Ireland: New legislation aims to promote equality
A new equality Act has come into force, implementing three EU equality Directives and introducing significant new employment rights. The legislation introduces some new equality rights and extends positive action measures.
The Employment Act 2004 came into force on 18 July 2004 and amends the Employment Equality Act 1998 (the 1998 Act) (EIRR 294) and the Equal Status Act 2000 (the 2000 Act) so as to implement three EU equality Directives. These are:
Directive 2000/43/EC implementing the principle of equal treatment irrespective of racial or ethnic origin;
Directive 2002/73/EC, amending Directive 76/207/EEC, on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions; and
the framework Directive (2000/78/EC) on employment equality, outlawing discrimination on grounds of religion or belief, disability, age and sexual orientation.
The Act also introduces technical and procedural amendments to the 1998 and 2000 Acts arising from the experience gained in their operation. The main changes are outlined below.
Self-employed persons
The 2004 Act provides for the extension of the scope of the 1998 Act to include persons working in a self-employed capacity and to partners in partnerships.
Extension of positive action provisions
This is one of the main areas of change in the new Act. The scope for positive action in order to promote equality in the workplace has been broadened to include all nine grounds for discrimination set out in the 1998 Act. Previously, positive action, which may include providing greater access to training, mentoring or other forms of ongoing support, was confined to situations covering gender, age, disability and membership of the travelling community. The following grounds have now been added: marital status; family status; sexual orientation; religious belief; and race.
In relation to positive action that allows employers to make additional efforts to recruit, employ and promote members of groups that may traditionally be excluded, this too is extended to cover all nine grounds, having previously only covered positive action in this area in relation to gender.
Age discrimination
The previous legislation protected persons aged 18 and over from age-based discrimination. The new law extends the scope of coverage to persons aged 16 and over. It also extends protection against age-based discrimination to people over the age of 65. Nevertheless, employers will still be allowed to set a minimum age, not exceeding 18, for potential job applicants. Employers will also be allowed to set retirement ages.
Employment in private households
The new Act gives increased protection to individuals working in another person's home. These workers will now be entitled to the same kind of protection under the Act as they enjoyed by other types of employee, although this does not apply during the job application process.
The introduction of these provisions follow concerns that many domestic workers were being exploited. These types of workers are predominantly migrant workers, performing domestic and childcare work in private households. It is hoped that the new law will now offer increased protection to these workers.
Definition of sexual harassment
The definition of what constitutes sexual harassment is expanded to cover any unwanted conduct that has the purpose of violating a person's dignity and creating an intimidating and hostile environment for the individual. Previously, to qualify, such action had to be both unwelcome and reasonably regarded as offensive, humiliating or intimidating. By removing the "reasonable" requirement, the definition will be open to a wider interpretation.
In addition, the Act extends the concept of "harassment" to cover imputed characteristics. For example, under the previous legislation, if an employee suffered harassment following hints about their sexuality, but did not have the characteristics imputed to them, they would not have been able to bring a case of harassment. This loophole has now been closed by the 2004 legislation.
Accommodating people with disabilities
The new legislation imposes a higher burden on employers to provide facilities for disabled people. Previously, an employer could refuse to provide facilities on the grounds that it gave rise to more than a "nominal" cost. Under the 2004 Act, an employer may only refuse to provide facilities for a disabled person on the basis that this would impose a disproportionate burden, when the financial resources of the employer concerned have been taken into account.
Indirect discrimination and victimisation
The Act puts in place a more general definition of indirect discrimination and extends the definition of victimisation. The task of proving the existence of indirect discrimination is made easier by the removal of certain requirements to produce extensive statistical evidence in support of the claim.
Time limits for claims
The conditions for extending the six-month time limit to 12 months for discrimination claims have been made less restrictive by changing the criteria from exceptional circumstances to reasonable cause.
There is a similar alleviation of the criteria for the requirement to have submitted written notification to the respondent within two months that may now be extended to four months more easily. The six-month limit does not apply to equal pay cases.
Other new provisions include:
allowing a parent or guardian of an intellectually or psychologically disabled individual, who is unable to pursue effectively a claim for redress under the 2000 Act, to pursue the claim on their behalf;
allowing claims, that the Labour Court or the Equality Tribunal believe are frivolous, vexatious or misconceived or relating to a trivial matter to be dismissed by either body;
streamlining the issuing of complaints whereby one case may be referred both to the Equality Tribunal (in relation to discriminatory treatment) and the Labour Court (in relation to discriminatory dismissal) so that both may be dealt with by the Equality Tribunal;
amending the 2000 Act to provide that a claim involving a number of discriminatory grounds, other than victimisation, must be heard as one case;
amending the 2000 Act to provide that the maximum amount of an award can only be applied in one case, even where there was discrimination on more than one ground. There is an exception for the victimisation ground, which can have a separate award applied to it;
providing a means of redress for drivers under the age of 18 who have been discriminated against in motor insurance; and
taking account of the requirements of Directive 2000/43/EC, placing the burden of proof on the respondent where a prima facie case of discrimination has been established.
Reactions
The Act has generally been welcomed, although both the Human Rights Commission and the Equality Authority have criticised its provisions as not going far enough in transposing the three EU Directives. Niall Crowley, chief executive of the Equality Authority, has expressed concerns that the new legislation "does not respond to many of the serious experiences brought forward by migrant workers in domestic employment" and maintained that the legislation may not fully comply with the EU Directives, as the sanction for breaches are, in his view, too low and not sufficiently dissuasive.
The Irish government is, however, upbeat about the new law. When he announced the coming into effect of the Act, Michael McDowell, the justice, equality and law reform minister said: "With this enactment, all outstanding EU equality Directives have been transposed into Irish law. The implementation of the equality Directives, and the various procedural improvements to our existing equality legislation and infrastructure, will facilitate our ongoing efforts to eradicate discrimination from both the workplace and society at large. This Act will better facilitate access to redress where cases of discrimination are encountered."
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Main points of the legislation Self-employed people and people in partnerships are now covered by equality legislation.
The age discrimination provisions cover people from the age of 16 (previously 18).
Positive action provisions have been extended to cover all nine grounds cited in the Employment Equality Act 1998.
Domestic workers are brought into the scope of the Act, in an attempt to prevent exploitation of these types of worker, usually migrants working in private households.
The definition of sexual harassment has been widened and the concept of harassment has been expanded to include imputed characteristics.
Employers are now required to provide reasonable accommodation for persons with disabilities unless the changes would impose a "disproportionate burden" on employers' resources.
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