Human Rights Commission
The Irish Human Rights and Equality Commission Act 2014 provided for dissolution of the Human Rights Commission and the Equality Authority and the transfer of their functions to the Irish Human Rights and Equality Commission. The IHREC is responsible for eliminating this discrimination and promoting equality.
The IHREC has a broad range of tasks in relation to human rights and equality. In relation to employment equality IHREC works towards:
- combating discrimination in employment;
- promoting equality of opportunity in employment;
- providing information on the operation of the Employment Equality Acts;
- keeping the operation of the Employment Equality Acts under review;
- making recommendations for improvement to the Minister
- providing practical assistance including legal assistance to an individual;
- carrying out equality reviews and prepare equality action plans
Information and Review
The Commission must provide information to the public in relation to human rights and equality. The Commission shall keep under review the effectiveness of any enactments relating to the protection and promotion of human rights and equality. The Commission may, if it thinks fit, and shall, if requested by the Minister, carry out a review of the working or effect of any equality enactment and may make such recommendations as it sees fit following such review.
Where in the opinion of the Commission the working or effect of any of the equality enactments is likely to affect or impede the elimination of discrimination in relation to employment or the promotion of equality of opportunity in relation to employment between men and women, or between persons who differ in terms of any of the other discriminatory grounds, the Commission may, if it thinks fit, and shall if so requested by the Minister carry out a review of the enactment concerned or a provision of it or of its working or effect.
A report by the Commission on foot of the review may include such recommendations (including recommendations for the amendment of any enactment or any provision of it that is the subject of the review) as the Commission considers necessary.
Codes of Practice
The Commission may, and shall, if so requested by the Minister, prepare for submission to the Minister draft codes of practice in furtherance of one or more of the following aims:
- the protection of human rights;
- the elimination of discrimination;
- the promotion of equality of opportunity in employment;
- the promotion of equality of opportunity.
Before submitting a draft code of practice to the Minister, the Commission shall consult with such other Minister of the Government or such other person or body as the Commission considers appropriate, or as the Minister may recommend. After a draft code of practice has been submitted), the Minister may by order declare that the draft code is an approved code of practice for the purposes of this Act, or as amended by the Minister after consultation with the Commission, is an approved code of practice for the purposes of this Act.
A code of practice standing approved shall be admissible in evidence in proceedings before a court, or in the case of proceedings in equality legilsation before the Labour Court or the Workplace Relations Commission.
Equality Action Plan
The Commission may invite a particular undertaking, group of undertakings or the undertakings making up a particular industry or sector thereof to carry out an equality review in relation to that undertaking or those undertakings, or prepare and implement an equality action plan in respect of that undertaking or those undertakings, or both.
The Commission may, if it thinks it appropriate, itself carry out an equality review, or prepare an equality action plan, in relation to any undertaking of 50 or more employees or group of such undertakings or such undertakings making up a particular industry or a sector thereof. An equality review or equality action plan may relate to equality of opportunity generally, or a particular aspect of discrimination, within an undertaking or group of undertakings or undertakings making up a particular industry or a sector thereof.
Where an equality review or equality action plan relates to matters that are covered by both employment equality and other equality legislation the review or the action plan, as the case may be, shall deal separately with those matters and each part of the review or plan, as the case may be, shall be treated as a separate equality review plan or equality action plan, as the case may be.
Enforcement Notices I
Where the Commission considers it appropriate to do so for the purposes of an equality review or preparing an equality action plan the Commission may serve a notice on a person requiring any person so served to supply to the Commission such information as may reasonably be required by the Commission as is specified in the notice or requiring any person so served to produce or send to the Commission such document as is specified in the notice and is within his or her possession or control.
The Commission may not require information or documentation relating to an undertaking with fewer than 50 employees.
If it appears to the Commission that there is a failure in any undertaking or undertakings to implement any provision of an equality action plan (irrespective of whether the plan is prepared by the Commission or by the undertaking itself), the Commission may serve a substantive notice on a person requiring any person so served to take such action as is specified in the notice, is reasonably required for the implementation of the plan, and is within that person’s power to take.
Enforcement Notices II
A person who fails to comply with a substantive notice is guilty of an offence and is liable on summary conviction to a class C fine or imprisonment for a term not exceeding 1 year or both.
A person on whom a substantive notice has been served may within 42 days of service of the notice appeal to the Labour Court or the District Court in the case of the non employment equality legislation. Where an appeal is brought under this section, the Labour Court, or the District Court, as the case may be, may confirm the notice in whole or in part (with or without amendment of that notice), or allow the appeal.
A person may within 42 days appeal a confirmation of a substantive notice by the Labour Court or the District Court, as the case may be, to the Circuit Court. Where the Circuit Court allows the appeal, the substantive notice shall cease to have effect.
Compliance Notice I
An equality and human rights compliance notice may be issued following or in the course of an enquiry. They may specify the nature of discrimination or violation of rights, concerned and require those to whom they are addressed to act on foot of the notice. The notice is to outline steps to be taken to address the violation and specify a timetable for remediation. There is provision for an appeal against the compliance notice.
Where in the course of an inquiry or after such inquiry has been conducted, the Commission is satisfied that any person
- has discriminated or is discriminating,
- is using discriminatory terms of employment, access to training, prootion or regrading or classification of posts;
- has failed or is failing to comply with an equality clause or an equal remuneration term, or
- has violated or is violating human rights,
the Commission may serve an equality and human rights compliance notice on the person.
Before serving an equality and human rights compliance notice the Commission shall give the person an advance notice of the proposal to serve the compliance notice which shall specify the act or omission constituting the discrimination, contravention, failure or violation to which the notice relates, and inform the person that he or she may make representations to the Commission.
Compliance Notice Notice II
A person who is served with an advance notice may, within 42 days of the receipt of the notice, make representations to the Commission about the proposed equality and human rights compliance notice. The Commission shall have regard to any representations made to it in assessing whether to proceed with the service of the equality and human rights compliance notice.
An equality and human rights compliance notice shall
- specify the act or omission constituting the discrimination, contravention, failure or violation to which it relates;
- require the person on whom it is served not to commit or to cease committing, as the case may be, the act or omission concerned or where appropriate, to comply with the equality clause or equal remuneration term;
- specify, in the case of discrimination, what steps the Commission requires to be taken by the person on whom it is served;
- require the person on whom it is served, within the period specified in the notice to inform the Commission and any other persons so specified of the steps taken in order to comply with the notice;
- require the person on whom it is served to supply, within the period specified in the notice, such additional information as may be specified in the notice.
The equality and human rights compliance notice shall, unless an appeal is brought under come into operation on the expiry of 56 days from the service of the notice. Where a person on whom an equality and human rights compliance notice has been served fails to comply with the notice at any time within a period of 5 years from the date on which the notice comes into operation, he or she shall be guilty of an offence and shall be liable on summary conviction to a class C fine or imprisonment for a term not exceeding 1 year or both.
Appeal re Compliance Notice
A person on whom an equality and human rights compliance notice has been served may within 42 days of service of the notice appeal to the Labour Court, or in certain cases to the District Court, in respect of the notice or any requirement therein.
Where an appeal is brought under this section, the Labour Court, or the District Court, as the case may be, may confirm the notice in whole or in part, with or without amendment of that notice, or allow the appeal. A person may within 42 days appeal a confirmation of an equality and human rights compliance notice by the Labour Court or the District Court, as the case may be, to the Circuit Court, which may confirm or allow the appeal.
Any of the parties concerned may appeal a determination of the Circuit Court to the High Court on a point of law and the determination of the High Court on such an appeal in respect of the point of law shall be final and conclusive.
Register of Notices
The Commission shall establish and maintain a register of equality and human rights compliance notices for the time being in operation. As soon as may be after an equality and human rights compliance notice has come into operation, the Commission shall cause the notice to be entered on the register.
An equality and human rights compliance notice must be removed from the register after the expiry of 5 years from the date on which the notice came into operation. A person who is the subject of an equality and compliance notice may at any time before the expiry of the period, apply to the Commission to have the notice concerned removed from the register and the Commission may, if it considers it appropriate to do, so remove the notice. An appeal shall lie to the District Court from a refusal by the Commission to remove an equality and human rights compliance notice.
The register shall be made available for inspection by members of the public at all reasonable times at the principal office of the Commission.
The Circuit Court may, on the application of the Commission, grant an injunction to prevent discrimination, contravention, failure or violation in relation to
- discriminatory terms of employment, access to training, promotion or regrading or classification of posts;
- non-compliance an equality clause or an equal remuneration term, or
- the violation of human rights.
This applies if in the period of 5 years beginning on the date on which a notice came into operation, the Commission satisfies the Circuit Court that there is a likelihood of a further discrimination, contravention, failure or violation by the person on whom the notice was served.
Assistance and Advice I
The Commission may give legal assistance and advice and provide representation in relation to the enforcement of human rights and equality rights by individual complainants. It should first consider whether civil or criminal legal aid is available under the respective schemes.
A person may apply to the Commission for assistance in relation to proceedings. The Commission may decide to grant to the applicant such assistance as is appropriate on any of the criteria specified below. Before making a decision in that regard, the Commission shall consider whether the assistance sought could be obtained by the applicant—
- by civil legal aid;
- by criminal legal aid;
- by any other means, whether or not provided for by or under any enactment;
- powers to award redress or grant relief in relation to the matter to which the proceedings relate stand vested in any tribunal or other person and the matter could, in the opinion of the Commission, be more effectively or conveniently dealt with by that tribunal or other person.
Assistance and Advice II
The criteria to be considered are
- the matter to which the proceedings concerned relate raises a question of principle;
- it would be unreasonable to expect the person to deal with the matter to which the proceedings concerned relate without assistance because of its complexity or for any other reason;
- there are other special circumstances which make it appropriate for the Commission to grant such assistance.
Any arrangements made by the Commission for the provision of legal advice to, or representation for, the applicant may include provision for the recovery of expenses incurred by or on behalf of the Commission in that behalf from the applicant in specified circumstances.
The relationship between a solicitor employed by the Commission or any barrister retained by him or her and a person granted assistance under this section shall be the same as the relationship between a solicitor or barrister and a client who is not such a person.
References and Sources
Employment Law Meenan 2014 Ch.24
Employment Law Supplement Meenan 2016
Employment Law Regan & Murphy 2009 ( 2nd Ed 2017) Ch. 13
Employment Law in Ireland Cox & Ryan 2009 Ch 15
Equality Law in the Work Place Purdy 2015
Equality Law in Ireland Reid 2012
Employment Equality Law Bolger and Bruton 2012
Irish Employment Equality Law McCurtain and O’Higgins 1989
Disability Discrimination Law Smith 2010
Equal Status Acts Discrimination in Goods & Services Walsh 2012
Other Irish Books
Employment Law Forde & Byrne 2009
Principles of Irish Employment Law Daly & Doherty 2010
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
Dismissal & Redundancy Consolidated Legislation Barrett, G 2007
Irish Employment legislation (Looseleaf) Kerr 1999-
Employment Rights Legislation (IEL offprint) Kerr 2006
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