Enforcement

Overview

The Director of the Equality Tribunal and Equality officers formerly dealt with claims of unlawful discrimination in relation to trade and service as well as employment.  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. The now deal with employment and non-employment-based claims. In non-employment cases, the appeal is to the Circuit Court. In employment cases, the appeal is to the Labour Court.

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.

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 Gender Goods and Services 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.


The Workplace Relations Commission

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 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 context 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.

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.


Notice of Complaint

The complaint must generally be made within six months. Notice of the complaint must generally be given within two months, Where the discrimination is continuing, the six months run 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.

Before seeking redress, the complainant must shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of   the nature of the allegation, the complainant’ s intention, if not satisfied with the respondent’ s response to the allegation, to seek redress under this Act


Obtaining Information

The complainant may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

In deciding whether to give a direction the Director of the WRC or, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and the extent of any risk of prejudice to the respondent’ s ability to deal adequately with the complaint.


Power to Extend or Excuse

The Director of the WRC or the Circuit Court shall not investigate a case unless it is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent. The Minister may by regulations prescribe the form to be used by a complainant and respondent.

On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court] may for reasonable cause, direct that a 4 months period may apply as is specified in the direction, or exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that the requirement shall not apply in relation to the complainant to the extent specified in the direction.


Time Limit

Generally, the claim for redress in respect of prohibited conduct may not be made after the end of the period of 6 months from the date of occurrence of the prohibited conduct 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.

Not later than 42 days from the date of a decision of the Director of the Workplace Relations Commission on an application by a complainant for an extension of time, the complainant or respondent may appeal against the decision to the Circuit Court on notice to Director of the Workplace Relations Commission] specifying the grounds of the appeal.

On the appeal, the Court may affirm, quash or vary the decision.  No further appeal lies, other than an appeal to the High Court on a point of law.

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 prohibited conduct were references to the date on which the misrepresentation came to the complainant’s notice.

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.

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 prohibited conduct 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.

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.


Hearing/ Investigation II

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.

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.

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.


IHREC Request

Where it appears to the Irish Human Right and Authority Commission that prohibited conduct   is being generally directed against persons, or) has been directed against a person who has not made a claim in respect of the prohibited conduct and it is not reasonable to expect that the person will do so, the matter may be referred by the Commission to the Director of the Workplace Relations Commission.

Where a matter is referred to the Workplace Relations Commission it shall be dealt with in the same manner and to the same extent as if it were a claim made it and the Commission were the complainant and the person alleged to have engaged in the prohibited conduct or to have committed the contravention, was the respondent.

Where, on application to the High Court or the Circuit Court, the Commission satisfies the Court that the Director of the Workplace Relations Commission has determined that a person has engaged in prohibited conduct and that there is a likelihood of a further occurrence of the prohibited conduct or a further contravention by the person, the Court may grant an injunction or such other relief as the Court deems necessary to prevent the further occurrence or contravention.


Mediation

if at any time after a case has been referred to the Workplace Relations Commission it appears to the Director that the case is one which could be resolved by mediation, he shall refer the case for mediation to a mediation officer unless the complainant or the respondent objects.

Mediation shall be conducted in private. Where a case is resolved by mediation —

  • mediation officer concerned shall prepare a written record of the terms of the settlement;
  • the written record of the terms of the settlement shall be signed by the complainant and the respondent;
  • the mediation officer shall send a copy of the written record, as so signed, to the complainant and the respondent, and
  • a copy of the written record shall be retained by the Commission.

If, after a case has been referred to mediation officer, it appears to the officer] that the case cannot be resolved by mediation, the officer shall issue a notice to that effect to the complainant and the respondent. In this case, the complainant may make an application in writing to the Director of the Workplace Relations Commission for the resumption of the hearing of the case, and he shall deal with the case by way of investigation and adjudication.


Inferences from failure to supply information, etc.

If, in the course of an investigation it appears to the WRC Director or adjudication officer that

  • that the respondent did not reply to an initial pre-claim formal notification for information or to any question asked by the complainant under that procedure
  • that the information supplied by the respondent in response to the notification or any such question was false or misleading, or
  • that the information supplied in response to any such question was not such as would assist the complainant in deciding whether to refer the case to the WRC

The Director of the Workplace Relations Commission may draw such inferences, if any, as seem appropriate from the failure to reply or, as the case may be, such supply of information.


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 for the effects of the prohibited conduct concerned; or
  • an order that a person or persons specified in the order take a course of action which is so specified.

The maximum amount which may be ordered by the Director of the Workplace Relations Commission by way of compensation above is the maximum amount that could be awarded by the District Court in civil cases in contract.

The maximum amount applies notwithstanding that conduct the subject of the investigation constituted discrimination on more than one of the discriminatory grounds (other than the victimisation ground), or both discrimination on one or more than one of those grounds (other than the victimisation ground) and harassment or sexual harassment.

An order for compensation may not be made in favour of the IRHEC in a case referred by it


Determination Generally

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

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


Dismissal of cases not pursued.

Where a case is referred to the Director of the Workplace Relations Commission and, at any time after the expiry of one year from the date of the reference, it appears to the Director that the complainant has not pursued, or has ceased to pursue, the reference, the Director may dismiss the reference.

As soon as practicable after dismissing a reference, the Director shall give notice in writing of that fact to the complainant and the respondent.) Where a reference is dismissed under power no further proceedings may be taken in relation to that reference. This does not n prevents a person from making a further reference in relation to the same matter (subject to any applicable time limit).


The Burden of Proof

Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

Where in any proceedings arising from a reference of a matter by the IRHEC Commission facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the respondent to prove the contrary.


Appeal to Circuit 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 Circuit Court on notice to the Workplace Relations Commission specifying the grounds of the appeal. On the appeal, the Circuit 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 Circuit 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 Circuit 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 Circuit Court, and it considers that its determination on the appeal would be assisted by the exercise of the following powers, the Circuit 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 Circuit


Direct Circuit Court Complaint

A person who claims that prohibited conduct has been directed against him or her,  may claim redress directly in the Circuit Court If the grounds for such a claim are the gender ground, or in any other circumstances (including circumstances amounting to victimisation) to which the Gender Goods and Services Directive is relevant.

Before seeking redress from the Circuit Court, the complainant shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of the nature of the allegation, the complainant’ s intention, if not satisfied with the respondent’ s response to the allegation to seek redress.


Pre-Proceedings Questions

The complaint may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court], question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

Provisions equivalent to those above apply. On application by a complainant the Circuit Court] may —

  • for reasonable cause, direct that in relation to the complainant  the reference to 2 months shall be substituted by a reference to such period not exceeding 4 months as is specified in the direction, or
  • exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that the boligation shall not apply in relation to the complainant to the extent specified in the direction,

The Circuit Court shall not investigate a case unless it is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.


Circuit Court Time Limits

A claim for redress in respect of prohibited conduct may not be referred after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence. On application by a complainant, the Circuit Court may, for reasonable cause, extend the time limit to up to 12 months.

Where a delay by a complainant in referring a case under the Act is due to any misrepresentation by the respondent, the time limit applies as if the date of occurrence of prohibited conduct was the date on which the misrepresentation came to the complainant’ s notice.


Circuit Court Redress

The types of redress for which the Circuit Court may provide) are either or both of the following as may be appropriate in the circumstances of the particular case:

  • an order for compensation for the effects of the prohibited conduct concerned (including compensation for loss and damage suffered by the person injured as a result of the prohibited conduct in a way which is dissuasive and proportionate to the loss and damage suffered;
  • an order that a person or persons specified in the order take a course of action which is so specified,

The compensation limitations on the jurisdiction of the Circuit Court which generally apply, do not apply in this case.


Offences Generally

A person guilty of an offence under any provision of this Act shall be liable on summary conviction, to a fine or imprisonment for a term not exceeding one year or both, or on conviction on indictment, to a fine or imprisonment for a term not exceeding 2 years or both.

If the contravention in respect of which a person is convicted of an offence under any provision of this Act is continued after the conviction, the person shall be guilty of a further offence on every day on which the contravention continues and for each such offence shall be liable on summary conviction to a continuing fine

Summary proceedings for an offence under this Act may be brought and prosecuted by the Workplace Relations Commission or the Irish Human Rights and Equality Commission. Summary proceedings for an offence under any provision of this Act may be instituted within 12 months from the date of the offence.

Where an offence  is committed by a body corporate and is proved to have been so committed with the consent or connivance of any person, being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person shall, as well as the body corporate, be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.


Club Enforcement I

Any person, including the Commission, may make on application to the District for a determination that a registered club is a discriminating club.  An application may be dismissed by the Court if it is found to have been brought in bad faith, to be frivolous or vexatious or to relate to a trivial matter.

A copy of the application shall be served by the applicant, by personal service or by post, on the club and on such members, officers and employees of the club (if any) and such other persons (if any) as the Court may by order direct.  After considering the representations, the Court shall make an order in writing setting out its determination as to whether or not the club is a discriminating club.

It shall include in the order, a provision suspending the certificate of registration of the club for a period not exceeding 30 days. There is provision for an appeal to the Circuit Court against the order or a provision of the order suspending the certificate of registration.

In order suspending the certificate of registration of a club shall, while it is in force, have effect as if no certificate had been granted in respect of the club for the period of suspension.  No employee who is working in a club during any period of suspension of the club’s certificate of registration shall be disadvantaged by reason of the suspension in his or her employment during that period.


Club Enforcement II

A club that is determined by the District Court to be a discriminating club may at any time, on application to that Court, request that it make a determination as to whether the club continues to be a discriminating club.

While an order determining that a club is a discriminating club remains in effect, no certificate of registration shall be granted to or renewed for the benefit of the club. Where an order has been made determining that a club is a discriminating club and an application is pending, the certificate of registration of the club may be renewed.

It shall cease to be in force on the expiration of one year after the date of the renewal, if no determination is made within that period in respect of the club, or on the date of a determination that the club has not ceased to be a discriminating club, whichever first occurs.


References and Sources

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

Workplace Relations Act 2015

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