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Discrimination: Employment Equality

Employment Equality litigation is increasing every year and employers and employees should be aware of their respective obligations and rights under the Employment Equality Acts 1998 – 2008. These Acts outlaw discrimination at work including recruitment and promotion, equal pay, working conditions, training or experience, dismissal and harassment including sexual harassment. Any complaints under these Acts are referred to the Equality Tribunal which is an independent State body in Ireland set up to investigate or mediate complaints of discrimination.

Discrimination
Discrimination, which can be both direct and indirect, occurs when you are treated less favourably than another person is, has been or would be treated because of the grounds set out in Section 6 of the aforementioned Acts which are as follows:-

1. The gender ground: That one is male and the other is female i.e.. Claims of discrimination on grounds of gender still come up regularly in employment equality law particularly in relation to difficulties encountered by pregnant employees and employees returning to work after maternity leave. Issues also arise in relation to requests for flexible working hours which cross over areas of gender (on grounds of indirect discrimination and family status, detailed below). The Equality Tribunal and the Labour Court have shown themselves very willing to support the right of a working parent (usually a working mother) to have an application for reduced working hours or flexible working arrangements at least considered by the employer in a reasonable manner. A number of cases have found that a failure to at least consider an application or within a reasonable period of time constitutes unlawful discrimination on the grounds of gender and/or family status. However, where an employer can show that they have acted reasonably with regards to the needs of the business, that claim for discrimination may be rejected;
2. The marital status ground: That they are of different marital status
3. The family status ground: That one has family status and the other has not i.e. a parent of a person under 18 years or the resident primary carer or the parent of a person with a disability;
4. The sexual orientation ground: That they are of different sexual orientation i.e. gay, lesbian, bisexual or heterosexual;
5. The religion ground: That one has different religious beliefs from the other or that one has a religious belief that the other has not
6. The age ground: That they are different ages This applies to all ages above the maximum age at which a person is statutorily obliged to attend school. There has been a significant increase in litigation on this ground in the last number of years, particularly in relation to compulsory retirement, though with little success;
7. The disability ground: That one is a person with a disability and the other is not or is a person with a different disability. This is very broadly defined and includes people with physical, intellectual, learning, cognitive or emotional disabilities and a range of medical conditions including back pain. This is a medical definition rather than a functional definition i.e. it focuses on the complaints of the person alleging discrimination rather than on how those complaints present an obstacle to that individual's full participation in the workplace. It should be noted that an employer shall not be obliged to recruit or promote a person to a position if they are not fully competent at undertaking the duties attached to that position. However, under the Acts if a person who has a disability is deemed fully competent if they would be so fully competent on reasonable accommodation being provided by the person's employer i.e. the employer should be required to take measures to enable a person who has a disability to have access to employment, to participate in employment or to undergo training unless the measures would impose a disproportionate burden on the employer. This relates to adapting a person's system of working as much as their physical environment. For example, adjusting the person's attendance hours or allowing them to work partially from home. If an employer is of the belief that an employee's disability impairs their ability to carry out the duties for which they are employed, an employer must ensure that they are in possession of all the material facts concerning the employee's condition and the employee is given fair notice that the question of their dismissal for incapacity is being considered and must be allowed to influence that decision. This would involve looking at the medical evidence;
8. The race ground: That they are of different race, colour, nationality, ethnic or national origins. Such claims before the Equality Tribunal are increasing, reflecting an increasingly diverse Irish Society. In 2005, for the first time, the highest number of employment equality claims were on the grounds of race. The definition of race is particularly broad in that nationality is expressly included. The Equality Tribunal has made it very clear that they view less favourable treatment of non-Irish workers as completely unacceptable. Case law has established that there are requirements for special measures in the case of non-national workers to ensure that they fully understand the disciplinary procedures. In some cases, applying the same procedural standards to a non-national worker as would be applied to an Irish national could amount to the application of the same rules to different situations and in itself could amount to discrimination; and
9. The traveller community ground: That one is a member of the travelling community and the other is not

Bringing a claim
If your claim is for discrimination on the foregoing nine grounds, then the Equality Tribunal is the place to bring your claim. It investigates or mediates claims of unlawful discrimination under the equality legislation. A tribunal mediator will facilitate parties to mediate agreement which is legal and binding. Where parties object to mediation, a case will be heard by a tribunal equality officer, who will hear evidence from both parties before issuing a legally binding decision.

Remedies
Remedies will include one or more of the following:-

1. Compensation
2. An order for equal pay or equal treatment and/or
3. An Order that somebody take a specified action.

Appeals
All tribunal decisions can be appealed to the Labour Court for employment and pensions cases and to the Circuit Court for equal status cases within 42 days of the issue of the decision. It should be noted that complaints under the Equality Acts must be brought within six months of the last act of discrimination. This time limit can be extended to twelve months where there is "reasonable cause".

Compensation
Claims of discrimination pursuant to the Employment Equality Acts 1998-2004 are increasing annually. Relatively high levels of compensation are being awarded and more significantly, both the Equality Tribunal and the Labour Court have shown themselves to be quite prepared to make Orders that could be seen as a considerable intrusion on the ability of an employer to run their business.

Please note that this article is for information purposes only and does not constitute legal advice.

Rose Wall

Solicitor

Seeking Employment Law Advice

If you would like to set up a consultation with an Employment Law Solicitor please contact Malcomson Law by calling 01 8744422.

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