Discrimination

Discrimination at work is covered by the Employment Equality Acts. If you are an employee, or trying to get a job, and you feel you are discriminated against unlawfully, on any of the nine prohibited grounds, you can make a claim under these Acts. The legislation covers all aspects of work including recruitment and promotion, the right to equal pay, conditions of employment, training or experience.

Discrimination outside the workplace is covered by the Equal Status Acts. If you are trying to get goods or services and you feel you are discriminated against unlawfully, on any of the ten prohibited grounds, you can make a claim under these Acts. The legislation covers many different goods and services. It includes access to a place, facilities for banking, entertainment, cultural activities or transport, professional or trade services, health services, access to education and accommodation. It does not apply to licensed premises.

The Employment Equality Acts 1998 to 2011 cover employees in both the public and private sectors as well as applicants for employment and training.

The Acts outlaw discrimination in work-related areas such as pay, vocational training, access to employment, work experience and promotion. Cases involving harassment and victimisation at work are also covered by the Acts. The publication of discriminatory advertisements and discrimination by employers, vocational training bodies and employment agencies, e.g. trades unions and employer associations, is outlawed. Collective agreements may be referred to the Workplace Relations Commission for mediation or investigation.

The nine grounds on which discrimination is outlawed by the Employment Equality Acts are as follows:

The Acts also prohibit victimisation or discrimination against a person on the basis of association with another person, providing support to the person, being named as a comparator, acting as a witness on behalf of that other person, or who has given notice of an intention to take any such actions.

Information relating to discrimination in certain circumstances is available on the individual tabs above.

Further detailed information in relation to Employment Equality is available from the Irish Human Rights and Equality Commission (IHREC) on http://www.ihrec.ie/your-rights/

You may view or download the relevant Acts or Statutory Instruments (SI’s) on the links below.

The Employment Equality Acts include

Employment Equality Act, 1998
Equality Act 2004
Civil Law (Miscellaneous Provisions) Act 2011
Equality (Miscellaneous Provisions) Act 2015

A ‘Restated and Revised’ version of the Employment Equality Acts (which brings together all amendments and changes in a single text) is available from the Law Reform Commission or can be accessed at the following link Employment Equality Act 1998..

Other Acts:

Pensions Act, 1990
Social Welfare (Miscellaneous Provisions) Act, 2004

Statutory Instruments:

SI 208 of 2012 – Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012
SI 321 of 1999 – Employment Equality Act, 1998 (Section 76 – Right To Information) Regulations, 1999

What is a Collective Agreement?

In cases where an employer recognises a trade union or a group of unions, it is common to engage in collective bargaining to negotiate agreements. A collective agreement is one made by or on behalf of an employer and a representative trade union which governs pay and/or other conditions of employment.

Under section 9 of the Employment Equality Acts, 1998-2011, any provision in a collective agreement or other order which discriminates on any of the nine grounds may be declared null and void. This includes an agreement which results in a discriminatory difference in pay.

The agreements and orders which may be challenged are: collective agreements, Employment Regulation Orders (made by the Labour Court under the Industrial Relations Acts) and registered employment agreements. A person who is affected by such an agreement or order can refer a complaint to the Workplace Relations Commission. Under s.86 of the Acts, the Commission may refer a complaint of this kind to mediation, if the parties do not object, or can investigate and issue a decision. The statutory remedy provided is that a provision which is found to be discriminatory shall be declared null and void, and consequently no longer possesses legal effect. The Commission may, if it thinks it appropriate, advise on how a non-discriminatory replacement provision could be framed.

What are Occupational Pensions?

Occupational pensions are, broadly speaking, pensions established by an employer for employees (as distinct from ones provided by the State through the social security system).

They are not covered by the Employment Equality Act 1998-2011, and are covered instead by Part VII of the Pensions Act 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004,

With effect from 5th April 2004, it is unlawful to discriminate directly or indirectly in relation to occupational pensions on any of the nine protected grounds as listed below.

Section 8 of the Employment Equality Act 1998 to 2015 states that it is unlawful for an employer to discriminate against an employee or prospective employee with respect to access to employment. The person making the claim does not have to be an employee in order to take a claim against an organisation in relation to access to employment.

Thus, a non-employee has scope to take a claim if they feel a decision not to recruit them was based on one of the 9 grounds protected from discrimination under the Act. As a result of this, employers should ensure to operate fair recruitment procedures that are free from any form of discrimination from the outset.

This includes job advertisements, interview criteria and the reasoning behind being unsuccessful in obtaining a position.

Discrimination on the ground of disability means being treated less favourably than someone who does not have a disability, or who does not have the same disability as you. The term ‘disability’ includes physical, intellectual, mental and emotional conditions.

By law, you have the right to equal treatment if you have a disability.

The Equal Status Acts ban discrimination, harassment and sexual harassment in:

• The sale of goods and services;
• The provision of housing; and
• Access to education.

The Intoxicating Liquor Act 2003 protects you against discrimination, harassment and sexual harassment when you are in or entering a licensed premises e.g. a pub or hotel bar.

Discrimination on the ‘age ground’ occurs where there is less favourable treatment of one person compared with another person because they are of different ages.

Please note: Under the Employment Equality Acts, ‘age’ applies to employees over the maximum age at which a person is statutorily obliged to attend school.

Discrimination on the ‘sexual orientation ground’ happens where there is less favourable treatment of one person compared to another person because they are of different sexual orientation.

Work & Membership of the Traveller Community Discrimination. Discrimination on the ‘Traveller community ground’ occurs where one person is treated less favourably than another because one is a member of the Traveller community and the other is not.

Discrimination on the ‘religion ground’ happens where there is less favourable treatment of one person compared to another person because one has a different religious belief, background or outlook from the other, or that one has a religious belief, background or outlook and the other has not.

Discrimination on the ‘gender ground’ happens where there is less favourable treatment of one person compared to another, because one is a woman and the other is a man.

Pregnant women or women on maternity leave are also protected under the gender ground.

Discrimination on the ‘race ground’ occurs where there is less favourable treatment of one person compared to another person because they are of different race, colour, nationality or ethnic or national origins.

Discrimination under the Employment Equality Acts 1998 – 2015

Direct discrimination is when a worker is treated less well than another worker in the same situation or circumstances under any of the nine grounds covered in the Acts.

Direct discrimination can also be, for example, an order given by a manager to a worker to discriminate against another worker.

Indirect discrimination happens where a worker or group of workers or job applicants are treated less favourably as a result of requirements that they might find hard to satisfy.

Example of Indirect Discrimination

If a job advertisement states that applicants have to be of a certain minimum height, this may put women at a particular disadvantage. The rationale for this requirement has to be objectively justified. The Acts require the employer to prove that the requirement is also necessary for the job in question, in order not to be discriminatory.

Victimisation under the Employment Equality Acts 1998-2015

Under the Acts, it is ‘victimisation’ if an employer penalises an employee because they have made a complaint under either the Employment Equality Acts 1998–2015 or the Equal Status Acts 2000-2015. Victimisation is against the law.

It is victimisation if an employee is dismissed or penalised in some other way if they have: made a complaint of discrimination to the employer;

• been involved in any discrimination proceedings;
• helped a colleague to make a claim;
• been penalised as a result of an unfair comparison with a colleague known as a ‘comparator’ (see below);
• acted as a witness in legal discrimination proceedings;
• taken a discrimination claim to court under the Acts; or
• informed an employer that they intend to do any of the things mentioned in any of these points.

The term ‘comparator’ is used, for example, when someone takes a case against an employer on the basis of not being appointed to a certain position because they are female; their ‘comparator’ would then be the male colleague who got the job.

Section 27 (1) defines penalisation as: any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.