in a position of disadvantage on the basis of one of the protected grounds, compared with others to whom the ground does not apply.  Where in any proceedings, facts are established on behalf of such person from which it may be presumed that prohibited conduct has occurred in relation to him, it is a matter for the respondent to prove to the contrary.

In indirect discrimination cases, a comparison is made between two groups.  The complainant must compare his position as a member of the protected group with that of other employees  who are not members of the relevant group. The person must show that the relevant group or category is disadvantaged relative to the less disadvantageous impact on the comparator group by the treatment of provision in question.  It may be shown that a substantially higher number of persons in one category are disadvantaged relative to that in the other.

In some cases, the courts may take judicial notice of matters which are common knowledge.  In other cases, expert evidence must be produced. Statistical evidence will commonly be used.

If a prima facie case of discrimination is shown, the respondent must provide objective justification for the practice (or treatment, etc.), in order to avoid a finding of unlawful discrimination. A respondent may show that there is a legitimate aim. The practice (etc.) must be appropriate and necessary in order to pursue the legitimate aim, and it must, in fact, advance the legitimate aim.


References and Sources

Primary References

Employment Law  Meenan  2014 Ch.12

Employment Law Supplement Meenan 2016

Employment Law Regan & Murphy  2009 ( 2nd Ed 2017) Ch. 13

Employment Law in Ireland Cox & Ryan 2009 Ch 15

Equality Law in the Work Place Purdy 2015

Equality Law in Ireland  Reid 2012

Employment Equality Law  Bolger and Bruton 2012

Irish Employment Equality Law McCurtain and O’Higgins 1989

Disability Discrimination Law  Smith  2010

Equal Status Acts Discrimination in Goods & Services Walsh 2012

Other Irish Books

Employment Law Forde & Byrne 2009

Principles of Irish Employment Law   Daly & Doherty           2010

Statutes

Employment Equality Act 1998 (21/1998)

Equality Act 2004 (24/2004), Part 2

Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007 (27/2007), insofar as it relates to the previous two Acts

Civil Law (Miscellaneous Provisions) Act 2008 (14/2008), Part 16

Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), ss. 18 to 26

Equality (Miscellaneous Provisions) Act 2015 (43/2015), ss. 3 to 11

Legislation

Dismissal & Redundancy Consolidated Legislation   Barrett, G        2007

Irish Employment legislation (Looseleaf)       Kerr     1999-

Employment Rights Legislation (IEL offprint) Kerr     2006

UK Texts

Textbook on Employment Law, Honeyball, et al. 13th Ed. 2014

Labour Law, Deakin and Morris 5th Ed. 2012

Employment Law, Smith and Wood 13th Ed 2017

Selwyn’s law of Employment Emir A 19 Ed. 2016

Employment law : the essentials. Lewis D Sargeant M and Schwab M 11 Ed.2011

Labour Law Collins H, Ewing K D and McColgan  2012

Industrial relations law reports. (IRLR): Law Section,

Employment law Benny R Jefferson M and Sargent  5th Ed.  2012

Pitt’s Employment Law 10th  Ed. Gwyneth Pitt 2016

CLP Legal Practice Guides: Employment Law 2016 Gillian Phillips, Karen Scott

Cases and Materials on Employment Law 10th  Ed. Richard Painter, Ann E. M. Holmes 2015

Blackstone’s Statutes on Employment Law 2015 – 2016 Richard Kidner

Drafting Employment Contracts 3rd  Ed. Gillian Howard 2017

The Contract of Employment Edited by Mark Freedland, Alan Bogg, David Cabrelli, Hugh Collins, Nicola Countouris, A.C.L. Davies, Simon Deakin, Jeremias Prassl 2016

UK Practitioner Services

Tolley’s Employment Handbook 2017 Mrs Justice Slade 2017

Butterworths Employment Law Handbook 2017 Peter Wallington 2017

Blackstone’s Employment Law Practice 2017 Edited by Gavin Mansfield, John Bowers, John Macmillan 2017