Employment Equality 6 Introduction The implications of the Equality Acts, 1998 and 2004 for employers are wide ranging. EMPLOYMENT EQUALITY This guideline therefore focuses on the definitions of discrimination contained in the Acts, the implications for those at work with regard to pay and conditions of employment, an analysis of the right to information and an overview of the dispute resolution procedures and redress under the Acts. The other key areas covered by the Acts, namely its Recruitment and Selection implications and harassment/sexual harassment guidelines are outlined in detail in SFA Guidelines 5 and 7, respectively. WHO IS COVERED? The Employment Equality Acts, 1998 and 2004 covers nine distinct groups in pay (but excluding pensions) and non pay areas. Sexual Orientation A person cannot be discriminated against because of their sexual orientation. Sexual orientation means heterosexual, homosexual or bi-sexual orientation. Copyright 2006 Published by the Small Firms Association 84/86 Lower Baggot Street Dublin 2 Telephone: 01 605 1500 Fax: 01 661 2861 E-mail: info@sfa.ie Website: www.sfa.ie This guideline is not a substitute for industrial relations and/or legal advice where appropriate. The guideline may need adaptation to suit the particular circumstances of individual organisations. Members are invited to consult the SFA in this regard. The groups covered are as follows: Gender Marital status Family status Sexual orientation Age Disability Race Religion Membership of the traveller community Gender An Employer cannot discriminate on grounds of gender, i.e. on the basis that someone is a male or female. Marital Status This refers to discrimination on the basis that someone is single, married, separated or divorced. Family Status Family status means responsibility for a person or persons under 18 years of age or where a person is over 18 years of age but has a disability and requires support on a continuing basis. Age This applies to those of 16 years of age and over except in the case of vocational training (which would include apprenticeships) where it applies from the school leaving age. There is no upper age limit. Disability This applies to people with both physical and mental disabilities as well as those who previously had a disability which no longer exists, a disability which may exist in the future, or even cases where a disability is imputed to a person. Disability means: Total or partial absence of a person s bodily or mental functions, including the absence of part of a person s body; The presence in the body of organisms causing, or likely to cause, chronic disease or illness; The malfunction, malformation or disfigurement of part of a person s body; A condition or malfunction which results in a person learning differently from a person without the condition or malfunction;
A condition, illness or disease which affects a person s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour. Thus, the definition of disability is extremely wide. It covers not only the more obvious forms of disability but also conditions such as epilepsy, diabetes, coronary heart disease, cancer, cancer gone into remission and so on. Race This includes race, colour, nationality, ethnic or national origins. Religion This includes religious background or outlook. Membership of the Traveller Community This means the community of people who are commonly called travellers and who are identified (both by themselves and others) as people with a shared history, culture and tradition including, historically, a nomadic way of life on the island of Ireland. DEFINITION OF DISCRIMINATION Direct Discrimination No individual can be treated less favourably because of membership of any of the nine groups covered by the Acts, than another person is, has or would be treated. For example, an employer cannot treat a female less favourably than a male because of her gender, or treat a person with a certain disability more or less favourably than a person with no disability or with a different disability, treat an Irish person more or less favourably because of their nationality and so on. disadvantage" as a result of their membership of one of the nine grounds. Discrimination by Association occurs where a person has been treated less favourably by their association with another person, and similar treatment towards the other person would be considered discrimination. For example, if an employee, who is married to a member of the traveller community, is treated in a manner that would be considered to be discrimination if actioned against the employee s spouse, then this act may also be considered to be discrimination against the employee. EXEMPTIONS FROM THE ACTS Gender One can give preferential treatment in relation to appointments to one gender over another in the following circumstances. Physiology (excluding physical strength or stamina) Authenticity in entertainment Where the job is likely to involve working abroad and the laws or customs of that country are such that the duties involved could not reasonably be performed by a person of a particular gender. The job will involve provision of personal services and it is necessary to have persons of both sexes engaged in such duties. Because of the nature of the work it is necessary to provide sleeping and sanitary accommodation on a communal basis and it would be unreasonable or impractical for the employer to do so. Preferential treatment can also be given to women in relation to pregnancy, maternity, breastfeeding or adoption and this will not leave an employer open to a discrimination claim from males. Indirect Discrimination Indirect discrimination is defined as occurring where an apparently neutral provision puts a person, who is a member of one of the nine groups, at a particular disadvantage due to being a member of that group, unless the provision can be objectively justified by a legitimate aim and the means of the aim are appropriate and necessary. Non Gender Discrimination does not apply in the non gender area in the following situations: Occupational qualifications. For example, physiology or authenticity in entertainment or where the job will involve working outside the State and the laws of that country are such that the duties cannot be performed by a person with a particular characteristic. Statistics are admissible to determine whether or not a person is put at a disadvantage in a particular situation. In order to establish if a person has been indirectly discriminated on this basis, it must be shown that they were put at a "particular
Benefit to an employee in respect of events related to members of the employee s family. Examples include time off for weddings, christenings, funerals and so on. (Members of an employee s family covers spouse, brother, sister, uncle, aunt, nephew, niece, lineal ancestor or descendant of the employee or their spouse). Benefit to or in respect of a person as a member of an employee s family. For example, health insurance paid for by the employer for a spouse but not extending this to a partner of an unmarried employee. Benefit to an employee as a result of a change in their marital status. Benefit to assist in the provision, during working hours, of care for a person under 18 years of age or if over that age to a person who is disabled requiring care or support on a continuing basis. In the age and disability areas, if it can be shown that there are actuarial or other evidence that significantly increased costs would result if the discrimination were not permitted. It shall not be discriminatory to fix different retirement ages (either voluntarily or compulsorily) for employees or certain classes of employee. An employer can set a maximum age for recruitment to take account of: (a) Cost or time to train a new recruit to the standard at which one would be effective in the job, and (b) The need for reasonable time prior to retirement during which the recruit will be effective in the job. An employer can set a minimum age of recruitment at 18 years of age. It will not be unlawful for an employer to provide a disabled person with special treatment or facilities to enable such a person to work or to take part in training. An employer must, where possible, provide reasonable accommodation to a disabled employee to enable such a person to carry out all of the functions of the job, so long as it entails no more than a nominal cost to an employer. It will not be unlawful for a religious, educational or medical institution under the direction or control of a religious body, which has been established to promote certain religious values to give more favourable treatment on the religion ground to one person over another to maintain the religious ethos of the institution or where action is taken to prevent an employee or prospective employee from undermining the religious ethos of the institution. It will not be unlawful to require certain professions, e.g. teachers, members of the defence forces and civil servants, to have residence, citizenship and proficiency in the Irish language. Special Provisions Related to Persons with Disabilities It will not be unlawful for an employer to pay a different rate of remuneration for an employee with a disability if, by reason of that disability, the employee is restricted in his/her capacity to do the same amount of work or work the same hours as someone without that disability, or someone with a different disability. However, this rate must be on or above the national minimum wage. It will not be illegal for an employer to provide special treatment or facilities, to a person with a disability, to enable him/her to undertake work or training. Employers will be required to provide special treatment or facilities for disabled people, except where this would represent a "disproportionate burden" on the organisation. The Acts also refer to "appropriate measures" which include the adaptation of working time patterns and distribution of tasks, but does not include anything that the person might reasonably provide for him/herself. If a person with a disability is unable to pursue a claim effectively as a result of their disability, a parent or guardian can pursue the case on their behalf. An employer is required to facilitate a person with a disability in relation to their employment, or potential employment, once it does not pose a "disproportionate burden" for the organisation. In determining whether it is reasonable for the employer to refuse to facilitate a person with a disability, account will be taken of: the financial and other costs involved; the scale of the employer s business; the financial and other resources of the employer s business; the possibility of obtaining public funding or other assistance. Positive Action It will not be unlawful to maintain or adapt measures with a view to ensuring full equality in practice between employees. It is not discriminatory to: prevent or compensate for disadvantages linked to any of the discriminatory grounds; to protect the health and safety of persons with a disability; to create or maintain facilities for safeguarding the integration of people with a disability into the working environment. EQUAL PAY The Acts makes it illegal to discriminate against any of the nine categories in relation to pay. The Acts enshrine an entitlement to equal pay for employees employed to do "like work" by the same
or associated employer regardless of location. Pay is any consideration in cash or in kind received directly or indirectly by the employee from the employer in respect of his/her employment. Pay would include bonus payments, commission, sick pay, redundancy lump sums, cheap loans, skills allowances, but excludes pensions. (The Pensions (Amendment) Act, 2002 sets out current employer obligations in this regard.) An employer can provide a higher rate of remuneration to different employees on grounds other than those listed as discriminatory in the Acts, for example, length of service. To establish a claim, the following criteria must exist: The claimant and the comparator must be employed on like work. Like work is work which is the same, similar in nature or equal in value. The claimant and the comparator must be employed by the same employer or by two associated employers (i.e. if one firm controls the other, or both are controlled by the same third organisation). In equal pay cases comparisons between those employed in associated employers is only possible if the pay and conditions are the same or similar in the two employments. There is nothing to prevent an employer from paying, on grounds other than the nine listed in the Act, different rates of remuneration to different employees. If a claimant succeeds in his/her claim, then he/she is entitled to equal remuneration for up to a maximum of three years from the date of the claim, if a claim is initially referred to an Equality Officer, and up to a maximum of six years loss of remuneration if a claim is initially referred to the Circuit Court. Employers can currently legitimately pay agency workers more/less than other employees. In relation to pay, agency workers can only bring an equal pay claim by comparing themselves with other agency workers in the organisation. Similarly, employees of the company cannot bring an equal pay claim against an agency worker. However, a proposed EU Directive on Working Conditions for Temporary Agency Workers, could effectively outlaw the less favourable treatment of an agency worker with regard to terms and conditions of employment vis-à-vis a worker directly employed by a user company. (For current information in this regard, please e-mail: info@sfa.ie). CONDITIONS OF EMPLOYMENT No discrimination is permitted on the basis of any of the nine grounds in relation to conditions of employment such as access to overtime, access to shift work, access to training and work experience, is permitted. Neither is discrimination permitted in transfers, lay-off/short-time, redundancy and dismissal. Discriminatory clauses in contracts of employment and collective agreements are null and void. RIGHT TO INFORMATION Whilst there is a right under the Acts for any person who considers that they have been discriminated against to request material information to assist them in making a decision on whether or not to refer a matter under the Acts, there is no requirement to disclose confidential information. Until now, people did not have a right to information at all. Employers cannot be required to furnish references or reports relating to the character or suitability for employment of any person, or other confidential information which relates to a particular individual and to which that individual does not agree with disclosing. If the employer refuses to provide information requested or provides misleading information, then an Equality Officer, the Labour Court or Circuit Court can draw such inferences as seem appropriate. VICTIMISATION Victimisation is defined as occurring where dismissal or other adverse treatment of an employee occurs as a reaction to: a complaint of discrimination made by an employee; any proceedings by a complainant; an employee having represented or otherwise supported a complainant; the work of an employee having been compared with that of another employee; an employee having been a witness in any proceedings under the Employment Equality Acts or the Equal Status Acts; an employee having given notice of their intention to do any of the above.
EQUALITY AUTHORITY The Equality Authority was established under the Acts, to provide the following functions: The elimination of discrimination in relation to employment; The promotion of equal opportunity; The provision of information on the Acts; The monitoring of equality and related legislation, including that covering maternity protection, parental and adoptive leave; The issuing of Codes of Practice (e.g. Code of Practice on Sexual Harassment & Harassment at Work); Conducting enquiries, and representing employees in cases against employers. It is important for employers to be aware that the Equality Authority has a representative role in taking cases against employers, and correspondence from it should not be confused with the Equality Tribunal, which appoints Equality Officers to hear and issue decisions on cases taken. Equality officer hearings are held in private. Labour Court hearings are only open to the public if one party to the case requests it. However, in the case of a public hearing, confidential aspects of the case are held in private. It is important to note however, that all decisions of the Equality Officers and the Labour Court are made public. In equal pay cases, arguments by the employer of grounds other than sex and grounds other than the other eight categories covered as a basis for pay differentials can be investigated as a preliminary point before the issue of like work is examined. Where a case is referred directly to the Circuit Court, the judge can refer a particular issue for examination by an Equality Officer who will make a report to the Circuit Court on the issue referred. For example, an Equality Officer could be requested to examine like work and make a report on this matter to the Circuit Court. The Equality Officer can also be called as a witness before the Circuit Court by either party. DISPUTE RESOLVING MECHANISM Equality Officers will investigate allegations of discrimination, under the nine categories listed. Equality Officers decisions are appealed to the Labour Court. A person does have the option of referring a case directly to the Circuit Court instead of to an Equality Officer or Labour Court. Appeals from decisions of Equality Officers must be made to the Labour Court within 42 days of the date of the Equality Officer s decision. Either party can appeal the Circuit Court decision to the High Court on a point of law. Also, either party can appeal a Labour Court decision to the High Court on a point of law. The Labour Court itself can refer to the High Court any legal point arising in the course of investigating any case before it. Claims under the Acts must be referred within 6 months of the last occurrence of the discriminatory act. However, in exceptional circumstances this period may be extended to 12 months. Equality Officers and the Labour Court can require the production of information which it is believed contains information relevant to the case. Mediation is given a strong emphasis in the Acts. If a case is referred to The Equality Tribunal and it appears that the case is one that could be resolved by mediation then it can be referred to an Equality Mediation Officer for mediation. Where the case is resolved by mediation then the settlement terms will be recorded and signed by both parties. If the case cannot be resolved through mediation then this fact will be recorded. This can be seen as a good way to resolve issues quickly, and most importantly the details of the case remain confidential to the parties. Equality Officers and the Labour Court can also require an individual to attend a hearing if that individual is believed to have information relevant to a case. The provision of such information will not give rise to any liability on the part of the person providing it. Nor will such information be disclosed in any written decision of an Equality Officer or Labour Court without the consent of both the person furnishing it and any person to whom the information may relate. In fact, it will be an offence for any person to disclose such information.
An individual cannot receive compensation under both this Act and other legislation (or by seeking damages at common law) in relation to equal pay and employment equality. For example, a dismissal case cannot ultimately be pursued under both this Act and the Unfair Dismissals Acts. It will be presumed that any person dismissed and who has pursued a claim under the Acts, threatened to pursue a claim or has given evidence or threatened to give evidence in a claim against an employer, was dismissed in breach of the Acts. The onus of proof will be on the employer to prove that the employee was not victimised for being involved or threatening to become involved in a claim under the Acts. REDRESS In equal pay cases claimants shall be entitled to loss of remuneration for up to 3 years prior to the date of referral of the claim in cases referred initially to Equality Officers. Where the case is referred initially to the Circuit Court then the claimant is entitled to loss of remuneration for up to 6 years prior to the date of referral of the claim. CONCLUSION Employers must now study all aspects of employment in their organisation - from initial recruitment, to rights whilst in employment to termination of employment to ensure that no discrimination on any of the nine grounds occurs. Whilst the area of direct discrimination is relatively easy to understand the issue of indirect discrimination is more complex and it can be relatively easy to inadvertently discriminate against someone because of their membership of one of the groups covered by the Acts. Employers are expected to take initiatives to prevent discrimination occurring - for example, having non discriminatory procedures in place and ensuring that management staff are trained so that they are aware of the demands of equality law. In non-pay cases, non-employees can receive up to 12,697 compensation. However, where discrimination has been found to have taken place and that discrimination resulted in a person not getting the job, then remuneration may be awarded as compensation. Employees can receive up to two years remuneration in non-pay cases. Decisions of Equality Officers and the Labour Court which are not implemented and not appealed are enforced by the Circuit Court. The Circuit Court can order that interest be paid on monies awarded. If the decision not implemented concerns re-instatement or reengagement of an employee then the Circuit Court can order that the employer compensate the employee for monies lost because of failure to re-instate or re-engage them or the Circuit Court can order that worker not be re-instated or re-engaged but instead that he/she be compensated. Maximum compensation in such a situation is 104 weeks remuneration.