An Act to make further provision for the promotion of equality between employed persons; to make further provision with respect to discrimination in, and in connection with, employment, vocational training and membership of certain bodies; to make further provision in connection with council directive no. 75/117/EEC on the approximation of the laws of the member states relating to the application of the principle of equal pay for men and women and council directive no. 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; to make further provision with respect to harassment in employment and in the workplace; to change the name and constitution of the employment equality agency and provide for the administration by that body of various matters pertaining to this Act; to establish procedures for the investigation and remedying of various matters arising under this Act; to repeal the anti-discrimination (pay) Act, 1974, and the employment equality Act, 1977 , and to provide for related matters.
This Act may be cited as the Employment Equality Act, 1998 .
(2)
Except in so far as any provision of this Act provides expressly for the coming into operation of any such provision, this Act shall come into operation on such day as may be fixed by order made by the Minister, and different days may be so fixed for different provisions and for different purposes.
2-
Interpretation
(1)
In this Act, unless the context otherwise requires—
"act" includes a deliberate omission;
"advertisement" includes every form of advertisement, whether to the public or not and whether in a newspaper or other publication, on television or radio or by display of a notice or by any other means, and references to the publishing of advertisements shall be construed accordingly;
"agency worker" means an employee whose contract of employment is as mentioned in paragraph (b) of the definition of such a contract in this subsection;
"associated employer" shall be construed in accordance with subsection (2);
"the Authority" means the Equality Authority;
"contract of employment" means, subject to subsection (3)—
(a)
a contract of service or apprenticeship, or
(b)
any other contract whereby an individual agrees with a person carrying on the business of an employment agency, within the meaning of the Employment Agency Act, 1971 , to do or perform personally any work or service for another person (whether or not that other person is a party to the contract),
whether the contract is express or implied and, if express, whether it is oral or in writing;
"the Director" means the Director of Equality Investigations;
(a)
the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,
(b)
the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c)
the malfunction, malformation or disfigurement of a part of a person's body,
(d)
a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e)
a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;
"the discriminatory grounds" has the meaning given by section 6(2);
"dismissal" includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and "dismissed" shall be construed accordingly;
"employee", subject to subsection (3), means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment;
"employer", subject to subsection (3), means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;
"employment agency" (when not defined by reference to the Employment Agency Act, 1971 ) means a person who, whether for profit or otherwise, provides services related to the finding of employment for prospective employees or the supplying of employees to employers;
"equality clause" means a gender equality clause, as defined in section 21 or non-discriminatory equality clause, as defined in section 30;
"equal remuneration term" means such a term of a contract as is specified in section 19(1), 20(1) or 29(1);
"family status" means responsibility—
(a)
as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or
(b)
as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,
and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;
"functions", in relation to the Authority, includes powers and duties;
"like work" shall be construed in accordance with section 7;
"marital status" means single, married, separated, divorced or widowed;
"member of the family", in relation to any person, means—
(a)
that person's spouse, or
(b)
a brother, sister, uncle, aunt, nephew, niece, lineal ancestor or lineal descendant of that person or that person's spouse;
"the Minister" means the Minister for Justice, Equality and Law Reform;
"pension rights" means a pension or any other benefits flowing from an occupational pension scheme;
"proceedings" include any referral, mediation or investigation under Part VII but does not include criminal proceedings for an offence under this Act;
"provider of agency work" shall be construed in accordance with subsection (5);
"regulatory body" means a body which falls within any of paragraphs (a) to (c) of section 13;
"relevant characteristic" shall be construed in accordance with section 28(3);
"religious belief" includes religious background or outlook;
"remuneration", in relation to an employee, does not include pension rights but, subject to that, includes any consideration, whether in cash or in kind, which the employee receives, directly or indirectly, from the employer in respect of the employment;
"sexual orientation" means heterosexual, homosexual or bisexual orientation;
"trade union" means a trade union which is the holder of a negotiation licence under Part II of the Trade Union Act, 1941 ;
"vocational training" shall be construed in accordance with section 12(2).
(2)
For the purposes of this Act, two employers shall be taken to be associated if one is a body corporate of which the other (whether directly or indirectly) has control or if both are bodies corporate of which a third person (whether directly or indirectly) has control.
(3)
For the purposes of this Act—
(a)
a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956 , shall be deemed to be an employee employed by the State or Government, as the case may be, under a contract of service,
(b)
an officer or servant of a local authority for the purposes of the Local Government Act, 1941 , a harbour authority, a health board or a vocational education committee shall be deemed to be an employee employed by the authority, board or committee, as the case may be, under a contract of service, and
(c)
in relation to an agency worker, the person who is liable for the pay of the agency worker shall be deemed to be the employer.
(4)
In this Act a reference to "conditions of employment" does not include remuneration or pension rights.
(5)
A person who, under a contract with an employment agency, within the meaning of the Employment Agency Act, 1971 , obtains the services of one or more agency workers but is not their employer for the purposes of this Act is in this Act referred to, in relation to the agency workers, as the "provider of agency work".
(6)
In this Act a reference to a Part or section is to a Part or section of this Act, unless it is indicated that reference to some other enactment is intended.
(7)
In this Act a reference to a subsection or paragraph is to the subsection or paragraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended.
(8)
In this Act a reference to an enactment includes a reference to that enactment as amended by or under any other enactment, including this Act.
3-
Orders and regulations
(1)
Any power under this Act to make an order, other than under section 1(2), includes power to amend or revoke an order made in the exercise of that power.
(2)
Where an order is proposed to be made under this Act, other than an order under section 1(2) or subsection (3) or (5) of section 56, a draft of the order shall be laid before both Houses of the Oireachtas, and the order shall not be made until a resolution approving the draft has been passed by each such House.
(3)
The Minister may make regulations for the purpose of giving effect to this Act.
(4)
Every regulation made under this Act shall be laid before each House of the Oireachtas as soon as practicable after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
(5)
Any order or regulation made under this Act may contain such consequential, supplementary and ancillary provisions as the Minister considers necessary or expedient.
4-
Expenses
Any expenses incurred in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.
5-
Repeals and consequential amendments
(1)
Subject to subsection (2), the Anti-Discriminatory (Pay) Act, 1974, and the Employment Equality Act, 1977 , are hereby repealed.
(2)
Without prejudice to the operation of section 21 (which relates to the effect of repeals) of the Interpretation Act, 1937 , nothing in this section shall affect the continuing operation of orders made under section 14 (which relates to power to repeal or amend certain enactments) of Employment Equality Act, 1977 , and, accordingly, any such orders shall have effect, after the coming into operation of this section, as if that section continued in force.
(3)
In subsection (2) of section 4 ( which relates to the deputy chairman of the Labour Court) of the Industrial Relations Act, 1969 , to substitute ", this Act and the Employment Equality Act, 1998 " for "and this Act".
For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated.
(2)
As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—
(a)
that one is a woman and the other is a man (in this Act referred to as "the gender ground"),
(b)
that they are of different marital status (in this Act referred to as "the marital status ground"),
(c)
that one has family status and the other does not (in this Act referred to as "the family status ground"),
(d)
that they are of different sexual orientation (in this Act referred to as "the sexual orientation ground"),
(e)
that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as "the religion ground"),
(f)
that they are of different ages, but subject to subsection (3) (in this Act referred to as "the age ground"),
(g)
that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as "the disability ground"),
(h)
that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as "the ground of race"),
(i)
that one is a member of the traveller community and the other is not (in this Act referred to as "the traveller community ground").
(3)
Where—
(a)
a person has attained the age of 65 years, or
(b)
a person has not attained the age of 18 years,
then, subject to section 12(3), treating that person more favourably or less favourably than another (whatever that other person's age) shall not be regarded as discrimination on the age ground.
(4)
The Minister shall review the operation of this Act, within 2 years of the date of the coming into operation of this section, with a view to assessing whether there is a need to add to the discriminatory grounds set out in this section.
7-
Like work
(1)
Subject to subsection (2), for the purposes of this Act, in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if—
(a)
both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work,
(b)
the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or
(c)
the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.
(2)
In relation to the work which an agency worker is employed to do, no person except another agency worker may be regarded under subsection (1) as employed to do like work (and, accordingly, in relation to the work which a non-agency worker is employed to do, an agency worker may not be regarded as employed to do like work).
(3)
In any case where—
(a)
the remuneration received by one person ("the primary worker") is less than the remuneration received by another ("the comparator"), and
(b)
the work performed by the primary worker is greater in value than the work performed by the comparator, having regard to the matters mentioned in subsection (1)(c),
then, for the purposes of subsection (1)(c), the work performed by the primary worker shall be regarded as equal in value to the work performed by the comparator.
Discrimination in Specific Areas
8-
Discrimination by employers etc
(1)
In relation to—
(a)
access to employment,
(b)
conditions of employment,
(c)
training or experience for or in relation to employment,
(d)
promotion or re-grading, or
(e)
classification of posts,
an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.
(2)
For the purposes of this Act, neither an employer nor a provider of agency work shall be taken to discriminate against an agency worker unless (on one of the discriminatory grounds) that agency worker is treated less favourably than another agency worker is, has been or would be treated.
(3)
In subsections (4) to (8), references to an employee include references to an agency worker and, in relation to such a worker, references to the employer include references to the provider of agency work.
(4)
A person who is an employer shall not, in relation to employees or employment—
(a)
have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or
(b)
otherwise apply or operate a practice which results or would be likely to result in any such discrimination.
(5)
Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—
(a)
in any arrangements the employer makes for the purpose of deciding to whom employment should be offered, or
(b)
by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different.
(6)
Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—
(a)
the same terms of employment (other than remuneration and pension rights),
(b)
the same working conditions, and
(c)
the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,
as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.
(7)
Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to training or experience for, or in relation to, employment if, on any of the discriminatory grounds, the employer refuses to offer or afford to that employee the same opportunities or facilities for employment counselling, training (whether on or off the job) and work experience as the employer offers or affords to other employees, where the circumstances in which that employee and those other employees are employed are not materially different.
(8)
Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds—
(a)
the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or
(b)
the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.
9-
Provisions in certain agreements and orders
(1)
In a case where—
(a)
an agreement or order to which this section applies contains a provision in which differences in rates of remuneration are based on any of the discriminatory grounds, and
(b)
in relation to a person to whom the agreement or order relates, that provision conflicts with an equal remuneration term in that person's contract of employment,
then, subject to subsection (4), that provision shall be null and void.
(2)
If an agreement or order to which this section applies contains a provision which does not fall within subsection (1) but which gives rise to discrimination in relation to any of the matters in paragraphs (a) to (e) of section 8(1) then, subject to subsection (4), that provision shall be null and void.
(3)
This section applies to the following agreements and orders, whether made before or after the coming into operation of this section:
(a)
collective agreements;
(b)
employment regulation orders, within the meaning of Part IV of the Industrial Relations Act, 1946 ; and
(c)
registered employment agreements, within the meaning of Part III of that Act.
(4)
In the case of a provision which—
(a)
is contained in an agreement or order made before the coming into operation of this section, and
(b)
is discriminatory on a ground other than the gender ground,
subsection (1) or, as the case may be, subsection (2) shall not apply until the first anniversary of the date on which this section comes into operation; and, accordingly, until that date, the equal remuneration term or equality clause in a person's contract of employment shall not override any such provision of an agreement or order which relates to that person.
10-
Advertising
(1)
A person shall not publish or display, or cause to be published or displayed, an advertisement which relates to employment and which—
(a)
indicates an intention to discriminate, or
(b)
might reasonably be understood as indicating such an intention.
(2)
For the purposes of subsection (1), where in an advertisement a word or phrase is used defining or describing a post and the word or phrase is one which—
(a)
connotes an individual of a particular sex or an individual having (in terms of any of the discriminatory grounds) a particular relevant characteristic, or
(b)
is descriptive of, or refers to, a post or occupation of a kind previously held or carried on only by members of one sex or only by individuals having such a particular relevant characteristic,
then, unless the advertisement indicates a contrary intention, the advertisement shall be taken to indicate an intention to discriminate on whichever discriminatory ground is relevant in the circumstances.
(3)
Nothing in this section relates to an advertisement which, or to the extent to which it, specifies a requirement, restriction or other matter which relates to employment and which it would not be unlawful for the employer in question to impose, having regard to any other provision of this Part or of Part III or Part IV.
(4)
A person who, with a view to securing publication or display of an advertisement in contravention of subsection (1), makes a statement knowing it to be false shall, upon such publication or display, be guilty of an offence.
(5)
Without prejudice to subsection (4), if an advertisement is published or displayed and it appears to the High Court or the Circuit Court, on the motion of the Authority, that there are grounds for believing that publication or display of the advertisement may be in contravention of subsection (1), the court may grant an injunction preventing the appointment of any person to any post to which the advertisement relates until—
(a)
the decision of the Director on a contemporaneous reference under section 85 of the publication or display of the advertisement, or
(b)
the court otherwise orders,
and, for the purpose of this subsection, a reference under section 85 shall be regarded as contemporaneous with a motion if it is made on the same day as the motion or not more than 14 days earlier or later.
(6)
The jurisdiction conferred on the Circuit Court by subsection (5) shall be exercised by the judge for the time being assigned to the circuit where the person by whom the advertisement was published or displayed (or caused to be published or displayed) ordinarily resides or carries on any profession, business or occupation.
