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Equality Law in Ireland

Discrimination in the workplace: In recent weeks, there has been a marked increase in complaints of racial and pregnancy-related discrimination. Figures published by the Equality Tribunal reveal that, overall, there was a 44 per cent increase in employment equality claims in 2007 and an 11 per cent increase in equal status claims.

There are two distinct pieces of legislation in place in Ireland which set out important rights for citizens and specifically outlaw discrimination when it occurs. The Employment Equality Act, 1998 and the Equal Status Act, 2000 as amended by the Equality Act, 2004 outlaw discrimination in employment, vocational training, advertising, collective agreements, the provision of goods and services and other opportunities to which the public generally have access.

Irish equality law is also driven by EU Directives and decisions of the European Court of Justice interpreting the Directives and rights under the EU Treaty. The 1998 Act renders unlawful discrimination on nine grounds in the context of the employment relationship. The grounds of discrimination which the Acts addresses are as follows:

• Gender
• Marital status
• Family status
• Sexual orientation
• Religion
• Age (does not apply to a person under 16)
• Disability
• Race
• Membership of the Traveller community

The objective of this paper, inter alia, is to explain the equality regime in Ireland, and outline the main responsibilities of the Office of the Director of Equality ("the Equality Tribunal") and the Equality Authority.

What is discrimination?
The 1998 Act defines and proscribes two forms of discrimination - direct and indirect discrimination; moreover, discrimination is defined as less favourable treatment. A person is said to be discriminated against if he/she is treated less favourably than another is, has been or would be treated in a comparable situation on any of the nine grounds. To establish direct discrimination, a direct comparison must be made, for example, in the case of gender discrimination - the comparison must be between a man and a woman.

Indirect discrimination occurs when practices or policies that do not appear to discriminate against one group more than another actually have a discriminatory impact. It can also happen where a requirement that may appear non-discriminatory adversely affects a particular group or class of persons.

The Role of the Office of the Director of Equality Investigations:
"The Equality Tribunal"
The office is a quasi-judicial body, established under the Employment Equality Act, 1998. Director of Equality investigations Melanie Pine presides over a number of equality officers; all equality officers are statutorily independent in the performance of their duties.

A case referred to the director will be delegated by her to an equality officer for investigation and decision. The equality officer will seek the views of both parties, initially by written exchange. He or she may ask for further information which is relevant to the investigation and has extensive statutory powers to obtain it - though it is rarely necessary to invoke them. A hearing is then held, and the equality officer subsequently issues a detailed written decision which is legally binding.
Complaints may be brought in the first instance to the ODEI except in the case of discriminatory dismissals, which must be brought to the Labour Court. Any gender claim (including gender-related dismissal) may be brought to the Circuit Court in which cases its jurisdiction is unlimited.

There is a statutory right of appeal from a decision by the equality officer. Under the Employment Equality Act, the appeal lies to the Labour Court. Under the Equal Status Act, the appeal lies to the Circuit Court. The Circuit Court also has an enforcement role under both acts if an equality officer's decision is not implemented. It can also make an award for costs (note that equality officers do not have this power).

The ODEI in its decisions to date has specified various courses of actions to employers, including:

• Formulation or revision of equal opportunities' policy;
• Circulation to all employees of equal opportunities' policy;
• Establishment of sexual harassment complaints procedure;
• Establishment of transparent procedures for employment compensation to include, inter alia, drafting of clear job specifications;
• Audit of all policies to ensure equal opportunities for men and women

Remedies:
The ODEI may provide one or more of the following remedies as may be appropriate:

• In an equal pay claim, compensation in the form of arrears of pay for up to three years before the date of the referral of the claim;
• An order for equal pay from the date of the referral of the claim;
• Compensation in an amount of up to two years' remuneration or €12,679;
• An equal treatment order;

The Equality Authority:
The Equality Authority was also established under the 1998 Act, which confers on it a wide range of statutory functions. Generally, the authority works with all those interested to develop equality policies and best practices. It also uses equality reviews and action plans to develop a proactive approach to equal opportunities in the workplace. It also provides legal advice, assistance and legal representation to those who may have a grievance under legislation. In specified circumstances (see, for example, section 85 of the 1998 Act), the Equality Authority can itself refer a complaint of discrimination to the Office of the Director of Equality Investigations. The Equality Authority does not hear or decide complaints.

Conclusion:
The Employment Equality Act, 1998, affects every employer in the State. The Act also provides that employers may be found vicariously liable for the discriminatory actions of an employee towards a fellow employee.

Breach of the EEA may lead to industrial relations problems for employers in addition to other financial implications. Furthermore, it may result in adverse publicity and lead to difficulties in recruitment. It is of paramount importance for employers to put in place systems and procedures to accord with legislation and minimise their exposure to claims.

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

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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