Enforcement

Overview

The Director of the Equality Tribunal and Equality officers formerly dealt with claims of unlawful discrimination.  A claim could be made directly to the Labour Court on the basis of general gender discrimination as an alternative. The Equality Tribunal decision could be appealed within 42 days to the Labour Court.

Equality claims are now dealt with by the Workplace Relations Commission, in accordance with their procedures. Complaints may be referred for investigation by a WR adjudication officer. The complaint may be alternatively referred to mediation. Mediation is voluntary and is informal.  Meetings are held in private, and the purpose is to endeavour to obtain a settlement Where their matter cannot be resolved by mediation, a hearing by the adjudication officer can commence or resume. The purpose of mediation is to seek an agreed settlement.

The complaint must generally be made within six months. Where the discrimination is continuing, the six months’ runs from the end of the period. The six-month period may be extended to 12 months where there are exceptional circumstances which have prevented the claim being made in time. In the case of victimisation, a complaint may be made within six years.


Adjudicative Bodies

Complaints in relation to a breach of equality obligations are made to the Director General of the Workplace Relations Commission. The complaints are heard by adjudication officer unless resolved on mediation with the assistance of a mediation officer. An appeal may be taken to the Labour Court. In some cases, an appeal or application may be made to the Circuit Court.

The Director General of the Workplace Relations may delegate to an adjudication officer or a mediation officer any functions conferred on him or her under Employment Equality legislation. The Director General may and invariably does delegate the power to issue a decision on foot of a complaint to an adjudication officer or to mediation.

Reference to adjudication and determinations of the Workplace Relation Commission in this Article refer to decisions and determination of adjudication officers (or on mediation) pursuant to a reference to the Director General of the Workplace Relations Commission and his delegation of the power to and an adjudication officer or mediation officers.

The Director General of the Workplace Relations Commission, mediation officers and adjudication officers are independent in the performance of their functions.


Forum for Redress

A person who claims

  • to have been discriminated against or subjected to victimisation,
  • to have been dismissed in circumstances amounting to discrimination or victimisation,
  • not to be receiving remuneration in accordance with an equal remuneration term, or
  • not to be receiving a benefit under an equality clause,

in contravention of the equality legislation may seek redress by referring the case to the WRC.

If the grounds for such a claim are based on gender equality, or in any other circumstances (including circumstances amounting to victimisation) to which the Equal Pay Directive or Equal Treatment Directive is relevant, then the person making a claim may seek redress by referring the case to the Circuit Court instead of to the Workplace Relations Commission.


Time Limit for Claim I

Generally, the claim for redress in respect of discrimination or victimisation may not be made after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation or the date of its most recent occurrence.  On application by a complainant the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that the period of 6 months shall be extended to up to 12 months.

This provision does not apply in relation to a claim not to be receiving remuneration in accordance with the equal remuneration term.

Where a delay by a complainant in making a claim is due to any misrepresentation by the respondent, the time limitation is to take effect as if the references to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant’s notice.


Time Limit for Claim II

For the purposes of the time limits discrimination or victimisation occurs—

  • if the act constituting it extends over a period, at the end of the period,
  • if it arises by virtue of a term in a contract, throughout the duration of the contract, and
  • if it arises by virtue of a provision which operates over a period, throughout the period,

A deliberate omission by a person to do something occurs when the person decides not to do it. A respondent is presumed unless the contrary is shown, to decide not to do something when the respondent either does an act inconsistent with doing it or the period expires during which the respondent might reasonably have been expected to do it.


Preliminary Issues

The Workplace Relations Commission may dismiss a claim at any stage if of the opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter. Not later than 42 days after the Workplace Relations Commission dismisses a claim on this ground, the complainant may appeal against the decision to the Labour Court on notice to the Workplace Relations Commission specifying the grounds of the appeal.  On the appeal, the Labour Court may affirm or quash the decision.

Where a case is referred on the ground that the complainant is not receiving remuneration in accordance with an equal remuneration term, a question arises whether the different rates of remuneration to which the case relates are lawful the Workplace Relations Commission may direct that that question shall be investigated as a preliminary issue and shall proceed accordingly.

In a case which is referred to the WRC, a question arises relating to the entitlement of any party to bring or contest proceedings, including:

  • whether the complainant has complied with the statutory requirements relating to such referrals,
  • whether the discrimination or victimisation concerned occurred on before the Act
  • whether the complainant is an employee, or
  • any other related question of law or fact,

the WRC may direct that the question be investigated as a preliminary issue and shall proceed accordingly.


Hearing / Investigation  I

Where a case which has been referred to the Workplace Relations Commission does not fall to be dealt with by way of mediation, the Workplace Relations Commission shall investigate the case and may, as part of that investigation and if the Workplace Relations Commission considers it appropriate, hear persons appearing to the Workplace Relations Commission to be interested. An investigation shall be held in private

Claims to have been discriminated against on more than one of the discriminatory grounds shall be investigated as a single case, and claims both to have been discriminated against on one or more than one of such grounds and to have been penalised in circumstances amounting to victimisation may, in an appropriate case, be so investigated, but a decision shall be made on each of the claims.

Where the Workplace Relations Commission considers that the case may be dealt with on the basis of written submissions only, it may notify the parties in writing of his or her proposal to do so. The notification shall inform the parties of the right to make representations.  A person who receives a notification may, within 28 days, make representations to the WRC as to why the case should not be dealt with on the basis of written submissions only.


Hearing / Investigation II

Where, in representations, an objection is made to the Workplace Relations Commission dealing with the matter on the basis of written submissions only, the Workplace Relations Commission shall not determine the matter in that manner.

The Minister may by regulations specify the procedures to be followed by the Commission in carrying out investigations (or any description of investigations) and time limits applicable to such investigations, including procedures for extending those limits in certain circumstances.

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.


Circuit Court Request

If requested to do so by the Circuit Court, the Workplace Relations Commission shall nominate an adjudication officer to investigate and prepare a report on, any question specified by the Circuit Court and arising on the reference (including, in particular, any question whether persons are employed to do like work).

Where a report is prepared for the Circuit Court then, subject to any directions of the Court the adjudication officer shall furnish a copy of the report to the complainant and the respondent and to any other person to whom it relates, the report shall be received in evidence in the proceedings.

Without prejudice to the power of the Circuit Court to require the adjudication officer by whom the report was prepared to attend and give evidence in the proceedings, the adjudication officer may be called as a witness in the proceedings by the complainant or the respondent.


Redress

The types of redress for which a decision of the Workplace Relations Commission may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:

an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 3 years before the date of the referral which led to the decision;

  • an order for equal remuneration from the relevant date;
  • an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral;
  • an order for equal treatment in whatever respect is relevant to the case;
  • an order that a person or persons specified in the order take a course of action which is so specified;
  • an order for reinstatement or re-engagement, with or without an order for compensation.

The types of redress for which the Circuit Court may provide, are the same save that it may make an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 6 years before the date of the referral.


Compensation

The maximum amount which may be ordered by the Workplace Relations Commission by way of compensation in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of

  • 104 times the amount of that remuneration, determined on a weekly basis,
  • 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or
  •  €40,000.

Otherwise, the maximum is €13,000.

It may order the payment of interest, at the rate which is applicable under the Courts Act.

The maximum amount of compensation applies notwithstanding that conduct the subject of the investigation by the Workplace Relations Commission constituted discrimination on more than one of the discriminatory grounds, or both discrimination on one or more than one of such grounds and harassment or sexual harassment.


Appeal to Labour Court

Not later than 42 days from the date of a decision of the Workplace Relations Commission (or later on an application by a complainant for an extension of time) the complainant or respondent may appeal against the decision to the Labour Court on notice to the Workplace Relations Commission specifying the grounds of the appeal. On the appeal, the Labour Court may affirm, quash or vary the decision. It shall give the parties to the appeal a copy of that decision in writing.

Unless otherwise agreed by the complainant and respondent, effect shall not be given to a decision of the Workplace Relations Commission on such an application until the period of 42 days has expired, or any appeal against it has been determined, whichever first occurs.

The Labour Court shall give the parties to the appeal an opportunity to be heard by it and to present to it any evidence relevant to the appeal.

The Labour Court shall have the power to grant such redress in an appeal as the WRC has the power to grant in an investigation.

Where an appeal is brought to the Labour Court, and it considers that its determination on the appeal would be assisted by the exercise of the following powers, the Labour Court may refer all or any of the matters in issue on the appeal to the Workplace Relations Commission for further investigation or, as appropriate, re-investigation. Where such a reference is made, the Workplace Relations Commission shall conduct the further or new investigation of the matters so referred and submit a report thereon to the Labour Court.


Determination Generally

Every decision of the Workplace Relations Commission or determination of the Labour Court shall be in writing. If the Commission or the Labour Court thinks fit, or if any of the parties so requests,the decision or determination shall include a statement of the reasons why it reached that determination.

By notice in writing to the parties, the Workplace Relations Commission or, as the case may be, the Chairman of the Labour Court may correct any mistake (including an omission) of a verbal or formal nature in a decision or determination under this Part.

A copy of every decision of the Workplace Relations Commission and the Labour Court shall be given to each of the parties, and to the Labour Court. Every such decision shall be published on the internet in such form and in such manner as the Workplace Relations Commission considers appropriate.

A copy of every determination of the Labour Court shall be given to each of the parties, and every such determination shall be published and a copy thereof made available for inspection at the office of the Labour Court.

The contents of any document which is published or made available by virtue of this section shall be protected by absolute privilege.


Alternative Redress I

If an individual has instituted proceedings for damages at common law in respect of a failure by an employer or any other person, to comply with an equal remuneration term or an equality clause, then, if the hearing of the case has begun, the individual may not seek redress (or exercise any other power) under the equality legislation in respect of the failure to comply with the equal remuneration term or the equality clause, as the case may be.

Where an individual has referred a case to the Workplace Relations Commission and either a settlement has been reached by mediation or the Workplace Relations Commission has begun an investigation, the individual shall not be entitled to recover damages at common law in respect of the case.

If he or she was dismissed before so referring the case, shall not be entitled to seek redress (or to exercise, or continue to exercise, any other power) under the Unfair Dismissals Acts in respect of the dismissal unless the Workplace Relations Commission, having completed the investigation and in an appropriate case, directs otherwise and so notifies the complainant and respondent.


Alternative Redress II

If an individual has referred a case to the Circuit Court under its direct equality jurisdiction, the individual shall not be entitled to recover damages at common law in respect of that failure.

An employee who has been dismissed shall not be entitled to seek redress under the above provisions   in respect of the dismissal if the employee has instituted proceedings for damages at common law for wrongful dismissal, and the hearing of the case has begun, or an adjudication officer has made a decision under the Unfair Dismissals Act.

Where an employee refers a case, or claim under equality legislation, and a claim for redress under the Unfair Dismissal Act to the Workplace Relations Commission in respect of a dismissal, then, the case or claim shall, in so far only as it relates to such dismissal, be deemed to have been withdrawn unless, before the relevant date, the employee withdraws the claim under the Unfair Dismissal.


Further Appeals

Where a determination is made by the Labour Court on an appeal, either of the parties may appeal to the High Court on a point of law. The Labour Court may refer to the High Court a point of law arising in the course of such an appeal, and if it thinks it appropriate, adjourn the appeal pending the outcome of the reference.

The Workplace Relations Commission Act provisions for enforcement by the Circuit Court apply to the enforcement of a decision of the Workplace Relations Commission under the Equality legislation. In an application for enforcement which relates to a determination or decision requiring an employer to reinstate or re-engage an employee, the Circuit Court may, if in all the circumstances it considers it appropriate to do so, instead, make a compensation order.


Striking Out

Where a case is referred to the Workplace Relations Commission and at any time after the expiry of 1 year from the date of the reference, it appears to the Workplace Relations Commission that the complainant has not pursued, or has ceased to pursue, the reference, the Workplace Relations Commission may strike out the reference. The equivalent provision applies to an appeal to the Labour Court.

As soon as practicable after striking out a reference, the Director or, as the case may be, the Labour Court shall give notice in writing to the complainant and the respondent or respondents.  As soon as practicable after striking out an appeal, the Labour Court shall give notice in writing to the appellant and the other party to the appeal.

Where a reference or appeal is struck, no further proceedings may be taken in relation to that reference or appeal. A further reference may be made in relation to the same matters (subject to any applicable time limit).

The Protection of Employees (Employers’ Insolvency) Act, applies to order that an employer is required to pay by virtue of a decision, determination or order of a court under the Employment Equality Act,


Public Sector

In the case of a complaint in the course of the recruitment process, to the public service, the Defence Forces or the Garda Síochána, the complaint shall in the first instance refer the claim for redress to the public sector recruitment body concerned or, as the case may be, to the Minister for Defence or the Commissioner of the Garda Síochána. The complaint may not be made to the WRC for redress in respect of discrimination, unless they have failed to give a decision on the claim within 28 days or the complainant is not satisfied with the decision given on the claim.

Where a claim for redress (other than on the age or disability ground) relates to employment in the Defence Forces and is made by a member thereof, the claim shall, in the first instance, be referred for redress under a separate procedure to an officer of the Defence Forces. In this case, the complainant shall not refer a case under the standard procedure unless a period of 12 months has elapsed after the referral to which the claim relates and the procedures have not been requested or have not been completed, or the complainant is not satisfied with the recommendation given under that procedure


Defence Forces

Where a claim is made by a member of the Defence Forces or relates to employment by the Defence Forces, the complainant shall not refer a case to the Workplace Relations Commission, unless a period of 12 months has elapsed after the referral and the below procedures have not been requested or have not been completed, or the complainant is not satisfied with the recommendation given on the claim. The normal time limits are extended.

Under the special procedure an officer of the Defence Force who is authorised in that behalf, may request the Director General of the Workplace Relations Commission to investigate any matter which could have been referred to the Workplace Relations Commission or of proceedings before the Circuit Court, and make a recommendation in respect of that matter to the officer concerned.

A recommendation shall be in writing and shall include a statement of the reasons why the Director General of the Workplace Relations Commission made the recommendation and, in deciding what action is to be taken on the complaint, regard shall be had to the recommendation.

The Workplace Relations Commission shall give a copy of any recommendation made to the member of the Defence Forces who made the complaint which gave rise to the recommendation.


References and Sources

Primary References

Employment Law  Meenan  2014 Ch.24

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