The IHREC
Irish Human Rights and Equality Commission Act, 2014
PART 3
Enforcement and Compliance
Definitions for purposes of this Part
29. In this Part—
“equality clause” has the meaning it has in the Act of 1998;
“equality action plan” means a programme of actions that is prepared by an undertaking or, as the case may be, by the Commission, to be implemented in the undertaking to further the promotion of equality of opportunity therein;
“equality and human rights compliance notice” means a notice under section 36 (or where such notice is appealed, the notice as confirmed (with or without amendment) by the Labour Court or the District Court, or the Circuit Court as may be appropriate);
“equal remuneration term” has the meaning it has in the Act of 1998;
“equality review” means—
(a) an audit of the level of equality of opportunity which exists in a particular undertaking, group of undertakings or the undertakings making up a particular industry or sector thereof, and
(b) an examination of the practices of, procedures in, and other relevant factors (including the working environment) material to that undertaking or those undertakings to determine whether those practices, procedures or other relevant factors are conducive to the promotion of equality of opportunity in that undertaking;
“group of undertakings” includes a group of undertakings so defined by reference to any number of relevant factors including geographical location or control;
“human rights” means—
(a) the rights, liberties and freedoms conferred on, or guaranteed to, persons by the Constitution,
(b) the rights, liberties or freedoms conferred on, or guaranteed to, persons by any agreement, treaty or convention to which the State is a party and which has been given the force of law in the State or by a provision of any such agreement, treaty or convention which has been given such force, and
(c) the rights, liberties and freedoms conferred on, or guaranteed to, persons by the Convention provisions within the meaning of the European Convention on Human Rights Act 2003 ;
“substantive notice” means a notice under section 33 (1) or (2) (or where such notice is appealed, the notice as confirmed (with or without amendment) by the Labour Court or the District Court, or the Circuit Court, as may be appropriate);
“undertaking” includes—
(a) an activity giving rise to employment, whether or not in the industrial or commercial sector and whether or not with a view to profit, and
(b) subject to subparagraph (ii), the provision of services by the provider of a service within the meaning of section 4(6) of the Act of 2000 and accordingly this Part shall apply in relation to the provision of such services with the modifications that—
(i) the reference in paragraph (a) of the definition of “equality review” to a particular undertaking shall include a reference to the provision of particular services, and
(ii) the references in section 32(2) to an undertaking shall include a reference to a provider of a service (within the meaning of the said section 4(6) other than paragraph (f) thereof),
and any other necessary modifications.
Provision of information to public, review of operation of certain enactments, etc.
30. (1) The Commission shall—
(a) provide information to the public and keep under review the effectiveness of any enactments relating to the protection and promotion of human rights and equality, and
(b) without prejudice to the generality of paragraph (a), provide information to the public and keep under review the effectiveness of the working of—
(i) the Employment Equality Acts 1998 to 2011,
(ii) the Equal Status Acts 2000 to 2012, and
(iii) section 19 of the Act of 2003, and, whenever it thinks necessary, make proposals to the Minister for amending any of the enactments referred to in paragraphs (a)and (b).
(2) 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 enactment referred to in subsection (1) and may make such recommendations as it sees fit following such review.
(3) The Commission shall keep under review the working of the Pensions Act 1990 in so far as it relates to the principle of equal treatment and may, whenever it thinks necessary, make recommendations to the Minister for Social Protection in relation to that Act.
(4) Where in the opinion of the Commission the working or effect of any of the enactments for the time being specified in subsections (1) to (4) of section 17 of the Act of 1998 or of any provision contained in or made under any such 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—
(a) between men and women, or
(b) 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.
(5) For the purposes of assisting it in carrying out a review under this section, the Commission shall consult such persons, groups and organisations (including organisations of trades unions and of employers) as it considers appropriate.
(6) Where the Commission carries out a review under this section, it—
(a) may, or
(b) shall—
(i) where the Minister has requested the review, or
(ii) where the Minister for Social Protection has requested the review pursuant to subsection (3), make a report of the review to the Minister.
(7) A report under subsection (6) 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
31. (1) 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:
(a) the protection of human rights;
(b) the elimination of discrimination;
(c) the promotion of equality of opportunity in employment;
(d) the promotion of equality of opportunity in relation to those matters to which the Act of 2000 applies.
(2) Before submitting a draft code of practice to the Minister under subsection (1), 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.
(3) After a draft code of practice has been submitted under subsection (1), the Minister may by order declare that the draft code—
(a) is an approved code of practice for the purposes of this Act, or
(b) as amended by the Minister after consultation with the Commission, is an approved code of practice for the purposes of this Act,
and an order under this subsection shall set out the text of the approved code to which the order relates.
(4) A code of practice under section 56 of the Act of 1998 in operation immediately before the commencement of this section shall—
(a) remain in operation after such commencement, and
(b) be deemed to be an approved code of practice for the purposes of this section, and may be amended or revoked by order of the Minister.
(5) A code of practice standing approved under this section (including a code of practice to which subsection (4) applies) shall be admissible in evidence—
(a) in proceedings before a court, or
(b) in the case of proceedings under Part VII of the Act of 1998 or Part III of the Act of 2000, before the Labour Court, the Labour Relations Commission, the Employment Appeals Tribunal, the Director of the Equality Tribunal, or a rights commissioner.
Equality reviews and equality action plans
32. (1) The Commission may invite a particular undertaking, group of undertakings or the undertakings making up a particular industry or sector thereof to—
(a) carry out an equality review in relation to that undertaking or those undertakings, or
(b) prepare and implement an equality action plan in respect of that undertaking or those undertakings,
or both.
(2) The Commission may, if it thinks it appropriate, itself—
(a) carry out an equality review, or
(b) 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.
(3) An equality review or equality action plan may relate to—
(a) equality of opportunity generally, or
(b) a particular aspect of discrimination,
within an undertaking or group of undertakings or undertakings making up a particular industry or a sector thereof.
(4) Where an equality review or equality action plan relates to matters that are covered by both—
(a) the Act of 1998, and
(b) the Act of 2000,
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.
Substantive notices
33. (1) Without prejudice to the generality of section 32 , where the Commission considers it appropriate to do so for the purposes of an equality review or preparing an equality action plan in respect of an undertaking under section 32 , the Commission may serve a substantive notice on a person—
(a) 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,
(b) 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,
however, nothing in this subsection shall be construed to entitle the Commission to require information or documentation relating to an undertaking with fewer than 50 employees.
(2) 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—
(a) is specified in the notice,
(b) is reasonably required for the implementation of the plan, and
(c) is within that person’s power to take.
(3) Before serving a substantive notice on a person under subsection (1) or (2), the Commission shall notify the person in writing of the proposal to serve the substantive notice and the proposed contents of that notice.
(4) A person who is notified under subsection (3) may, within 42 days of the receipt of the notification, make representations to the Commission about the proposed substantive notice.
(5) The Commission shall have regard to any representations made to it under subsection (4) in assessing whether to proceed with the service of the substantive notice.
(6) A substantive notice shall, unless an appeal is brought under section 34 , come into operation on the expiry of 56 days from the service of the substantive notice.
(7) A person who fails to comply with a substantive notice 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 of substantive notice
34. (1) A person on whom a substantive notice has been served may within 42 days of service of the notice appeal to—
(a) the Labour Court, or
(b) in the case of a notice that concerns an equality review or an equality action plan or a proposed review or plan which relates to matters to which the Act of 2000 applies, the District Court,
in respect of the notice or any requirement therein.
(2) Where an appeal is brought under this section, the Labour Court, or the District Court, as the case may be, may—
(a) confirm the notice in whole or in part (with or without amendment of that notice), or
(b) allow the appeal.
(3) Where the Labour Court or the District Court, as the case may be, allows the appeal, the substantive notice shall cease to have effect.
(4) Where the Labour Court, or the District Court, as the case may be, confirms a substantive notice, the notice as so confirmed, shall unless an appeal is brought under subsection (5) come into operation on the expiry of 56 days of the date of confirmation or such later date as the Court may determine.
(5) 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.
(6) Where the Circuit Court allows the appeal, the substantive notice shall cease to have effect.
(7) Where the Circuit Court confirms the substantive notice (in whole or in part, with or without amendment), the notice as so confirmed shall come into operation on such date as the Circuit Court shall determine.
(8) 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.
(9) The jurisdiction conferred on the District Court or the Circuit Court, as the case may be, under this section shall be exercised by a judge of that court for the time being assigned to the district court district or circuit, as the case may be, in which the person on whom the substantive notice is served ordinarily resides or carries on any profession, business or occupation.
Inquiries
35. (1) The Commission, either of its own volition or if requested by the Minister, may conduct an inquiry if it is considered by the Commission that—
(a) there is, in any body (whether public or otherwise) institution, sector of society, or geographical area, evidence of—
(i) a serious violation of human rights or equality of treatment obligations in respect of a person or a class of persons, or
(ii) a systemic failure to comply with human rights or equality of treatment obligations,
and
(b) the matter is of grave public concern, and
(c) it is in the circumstances necessary and appropriate so to do.
(2) An inquiry may be undertaken by one or more than one member of the Commission.
(3) Before conducting an inquiry under this section, the Commission shall, as soon as may be, prepare terms of reference for the inquiry and an outline of the procedures to be followed for the inquiry.
(4) The Commission shall arrange for a copy of the terms of reference and outline of procedures referred to in subsection (3) to be laid before each House of the Oireachtas.
(5) As soon as may be after the terms and outline of the procedures concerned are laid in accordance with subsection (4) the Commission shall arrange for a notice of those terms and that outline to be published—
(a) in at least one newspaper circulating in the State, and
(b) in such other manner as the Commission considers appropriate.
(6) In conducting an inquiry the Commission shall to the greatest possible extent consistent with its duties under this Act—
(a) seek the voluntary co-operation of persons whose evidence is desired for the purposes of the inquiry, and
(b) facilitate such co-operation.
(7) The Commission shall conduct its inquiry as expeditiously as is consistent with its duties under this Act.
(8) The provisions of Schedule 2 shall have effect in relation to inquiries undertaken by the Commission.
Equality and human rights compliance notices
36. (1) Where in the course of an inquiry or after such inquiry has been conducted, the Commission is satisfied that any person—
(a) has discriminated or is discriminating,
(b) has contravened or is contravening section 8(4) or 10(1) of the Act of 1998 or section 12(1) of the Act of 2000,
(c) has failed or is failing to comply with an equality clause or an equal remuneration term, or
(d) has violated or is violating human rights,
the Commission may serve an equality and human rights compliance notice on the person.
(2) Before serving an equality and human rights compliance notice on a person under subsection (1), the Commission shall give the person notice (in this section referred to as “advance notice”) of the proposal to serve the equality and human rights compliance notice and the advance notice shall—
(a) specify the act or omission constituting the discrimination, contravention, failure or violation referred to in subsection (1) to which the notice relates, and
(b) inform the person that he or she may make representations to the Commission in accordance with subsection (3).
(3) 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.
(4) The Commission shall have regard to any representations made to it under subsection (3) in assessing whether to proceed with the service of the equality and human rights compliance notice.
(5) An equality and human rights compliance notice shall—
(a) specify the act or omission constituting the discrimination, contravention, failure or violation referred to in subsection (1) to which the notice relates,
(b) 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,
(c) specify, in the case of discrimination, what steps the Commission requires to be taken by the person on whom it is served,
(d) 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,
(e) 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.
(6) An equality and human rights compliance notice shall, unless an appeal is brought under section 37 , come into operation on the expiry of 56 days from the service of the notice.
(7) 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 of equality and human rights compliance notice
37. (1) 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—
(a) the Labour Court, or
(b) in the case of a notice that relates to prohibited conduct, a contravention of section 12(1) of the Act of 2000 or a matter to which section 36 (1)(d)refers, the District Court,
in respect of the notice or any requirement therein.
(2) Where an appeal is brought under this section, the Labour Court, or the District Court, as the case may be, may—
(a) confirm the notice in whole or in part, with or without amendment of that notice, or
(b) allow the appeal.
(3) Where the Labour Court or the District Court, as the case may be, allows the appeal, the equality and human rights compliance notice shall cease to have effect.
(4) Where the Labour Court, or the District Court, as the case may be, confirms an equality and human rights compliance notice, the notice as so confirmed, shall unless an appeal is brought under subsection (5) come into operation on the expiry of 56 days of the date of confirmation or such later date as the Court may determine.
(5) 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.
(6) Where the Circuit Court allows the appeal, the equality and human rights compliance notice shall cease to have effect.
(7) Where the Circuit Court confirms the equality and human rights compliance notice (in whole or in part, with or without amendment), the notice as so confirmed shall come into operation on such date as the Circuit Court shall determine.
(8) 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.
(9) The jurisdiction conferred on the District Court or the Circuit Court, as the case may be, under this section shall be exercised by a judge of that court for the time being assigned to the district court district or circuit, as the case may be, in which the person on whom the equality and human rights compliance notice is served ordinarily resides or carries on any profession, business or occupation.
Register of equality and human rights compliance notices
38. (1) The Commission shall establish and maintain a register of equality and human rights compliance notices for the time being in operation (in this Act referred to as the “register”).
(2) 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.
(3) Subject to subsection (4), an equality and human rights compliance notice shall be removed from the register after the expiry of 5 years from the date on which the notice came into operation.
(4) A person who is the subject of an equality and compliance notice may at any time before the expiry of the period referred to in subsection (3) 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.
(5) An appeal shall lie to the District Court from a refusal by the Commission to remove an equality and human rights compliance notice.
(6) The register shall be made available for inspection by members of the public at all reasonable times at the principal office of the Commission.
(7) The jurisdiction conferred on the District Court under this section shall be exercised by a judge of that court for the time being assigned to the district court district in which the person on whom the equality and human rights compliance notice is served ordinarily resides or carries on any profession, business or occupation.
Injunctions for failure to comply with compliance application notice
39. (1) Subject to subsection (2), the Circuit Court may, on the application of the Commission, grant an injunction to prevent discrimination, contravention, failure or violation referred to in section 36 (1) by a person specified in the order of the court concerned of a type so specified.
(2) Subsection (1) applies to a case where, 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 referred to in section 36 (1) by the person on whom the notice was served.
(3) 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 on whom the notice was served ordinarily resides or carries on any profession, business or occupation.
Legal and other assistance
40. (1) This section applies to the following (in this section referred to as “proceedings”):
(a) legal proceedings involving law or practice relating to the protection of human rights which a person has instituted or wishes to institute;
(b) legal proceedings in the course of which a person relies on or wishes to rely on such law or practice;
(c) the making of a reference or application under—
(i) this Part,
(ii) Part III of the Act of 2000,
(iii) Part VII of the Act of 1998,
(iv) section 19 of the Act of 2003, or
(v) any legal proceedings resulting from or arising out of a reference or application referred to in subparagraphs (i), (ii), (iii) or (iv),
in circumstances where a person considers that a club referred to in section 8 of the Act of 2000 is a discriminating club within the meaning of that section, or discrimination has been directed against him or her by another person, or that he or she has been adversely affected by the failure or refusal by another person—
(I) to comply with an equality clause or an equal remuneration term,
(II) to implement a decision, order or determination under this Part or Part III of the Act of 2000, or
(III) to implement a mediated settlement under section 78 of the Act of 1998 or section 24 of the Act of 2000.
(2) A person (in this section referred to as the “applicant”) may apply to the Commission for assistance in relation to proceedings to which this section applies.
(3) Where an applicant applies to the Commission for assistance, the Commission may decide to grant to the applicant such assistance as is appropriate on any of the criteria specified in subsection (4) but before making a decision in that regard, the Commission shall consider whether—
(a) the assistance sought could be obtained by the applicant—
(i) under the Civil Legal Aid Act 1995 ,
(ii) under the Criminal Justice (Legal Aid) Act 1962 , or
(iii) by any other means, whether or not provided for by or under any enactment,
or
(b) 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.
(4) Each of the following criteria is specified for the purposes of subsection (3):
(a) the matter to which the proceedings concerned relate raises a question of principle;
(b) 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;
(c) there are other special circumstances which make it appropriate for the Commission to grant such assistance.
(5) Any arrangements made by the Commission under this section 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.
(6) 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.
(7) Subsection (6) is without prejudice to the rights and responsibilities of the Commission and the obligations arising out of the relationship between the Commission and the solicitors employed by it.
(8) For the avoidance of doubt, it is declared that sections 59 and 64 of the Solicitors Act 1954 do not apply in relation to the provision by a solicitor employed by the Commission of assistance under this section.
(9) The powers conferred on the Commission under this section are in addition to and not in substitution for any other power of the Commission to institute proceedings, refer any matter or make any application by or under this Act, the Act of 1998, the Act of 2000 or any other enactment.
(10) In this section—
“assistance” means any or all of the following:
(a) the provision, or the arranging for the provision of, legal advice to the applicant;
(b) the provision, or the arranging for the provision of, legal representation to the applicant;
(c) the provision of such other assistance to the applicant as the Commission deems appropriate in the circumstances;
“person requesting assistance” includes a person to whom assistance is being, or has been, provided under this section;
“relationship” includes rights and privileges arising from the relationship.
Institution of legal proceedings by Commission
41. (1) The Commission may institute proceedings in any court of competent jurisdiction for the purpose of obtaining relief of a declaratory or other nature in respect of any matter concerning the human rights of any person or class of persons.
(2) The declaratory relief the Commission may seek to obtain in such proceedings includes relief by way of a declaration that an enactment or a provision thereof is invalid having regard to the provisions of the Constitution or was not continued in force by Article 50 of the Constitution.
Public bodies
42. (1) A public body shall, in the performance of its functions, have regard to the need to—
(a) eliminate discrimination,
(b) promote equality of opportunity and treatment of its staff and the persons to whom it provides services, and
(c) protect the human rights of its members, staff and the persons to whom it provides services.
(2) For the purposes of giving effect to subsection (1), a public body shall, having regard to the functions and purpose of the body and to its size and the resources available to it—
(a) set out in a manner that is accessible to the public in its strategic plan (howsoever described) an assessment of the human rights and equality issues it believes to be relevant to the functions and purpose of the body and the policies, plans and actions in place or proposed to be put in place to address those issues, and
(b) report in a manner that is accessible to the public on developments and achievements in that regard in its annual report (howsoever described).
(3) In assisting public bodies to perform their functions in a manner consistent with subsection (1), the Commission may give guidance to and encourage public bodies in developing policies of, and exercising, good practice and operational standards in relation to, human rights and equality.
(4) Without prejudice to the generality of subsection (3), the Commission may—
(a) issue guidelines, or
(b) prepare codes of practice in accordance with section 31 ,
in respect of the development by public bodies of performance measures, operational standards and written preventative strategies for the purpose of reducing discrimination and promoting human rights and equality in the public sector workplace and in the provision of services to the public.
(5) Where the Commission considers that there is evidence of a failure by a public body to perform its functions in a manner consistent with subsection (1) and that it is appropriate in all the circumstances to do so, the Commission may invite the public body to—
(a) carry out a review in relation to the performance by that body of its functions having regard to subsection (1), or
(b) prepare and implement an action plan in relation to the performance by that body of its functions having regard to subsection (1), or both.
(6) A review or an action plan under subsection (5) may relate to—
(a) equality of opportunity or human rights generally, or
(b) a particular aspect of human rights or discrimination, in the public body concerned.
(7) The Commission may, and, if requested by the Minister, shall, review the operation of subsection (1).
(8) For the purposes of assisting it in carrying out a review under subsection (7), the Commission shall consult such persons or bodies as it considers appropriate.
(9) Where the Commission carries out a review under subsection (7) it—
(a) may, or
(b) where the Minister has requested the review, shall,
make a report of the review to the Minister and any such report shall include such recommendations as the Commission thinks appropriate.
(10) The Commission shall cause a copy of the report to be laid before each House of the Oireachtas.
(11) Nothing in this section shall of itself operate to confer a cause of action on any person against a public body in respect of the performance by it of its functions under subsection (1).