Enforcement
Employment Equality Act 1998
PART VII
Other Remedies and Enforcement
Annotations:
Amendments:
F106
Inserted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 83(1)(b), S.I. No. 410 of 2015.
F107
Substituted and inserted (18.07.2004) by Equality Act 2004 (24/2004), s. 29(a) and (b), commenced on enactment.
F108
Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 83(1)(c), S.I. No. 410 of 2015, subject to transitional provision in subs. (2).
Modifications (not altering text):
C22
Application of Part VII (ss. 74-105) restricted (18.07.2004) by Equality Act 2004 (24/2004), s. 46(1) subject to transitional provisions in subs. (2).
Cesser of Labour Court jurisdiction to deal with claims for redress.
46.—(1) Subject to subsection (2) and section 83 of the Act of 1998, the Labour Court shall cease to have jurisdiction under Part VII of that Act in cases of dismissal in circumstances amounting to discrimination or victimisation, and accordingly the amendments set out in the Schedule to this Act shall have effect.
…
Editorial Notes:
E49
Power granted to Irish Human Rights and Equality Commission to provide legal and other assistance to persons making a reference or application under Part (1.11.2014) by Irish Human Rights and Equality Commission Act 2014 (25/2014), s. 40(1)(c)(iii), S.I. No. 449 of 2014.
Introductory
Interpretation (Part VII).
74.—(1) In this Part, unless the context otherwise requires:
F106[‘Act of 2015’ means the Workplace Relations Act 2015;
‘adjudication officer’ has the same meaning as it has in the Act of 2015;]
“the complainant” has the meaning given by section 77(4);
F107[‘F108[mediation officer]’ and ‘F108[adjudication officer]’ mean officers appointed as such under subsection (4) or (4A) of section 75;]
“the Equal Pay Directive” means Council Directive No. 75/117/EEC on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women;
“the Equal Treatment Directive” means Council Directive No. 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions;
F106[‘mediation officer’ has the same meaning as it has in the Act of 2015;]
“the respondent” has the meaning given by section 77(4);
“victimisation” shall be construed in accordance with subsection (2).
F107[(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
(3) For the purposes of sections 77, 78, 83, 87 and 90 the date on which a case is referred, or an appeal made, under those provisions is the date on which the reference or appeal is received by the F108[Director General of the Workplace Relations Commission], Labour Court or Circuit Court, as the case may be.]
Annotations:
Amendments:
F106
Inserted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 83(1)(b), S.I. No. 410 of 2015.
F107
Substituted and inserted (18.07.2004) by Equality Act 2004 (24/2004), s. 29(a) and (b), commenced on enactment.
F108
Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 83(1)(c), S.I. No. 410 of 2015, subject to transitional provision in subs. (2).
Modifications (not altering text):
C23
Application of section extended with modifications by Pensions Act 1990 (25/1990), s. 81J and sch. 4, as inserted (5.04.2004) by Social Welfare (Miscellaneous Provisions) Act 2004 (9/2004), s. 22, S.I. No. 141 of 2004, as amended (18.07.2004) by Equality Act 2004 24/2004), s. 66(3)(e), commenced on enactment.
Application of Employment Equality Act 1998.
81J.—(1) In this section ‘the Act of 1998’ means the Employment Equality Act 1998.
(2) Sections 74, [76, 77A], 78 to 81, 83 to 85 and 86 to 104 of the Act of 1998 shall, where appropriate, apply in relation to this Part as they apply in relation to that Act but with the following modifications.
(3) Those modifications are that for the words set out in column (3) of the Fourth Schedule at a particular reference number, being words appearing in a section or sections of the Act of 1998 specified in column (2) of that Schedule at that reference number, there shall be substituted in the place or, as the case may be, each place where those words occur in that section or sections the words set out in column (4) of that Schedule at that reference number.
Equality Investigations
F109[Director General of the Workplace Relations Commission] and other officers.
75.—(1) F110[…]
(2) F110[…]
(2A) F110[…]
(3) F110[…]
(4) F110[…]
F111[(4A) F110[…]
(4B) The F109[Director General of the Workplace Relations Commission] may delegate to an F109[adjudication officer] or an F109[mediation officer] any functions conferred on him or her under this Act F110[…].]
(5) The F109[Director General of the Workplace Relations Commission], F109[mediation officer]s and F109[adjudication officer]s shall be independent in the performance of their functions.
(6) Subject to subsection (7), F112[the delegation of a function under subsection (4B)] shall not affect the continuing power of the F109[Director General of the Workplace Relations Commission] to exercise that function concurrently with the officer to whom it is delegated.
(7) Where, under F113[subsection (4B)], the F109[Director General of the Workplace Relations Commission] has delegated to an officer the function of hearing a case referred to the F109[Director General of the Workplace Relations Commission]F112[under section 77 or 86, or under section 21 of the Equal Status Act 2000—]
(a) the delegation shall be taken to include the power to issue a decision in the case,
(b) the function may not be exercised concurrently by the F109[Director General of the Workplace Relations Commission], and
(c) the delegation may not be revoked or varied except at the request of the officer to whom the function was delegated or if there are exceptional circumstances preventing that officer from acting (or continuing to act).
(8) F110[…]
Annotations:
Amendments:
F109
Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 83(1)(c), S.I. No. 410 of 2015, subject to transitional provision in subs. (2).
F110
Repealed (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 83(1)(d), S.I. No. 410 of 2015, subject to transitional provision in subs. (2).
F111
Inserted (18.07.2004) by Equality Act 2004 (24/2004), s. 30(b)(i), (c) and (d), commenced on enactment.
F112
Substituted (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 21, commenced on enactment.
F113
Substituted (18.07.2004) by Equality Act 2004 (24/2004), s. 30(e), commenced on enactment.
Modifications (not altering text):
C24
Functions transferred and “Minister for Justice and Equality” and “Department of Justice and Equality” construed (1.01.2013) by Equality Tribunal (Transfer of Departmental Administration and Ministerial Functions) Order 2012 (S.I. No. 531 of 2012), arts. 2, 3(1)(a), 3(2), commenced as per art. 1(2).
2.—(1) The administration and business in connection with the exercise, performance or execution of any functions transferred by Article 3 are transferred to the Department of Jobs, Enterprise and Innovation.
(2) References to the Department of Justice and Equality contained in any Act or any instrument made under such Act and relating to any administration and business transferred by paragraph (1) shall, from the commencement of this Order, be construed as references to the Department of Jobs, Enterprise and Innovation.
3.—(1) The functions vested in the Minister for Justice and Equality by or under—
(a) sections 75, 76, 79, 94 and 100 of the Employment Equality Act 1998 (No. 21 of 1998),
…
are transferred to the Minister for Jobs, Enterprise and Innovation.
(2) References to the Minister for Justice and Equality contained in any Act or instrument made under such Act and relating to any functions transferred by this Article shall, from the commencement of this Order, be construed as references to the Minister for Jobs, Enterprise and Innovation.
…
C25
Functions transferred and references to “Department of Finance” and “Minister for Finance” construed (29.07.2011) by Finance (Transfer of Departmental Administration and Ministerial Functions) Order 2011 (S.I. No. 418 of 2011), arts. 2, 3, 5 and sch. 1 part 2, in effect as per art. 1(2), subject to transitional provisions in arts. 6-9.
2. (1) The administration and business in connection with the performance of any functions transferred by this Order are transferred to the Department of Public Expenditure and Reform.
(2) References to the Department of Finance contained in any Act or instrument made thereunder and relating to the administration and business transferred by paragraph (1) shall, on and after the commencement of this Order, be construed as references to the Department of Public Expenditure and Reform.
3. The functions conferred on the Minister for Finance by or under the provisions of —
(a) the enactments specified in Schedule 1, and
(b) the statutory instruments specified in Schedule 2,
are transferred to the Minister for Public Expenditure and Reform.
…
5. References to the Minister for Finance contained in any Act or instrument under an Act and relating to any functions transferred by this Order shall, from the commencement of this Order, be construed as references to the Minister for Public Expenditure and Reform.
…
Schedule 1
Enactments
…
Part 2
1922 to 2011 Enactments
Number and Year
Short Title
Provision
(1)
(2)
(3)
…
…
…
No. 21 of 1998
Employment Equality Act 1998
Sections 42(1) and (2), 44(2) and (4), 46(2), 48(3) and (4), 51, 55(1), 59(4) and 75(1), (2) and (4A)
…
…
…
Editorial Notes:
E50
Existing rights commissioners and equality officers continued as adjudication officers for purposes of this Act (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 40(3), S.I. No. 410 of 2015, subject to exceptions in subss. (4)-(6), and term “rights commissioner” to be construed as adjudication officer (subs. (9)).
E51
Previous affecting provision: subs. (2A) inserted (18.07.2004) by Equality Act 2004 (24/2004), s. 30(b)(i), (c) and (d), commenced on enactment; deleted as per F-note above.
E52
Previous affecting provision: subss. (3), (4) substituted (18.07.2004) by Equality Act 2004 (24/2004), s. 30(d), commenced on enactment; deleted as per F-note above.
E53
Previous affecting provision: subs. (4A) inserted (18.07.2004) by Equality Act 2004 (24/2004), s. 30(b)(i), (c) and (d), commenced on enactment; substituted (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 21, commenced on enactment; deleted as per F-note above.
Redress
Right to information.
76.—(1) With a view to assisting a person (“X”) who considers—
(a) that another person (“Y”) may have discriminated against X in contravention of this Act or may have dismissed or otherwise penalised X in circumstances amounting to victimisation,
(b) that another person (“Y”) who is responsible for providing remuneration to X is not providing that remuneration as required by an equal remuneration term, or
(c) that another person (“Y”) with whom X has a contract of employment has not provided X with a benefit under an equality clause in that contract,
to decide whether to refer the matter under any provision of section 77 and, in the event of such a reference, to formulate and present X’s case in the most effective manner, the Minister may by regulations prescribe forms by which—
(i) X may question Y so as to obtain material information, and
(ii) Y may, if Y so wishes, reply to any questions.
(2) Subject to subsections (3) to (7), information is for the purposes of this section “material information” if it is—
(a) information as to Y’s reasons for doing or omitting to do any relevant act and as to any practices or procedures material to any such act,
(b) information, other than confidential information, about the remuneration or treatment of other persons who stand in relation to Y in the same or a similar position as X, or
F114[(c) other information which is not confidential information or information about the scale or financial resources of the employer’s business and which, in the circumstances of the case in question, it is reasonable for X to require.]
(3) In subsection (2)“confidential information” means any information which relates to a particular individual, which can be identified as so relating and to the disclosure of which that individual does not agree.
(4) Nothing in this Act shall be construed as requiring Y or any other person—
(a) to furnish any reference (or any copy thereof or extract therefrom) or any report (or copy thereof or extract therefrom) relating to the character or the suitability for employment of any person (including X), or
(b) to disclose the contents of such a reference or report.
(5) In a case where a person considers that he or she may have been discriminated against by, or in the course of an interview conducted on behalf of—
F115[(a) the holder of a recruitment licence under the Public Service Management (Recruitment and Appointments) Act 2004 in the course of a recruitment or selection process, other than one designed to recruit or select only from and for the holder’s own staff,]
(b) F116[…]
(c) the Minister for Defence in the course of a recruitment process for the Defence Forces, or
(d) the Commissioner of the Garda Síochána in the course of a recruitment process for the Garda Síochána,
information shall not be regarded as material information for the purposes of this section if it relates to communications with external advisers to any of the persons referred to in paragraphs (a) to (d) or if it goes beyond the permitted information specified in subsection (6).
(6) For the purposes of subsection (5), in relation to a recruitment or selection process, information is permitted information if it identifies the successful and the unsuccessful candidates—
(a) by reference to their sex, or
(b) in terms of the discriminatory grounds in section 28(1), by reference to those who have the same relevant characteristic as C or the same relevant characteristic as D.
(7) This section is without prejudice to the other provisions of this Act relating to the obtaining of information.
Annotations:
Amendments:
F114
Substituted (18.07.2004) by Equality Act 2004 (24/2004), s. 31, commenced on enactment.
F115
Substituted (6.10.2004) by Public Service Management (Recruitment and Appointments) Act 2004 (33/2004), s. 61(1) and sch. 2 part 1, commenced on enactment.
F116
Deleted (6.10.2004) by Public Service Management (Recruitment and Appointments) Act 2004 (33/2004), s. 61(1) and sch. 2 part 1, commenced on enactment.
Modifications (not altering text):
C26
Functions transferred and “Minister for Justice and Equality” and “Department of Justice and Equality” construed (1.01.2013) by Equality Tribunal (Transfer of Departmental Administration and Ministerial Functions) Order 2012 (S.I. No. 531 of 2012), arts. 2, 3(1)(a), 3(2), commenced as per art. 1(2).
2.—(1) The administration and business in connection with the exercise, performance or execution of any functions transferred by Article 3 are transferred to the Department of Jobs, Enterprise and Innovation.
(2) References to the Department of Justice and Equality contained in any Act or any instrument made under such Act and relating to any administration and business transferred by paragraph (1) shall, from the commencement of this Order, be construed as references to the Department of Jobs, Enterprise and Innovation.
3.—(1) The functions vested in the Minister for Justice and Equality by or under —
(a) sections 75, 76, 79, 94 and 100 of the Employment Equality Act 1998 (No. 21 of 1998),
…
are transferred to the Minister for Jobs, Enterprise and Innovation.
(2) References to the Minister for Justice and Equality contained in any Act or instrument made under such Act and relating to any functions transferred by this Article shall, from the commencement of this Order, be construed as references to the Minister for Jobs, Enterprise and Innovation.
…
C27
Application of section extended with modifications by Pensions Act 1990 (25/1990), s. 81J and sch. 4, as inserted (5.04.2004) by Social Welfare (Miscellaneous Provisions) Act 2004 (9/2004), s. 22, S.I. No. 141 of 2004, as amended (18.07.2004) by Equality Act 2004 24/2004), s. 66(3)(e), commenced on enactment.
Application of Employment Equality Act 1998.
81J.—(1) In this section ‘the Act of 1998’ means the Employment Equality Act 1998.
(2) Sections 74, [76, 77A], 78 to 81, 83 to 85 and 86 to 104 of the Act of 1998 shall, where appropriate, apply in relation to this Part as they apply in relation to that Act but with the following modifications.
(3) Those modifications are that for the words set out in column (3) of the Fourth Schedule at a particular reference number, being words appearing in a section or sections of the Act of 1998 specified in column (2) of that Schedule at that reference number, there shall be substituted in the place or, as the case may be, each place where those words occur in that section or sections the words set out in column (4) of that Schedule at that reference number.
Editorial Notes:
E54
Power pursuant to subs. (1) exercised (18.10.1999) by Employment Equality Act, 1998 (Section 76 – Right To Information) Regulations 1999 (S.I. No. 321 of 1999).
The forum for seeking redress.
77.—F117[(1) A person who claims—
(a) to have been discriminated against or subjected to victimisation,
(b) to have been dismissed in circumstances amounting to discrimination or victimisation,
(c) not to be receiving remuneration in accordance with an equal remuneration term, or
(d) not to be receiving a benefit under an equality clause,
in contravention of this Act may, subject to subsections (3) to (9), seek redress by referring the case to the F118[Director General of the Workplace Relations Commission].]
(2) F119[…]
F117[(3) If the grounds for such a claim arise—
(a) under Part III, or
(b) in any other circumstances (including circumstances amounting to victimisation) to which the Equal Pay Directive or Equal Treatment Directive is relevant,
then, subject to subsections (4) to (9), the person making the claim may seek redress by referring the case to the Circuit Court instead of to the F118[Director General of the Workplace Relations Commission].]
F120[(4) In this Part, in relation to a claim referred under any provision of this section—
(a) ‘the complainant’ means—
(i) the person by whom it is referred, or
(ii) where such a person is unable, by reason of an intellectual or a psychological disability, to pursue it effectively, his or her parent, guardian or other person acting in place of a parent, and]
(b) “the respondent” means the person who is alleged to have discriminated against the complainant or, as the case may be, who is responsible for providing the remuneration to which the equal remuneration term relates or who is responsible for providing the benefit under the equality clause or who is alleged to be responsible for the victimisation.
F120[(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.
(b) On application by a complainant the F118[Director General of the Workplace Relations Commission] or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.
(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.
(6) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5)(a) shall be construed 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.]
F121[(6A) For the purposes of this section—
(a) discrimination or victimisation occurs—
(i) if the act constituting it extends over a period, at the end of the period,
(ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and
(iii) if it arises by virtue of a provision which operates over a period, throughout the period,
(b) a deliberate omission by a person to do something occurs when the person decides not to do it, and
(c) a respondent is presumed, unless the contrary is shown, to decide not to do something when the respondent either—
(i) does an act inconsistent with doing it, or
(ii) the period expires during which the respondent might reasonably have been expected to do it.]
F122[(7) Where the complainant’s claim for redress is in respect of discrimination—
(a) by the holder of a recruitment licence under the Public Service Management (Recruitment and Appointments) Act 2004 in the course of such a recruitment or selection process as is referred to in section 76(5)(a),
(b) by the Minister for Defence in the course of a recruitment process for the Defence Forces, or
(c) by the Commissioner of the Garda Síochána in the course of a recruitment process for the Garda Síochána,
the complainant shall in the first instance refer the claim for redress to the holder of the recruitment licence concerned or, as the case may be, to the Minister for Defence or the Commissioner of the Garda Síochána.]
(8) Where subsection (7) applies to a claim for redress in respect of discrimination, the complainant may not refer the case under subsection (1)F119[…] or (3) unless—
(a) F122[the holder of the recruitment licence concerned] or, as the case may be, the Minister for Defence or the Commissioner of the Garda Síochána have failed to give a decision on the claim on or before the twenty-eighth day after it was referred, or
(b) the complainant is not satisfied with the decision given on the claim,
and in a case to which paragraph (a) or (b) relates, the end of the period of time which is applicable under subsection (5) (including, where appropriate, applicable under that subsection by reference to subsection (6)) shall be construed as—
(i) the end of that period, or
(ii) the end of the period of 28 days from the expiration of the period referred to in paragraph (a) or the date of the decision referred to in paragraph (b),
whichever last occurs.
F120[(9) Where a claim for redress under this Act (other than on the age or disability ground)—
(a) relates to employment in the Defence Forces, and
(b) is made by a member thereof,
the claim shall, in the first instance, be referred for redress under the procedure set out in section 104.]
(10) Where subsection (9) applies to a claim for redress, the complainant shall not refer a case under subsection (1)F119[…] or (3) unless—
(a) a period of 12 months has elapsed after the referral under section 104 to which the claim relates and the procedures under section 104(2)(a) have not been requested or have not been completed, or
(b) the complainant is not satisfied with the recommendation given under section 104(2)(b) on the claim,
and in a case to which paragraph (a) or (b) relates, the end of the period of time which is applicable under subsection (5) (including, where appropriate, applicable under that subsection by reference to subsection (6)) shall be construed as—
(i) the end of that period, or
(ii) the end of the period of 28 days from the expiration of the period referred to in paragraph (a) or the date of the recommendation referred to in paragraph (b),
whichever last occurs.
F121[(11) A party to any proceedings under this Act before the F118[Director General of the Workplace Relations Commission] or Labour Court may be represented by any individual or body authorised by the party in that behalf.
(12) F123[(a) Not later than 42 days from the date of a decision of the F118[Director General of the Workplace Relations Commission] on an application by a complainant for an extension of time under subsection (5), the complainant or respondent may appeal against the decision to the Labour Court on notice to the F118[Director General of the Workplace Relations Commission] specifying the grounds of the appeal.]
(b) On the appeal the Labour Court may affirm, quash or vary the decision.
(c) Unless otherwise agreed by the complainant and respondent, effect shall not be given to a decision of the F118[Director General of the Workplace Relations Commission] on such an application until—
(i) the period of 42 days mentioned in paragraph (a) has expired, or
(ii) any appeal against it has been determined,
whichever first occurs.
(13) This section is subject to section 104.]
Annotations:
Amendments:
F117
Substituted (18.07.2004) by Equality Act 2004 (24/2004), s. 46 and sch. paras. 1 and 2, commenced on enactment.
F118
Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 83(1)(c)(ii), S.I. No. 410 of 2015, subject to transitional provision in subs. (2).
F119
Deleted (18.07.2004) by Equality Act 2004 (24/2004), s. 46 and sch. paras. 1 and 3, commenced on enactment.
F120
Substituted (18.07.2004) by Equality Act 2004 (24/2004), s. 32(a), (b) and (c), commenced on enactment.
F121
Inserted (18.07.2004) by Equality Act 2004 (24/2004), s. 32(b) and (d), commenced on enactment.
F122
Substituted (6.10.2004) by Public Service Management (Recruitment and Appointments) Act 2004 (33/2004), s. 61(1) and sch. 2 part 1, commenced on enactment.
F123
Substituted (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 22, commenced on enactment.
Dismissal of claim.
77A.—(1) The F125[Director General of the Workplace Relations Commission] may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.
(2) (a) Not later than 42 days after the F125[Director General of the Workplace Relations Commission] dismisses a claim under this section, the complainant may appeal against the decision to the Labour Court on notice to the F125[Director General of the Workplace Relations Commission] specifying the grounds of the appeal.
(b) On the appeal the Labour Court may affirm or quash the decision.]
Annotations:
Amendments:
F124
Inserted (18.07.2004) by Equality Act 2004 (24/2004), s. 33, commenced on enactment.
F125
Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 83(1)(c)(ii), S.I. No. 410 of 2015, subject to transitional provision in subs. (2).
Modifications (not altering text):
C28
Application of section extended with modifications by Pensions Act 1990 (25/1990), s. 81J and sch. 4, as inserted (5.04.2004) by Social Welfare (Miscellaneous Provisions) Act 2004 (9/2004), s. 22, S.I. No. 141 of 2004, as amended (18.07.2004) by Equality Act 2004 24/2004), s. 66(3)(e), commenced on enactment.
Application of Employment Equality Act 1998.
81J.—(1) In this section ‘the Act of 1998’ means the Employment Equality Act 1998.
(2) Sections 74, [76, 77A], 78 to 81, 83 to 85 and 86 to 104 of the Act of 1998 shall, where appropriate, apply in relation to this Part as they apply in relation to that Act but with the following modifications.
(3) Those modifications are that for the words set out in column (3) of the Fourth Schedule at a particular reference number, being words appearing in a section or sections of the Act of 1998 specified in column (2) of that Schedule at that reference number, there shall be substituted in the place or, as the case may be, each place where those words occur in that section or sections the words set out in column (4) of that Schedule at that reference number.
Mediation.
F126[78.Section 39 of the Act of 2015 shall apply to a case referred to the Director General of the Workplace Relations Commission under section 77 of this Act as it applies to a complaint presented, or dispute referred, to the Director General of the Workplace Relations Commission under section 41 of the Act of 2015, subject to the modification that references to a complaint or dispute under the said section 39 shall be construed as references to a case so referred.]
Annotations:
Amendments:
F126
Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 83(1)(e), S.I. No. 410 of 2015.
Editorial Notes:
E55
Previous affecting provision: section amended (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 23, commenced on enactment; section substituted as per F-note above.
E56
Previous affecting provision: section amended (18.07.2004) by Equality Act 2004 (24/2004), s. 46 and sch. paras. 4, 5, 6, 7(a), (b), 8 and 9, commenced on enactment; section substituted as per F-note above.
E57
Previous affecting provision: section amended (18.07.2004) by Equality Act 2004 (24/2004), s. 34(a), (b) and (c), commenced on enactment; section substituted as per F-note above.
Investigations by Director General of the Workplace Relations Commission or the Labour Court.
F128[79.—(1) Where a case which has been referred to the F129[Director General of the Workplace Relations Commission] under section 77—
(a) does not fall to be dealt with by way of mediation under section 78, or
(b) falls to be dealt with under this section by virtue of section 78(7),
the F129[Director General of the Workplace Relations Commission] shall investigate the case and may, as part of that investigation and if the F129[Director General of the Workplace Relations Commission] considers it appropriate, hear persons appearing to the F129[Director General of the Workplace Relations Commission] to be interested. ]
F130[(1A) (a) Claims to have been discriminated against on more than one of the discriminatory grounds shall be investigated as a single case, and
(b) 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.]
(2) An investigation under this section shall be held in private F131[…].
F132[(2A)(a) Where the F129[Director General of the Workplace Relations Commission] considers that the case may be dealt with on the basis of written submissions only, the F129[Director General of the Workplace Relations Commission] shall notify the parties in writing of his or her proposal to do so.
(b) A notification under paragraph (a) shall inform the parties of the right to make representations to the F129[Director General of the Workplace Relations Commission] in accordance with paragraph (c).
(c) A person who receives a notification under paragraph (a) may, within 28 days from the issue of the notification, make representations to the F129[Director General of the Workplace Relations Commission] as to why the case should not be dealt with on the basis of written submissions only.
(d) Where, in representations made pursuant to paragraph (c), objection is made to the F129[Director General of the Workplace Relations Commission] dealing with the matter on the basis of written submissions only, the F129[Director General of the Workplace Relations Commission] shall not determine the matter in that manner. ]
(3) If, in a case which 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 by virtue of section 19(5) or 29(5), the F129[Director General of the Workplace Relations Commission] may direct that that question shall be investigated as a preliminary issue and shall proceed accordingly.
F130[(3A) If, in a case which is referred to the F129[Director General of the Workplace Relations Commission] under section 77, a question arises relating to the entitlement of any party to bring or contest proceedings under that section, including:
(a) whether the complainant has complied with the statutory requirements relating to such referrals,
(b) whether the discrimination or victimisation concerned occurred on or after 18 October 1999,
(c) whether the complainant is an employee, or
(d) any other related question of law or fact,
the F129[Director General of the Workplace Relations Commission] may direct that the question be investigated as a preliminary issue and shall proceed accordingly.]
(4) Subject to subsections (2) and (3), the Minister may by regulations specify—
(a) procedures to be followed by the F129[Director General of the Workplace Relations Commission]F131[…] in carrying out investigations (or any description of investigations) under this section, and
(b) time limits applicable to such investigations, including procedures for extending those limits in certain circumstances,
but, before making any such regulations, the Minister shall consult F131[…] the Authority and the Director F131[…].
(5) Unless the Director F131[…] considers it necessary to do so in order to bring an investigation to a proper conclusion, information shall be neither sought nor relied upon for the purpose of an investigation under this section (or of any appeal subsequent thereto) if it relates to or is derived from communications with external advisers to any of the persons referred to in paragraphs (a) to (d) of section 76(5).
F132[(5A) F133[…]]
(6) At the conclusion of an investigation under this section (including an investigation of a preliminary issue under F134[subsection (3) or (3A)]), the F129[Director General of the Workplace Relations Commission] shall F134[make a decision]F131[…] and, if the decision F131[…] is in favour of the complainant—
(a) it shall provide for redress in accordance with section 82, or
(b) in the case of a decision on a preliminary issue under F128[subsection (3) or (3A)], it shall be followed by an investigation of the substantive issue.
F130[(7) F133[…]]
Annotations:
Amendments:
F127
Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 83(1)(c)(ii), S.I. No. 410 of 2015, subject to transitional provision in subs. (2).
F128
Substituted (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 24(a) and (d), commenced on enactment.
F129
Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 83(1)(c)(ii), S.I. No. 410 of 2015, subject to transitional provision in subs. (2).
F130
Inserted (18.07.2004) by Equality Act 2004 (24/2004), s. 35 (a), (b) and (d), commenced on enactment.
F131
Deleted (18.07.2004) by Equality Act 2004 (24/2004), s. 46 and sch. paras. 10(a)-(c), 11, 12(a)-(c), 13 and 14(a) and (b), commenced on enactment.
F132
Inserted (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 24(b) and (c), commenced on enactment.
F133
Deleted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 83(1)(f), S.I. No. 410 of 2015, subject to transitional provision in subs. (2).
F134
Substituted (18.07.2004) by Equality Act 2004 (24/2004), s. 35(c)(i) and (ii), commenced on enactment.
Modifications (not altering text):
C29
Functions transferred and “Minister for Justice and Equality” and “Department of Justice and Equality” construed (1.01.2013) by Equality Tribunal (Transfer of Departmental Administration and Ministerial Functions) Order 2012 (S.I. No. 531 of 2012), arts. 2, 3(1)(a), 3(2), commenced as per art. 1(2).
2.—(1) The administration and business in connection with the exercise, performance or execution of any functions transferred by Article 3 are transferred to the Department of Jobs, Enterprise and Innovation.
(2) References to the Department of Justice and Equality contained in any Act or any instrument made under such Act and relating to any administration and business transferred by paragraph (1) shall, from the commencement of this Order, be construed as references to the Department of Jobs, Enterprise and Innovation.
3.—(1) The functions vested in the Minister for Justice and Equality by or under—
(a) sections 75, 76, 79, 94 and 100 of the Employment Equality Act 1998 (No. 21 of 1998),
…
are transferred to the Minister for Jobs, Enterprise and Innovation.
(2) References to the Minister for Justice and Equality contained in any Act or instrument made under such Act and relating to any functions transferred by this Article shall, from the commencement of this Order, be construed as references to the Minister for Jobs, Enterprise and Innovation.
…
References to the Circuit Court.
80.—(1) This section applies where a case is referred to the Circuit Court under section 77(3); and any reference in subsections (2) to (5) of this section to the proceedings is a reference to the proceedings on the reference.
(2) The jurisdiction of the Circuit Court shall be exercised by the judge for the time being assigned to the circuit where the respondent resides or ordinarily carries on any profession, business or occupation.
(3) With the substitution of a reference to the Circuit Court for the reference to the F135[Director General of the Workplace Relations Commission], section 79(3) shall apply in relation to a reference to the Circuit Court as it applies in relation to a reference to the F135[Director General of the Workplace Relations Commission].
(4) If requested to do so by the Circuit Court, the F135[Director General of the Workplace Relations Commission] shall nominate an F136[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).
(5) Where a report is prepared for the Circuit Court under subsection (4), then, subject to any directions of the Circuit Court—
(a) the F136[adjudication officer] shall furnish a copy of the report to the complainant and the respondent and to any other person to whom it relates,
(b) the report shall be received in evidence in the proceedings, and
(c) without prejudice to the power of the Circuit Court to require the F136[adjudication officer] by whom the report was prepared to attend and give evidence in the proceedings, the F136[adjudication officer] may be called as a witness in the proceedings by the complainant or the respondent.
Annotations:
Amendments:
F135
Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 83(1)(c)(ii), S.I. No. 410 of 2015, subject to transitional provision in subs. (2).
F136
Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 83(1)(c)(i), S.I. No. 410 of 2015, subject to transitional provision in subs. (2).
Modifications (not altering text):
C30
Application of section extended with modifications by Pensions Act 1990 (25/1990), s. 81J and sch. 4, as inserted (5.04.2004) by Social Welfare (Miscellaneous Provisions) Act 2004 (9/2004), s. 22, S.I. No. 141 of 2004, as amended (18.07.2004) by Equality Act 2004 24/2004), s. 66(3)(e), commenced on enactment.
Application of Employment Equality Act 1998.
81J.—(1) In this section ‘the Act of 1998’ means the Employment Equality Act 1998.
(2) Sections 74, [76, 77A], 78 to 81, 83 to 85 and 86 to 104 of the Act of 1998 shall, where appropriate, apply in relation to this Part as they apply in relation to that Act but with the following modifications.
(3) Those modifications are that for the words set out in column (3) of the Fourth Schedule at a particular reference number, being words appearing in a section or sections of the Act of 1998 specified in column (2) of that Schedule at that reference number, there shall be substituted in the place or, as the case may be, each place where those words occur in that section or sections the words set out in column (4) of that Schedule at that reference number.
Consequences of failure to supply information etc.
81.—If, in the course of proceedings on a reference under section 77(3) or of an investigation under section 79, it appears to the Circuit Court F137[or the F138[Director General of the Workplace Relations Commission]] as the case may be—
(a) that the respondent failed to supply information which the complainant sought by questions under section 76 and which was in the respondent’s possession or power, or
(b) that the information supplied by the respondent in response to any such question was false or misleading or was otherwise not such as the complainant might reasonably have required in order to make the decision referred to in section 76(1),
the Circuit Court F137[or the F138[Director General of the Workplace Relations Commission]] (as the case may require) may draw such inferences as seem appropriate from the failure to supply the information or, as the case may be, for the supply of information as mentioned in paragraph (b).
Annotations:
Amendments:
F137
Substituted (18.07.2004) by Equality Act 2004 (24/2004), s. 46 and sch. para. 15, commenced on enactment.
F138
Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 83(1)(c)(ii), S.I. No. 410 of 2015, subject to transitional provision in subs. (2).
Modifications (not altering text):
C31
Application of section extended with modifications by Pensions Act 1990 (25/1990), s. 81J and sch. 4, as inserted (5.04.2004) by Social Welfare (Miscellaneous Provisions) Act 2004 (9/2004), s. 22, S.I. No. 141 of 2004, as amended (18.07.2004) by Equality Act 2004 24/2004), s. 66(3)(e), commenced on enactment.
Application of Employment Equality Act 1998.
81J.—(1) In this section ‘the Act of 1998’ means the Employment Equality Act 1998.
(2) Sections 74, [76, 77A], 78 to 81, 83 to 85 and 86 to 104 of the Act of 1998 shall, where appropriate, apply in relation to this Part as they apply in relation to that Act but with the following modifications.
(3) Those modifications are that for the words set out in column (3) of the Fourth Schedule at a particular reference number, being words appearing in a section or sections of the Act of 1998 specified in column (2) of that Schedule at that reference number, there shall be substituted in the place or, as the case may be, each place where those words occur in that section or sections the words set out in column (4) of that Schedule at that reference number.
Redress which may be ordered.
82.—(1) Subject to this section, the types of redress for which a decision of the F139[Director General of the Workplace Relations Commission] under section 79 may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:
(a) 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 under section 77(1) which led to the decision;
(b) an order for equal remuneration from the date referred to in paragraph (a);
(c) 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 of the case under section 77;
(d) an order for equal treatment in whatever respect is relevant to the case;
(e) an order that a person or persons specified in the order take a course of action which is so F140[specified;]
F141[(f) an order for re-instatement or re-engagement, with or without an order for compensation.]
(2) F142[…]
(3) The types of redress for which the Circuit Court may provide on a reference under section 77(3) are such one or more of the following as may be appropriate in the circumstances of the particular case:
(a) 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;
(b) an order for equal remuneration from the date of the referral;
(c) the orders referred to in F140[paragraphs (c) to (f)] of subsection (1);
(d) F142[…]
and no enactment relating to the jurisdiction of the Circuit Court shall be taken to limit the amount of compensation or remuneration which may be ordered by the Circuit Court by virtue of this subsection.
F143[(4) The maximum amount which may be ordered by the F139[Director General of the Workplace Relations Commission] by way of compensation under subsection (1)(c) or (1)(f) shall be—
(a) 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—
(i) 104 times the amount of that remuneration, determined on a weekly basis,
(ii) 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
(iii) €40,000,
or
(b) in any other case, €13,000. ]
(5) Where the case for which the redress is to be provided is referred to the F139[Director General of the Workplace Relations Commission]F142[…] and arises—
(a) under Part III, or
(b) in any other circumstances (including circumstances amounting to victimisation) to which the Equal Pay Directive or the Equal Treatment Directive is relevant,
the F139[Director General of the Workplace Relations Commission]F142[…] may, in addition to making an order for compensation, also order the payment of interest, at the rate which is applicable under section 22(1) of the Courts Act, 1981—
(i) in respect of the whole or any part of the amount of the compensation, and
(ii) in respect of the period beginning on the relevant date and ending on the date of the payment,
and, for the purposes of subparagraph (ii), “the relevant date” means the first day of the period (if any) to which the compensation is expressed to be referable or, if there is no such period, the date of the reference under section 77(1).
F144[(6) (a) The maximum amount of compensation specified in subsection (4) applies notwithstanding that conduct the subject of the investigation by the F139[Director General of the Workplace Relations Commission] constituted—
(i) discrimination on more than one of the discriminatory grounds, or
(ii) both discrimination on one or more than one of such grounds and harassment or sexual harassment.
(b) In paragraph (a) ‘discrimination’ does not include non-compliance with an equal remuneration term.
(7) An order for compensation under this section may not be made in favour of the Authority in a case referred by it to the F139[Director General of the Workplace Relations Commission] under section 85(1).
(8) Where an act constitutes victimisation under both this Act and the Equal Status Act 2000, redress may be provided under only one of them.
(9) Where a delay in referring a case under this Act to the F139[Director General of the Workplace Relations Commission] or Circuit Court is attributable to the respondent’s having misrepresented to the complainant the facts of the case, references in this section to the date of referral shall be construed as references to the date of the misrepresentation.]
Annotations:
Amendments:
F139
Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 83(1)(c)(ii), S.I. No. 410 of 2015, subject to transitional provision in subs. (2).
F140
Substituted (18.07.2004) by Equality Act 2004 (24/2004), s. 46 and sch. paras. 16(a) and 18(a), commenced on enactment.
F141
Inserted (18.07.2004) by Equality Act 2004 (24/2004), s. 46 and sch. paras. 16(b) and 19(a), commenced on enactment.
F142
Deleted (18.07.2004) by Equality Act 2004 (24/2004), s. 46 and sch. paras. 17, 18(b), 19(b) and 20(a) and (b), commenced on enactment.
F143
Substituted (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 25(1), commenced on enactment, subject to subs. (2) which provides that the substitution applies as respects a claim under s. 77(1) where the act or omission occurs after the substitution date.
F144
Inserted (18.07.2004) by Equality Act 2004 (24/2004), s. 36, commenced on enactment.
Appeals from the Director General of the Workplace Relations Commission to the Labour Court.
F146[83. Section 44 of the Act of 2015 shall apply to a decision of the Director General of the Workplace Relations Commission under section 79 as it applies to a decision of an adjudication officer under section 41 of that Act, subject to the following modifications:
(a) the substitution of the following subsection for subsection (1):
‘(1) (a) A party to a case referred to the Director General of the Workplace Relations Commission under section 77 of the Act of 1998 may appeal a decision of the Director General given in an investigation in relation to that case under section 79 of that Act to the Labour Court and, where the party does so, the Labour Court shall—
(i) give the parties to the appeal an opportunity to be heard by it and to present to it any evidence relevant to the appeal,
(ii) make a decision in relation to the appeal affirming, varying or setting aside the decision of the adjudication officer to which the appeal relates, and
(iii) give the parties to the appeal a copy of that decision in writing.
(b) The Labour Court shall have power to grant such redress in an appeal under this paragraph as the Director General has power to grant in an investigation under section 79 of the Act of 1998.’;
and
(b) any other necessary modifications.]
Annotations:
Amendments:
F145
Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 83(1)(c)(ii), S.I. No. 410 of 2015, subject to transitional provision in subs. (2).
F146
Substituted (1.10.2015) by National Minimum Wage (Low Pay Commission) Act 2015 (22/2015), s. 17(1)(a), S.I. No. 411 of 2015.
Modifications (not altering text):
C32
Application of section extended with modifications by Pensions Act 1990 (25/1990), s. 81J and sch. 4, as inserted (5.04.2004) by Social Welfare (Miscellaneous Provisions) Act 2004 (9/2004), s. 22, S.I. No. 141 of 2004, as amended (18.07.2004) by Equality Act 2004 24/2004), s. 66(3)(e), commenced on enactment.
Application of Employment Equality Act 1998.
81J.—(1) In this section ‘the Act of 1998’ means the Employment Equality Act 1998.
(2) Sections 74, [76, 77A], 78 to 81, 83 to 85 and 86 to 104 of the Act of 1998 shall, where appropriate, apply in relation to this Part as they apply in relation to that Act but with the following modifications.
(3) Those modifications are that for the words set out in column (3) of the Fourth Schedule at a particular reference number, being words appearing in a section or sections of the Act of 1998 specified in column (2) of that Schedule at that reference number, there shall be substituted in the place or, as the case may be, each place where those words occur in that section or sections the words set out in column (4) of that Schedule at that reference number.
Editorial Notes:
E58
Previous affecting provision: section substituted by Workplace Relations Act 2015 (16/2015), s. 83(1)(g), not commenced; deleted (1.10.2015) by National Minimum Wage (Low Pay Commission) Act 2015 (22/2015), s. 20(1)(n)(i), S.I. No. 411 of 2015.
E59
Previous affecting provision: subs. (5) amended (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 26, commenced on enactment; section substituted as per F-note above.
References by the Labour Court to the WRC
84.—(1) F148[…]
(2) Where an appeal is brought to the Labour Court under section 83 and it considers that its determination on the appeal would be assisted by the exercise of its powers under this subsection, the Labour Court may refer all or any of the matters in issue on the appeal to the F147[Director General of the Workplace Relations Commission] for further investigation or, as appropriate, re-investigation; and, where such a reference is made, the F147[Director General of 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.
(3) Where the Labour Court refers any matters to the F147[Director General of the Workplace Relations Commission] under F149[subsection (2)]—
(a) it may suspend, in whole or in part, or adjourn its investigation of the case in question or, as the case may be, its hearing of the appeal, pending the receipt of a report from the F147[Director General of the Workplace Relations Commission], and
(b) it shall take account of the F147[Director General of the Workplace Relations Commission]’s report on the matters referred in reaching its determination.
(4) Where, on an appeal under section 83, the Labour Court determines that the decision of the F147[Director General of the Workplace Relations Commission] which is in question should be set aside, it may, by its determination, also refer the matter in issue back to the F147[Director General of the Workplace Relations Commission] for a new investigation and decision under section 79.
Annotations:
Amendments:
F147
Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 83(1)(c)(ii), S.I. No. 410 of 2015.
F148
Deleted (18.07.2004) by Equality Act 2004 (24/2004), s. 46 and sch. para. 21, commenced on enactment.
F149
Substituted (18.07.2004) by Equality Act 2004 (24/2004), s. 46 and sch. para. 22, commenced on enactment.
Modifications (not altering text):
C33
Application of section extended with modifications by Pensions Act 1990 (25/1990), s. 81J and sch. 4, as inserted (5.04.2004) by Social Welfare (Miscellaneous Provisions) Act 2004 (9/2004), s. 22, S.I. No. 141 of 2004, as amended (18.07.2004) by Equality Act 2004 24/2004), s. 66(3)(e), commenced on enactment.
Application of Employment Equality Act 1998.
81J.—(1) In this section ‘the Act of 1998’ means the Employment Equality Act 1998.
(2) Sections 74, [76, 77A], 78 to 81, 83 to 85 and 86 to 104 of the Act of 1998 shall, where appropriate, apply in relation to this Part as they apply in relation to that Act but with the following modifications.
(3) Those modifications are that for the words set out in column (3) of the Fourth Schedule at a particular reference number, being words appearing in a section or sections of the Act of 1998 specified in column (2) of that Schedule at that reference number, there shall be substituted in the place or, as the case may be, each place where those words occur in that section or sections the words set out in column (4) of that Schedule at that reference number.
Enforcement powers of the Authority.
85.—(1) Where it appears to the Authority—
(a) that discrimination or victimisation is being generally practised against persons or that a practice referred to in section 8(4) is being applied or operated,
(b) that discrimination or victimisation has occurred in relation to a particular person who has not made a reference under section 77 in relation to the discrimination or victimisation and that it is not reasonable to expect that person to make such a reference,
(c) that there is a failure to comply with an equal remuneration term or an equality clause either generally in a business or in relation to a particular person who has not made a reference under section 77 in relation to the failure and whom it is not reasonable to expect to make such a reference,
(d) that a publication or display has been made in contravention of section 10,
(e) that, contrary to section 14, a person has procured or attempted to procure another to do anything which constitutes discrimination or victimisation, or
(f) that a person has procured or attempted to procure another to break an equal remuneration term or an equality clause,
the Authority may refer the matter to the F150[Director General of the Workplace Relations Commission].
(2) Where the Authority refers a matter to the F150[Director General of the Workplace Relations Commission] under subsection (1), the preceding provisions of this Part shall apply as if it were a case referred under section 77, except that—
(a) any reference to the complainant shall be construed as a reference to the Authority,
(b) any reference to the respondent shall be construed as a reference to the person who, in the opinion of the Authority, practised the discrimination or, as the case may require, was responsible for the failure to comply with the equal remuneration term or equality clause or for the victimisation or the publication or display or for the procurement or attempted procurement, and
(c) any reference to the parties shall be taken to include, in the case of a matter referred by virtue of any of paragraphs (a) to (c) of subsection (1), any person who was discriminated against or victimised or suffered from the failure to comply as mentioned in the paragraph concerned.
(3) In a decision under section 79, as applied by subsection (2), the following types of redress shall be available:
(a) redress as under section 82 (construing references in that section to the complainant as references to the person referred to in subsection (2)(c));
(b) where the reference was by virtue of subsection (1)(d), a decision that a publication or display was or was not made in contravention of section 10; and
(c) where the reference was by virtue of paragraph (e) or (f) of subsection (1), a decision that the person concerned has or has not procured or attempted to procure as mentioned in the paragraph concerned.
(4) Subsection (5) applies in a case where the Authority satisfies the High Court or, as the case may be, the Circuit Court that, following a decision under section 79, as applied by subsection (2), in a matter referred by virtue of any paragraph of subsection (1), there is a likelihood of—
(a) further discrimination or victimisation,
(b) a further failure to comply with an equal remuneration term or equality clause,
(c) a further publication or display in contravention of section 10, or
(d) further procuring or attempting to procure as mentioned in paragraph (e) or (f) of subsection (1), by a person in relation to whom the decision was made, and of the type the subject of the decision.
(5) In a case to which this subsection applies, the High Court or the Circuit Court, on the motion of the Authority specifying the person in question, may grant an injunction to prevent that person from continuing any conduct (such as is mentioned in subsection (4)), of a type so specified.
F151[(5A) Where the Authority refers, or is considering whether to refer, a matter to the F150[Director General of the Workplace Relations Commission] under subsection (1) in relation to a person referred to in any of paragraphs (a) to (c) of that subsection, subsections (5) to (8) of section 67 shall apply and have effect in relation to that person as those subsections do in relation to a person requesting assistance under that section.]
(6) The jurisdiction conferred on the Circuit Court by this section shall be exercised by the judge for the time being assigned to the circuit where the person specified in the Authority’s motion ordinarily resides or carries on any profession, business or occupation.
Annotations:
Amendments:
F150
Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 83(10(c)(ii), S.I. No. 410 of 2015, subject to transitional provision in subs. (2).
F151
Inserted (18.07.2004) by Equality Act 2004 (24/2004), s. 37, commenced on enactment.
Modifications (not altering text):
C34
Application of section extended with modifications by Pensions Act 1990 (25/1990), s. 81J and sch. 4, as inserted (5.04.2004) by Social Welfare (Miscellaneous Provisions) Act 2004 (9/2004), s. 22, S.I. No. 141 of 2004, as amended (18.07.2004) by Equality Act 2004 24/2004), s. 66(3)(e), commenced on enactment.
Application of Employment Equality Act 1998.
81J.—(1) In this section ‘the Act of 1998’ means the Employment Equality Act 1998.
(2) Sections 74, [76, 77A], 78 to 81, 83 to 85 and 86 to 104 of the Act of 1998 shall, where appropriate, apply in relation to this Part as they apply in relation to that Act but with the following modifications.
(3) Those modifications are that for the words set out in column (3) of the Fourth Schedule at a particular reference number, being words appearing in a section or sections of the Act of 1998 specified in column (2) of that Schedule at that reference number, there shall be substituted in the place or, as the case may be, each place where those words occur in that section or sections the words set out in column (4) of that Schedule at that reference number.
Burden of proof.
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 F153[Director General of the Workplace Relations Commission] 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.]
Annotations:
Amendments:
F152
Inserted (18.07.2004) by Equality Act 2004 (24/2004), s. 38, commenced on enactment.
F153
Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 83(1)(c)(ii), S.I. No. 410 of 2015.
Collective Agreements
Reference of collective agreements to WRC
86.—(1) If the Authority or a person who is affected by a collective agreement claims that a provision of that agreement is null and void by virtue of section 9, the Authority or that person may refer the question of that agreement to the F154[Director General of the Workplace Relations Commission]; and in this section (and section 87) the Authority or the person making such a reference is referred to as “the complainant”.
(2) For the purposes of this section (and section 87)—
(a) the expression “collective agreement” shall be taken to include an order or agreement falling within paragraph (b) or (c) of section 9 (3),
(b) a person is affected by a collective agreement if that person is an employee whose remuneration or whose conditions of employment are, in whole or in part, governed by the agreement (or any part of it), and
(c) “the respondents” means the parties to the agreement, other than (where relevant) the complainant.
(3) Subject to subsection (4), where a collective agreement is referred to the F154[Director General of the Workplace Relations Commission] under this section, the F154[Director General of the Workplace Relations Commission] shall consider whether the question of the possible nullity of a provision of the agreement appears to be one which could be resolved by mediation and—
(a) if the F154[Director General of the Workplace Relations Commission] considers that the question could be so resolved, the F154[Director General of the Workplace Relations Commission] shall refer the agreement to an F155[mediation officer] for mediation in accordance with section 87, and
(b) if the F154[Director General of the Workplace Relations Commission] considers that the question could not be so resolved, the F154[Director General of the Workplace Relations Commission] shall proceed in accordance with paragraph (b) or (c) of subsection (4).
(4) If the complainant or the respondents object to a reference under subsection (3)(a) (or if section 78(7) applies in accordance with subsection (6)) the Director—
(a) shall not exercise the powers under subsection (3)(a),
(b) shall investigate the agreement and, for that purpose, hear all persons appearing to the F154[Director General of the Workplace Relations Commission] to be interested and desiring to be heard, and
(c) shall issue a decision in accordance with section 87,
and subsections (3) and (4) of section 79 shall apply in relation to an investigation by the F154[Director General of the Workplace Relations Commission] under this subsection as they apply in relation to an investigation by the F154[Director General of the Workplace Relations Commission] under that section.
(5) Mediation under subsection (3) or an investigation under subsection (4) shall be conducted in private.
(6) Where a collective agreement is referred for mediation under subsection (3), subsections (5) to (7) of section 78 shall apply as they apply where a case which has been referred to an F155[mediation officer] under section 78(1) but, for the purpose of that application—
(a) references in those subsections to the complainant and the respondent shall be construed as references to the complainant and the respondents, within the meaning of this section, and
(b) section 78(7) shall have effect as if, for the words following paragraph (c) thereof, there were substituted “the Director shall investigate the matter of the agreement under section 86(4)”.
Annotations:
Amendments:
F154
Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 83(1)(c)(ii), S.I. No. 410 of 2015, subject to transitional provisions in subs. (2).
F155
Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 83(1)(c)(iii), S.I. No. 410 of 2015, subject to transitional provision in subs. (2).
Modifications (not altering text):
C35
Application of section extended with modifications by Pensions Act 1990 (25/1990), s. 81J and sch. 4, as inserted (5.04.2004) by Social Welfare (Miscellaneous Provisions) Act 2004 (9/2004), s. 22, S.I. No. 141 of 2004, as amended (18.07.2004) by Equality Act 2004 24/2004), s. 66(3)(e), commenced on enactment.
Application of Employment Equality Act 1998.
81J.—(1) In this section ‘the Act of 1998’ means the Employment Equality Act 1998.
(2) Sections 74, [76, 77A], 78 to 81, 83 to 85 and 86 to 104 of the Act of 1998 shall, where appropriate, apply in relation to this Part as they apply in relation to that Act but with the following modifications.
(3) Those modifications are that for the words set out in column (3) of the Fourth Schedule at a particular reference number, being words appearing in a section or sections of the Act of 1998 specified in column (2) of that Schedule at that reference number, there shall be substituted in the place or, as the case may be, each place where those words occur in that section or sections the words set out in column (4) of that Schedule at that reference number.
Mediation, decisions and appeals relating to collective agreements.
87.—(1) Where a collective agreement is referred to the F156[Director General of the Workplace Relations Commission] under section 86, it shall be the purpose of—
(a) mediation by an F156[mediation officer] under subsection (3) of that section, or
(b) a decision of the F156[Director General of the Workplace Relations Commission] under subsection (4) of that section,
to identify which (if any) provisions of the agreement are null and void by virtue of section 9 and, if the F156[mediation officer] or, as the case may be, the F156[Director General of the Workplace Relations Commission] thinks it appropriate, to provide guidance to the parties to the agreement as to how alternative or amended provisions might be devised which it would be lawful to include in the agreement.
(2) Not later than 42 days from the date of such a decision as is referred to in subsection (1)(b), the complainant or the respondent may appeal to the Labour Court by notice in writing specifying the grounds of the appeal.
(3) The Labour Court shall hear an appeal under subsection (2) in private unless, at the request of one of the parties, it determines to hold the appeal, or so much of it as it does not consider should be treated as confidential, in public, and the enactments specified in section 83 (3) shall apply to such an appeal as they apply to an appeal under section 83.
(4) In its determination of an appeal under subsection (2) the Labour Court shall seek to achieve the purpose specified in subsection (1).
(5) In this section “collective agreement”, “the complainant” and “the respondent” have the same meaning as in section 86.
Annotations:
Amendments:
F156
Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 83(1)(c)(ii), (iii), S.I. No. 410 of 2015, subject to transitional provision in subs. (2).
Modifications (not altering text):
C36
Application of section extended with modifications by Pensions Act 1990 (25/1990), s. 81J and sch. 4, as inserted (5.04.2004) by Social Welfare (Miscellaneous Provisions) Act 2004 (9/2004), s. 22, S.I. No. 141 of 2004, as amended (18.07.2004) by Equality Act 2004 24/2004), s. 66(3)(e), commenced on enactment.
Application of Employment Equality Act 1998.
81J.—(1) In this section ‘the Act of 1998’ means the Employment Equality Act 1998.
(2) Sections 74, [76, 77A], 78 to 81, 83 to 85 and 86 to 104 of the Act of 1998 shall, where appropriate, apply in relation to this Part as they apply in relation to that Act but with the following modifications.
(3) Those modifications are that for the words set out in column (3) of the Fourth Schedule at a particular reference number, being words appearing in a section or sections of the Act of 1998 specified in column (2) of that Schedule at that reference number, there shall be substituted in the place or, as the case may be, each place where those words occur in that section or sections the words set out in column (4) of that Schedule at that reference number.
Decisions and Determinations Generally
Form and content of decisions and determinations.
88.—(1) Every decision of the F157[Director General of the Workplace Relations Commission] or determination of the Labour Court under this Part shall be in writing and—
(a) if the F157[Director General of the Workplace Relations Commission] or the Labour Court thinks fit, or
(b) if any of the parties so requests,
the decision or determination shall include a statement of the reasons why the F157[Director General of the Workplace Relations Commission] reached that decision or, as the case may be, why the Labour Court reached that determination.
(2) By notice in writing to the parties, the F157[Director General of 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.
(3) In this section “the parties” means—
(a) in the case of a decision F158[…] under section 79, the complainant and the respondent as defined in section 77(4),
(b) in the case of a determination under section 83, the parties to the appeal,
(c) in the case of a decision under section 85, the Authority and the persons referred to in subsections (2) (b) and (c) of that section, and
(d) in the case of a decision under section 86 or a determination under section 87, the complainant and the respondents, within the meaning of section 86.
(4) If any person who participated in an investigation under section 79 or 86 is not correctly identified in the resulting decision or determination, the correction of that error shall be regarded as falling within subsection (2).
Annotations:
Amendments:
F157
Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 83(1)(c)(ii), S.I. No. 410 of 2015, subject to transitional provision in subs. (2).
F158
Deleted (18.07.2004) by Equality Act 2004 (24/2004), s. 46 and sch. para. 23, commenced on enactment.
Modifications (not altering text):
C37
Application of section extended with modifications by Pensions Act 1990 (25/1990), s. 81J and sch. 4, as inserted (5.04.2004) by Social Welfare (Miscellaneous Provisions) Act 2004 (9/2004), s. 22, S.I. No. 141 of 2004, as amended (18.07.2004) by Equality Act 2004 24/2004), s. 66(3)(e), commenced on enactment.
Application of Employment Equality Act 1998.
81J.—(1) In this section ‘the Act of 1998’ means the Employment Equality Act 1998.
(2) Sections 74, [76, 77A], 78 to 81, 83 to 85 and 86 to 104 of the Act of 1998 shall, where appropriate, apply in relation to this Part as they apply in relation to that Act but with the following modifications.
(3) Those modifications are that for the words set out in column (3) of the Fourth Schedule at a particular reference number, being words appearing in a section or sections of the Act of 1998 specified in column (2) of that Schedule at that reference number, there shall be substituted in the place or, as the case may be, each place where those words occur in that section or sections the words set out in column (4) of that Schedule at that reference number.
Supply and publication of decisions and determinations.
89.—(1) A copy of every decision of the F159[Director General of the Workplace Relations Commission] under this Part shall be given—
(a) to each of the parties, and
(b) to the Labour Court,
and every such decision shall be published F160[on the internet in such form and in such manner as the Director General of the Workplace Relations Commission considers appropriate].
(2) A copy of every determination of the Labour Court under this Part 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.
(3) In this section “the parties” has the same meaning as in section 88.
(4) Any reference in this section to a decision or determination includes a reference to any statement of reasons included in the decision or determination as mentioned in section 88(1).
(5) The contents of any document which is published or made available by virtue of this section shall be protected by absolute privilege.
Annotations:
Amendments:
F159
Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 83(1)(c)(ii), S.I. No. 410 of 2015, subject to transitional provision in subs. (2).
F160
Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 83(1)(h), S.I. No. 410 of 2015, subject to transitional provisions in subs. (2).
Modifications (not altering text):
C38
Application of section extended with modifications by Pensions Act 1990 (25/1990), s. 81J and sch. 4, as inserted (5.04.2004) by Social Welfare (Miscellaneous Provisions) Act 2004 (9/2004), s. 22, S.I. No. 141 of 2004, as amended (18.07.2004) by Equality Act 2004 24/2004), s. 66(3)(e), commenced on enactment.
Application of Employment Equality Act 1998.
81J.—(1) In this section ‘the Act of 1998’ means the Employment Equality Act 1998.
(2) Sections 74, [76, 77A], 78 to 81, 83 to 85 and 86 to 104 of the Act of 1998 shall, where appropriate, apply in relation to this Part as they apply in relation to that Act but with the following modifications.
(3) Those modifications are that for the words set out in column (3) of the Fourth Schedule at a particular reference number, being words appearing in a section or sections of the Act of 1998 specified in column (2) of that Schedule at that reference number, there shall be substituted in the place or, as the case may be, each place where those words occur in that section or sections the words set out in column (4) of that Schedule at that reference number.
Appeals and references from the Labour Court.
90.—F161[(1) Where a determination is made by the Labour Court on an appeal under this Part, either of the parties may appeal to the High Court on a point of law.
(2) The Labour Court may—
(a) refer to the High Court a point of law arising in the course of such an appeal, and
(b) if it thinks it appropriate, adjourn the appeal pending the outcome of the reference.]
(3) F162[…]
(4) F162[…]
(5) F162[…]
(6) F162[…]
Annotations:
Amendments:
F161
Substituted (18.07.2004) by Equality Act 2004 (24/2004), s. 46 and sch. para. 24, commenced on enactment.
F162
Deleted (18.07.2004) by Equality Act 2004 (24/2004), s. 46 and sch. para. 24, commenced on enactment.
Modifications (not altering text):
C39
Application of section extended with modifications by Pensions Act 1990 (25/1990), s. 81J and sch. 4, as inserted (5.04.2004) by Social Welfare (Miscellaneous Provisions) Act 2004 (9/2004), s. 22, S.I. No. 141 of 2004, as amended (18.07.2004) by Equality Act 2004 24/2004), s. 66(3)(e), commenced on enactment.
Application of Employment Equality Act 1998.
81J.—(1) In this section ‘the Act of 1998’ means the Employment Equality Act 1998.
(2) Sections 74, [76, 77A], 78 to 81, 83 to 85 and 86 to 104 of the Act of 1998 shall, where appropriate, apply in relation to this Part as they apply in relation to that Act but with the following modifications.
(3) Those modifications are that for the words set out in column (3) of the Fourth Schedule at a particular reference number, being words appearing in a section or sections of the Act of 1998 specified in column (2) of that Schedule at that reference number, there shall be substituted in the place or, as the case may be, each place where those words occur in that section or sections the words set out in column (4) of that Schedule at that reference number.
Enforcement by Circuit Court
Enforcement of determinations, decisions and mediated settlements.
F163[91. (1) Section 43 of the Act of 2015 shall apply to a decision of the Director General of the Workplace Relations Commission under section 79 as it applies to a decision of an adjudication officer under section 41 of that Act, subject to—
(a) the modification that the following paragraph is substituted for paragraph (a) of subsection (1):
‘(a) on application to it in that behalf by the complainant concerned, the Irish Human Rights and Equality Commission, or’,
and
(b) the following modifications:
(i) references to a complaint or dispute referred to an adjudication officer under section 41 shall be construed as references to a case referred to the Director General of the Workplace Relations Commission under section 77 of this Act;
(ii) references to a complaint or dispute shall be construed as references to a case referred to the Director General of the Workplace Relations Commission under section 77 of this Act;
(iii) references to decision of an adjudication officer shall be construed as references to decision of the Director General of the Workplace Relations Commission under section 79 of this Act;
(iv) the reference to decision of an adjudication officer under that section shall be construed as a reference to decision of the Director General of the Workplace Relations Commission under section 79 of this Act; and
(v) references to employee shall be construed as references to complainant within the meaning of Part VII of this Act and references to employer shall be construed as references to respondent within such meaning.
(2) Section 45 of the Act of 2015 shall apply to a decision of the Labour Court under section 44 of that Act upon an appeal from a decision of the Director General of the Workplace Relations Commission under section 79 subject to the modification that the following paragraph is substituted for paragraph (b) of subsection (1):
‘(b) on application to it in that behalf, with the consent of the complainant, by the Irish Human Rights and Equality Commission,’.]
Annotations:
Amendments:
F163
Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 83(1)(i), S.I. No. 410 of 2015, subject to transitional provision in subs. (2).
Modifications (not altering text):
C40
Application of section extended with modifications by Pensions Act 1990 (25/1990), s. 81J and sch. 4, as inserted (5.04.2004) by Social Welfare (Miscellaneous Provisions) Act 2004 (9/2004), s. 22, S.I. No. 141 of 2004, as amended (18.07.2004) by Equality Act 2004 24/2004), s. 66(3)(e), commenced on enactment.
Application of Employment Equality Act 1998.
81J.—(1) In this section ‘the Act of 1998’ means the Employment Equality Act 1998.
(2) Sections 74, [76, 77A], 78 to 81, 83 to 85 and 86 to 104 of the Act of 1998 shall, where appropriate, apply in relation to this Part as they apply in relation to that Act but with the following modifications.
(3) Those modifications are that for the words set out in column (3) of the Fourth Schedule at a particular reference number, being words appearing in a section or sections of the Act of 1998 specified in column (2) of that Schedule at that reference number, there shall be substituted in the place or, as the case may be, each place where those words occur in that section or sections the words set out in column (4) of that Schedule at that reference number.
Editorial Notes:
E60
Previous affecting provision: section amended (18.07.2004) by Equality Act 2004 (24/2004), ss. 39(a)-(d), 46 and sch. para. 25, commenced on enactment; section substituted as per F-note above.
Additional powers of Circuit Court on enforcement.
92.—F164[…]
Annotations:
Amendments:
F164
Deleted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 83(1)(j), S.I. No. 410 of 2015, subject to transitional provision in subs. (2).
Editorial Notes:
E61
Previous affecting provision: subs. (3) amended (18.07.2004) by Equality Act 2004 (24/2004), s. 46 and sch. para. 26, commenced on enactment; section substituted as per F-note above.
E62
Previous affecting provision: application of section extended with modifications by Pensions Act 1990 (25/1990), s. 81J and sch. 4, as inserted (5.04.2004) by Social Welfare (Miscellaneous Provisions) Act 2004 (9/2004), s. 22, S.I. No. 141 of 2004, as amended (18.07.2004) by Equality Act 2004 24/2004), s. 66(3)(e), commenced on enactment; section deleted as per F-note above.
Compensation in lieu of re-instatement or re-engagement.
93.—(1) On an application under section 91 which relates to a determination F165[or decision] requiring an employer to re-instate or re-engage an employee, the Circuit Court may, if in all the circumstances it considers it appropriate to do so, instead of making an order under subsection (1) of that section, make a compensation order under this section.
(2) A compensation order under this section is an order directing the employer (in lieu of re-instatement or re-engagement) to pay compensation to the employee.
(3) The maximum amount of compensation which may be ordered under this section is an amount equal to 104 times the amount of the employee’s weekly remuneration at the rate which the employee was receiving at the date of the reference of the case under section 77 or would have received at that date but for the discrimination in question.
Annotations:
Amendments:
F165
Inserted (18.07.2004) by Equality Act 2004 (24/2004), s. 46 and sch. para. 27, commenced on enactment.
Modifications (not altering text):
C41
Application of section extended with modifications by Pensions Act 1990 (25/1990), s. 81J and sch. 4, as inserted (5.04.2004) by Social Welfare (Miscellaneous Provisions) Act 2004 (9/2004), s. 22, S.I. No. 141 of 2004, as amended (18.07.2004) by Equality Act 2004 24/2004), s. 66(3)(e), commenced on enactment.
Application of Employment Equality Act 1998.
81J.—(1) In this section ‘the Act of 1998’ means the Employment Equality Act 1998.
(2) Sections 74, [76, 77A], 78 to 81, 83 to 85 and 86 to 104 of the Act of 1998 shall, where appropriate, apply in relation to this Part as they apply in relation to that Act but with the following modifications.
(3) Those modifications are that for the words set out in column (3) of the Fourth Schedule at a particular reference number, being words appearing in a section or sections of the Act of 1998 specified in column (2) of that Schedule at that reference number, there shall be substituted in the place or, as the case may be, each place where those words occur in that section or sections the words set out in column (4) of that Schedule at that reference number.