Equality legislation: Implications

What is Employment Equality?

Employment equality means the right not to be discriminated against in the workplace by virtue of a certain personal categorisation. All employees have the right to be treated equally regardless of gender, marital status , family status, sexual orientation, age , disability, race religious belief or membership of the travelling community in work and when seeking work.

The Employment Act 1998 – outlaws discrimination, harassment & victimisation

Discrimination

Discrimination will be taken to occur where, on any of the nine discriminatory grounds, one person is treated less favourably than another is, has been or would be treated.

The less favourable treatment will usually manifest itself in:

• Access to employment / Conditions of employment
• Unequal pay
• Training
• Promotion
• Classification of employment; and
• Harassment

Employers duty

An employer is under an obligation not to have in place practices which would result in discrimination against an employee in relation to these aspects of employment.

Intention required?

There is no requirement that the act in question be done with an intention to discriminate.

However, positive discrimination for certain categories of employees is permitted and should be encouraged. This is referred to as permissible discrimination.

Harrassment

Harassment and sexual harassment, if related to any of the nine grounds, are deemed to be discrimination. Harassment is prohibited conduct and takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading humiliating or offensive environment.

Victimisation

Victimisation is also prohibited and the Act provides that victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith ought or intended to seek redress under this Act.

Types of discrimination

Gender discrimination: Direct & Indirect

In gender discrimination claims the claimant must establish on the balance of probabilities facts from which it may be presumed that the claimant has suffered discrimination. When this burden has been discharged a prima facie case of discrimination has been made out and the onus shifts on the respondent to prove that there was no infringement of the Employment Act 1998.

Of particular importance in the gender area is the principle of equal pay for equal work and there is implied into all contracts a term entitling the worker to such equal pay. Thus men and women are entitled to the same remuneration for like work –there must be however, an actual concrete real life comparator of the other sex performing like work within the same establishment.

Non-Gender discrimination: Direct & INdirect

This covers discrimination on the other eight grounds: marital status, family status, sexual orientation, age, disability, race, religious belief or membership of the travelling community. There is inserted to every contract of employment, which does not already contain one, a non-discriminatory equality clause.

One of the areas that have generated a significant amount of case law is discrimination on the age the disability ground. Many Employers put forward the economic defence when confronted with a disability/incapacity situation, the court will decide whether a burden is disproportionate or not.

When can Employers be made liable?

An employer may be liable for the acts of employees done in the course of employment, whether the acts are done with the employer’s knowledge or consent or not. The absence of such a provision was a major lacuna previously. An employer, however, can avoid liability by proving that he/she took reasonable steps to prevent the particular act of discrimination or that type of act generally.

Redress

The forum for seeking redress at first instance is to the Director of Equality Investigations.

Redress which may be ordered by the ODEI is as follows:

1. In an equal pay case, equal pay and arrears in respect of a period not exceeding three years before the date of the referral.

2. In Equal treatment cases compensation of up to a maximum of two years pay.

3. In a dismissal case, reinstatement or re-engagement with or without compensation subject to a maximum of two years pay.