Gender Discrimination
Employment Equality Act 1998
PART III
Specific Provisions as to Equality Between Women and Men
Introductory
Application of equality principles to both men and women.
18.—F39[(1) (a) Subject to paragraph (b), for the purposes of this Part ‘A’ and ‘B’ represent 2 persons of opposite sex so that, where A is a woman, B is a man, and vice versa.
(b) For the purposes of this Part (except sections 19 and 20), where the treatment of a woman on a ground related to her pregnancy or maternity leave is, by virtue of section 6(2A), in issue, ‘B’ is either a man or a woman.]
(2) Subject to subsection (1), nothing in this Act affects the operation of the Interpretation Acts, 1937 to 1997, in so far as they provide that, unless the contrary intention appears—
(a) words importing the masculine gender shall be construed as importing also the feminine gender, and
(b) words importing the feminine gender shall be construed as also importing the masculine gender.
Annotations:
Amendments:
F39
Substituted (18.07.2004) by Equality Act 2004 (24/2004), s. 11, commenced on enactment.
Remuneration
Entitlement to equal remuneration.
19.—(1) It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer.
F40[(2) In this section ‘relevant time’, in relation to a particular time, is any time (including a time before the commencement of this section) during the 3 years which precede, or the 3 years which follow, the particular time.]
(3) For the purposes of this Part, where B’s employer is an associated employer of A’s employer, A and B shall not be regarded as employed to do like work unless they both have the same or reasonably comparable terms and conditions of employment.
F41[(4) (a) Indirect discrimination occurs where an F42[apparently neutral provision would put] persons of a particular gender (being As or Bs) at a particular disadvantage in respect of remuneration compared with other employees of their employer.
(b) Where paragraph (a) applies, the persons referred to in that paragraph shall each be treated for the purposes of subsection (1) as complying or, as the case may be, not complying with the provision concerned, whichever results in the higher remuneration, unless the provision is objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary.
(c) In any proceedings statistics are admissible for the purpose of determining whether this subsection applies in relation to A or B.]
(5) Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees.
Annotations:
Amendments:
F40
Substituted (18.07.2004) by Equality Act 2004 (24/2004), s. 12(a), commenced on enactment.
F41
Substituted (18.07.2004) by Equality Act 2004 (24/2004), s. 12(b), commenced on enactment.
F42
Substituted (1.01.2016) by Equality (Miscellaneous Provisions) Act 2015 (43/2015), s. 8, S.I. No. 610 of 2015.
Editorial Notes:
E18
Previous affecting provision: subs. (4)(d) substituted (18.07.2001) by European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001), reg. 4(a); superseded as per F-note above.
Implied term as to equal remuneration.
20.—(1) Where a person is employed under a contract which does not include (expressly or by reference to a collective agreement or otherwise) a term satisfying subsection (1) of section 19, the contract shall be taken to include a term giving effect to that subsection; and, if such an implied term conflicts with an express term, it shall override the express term.
(2) In this section “employed” has the same meaning as in section 19.
Other Matters
Equality clause relating to gender issues.
21.—(1) If and so far as the terms of a contract of employment do not include (expressly or by reference to a collective agreement or otherwise) a gender equality clause, they shall be taken to include one.
(2) A gender equality clause is a provision relating to the terms of a contract of employment, other than a term relating to remuneration or pension rights, which has the effect that if—
(a) A is employed in circumstances where the work done by A is not materially different from that done by B in the same employment, and
(b) at any time A’s contract of employment would (but for the gender equality clause)—
(i) contain a term which is or becomes less favourable to A than a term of a similar kind in B’s contract of employment, or
(ii) not include a term corresponding to a term in B’s contract of employment which benefits B,
then the terms of A’s contract of employment shall be treated as modified so that the term in question is not less favourable to A or, as the case may be, so that they include a similar term benefiting A.
(3) A gender equality clause shall not operate in relation to a difference between A’s contract of employment and B’s contract of employment if the employer proves that the difference is genuinely based on grounds other than the gender ground.
(4) Without prejudice to the generality of section 8(1), where a person offers A employment on certain terms and, were A to accept the offer on those terms, the gender equality clause in A’s contract of employment would have the effect of modifying the terms in either of the ways specified in subsection (2), the making of the offer shall be taken to amount to discrimination against A on the gender ground in relation to A’s conditions of employment.
Indirect discrimination on the gender ground.
22.—F43[(1) (a) Indirect discrimination occurs where an F44[apparently neutral provision would put] persons of a particular gender (being As or Bs) at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.
(b) Where paragraph (a) applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to (including A or B), unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
(1A) In any proceedings statistics are admissible for the purpose of determining whether subsection (1) applies in relation to A or B.]
(2) Subsection (1) shall apply to the provision of any such services as are referred to in paragraphs (a) and (b) of section 11(1) subject to the following modifications:
(a) for the words “any of the matters specified in paragraphs (a) to (e) of section 8(1)” there shall be substituted the words “a person seeking any such services or guidance as are referred to in paragraphs (a) and (b) of section 11(1)”;
(b) the reference to the employer shall be construed as a reference to the employment agency; and
(c) the reference to section 8 shall be construed as a reference to section 11.
(3) Subsection (1) shall apply to participation in any such course or facility as is referred to in paragraphs (a) to (c) of section 12(1) subject to the following modifications:
(a) the reference to paragraphs (a) to (e) of section 8(1) shall be construed as a reference to paragraphs (a) to (c) of section 12(1);
(b) the reference to the employer shall be construed as a reference to the person offering the course or facility; and
(c) the reference to section 8 shall be construed as a reference to section 12.
(4) F45[…]
(5) Subsection (3) of section 8 applies for the purposes of subsection (1) as it applies for the purposes of subsections (4) to (8) of that section.
Annotations:
Amendments:
F43
Substituted and inserted (18.07.2004) by Equality Act 2004 (24/2004), s. 13(a), commenced on enactment.
F44
Substituted (1.01.2016) by Equality (Miscellaneous Provisions) Act 2015 (43/2015), s. 9, S.I. No. 610 of 2015.
F45
Deleted (18.07.2004) by Equality Act 2004 (24/2004), s. 13(b), commenced on enactment.
Editorial Notes:
E19
Previous affecting provision: subs. (1)(c) substituted (18.07.2001) by European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001), reg. 4(b); superseded as per F-note above.
Sexual harassment in the workplace etc.
23.—F46[…]
Annotations:
Amendments:
F46
Repealed (18.07.2004) by Equality Act 2004 (24/2004), s. 14, commenced on enactment.
Positive action on equal opportunities.
24.—F47[(1) This Act is without prejudice to any measures—
(a) maintained or adopted with a view to ensuring full equality in practice between men and women in their employments, and
(b) providing for specific advantages so as—
(i) to make it easier for an under-represented sex to pursue a vocational activity, or
(ii) to prevent or compensate for disadvantages in professional careers.]
(2) In the Defence Act, 1954, in section 289(2) (the Army Nursing Service limited to women) for the word “women” there shall be inserted “persons”.
Annotations:
Amendments:
F47
Substituted (18.07.2004) by Equality Act 2004 (23/2004), s. 15, commenced on enactment.
Exclusion of discrimination in certain employments.
F48[25.—(1) A difference of treatment which is based on a characteristic related to the gender ground in respect of access to employment in a particular post shall not constitute discrimination under this Part or Part II where, by reason of the particular occupational activities concerned or of the context in which they are carried out—
(a) the characteristic constitutes a genuine and determining occupational requirement for the post, and
(b) the objective is legitimate and the requirement proportionate.
(2) In subsection (1) the reference to employment includes a reference to any training leading to it.]
Annotations:
Amendments:
F48
Substituted (18.07.2004) by Equality Act 2004 (24/2004), s. 16, commenced on enactment.
Exceptions relating to family and personal matters.
26.—(1) Nothing in this Act shall make it unlawful for an employer to arrange for or provide treatment which confers benefits on women in connection with pregnancy and maternity (including breast feeding) or adoption.
(2) F49[…]
Annotations:
Amendments:
F49
Deleted (18.07.2004) by Equality Act 2004 (24/2004), s. 17, commenced on enactment.
Garda Síochána and prison service.
27.—(1) With regard to employment in the Garda Síochána or the prison service F50[and without prejudice to section 25], nothing in this Act—
(a) applies to the assignment of a man or, as the case may require, a woman to a particular post where this is essential—
(i) in the interests of privacy or decency,
(ii) in order to guard, escort or control violent individuals or quell riots or violent disturbances, or
(iii) in order, within the Garda Síochána, to disarm or arrest violent individuals, to control or disperse violent crowds or to effect the rescue of hostages or other persons held unlawfully, or
(b) prevents the application of one criterion as to height for men and another for women, if the criteria chosen are such that the proportion of women in the State likely to meet the criterion for women is approximately the same as the proportion of men in the State likely to meet the criterion for men.
(2) (a) If—
(i) in the opinion of the Minister there are insufficient numbers of either men or women serving in the Garda Síochána to be assigned to such posts as are for the time being referred to in subsection (1)(a), and
(ii) the Minister by order under this subsection so provides,
this Act shall not apply to such competitions for recruitment to the Garda Síochána as may be specified in the order.
(b) If—
(i) in the opinion of the Minister there are insufficient numbers of either men or women serving in the prison service to be assigned to such posts as are for the time being referred to in subsection (1)(a), and
(ii) the Minister by order under this subsection so provides,
this Act shall not apply to such competitions for recruitment to the prison service as may be specified in the order.
Annotations:
Amendments:
F50
Inserted (18.07.2004) by Equality Act 2004 (24/2004), s. 18, commenced on enactment.
The text in italics on this page is sourced from lawreform.ie and is re-published under the Licence for Re-Use of Public Sector Information made pursuant to Directive 2003/98/EC Directive 2013/37/EU of the European Parliament and of the Council on the re-use of public sector information transposed into Irish law by the European Communities (Re-Use of Public Sector Information) Regulations 2005 to 2015.
S.I. No. 337/2001 –
European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001
I, JOHN O’DONOGHUE, T.D., Minister for Justice, Equality and Law Reform, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 (No. 27 of 1972), and for the purpose of giving effect to Council Directive 97/80/EC of 15 December 19971 , make the following Regulations:
1. These Regulations may be cited as the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001.
Interpretation
2. (1) In these Regulations, unless the context otherwise requires –
“Act of 1977” means the Unfair Dismissals Act, 1977 (No. 10 of 1977);
“Act of 1994” means the Maternity Protection Act, 1994 (No. 34 of 1994);
“Act of 1998” means the Employment Equality Act, 1998 (No. 21 of 1998), and includes any enactment repealed by it;
“discrimination” means:
(a) an unfair dismissal (within the meaning of the Act of 1977) of a woman resulting wholly or mainly from –
(i) her pregnancy, giving birth or breastfeeding or any matters connected therewith, or
(ii) the exercise or proposed exercise by her of a right under the Act of 1994 to any form of protective leave or natal care absence,
(b) a failure, being a failure which gives rise to a dispute to which Part V of the Act of 1994 applies, to comply with a provision of that Act,
(c) a discriminatory action on the gender ground which is in contravention of the Act of 1998, including a failure on that ground to comply with an equal remuneration term or to comply with a gender equality clause, or a failure so to comply with a similar term or clause under any enactment repealed by that Act,
(d) the inclusion in a collective agreement of –
(i) a provision in which differences in rates of remuneration are based on the gender ground and which conflicts with an equal remuneration term in a contract of employment, or
(ii) a provision which gives rise to discrimination on the gender ground in relation to any of the following matters:
(I) access to employment,
(II) conditions of employment,
(III) training or experience for or in relation to employment,
(IV) promotion or regarding, or
(V) classification of posts,
(e) victimisation;
“indirect discrimination” shall be construed by reference to section 19(4) or 22, as the case may be, of the Act of 1998, as amended by Regulation 4 of these Regulations;
victimisation” means a dismissal from employment or other penalisation of a complainant which is solely or mainly occasioned by the complainant having, in respect of an action referred to in paragraph (c) or (d) of the definition of “discrimination” in this Regulation, in good faith –
(a) sought redress under the Act of 1998,
(b) opposed by lawful means any such action,
(c) given evidence in relation to it in any criminal proceedings or other proceedings under the Act of 1998, or
(d) given notice of an intention to proceed in accordance with paragraph (a), (b) or (c) of this definition.
(2) In these Regulations, unless the context otherwise requires, terms or expressions used in the context of references to any of the Acts of 1977, 1994 or 1998 have the meanings given to them by the Act concerned.
Burden of proof in gender discrimination cases
3. (1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that there has been direct or indirect discrimination in relation to him or her, it shall be for the other party concerned to prove the contrary.
(2) This Regulation is without prejudice to section 6(6) of the Act of 1977 or any other enactment or rule of law in relation to the burden of proof in proceedings which may be more favourable to such a person.
(3) Nothing in this Regulation shall operate to reduce the existing level of protection of persons in relation to the burden of proof in proceedings.
(4) In this Regulation “proceedings” means proceedings under any of the Acts of 1977, 1994 or 1998 before the person, body or court dealing with a request or reference by or on behalf of a person and includes any subsequent proceedings, including proceedings on appeal, arising from the request or reference.
Amendment of Act of 1998
4. The Act of 1998 is amended –
(a) in section 19(4), by the substitution of the following for paragraph (d):
“(d) is not appropriate and necessary and cannot be justified by objective factors unrelated to A’s sex,”, and
(b) in section 22(1), by the substitution of the following for paragraph (c):
“(c) is not appropriate and necessary and cannot be justified by objective factors unrelated to A’s sex,”.
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GIVEN under my Official Seal,
18 July, 2001.
JOHN O’DONOGHUE, T.D.,
Minister for Justice, Equality and Law Reform
EXPLANATORY NOTE
(This note is not part of the Instrument and does not purport to be a legal interpretation)
These Regulations give effect to Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex.
1 L 14 20.10.1998, pp. 6-8