General Issues

Background to Equality Protections

The Irish Constitution contains a guarantee of equal treatment.  However, the courts have interpreted the protection narrowly. It allows, to a significant extent, the treatment of persons with references to differences in relevant circumstances.

The Constitutional protection applies to public sector entities only. It prohibits insidious and arbitrary discrimination only. Apart from a limited number of cases, the equality clause in the Irish Constitution has not been widely deployed.

Gender Equality is enshrined in the European Union founding treaty. The right to equal pay for work of equal value for men and women is specifically provided for.   Ireland was obliged to give effect to anti-discrimination legislation in the area of equal pay and equal treatment in employment on acceding to the European Economic Community.

A famous case in 1975 decided that the gender equality protection in the EEC Treaty was directly applicable so that it invalidated the inconsistent national law.


Irish Legislation on Gender Equality

Anti-discrimination law has developed considerably over the last 45 years.  Anti-Discrimination law first evolved in the context of employment equality.  The earliest Irish anti-discrimination legislation dealt with gender discrimination only. The Equal Pay Directive, which was made law in Ireland by the Anti-Discrimination (Pay) Act 1974, provided for equal pay for work of the same or equal value for men and women.

The Employment Equality Act 1977, implemented the Equal Treatment Directive. The Directive prohibited discrimination on the basis of gender, family or marital status.  It covered equality in relation to conditions of employment, vocational training and working conditions.  It did not apply to social insurance.

The Directive permitted states to exclude activities, which by reason of their nature or the context in which they were carried out, the sex of the worker constitutes the determining factor. Discrimination due to pregnancy was a breach of the legislation, being based on the gender ground.


Institutions

The power to hear equal pay and equal treatment cases was conferred on the Labour Court.  Although the Labour Court had dealt principally with non-judicial industrial relations matters, it quickly built up a positive reputation in the area of adjudicating on equality matters.

The Employment Equality Agency was established in 1977 to administer the Employment Equality Act. The Employment Equality Agency later evolved into the Equality Authority, which was conferred with wider functions in relation to discrimination and the promotion of equality.

The Equality Authority has now been merged into the Irish Human Rights and Equality Commission. The adjudicatory and mediation functions of the Equality Authority have been transferred to the Workplace Relations Commission both in the area of employment equality and in other sectors. The Labour Court hears appeals from decisions of the adjudication officers of the WRC.


EU Directives

The EU legislation has been updated by a series of new Directives since the start of this Century.  The updated directives are reflected in the current equality legislation.  The current anti-discrimination legislation provides for ten distinct grounds of discrimination. The legislation has been extended to include specific prohibitions on harassment and sexual harassment. Special provision is made in respect of gender discrimination, which in effect applies higher standards of protection.

National law on equality must be implemented within the context of the superior status of European Union law.  Domestic law must be interpreted in a manner that it is compatible with the EU Equality Directives from which it derives.   Accordingly, the Irish legislation must be implemented and interpreted consistently with the various Directives on equality such as the Gender, Goods and Services Directives and the Racial Equality Directives. However, a divergence between the Directive and legislation that cannot be reconciled by interpretation allows departure from the domestic legislation in the case of a dispute with the State or a State sector body.


Prohibited Discrimination I

An employer may not discriminate between employees on certain specified grounds. The grounds are

  • gender;
  • marital status;
  • religious belief;
  • age;
  • sexual orientation;
  • disability;
  • race; and
  • membership of the travelling community.

Discrimination involves the application of different treatment, practices or rules to comparable situations or, in most cases, the application of the same treatment, practices and rules to different situations.


Prohibited Discrimination II

The legislation prohibits discrimination in respect of characteristics imputed to a person, even if he does actually have those characteristics. This would apply, for example, to a person who is incorrectly perceived to be homosexual. It is not necessary to prove or assert, in this case, that he is in fact, a member of the protected class.

It is unlawful discrimination if a person is treated less favourably because he is associated with a person who falls into one of the protected categories.

Discrimination may be claimed to exist on multiple grounds.  In this case, a decision must be made in respect of each claim.  Different exceptions apply to the various grounds. In some cases, equality officers recognise multiple compound bases of discrimination.


General Equality Protection

The Equal Status Act protects against discrimination in relation to

  • the provision of goods and services
  • access to, or the use of any place;
  • facilities for any banking, insurance, loans or financing;
  • entertainment, recreation, cultural activities, transport or travel;
  • services provided by a club;
  • professional or trade services.

Employment Equality

The Employment Equality Act protects employees and agency workers primarily. It also applies to discrimination in a number of other work-related settings.

This legislation applies to a partner in a partnership as it applies to an employee. It has effect with the modification that references to an employee include references to such a partner, and references to an employer include references to a partnership

An educational or training body, who offers a course of vocational training shall not, in respect of any such course offered to persons over the maximum age at which those persons are statutorily obliged to attend school, discriminate against a person (whether at the request of an employer, a trade union or a group of employers or trade unions or otherwise)

  • in the terms on which any such course or related facility is offered;
  • by refusing or omitting to afford access to any such course; or
  • in the manner in which any such course or facility is provided.

Agencies / Bodies

Without prejudice to its obligations as an employer, an employment agency shall not discriminate against any person who seeks the services of the agency to obtain employment with another person, or who seeks from the agency guidance as to a career or any other service (including training) related to the employment of that person.

An employment agency shall not be under any liability if it proves  that it acted in reliance on a statement made to it by the employer concerned to the effect that, its action would not be unlawful, and that it was reasonable for it to rely on the statement.

A body which—

  • is an organisation of workers or of employers,
  • is a professional or trade organisation, or
  • controls entry to, or the carrying on of, a profession, vocation or occupation,

must not discriminate against a person in relation to membership of that body or any benefits, other than pension rights, provided by it or in relation to entry to, or the carrying on of, that profession, vocation or occupation.

The body shall not discriminate against a person by publishing or displaying, or causing to be published or displayed, a discriminatory advertisement in so far as the advertisement relates to membership of that body or any benefits, other than pension rights, provided by it, or entry to, or the carrying on of, a profession, vocation or occupation controlled by that body.


Types of Discrimination

Discrimination can be direct or indirect. Discrimination need not be intentional. It is often something that has grown up over time. However, discrimination on one of the prohibited grounds is nonetheless, unlawful.

Indirect discrimination is where apparently neutral provisions put one employee in a particular category at a disadvantage in respect of a matter compared with other employees of the employer. Indirect discrimination is unlawful unless it can be objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

If the employer proves that he is at a disadvantage by reason of the rule or requirement, this may be enough to establish discrimination. Statistical evidence may show that the proportion of the population that can satisfy the criteria is such that the requirement constitutes indirect discrimination with respect to a prohibited ground.

Indirect discrimination can be justified if there is an objective reason based on a real need and the differentiation is appropriate, necessary and tailored appropriately in furtherance of that justification.


Discrimination in Recruitment

Many successful discrimination claims have been brought by prospective employees. There have been numerous cases where female candidates have been asked questions in a job interview regarding marital status, age, children and childbearing, that were not or could not be asked of a male.

The selection of candidates as employees must be carefully undertaken, so as to ensure that the process does not involve discrimination and lead to a claim for redress by a candidate for the position. From the employer’s perspective, there should be a clear procedure to ensure that indirect discrimination does not occur.  Evidence and notes of what happened during job interviews should be maintained. A claim may be upheld if there is an absence of evidence to rebut the accusation of discrimination.

An advertisement that shows an intention to discriminate is unlawful If the wording implies that an individual of (for example) a particular gender (or of another protected group) is sought or preferred, there may be unlawful discrimination. For example, a description of an occupation by reference to one gender (even if traditionally dominated by that gender) may be taken as intending discrimination, unless a contrary indication is given. Similarly, advertisements seeking “young and enthusiastic” candidates have been found unlawful, on the ground of age discrimination.


Deemed Recruitment Discrimination

An employer is taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee

  • in any arrangements, the employer makes for the purpose of deciding to whom employment should be offered;
  • by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different, or
  • by publishing or displaying, or causing to be published or displayed, an advertisement which indicates an intention to discriminate, or might reasonably be understood as indicating such an intention.

Terms of Employment I

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

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

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


Terms of Employment II

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

An employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds

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

General Exceptions

Anti-discrimination legislation allows for some general exceptions to the general prohibitions on discrimination on the broad ground of incapacity.

An employer is not obliged to recruit, promote or retain an unqualified person or to provide training or experience to an individual in relation to a position, if

  • the individual will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or
  • will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or
  • is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed

An employer is not required to recruit, retain in employment or promote an individual if the employer is aware, on the basis of a criminal conviction of the individual or other reliable information, that the individual engages, or has a propensity to engage, in any form of sexual behaviour which is unlawful. This applies in particular where the employment concerned involves access to minors or to other persons who are vulnerable.


Positive Discrimination

Positive discrimination is not required, although it is permitted in some cases. Equality legislation is expressed to be without prejudice to any measures maintained or adopted with a view to ensuring full equality in practice between men and women in their employments, and providing for specific advantages so as to make it easier for an under-represented sex to pursue a vocational activity, or to prevent or compensate for disadvantages in professional careers.

Measures taken in order to ensure equality are not unlawful, where they are

  • to prevent or compensate for a disadvantage linked to discrimination;
  • protect health and safety at work of persons with disability; or
  • create or maintain facilities for promoting the integration of persons in the working environment

References and Sources

Primary References

Employment Law  Meenan  2014 Ch.12

Employment Law Supplement Meenan 2016

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

Employment Law in Ireland Cox & Ryan 2009 Ch 15

Equality Law in the Work Place Purdy 2015

Equality Law in Ireland  Reid 2012

Employment Equality Law  Bolger and Bruton 2012

Irish Employment Equality Law McCurtain and O’Higgins 1989

Disability Discrimination Law Smith        2010

Equal Status Acts Discrimination in Goods & Services Walsh 2012

Other Irish Books

Employment Law Forde & Byrne 2009

Principles of Irish Employment Law         Daly & Doherty   2010

Statutes

Employment Equality Act 1998 (21/1998)

Equality Act 2004 (24/2004), Part 2

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

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

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

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

Legislation

Dismissal & Redundancy Consolidated Legislation   Barrett, G   2007

Irish Employment legislation (Looseleaf) Kerr  1999-

Employment Rights Legislation (IEL offprint)   Kerr  2006

UK Texts

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

Labour Law, Deakin and Morris 5th Ed. 2012

Employment Law, Smith and Wood 13th Ed 2017

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

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

Labour Law Collins H, Ewing K D and McColgan  2012

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

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

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

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

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

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

Drafting Employment Contracts 3rd  Ed. Gillian Howard 2017

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

UK Practitioner Services

Tolley’s Employment Handbook 2017 Mrs Justice Slade 2017

Butterworths Employment Law Handbook 2017 Peter Wallington 2017

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