Equality Law in the Workplace 9781784518691

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Equality Law in the Workplace.book Page ii Thursday, July 9, 2015 2:08 PM

Equality Law in the Workplace.book Page i Thursday, July 9, 2015 2:08 PM

Equality Law in the Workplace

Equality Law in the Workplace.book Page ii Thursday, July 9, 2015 2:08 PM

Equality Law in the Workplace.book Page iii Thursday, July 9, 2015 2:08 PM

Equality Law in the Workplace

Alastair Purdy Solicitor

Equality Law in the Workplace.book Page iv Thursday, July 9, 2015 2:08 PM

Published by Bloomsbury Professional Maxwelton House 41–43 Boltro Road Haywards Heath West Sussex RH16 1BJ Bloomsbury Professional The Fitzwilliam Business Centre 26 Upper Pembroke Street Dublin 2

ISBN 987-1-78043-251-9 (print) ISBN 978-1-78451-869-1 (ePDF)

© Bloomsbury Professional Limited 2015 Bloomsbury Professional, an imprint of Bloomsbury Publishing Plc All rights reserved. No part of this publication may be reproduced in any material form (including photocopying or storing it in any medium by electronic means and whether or not transiently or incidentally to some other use of this publication) without the written permission of the copyright owner except in accordance with the provisions of the Copyright, Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright Licensing Agency Ltd, Saffron House, 6–10 Kirby Street, London, EC1N 8TS, England. Applications for the copyright owner’s written permission to reproduce any part of this publication should be addressed to the publisher. Warning: The doing of an unauthorised act in relation to a copyright work may result in both a civil claim for damages and criminal prosecution. This work is intended to be a general guide and cannot be a substitute for professional advice. Neither the authors nor the publisher accept any responsibility for loss occasioned to any person acting or refraining from acting as a result of material contained in this publication.

British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library

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PREFACE To my wife Orla without whose patience, forebearance (and diligence in editing), this book would not have been possible. There are many others who also I have to thank, particularly my parents who taught me and my siblings from a young age the need to appreciate and understand equality and diversity in life and the real need to support those less fortunate than ourselves. To many of the people who have guided me in my working career and continue to do so, of which there are too many to mention: I do appreciate you all. As I consider our world, more than ever we require leaders of every faith and creed, political and otherwise, to be brave and to address the many inequalities in everyday life ... from the streets of Ferguson, Missouri, to the 200 Nigerian schoolgirls taken hostage by Boko Haram. These atrocities and injustices should simply not be happening. My abiding hope is that my daughter can grow up in a world free from inequality and discrimination. It behoves us all to contribute. Alastair Purdy 31 May 2015

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Equality Law in the Workplace.book Page vii Thursday, July 9, 2015 2:08 PM

Contents Preface ............................................................................................................................ v Contents....................................................................................................................... vii Table of Cases............................................................................................................... xv Table of Statutes....................................................................................................... xxxi Table of Statutory Instruments ........................................................................... xxxvii Table of European Legislation.............................................................................. xxxix Table of Charters, Conventions and Treaties ........................................................... xli Table of Constitutions................................................................................................. xli Part A: The Framework of Employment Equality Law ............................................1 Chapter 1: Institutions and Agencies of the EU and Ireland .................................... 3 Introduction................................................................................................................ 3 European Union Institutions ...................................................................................... 3 The Council of the European Union .................................................................... 3 The European Commission .................................................................................. 4 The European Parliament..................................................................................... 6 The Court of Justice of the European Union........................................................ 8 Irish institutions.................................................................................................. 11 Chapter 2: The Irish Constitution ............................................................................. 13 Introduction.............................................................................................................. 13 Article 40.1 .............................................................................................................. 14 All persons are equal before the law .................................................................. 14 Permitted constitutional aspects of inequality.................................................... 16 Onus to prove justification ................................................................................. 19 Chapter 3: European Union Law ............................................................................... 21 EU law as the primary source of Irish equality law................................................. 21 Defrenne and double aim of Art 157 TFEU ............................................................ 21 The Equality Directives ........................................................................................... 22 Article 13 Directives .......................................................................................... 24 The Recast Directive .......................................................................................... 24 Mainstreaming.................................................................................................... 25 The European Convention on Human Rights .......................................................... 27 Definition of discrimination..................................................................................... 28 Direct discrimination.......................................................................................... 28 Indirect discrimination ....................................................................................... 29 Discrimination by association ............................................................................ 32 Harassment by association ................................................................................. 35 Permitted discrimination .................................................................................... 35 vii

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Equality Law in the Workplace Current interpretation of EU Legislation................................................................. 49 Chapter 4: The Employment Equality Acts 1998–2011 .......................................... Background ............................................................................................................. Scope of the Employment Equality Acts ................................................................ Definition of ‘employee’ ................................................................................... Independent contractors..................................................................................... Agency workers and employment agencies ...................................................... Collective agreements........................................................................................ Illegal contracts.................................................................................................. Prohibited conduct................................................................................................... Defining discrimination ..................................................................................... The need for a comparator................................................................................. Hypothetical comparator ................................................................................... Comparable situation ......................................................................................... Categories of discrimination ................................................................................... Direct discrimination ......................................................................................... Discrimination by association ........................................................................... Indirect discrimination....................................................................................... Discrimination by imputation ............................................................................

51 51 52 53 54 55 56 56 56 57 58 59 59 60 60 61 61 62

Part B: Recruitment, Employment and Redundancy .............................................. 63 Chapter 5: Pre-Employment Equality Issues ........................................................... Introduction ............................................................................................................. Advertisements........................................................................................................ Shortlisting and selection for interview................................................................... Minimum and maximum periods of experience...................................................... Interviews ................................................................................................................ Interview panels................................................................................................. Job descriptions and minimum qualifications ......................................................... Application forms.................................................................................................... Post-interview feedback .......................................................................................... Conditions precedent............................................................................................... Pre-employment medicals ................................................................................. References ......................................................................................................... Background and criminal record checks............................................................ Alcohol and drug testing.................................................................................... Conclusions .............................................................................................................

65 65 65 68 70 71 75 75 76 77 77 78 80 82 84 88

Chapter 6: Aspects of the Employment Relationship.............................................. The contract of employment.................................................................................... Collective agreements ............................................................................................. Collective bargaining......................................................................................... Terms and conditions of employment ..................................................................... Promotions and seniority.........................................................................................

91 91 92 94 96 97

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Contents Chapter 7: Victimisation........................................................................................... 103 Introduction............................................................................................................ 103 Cause of action in its own right ............................................................................. 104 Scope of victimisation ........................................................................................... 104 Significance of a claim of victimisation ................................................................ 105 Summary................................................................................................................ 106 Chapter 8: Harassment and Sexual Harassment.................................................... 107 Introduction............................................................................................................ 107 Applicable legislation ............................................................................................ 109 EU law ............................................................................................................. 109 Irish legislation................................................................................................. 110 Categories of harassment and sexual harassment .................................................. 112 Harassment by non-employees ........................................................................ 112 Sexual harassment outside the workplace........................................................ 113 Verbal harassment............................................................................................ 115 Harassment and age.......................................................................................... 116 Harassment and sexual orientation................................................................... 116 Breach of contract.................................................................................................. 117 Bullying ................................................................................................................. 118 Criminal offences................................................................................................... 121 Vicarious liability .................................................................................................. 121 Defences................................................................................................................. 122 Importance of a policy on harassment ............................................................. 123 Investigation of complaints.................................................................................... 125 Need for independence..................................................................................... 127 External investigators....................................................................................... 127 Issues arising in investigations......................................................................... 127 Cross-examination of witnesses....................................................................... 128 Conclusion ............................................................................................................. 130 Chapter 9: Equal Pay ................................................................................................ 131 Introduction............................................................................................................ 131 The EU and equal pay............................................................................................ 131 Irish position on equal pay..................................................................................... 133 Preliminary requirements....................................................................................... 133 Comparators ..................................................................................................... 134 Same or associated employer ........................................................................... 137 Like work ......................................................................................................... 139 Indirect discrimination........................................................................................... 144 Definition of pay.................................................................................................... 146 Entitlement to equal pay on other discriminatory grounds.................................... 146 Defences................................................................................................................. 147 Market forces ................................................................................................... 147 Cost .................................................................................................................. 147 Collective agreements ...................................................................................... 149 Red-circling...................................................................................................... 149 ix

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Equality Law in the Workplace Seniority and length of service ........................................................................ Disability and equal pay ........................................................................................ Redress and equal pay ........................................................................................... Part-time workers and equal pay ........................................................................... Pensions and equal pay.......................................................................................... Severance packages and equal pay........................................................................ Conclusions ...........................................................................................................

151 151 152 152 153 153 155

Chapter 10: Post Employment Equality Issues ...................................................... Introduction ........................................................................................................... Selection for redundancy....................................................................................... Severance packages............................................................................................... Issuing references .................................................................................................. Bringing a claim ....................................................................................................

157 157 157 158 159 160

Part C: Discrimination: The Nine Grounds ........................................................... 163 Chapter 11: Gender .................................................................................................. Introduction ........................................................................................................... Male gender discrimination................................................................................... Pregnancy and maternity ....................................................................................... Payment of sick pay during pregnancy............................................................ Change of duties and health and safety leave during pregnancy..................... Right to return to work after a period of protective leave ............................... Alternative working arrangements on return from maternity leave ................ Less favourable treatment after maternity leave.............................................. Contact during maternity leave........................................................................ Redundancy during maternity leave ................................................................ Pregnancy-related dismissals........................................................................... Dismissal of agency workers during pregnancy.............................................. Burden of proof in pregnancy-related dismissals ............................................ Non-renewal of a fixed-term contract during maternity.................................. Surrogacy and adoptive leave.......................................................................... Dress codes............................................................................................................ Transgender employees......................................................................................... Gender Recognition Advisory Group.............................................................. Exemptions ........................................................................................................... Genuine occupational requirement .................................................................. Gardaí and prison service ................................................................................

165 165 166 167 167 168 171 172 174 178 178 181 183 184 184 187 188 190 192 193 193 194

Chapter 12: Civil Status ........................................................................................... Introduction ........................................................................................................... Case law ................................................................................................................ Exemptions............................................................................................................ Genuine occupational requirement .................................................................. Religious ethos ................................................................................................

195 195 195 198 198 198

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Contents Chapter 13: Family Status ........................................................................................ 201 Definition ............................................................................................................... 201 Case law................................................................................................................. 202 Alternative working arrangements ........................................................................ 203 Exemptions ............................................................................................................ 203 Chapter 14: Sexual Orientation ............................................................................... 205 Introduction............................................................................................................ 205 Harassment............................................................................................................. 205 Disclosure of sexual orientation ............................................................................ 207 Summary................................................................................................................ 207 Exemptions ............................................................................................................ 208 Chapter 15: Religious Belief ..................................................................................... 209 Introduction............................................................................................................ 209 Defining religion and belief................................................................................... 210 Defining ‘religion’ ........................................................................................... 210 Relationship between religion and human rights ............................................. 211 Relationship between religion, race and ethnicity ........................................... 213 Defining ‘belief’............................................................................................... 214 Framework Directive and Employment Equality Acts.......................................... 215 Direct discrimination........................................................................................ 215 Indirect discrimination ..................................................................................... 216 Comparators ..................................................................................................... 218 Harassment....................................................................................................... 218 Victimisation .................................................................................................... 219 The ‘religion’ and ‘belief’ ground ......................................................................... 220 Manifestation or promotion of religious beliefs in the workplace................... 220 Religious dress and symbols ............................................................................ 221 Conscientious objectors ................................................................................... 225 Exemptions ............................................................................................................ 228 Ethos of an institution ...................................................................................... 228 Section 37(1)(a)................................................................................................ 229 Section 37(1)(b) ............................................................................................... 230 Definition of ‘ethos’......................................................................................... 230 Reasonable accommodation............................................................................. 231 General occupational requirement ................................................................... 232 Chapter 16: Age ......................................................................................................... 235 EU law ................................................................................................................... 235 Irish legislation ...................................................................................................... 236 Comparators ..................................................................................................... 236 Minimum age difference .................................................................................. 237 Direct discrimination ............................................................................................ 238 Indirect discrimination........................................................................................... 239 Objective justification ........................................................................................... 240 Scope of the prohibition on age discrimination ..................................................... 241 xi

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Equality Law in the Workplace Promotion ........................................................................................................ Pay scales and length of service ...................................................................... Termination of employment ........................................................................... Retirement ....................................................................................................... Redundancy ........................................................................................................... Selection for redundancy ................................................................................. Severance payments.........................................................................................

241 243 244 246 253 254 256

Chapter 17: Disability............................................................................................... Models of disability............................................................................................... Medical model of disability ............................................................................. Social model of disability ................................................................................ Definition and scope of disability ......................................................................... European Union ............................................................................................... Ireland .............................................................................................................. Summary: scope and definition of disability ................................................... Direct disablity discrimination .............................................................................. Comparators..................................................................................................... Causal link and connection.............................................................................. Summary: direct discrimination ...................................................................... Indirect disability discrimination........................................................................... Disability discrimination by association ............................................................... Reasonable accommodation .................................................................................. Scope of reasonable accommodation............................................................... A cause of action in its own right .................................................................... Importance of procedures ................................................................................ Examples of appropriate measures .................................................................. Countervailing measures to ameliorate disadvantage ..................................... Disproportionate burden on employer ............................................................. Summary: reasonable accommodation ............................................................ Exemptions............................................................................................................ Genuine occupational requirement .................................................................. Educational, technical or professional qualifications ...................................... Exemptions relating to various professions, vocations or occupations ........... Alternative and lower rates of pay................................................................... Prison service, gardaí or emergency services .................................................. Defences ................................................................................................................ Health and safety .............................................................................................

259 259 259 259 259 259 261 270 270 271 272 272 273 273 274 275 277 279 283 286 286 288 288 288 288 289 289 290 291 292

Chapter 18: Race....................................................................................................... Introduction ........................................................................................................... Race discrimination in EU law.............................................................................. Definition of race discrimination in the Employment Equality Acts.................... Ethnic origin .................................................................................................... Direct discrimination............................................................................................. Indirect discrimination .......................................................................................... Irish language requirements.............................................................................

295 295 295 296 297 298 300 300

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Contents References ........................................................................................................ 302 Access to educational/vocational courses ........................................................ 303 English language requirement.......................................................................... 303 Employment documentation in English ........................................................... 304 Discrimination by association ............................................................................... 305 Comparators........................................................................................................... 307 Hypothetical comparators ................................................................................ 307 Discriminatory dismissal ...................................................................................... 308 Work permits and illegal contracts ....................................................................... 308 Bullying and harassment ....................................................................................... 310 Exemptions....................................................................................................... 311 Vocational training .......................................................................................... 311 Residency/citizenship....................................................................................... 312 Genuine occupational requirement ................................................................. 312 Chapter 19: Membership of the Traveller Community ......................................... 313 Introduction............................................................................................................ 313 Case law................................................................................................................. 313 Harassment on the Traveller ground...................................................................... 315 Part D: Enforcing Equality Rights ..........................................................................317 Chapter 20: Taking a Claim ..................................................................................... 319 Introduction............................................................................................................ 319 Time limits............................................................................................................. 319 Extension of time limits ................................................................................... 320 Continuing discrimination and time limits....................................................... 322 Summary .......................................................................................................... 323 Frivolous or vexatious claims ................................................................................ 324 Striking out claims not pursued ............................................................................. 324 Forms ..................................................................................................................... 325 Form EE2 and the drawing of inferences......................................................... 325 Amending complaints or complaint forms....................................................... 327 Chapter 21: The Burden of Proof ............................................................................ 331 Introduction............................................................................................................ 331 EU and Irish context on the burden of proof ......................................................... 331 The test in practice................................................................................................. 332 Establishing a prima facie case of discrimination ................................................. 333 Rebutting a prima facie case of discrimination ..................................................... 334 Burden of proof on the gender ground................................................................... 334 Burden of proof on the race ground....................................................................... 335 Burden of proof on the age ground........................................................................ 336 Burden of proof on the religion ground ................................................................. 337 Chapter 22: Remedies and Costs ............................................................................. 339 Remedies................................................................................................................ 339 Gender discrimination: Circuit Court .................................................................... 340 xiii

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Equality Law in the Workplace Breach of contract ................................................................................................. Alternative remedies.............................................................................................. Alternative avenues of redress .............................................................................. Costs ...................................................................................................................... Appeals.................................................................................................................. Settlement/compromise agreements......................................................................

341 342 342 344 345 345

Appendix 1: Workplace relations complaint form ................................................. 347 Appendix 2: Form EE1 ............................................................................................. 353 Appendix 3: Form EE2 ............................................................................................. 355 Employment Equality Act, 1998 (Section 76 – Right To Information) Regulations 1999 ............................................................................................. 355 Index ........................................................................................................................... 361

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TABLE OF CASES 2 Female Claimants v Boys’ Secondary School DEC–E2001–005 ...........................................8.22 3 Male Employees v Power Supermarkets Ltd EE9/1994 .......................................................11.72 5 Complainants v Hannon’s Poultry Export Ltd DEC–E2006–050 ........................................18.44 24 Female Employees v Spring Grove Services [1996] ELR 147 .............................................9.40 29 Named Complainants v Courts Service DEC–E2010–016, EDA 1125 ................................9.42 58 Named Complainants v Goode Concrete Ltd DEC–E2008–020 ...............................9.62, 18.31 248 Named Complainants v Health Service Executive DEC–E2012–009 .......................9.16, 9.19 A A v A State Authority DEC–E2006–015 ...................................................................................7.04 A v Contract Cleaning Company EE/2001/166 .........................................................................7.11 A v Contract Cleaning Service DEC–E2004–068 .....................................................................8.25 A v Government Department [2008] ELR 354 .............................................................17.72, 17.84 A v Government Department DEC–E2008–023 ......................................................................17.74 A v Health Board DEC–E2005–016 ..........................................................................................8.60 A v Hotel DEC– E2009–003 ....................................................................................................18.52 A v Public Sector Organisation DEC–E2006–026 ..................................................................22.04 AB v Chief Constable [2014] EWHC 1965 (QB) ....................................................................10.15 Abdoulaye and Others v Regie nationale des usines Renault SA (Case C–218/98) ECR [1999] I–05723 ............................................................................................................3.63 Abrahamsson and Anderson v Fogelqvist (Case C–407/98) [2000] ECR I–05539 ..........3.73, 3.77 Agnieszka v Sami Swoi Ltd DEC–2015–016 ..........................................................................11.64 AIB v A Worker DEE 4/93 ........................................................................................................8.53 Allen v Dunnes Stores [1996] ELR 203 ....................................................................................8.53 Allied Irish Banks Ltd v Lupton (21 October 1983) HC ...........................................................6.05 Allonby v Accrington & Rosendale College (Case C–256/01) [2004] ECR I–2002, [2004] ECR I–173........................................................................................................3.11, 9.26 Alvarez v Sesa Start Espana ETT SA (Case C–104/09) [2010] ECR I–08661 ................3.75–3.77 Andoo v Pagewell Concession (ILAC) Ltd DEC–E2013–151 ................................................12.07 Angelini v Sweden [1988] 10 EHRR 123 ................................................................................15.21 Anya v University of Oxford [2001] EWCA Civ 405 .............................................................18.43 Arbeiterwohlfahrt der Stadt Berlin v Botel (Case C–360/90) [1992] ........................................9.51 ARM Chappell v United Kingdom [1978] ECHR 241 ............................................................15.16 Arrowsmith v UK [1978] 19 D&R 5 .......................................................................................15.23 Article 26 and the Employment Equality Bill, 1996, re [1997] 2 IR 321 ......2.07, 2.09, 2.21, 4.03, 4.18, 15.61, 15.70, 17.98, 17.110 Assico Assembly v Corcoran EED 033/2003 ..........................................................................11.49 Atkinson v Carty [2005] ELR 1 .............................................................................8.26, 8.57, 22.09 Aukscionis v ARA Construction Ireland Ltd DEC–E2010–195 ...............................................6.20 Azmi v Headfield Church of England Junior School [2007] IRLR 484 .......................15.44, 15.51

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Equality Law in the Workplace B B v Employee DEC–E2004–002 ................................................................................................8.59 B v Newsagents and Deli DEC–E2013–149 ......................................................17.26, 17.39, 17.40 Badeck (Case C–158/97) [2000] ECR I–1875 ...........................................................................3.73 Balaban v Zelter GmbH (Case C–86/10) .................................................................................16.62 Barber v Guardian Royal Exchange Insurance Group (Case C–262/88) [1990] ECR I–1889 ................................................................................................................9.51, 9.76 Barnes v Castle 501 F.2d 983 .....................................................................................................8.04 Barton v Investec Securities Ltd [2003] ICR 1205 ..................................................................21.07 Berber v Dunnes Stores [2009] ELR 61 .....................................................................................8.44 BH v Named Cab Company t/a A Cab Company DEC–E2006–026 ........................................8.21 BH v Named Company t/a A Cab Company DEC–E2006–027 ..............................................14.04 Bilka-Kaufhaus GmbH v Weber von Hartz (Case C–170/84) [1986] ECR 1607 ......................................................................................3.29, 3.31, 9.54, 9.75 Boland v Eircom DEC–E2002–019 ...........................................................................................6.21 Brady v Irish TV Rentals Ltd DDEE–8/1985 ..........................................................................11.87 Brady v TSB ESOP Trustees Ltd DEC–E2004–007 ...............................................................20.04 Brandon House Hotel v Barska EDA148 ...................................................................................5.14 Brennan v Attorney General [1984] ILRM 355 .........................................................................2.05 Brides v Minister for Agriculture [1998] 4 IR 250, [1998] ELR 125 ......................4.24, 9.12, 9.27 Brierton v Calor Teoranta DEC–E2010–034 .............................................................................9.66 Brihenche v French Minister for Labour (Case C–391/03) [2004] ECR I–8807 ..............3.73, 3.77 Brown v Rentokil (Case C–394/96) [1998] ECR I–4185 .............................................11.41, 11.47 Brunnhofer v Bank der Österreichischen Postsparkasse AG (Case C–381/99) [2001] ECR I–4961 ..............................................................................................................9.45 Bullimore v Pothecary Witham Weld Solicitors UK EAT/0189/10/JOJ .................................10.16 Bundesrepublik Deutschland v Dittrick (Cases C–124/11, C–125/11 and C–143/11) ............12.03 Burke v Boston Scientific Clonmel Ltd DEC–E2010–001 ......................................................17.43 Bus Éireann v C EDA 0811 ...................................................................................................17.123 Bus Éireann v Group of Workers PTW/06/7, Det No 071, 18 May 2007 .................................4.25 Byrne v Fás DEC–E2002–45 .....................................................................................................5.21 Byrne v PJ Quigley Ltd UD/762 1994 .....................................................................................20.05 C C & D Food Ltd v Cunnion [1987] 1 IR 147 .............................................................................9.43 Cadman v Health and Safety Executive (Case C–17/05) [2006] ECR I–09583, [2006] IRLR 969 ................................................................................................9.64, 9.67, 9.68 Cahill v OSG Chartered Loss Adjustors DEC–E2011–030 .....................................................20.28 Calor Teo v McCarthy [2009] ELR 281 ..................................................................................22.06 Campbell Catering Ltd v Rasaq Ltd [2004] ELR 310 ..................................................18.16, 18.20 Campbell Catering Ltd v Rasaq ED/02/52 Labour Court ........................................................18.46 Campbell v Bank of Ireland Private Banking DEC–2013–046 ....................................11.30, 11.35 Campbell v Minister for Transport [1996] ELR 106 .................................................................9.61 Campbell v UK [1982] 4 EHRR 293 .......................................................................................15.20 Care Attendant v HSE DEC–E2006–013 ........................................................................4.33, 17.30 Carmody v Minister for Justice [2005] IEHC 10 .......................................................................3.21 Caroll v HJ Heinz Frozen and Chilled Foods DEC–E2011–114 .............................................17.61

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Table of Cases Carr v EBS Building Society [2013] IEHC 182 ......................................................................20.34 Carroll v Limerick County Council [2009] ELR 257 ..............................................................11.14 Cascella and Cascella t/a Donatellos Restaurant v Worker [2005] 16 ELR 28 ..........17.13, 17.120 Cassidy v Shannon Castle Banquets [2000] ELR 248 ...............................................................8.72 CD v ST (Case C–167/12) .......................................................................................................11.66 Cementation Skanska v Worker DWT0425 ..................................................................20.07, 20.09 Cers v Securazone Manhour Ltd (in Liquidation) DEC–E2009–116 ........................................6.20 Chacón Navas v Eurest Colectividades SA (Case C–13/05) [2006] ECR I–6467 .....................................................15.08, 15.12, 17.05, 17.18, 17.27, 17.40 Chappel v UK [1988] 10 EHRR 510 .......................................................................................15.12 Chasi v J & I Security Ltd DEC–E2011–016 ............................................................................6.20 Chief Constable of Bedfordshire v Graham [2002] IRLR 239 ................................................12.04 Chief Constable of South Yorkshire Police v Jelic [2010] UKEAT/0491/09/CEA ...............17.124 Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 .......................................7.08 Church of the New Faith v Commissioner of Pay-Roll Tax (Victoria) [1982–3] 154 CLR 120 ...........................................................................................................15.10, 15.11 CIE v IT&GWU DEP/1/1978 ....................................................................................................9.51 Cilinska-Snepste v Rye Valley Foods DEC–E2009–001 ........................................................21.15 Civil Servant v Office of the Civil Service DEC–E2004–029 .................................................17.13 Claimant v Government Department DEC–E2007–009 ..........................................................20.06 Clare County Council v Director of Equality Investigations [2011] IEHC 303 ......................20.23 Clay Cross (Quarry Services) Ltd v Fletcher [1978] EWCA Civ J0711–1 ...............................4.27 Cleaning Operative v Contract Cleaning Company DEC–E2010–089 ...................................17.35 Clifford v Aosdána EDA5/2005 [2005] ELR 202 .....................................................................4.14 Coffey v Shannon Regional Fisheries Board DEC–E2012–177 ..............................................17.13 Coleman v Attridge Law (Case C–303/06) [2007] IRLR 88 ............................................3.37, 3.38 Coleman v Attridge Law (Case C–303/06) [2008] ECR I–05603, [2008] IRLR 722 ........................................................................4.31, 8.13, 15.71, 17.52, 18.37 Colgan v Boots Ireland DEC–E2010–088 ...............................................................................17.18 Comhairle Oiliúna Talmhaíochta v Doyle [1989] IR 33, [1990] IRLM 21 ...............................9.35 Commission for Racial Equality v Dutton [1989] 1 All ER 306 .............................................18.12 Commission v Belgium (Case C–317/14) ................................................................................18.23 Commission v France (Case C–312/86) [1988] ECR 6315 .....................................3.62, 3.69, 3.76 Company v Worker EE02/88 .....................................................................................................8.07 Company v Worker EE03/1991 [1992] ELR 40 ........................................................................8.14 Complainant v Applus Car Testing Service Ltd DEC–E2013–084 .........................................16.56 Complainant v Company EE 01/1999 ........................................................................................8.59 Complainant v Department Store DEC–E2002–017 .................................................................7.10 Complainant v Employer DEC–E2008–068 ........................................................5.28, 17.70, 17.79 Complainant v Hospital DEE029/2000 ......................................................................................8.70 Computer Component Company v Worker [2002] ELR 124 .........................................17.13, 5.44 Conlon v Arcout Ltd t/a Sheldon Park Hotel and Leisure Club DEC–E2008–057 .................11.70 Connacht Gold Co-operative Society v A Worker EDA 0822 .....................................17.33, 17.40 Connolly v Bon Secours Hospital DEC–E2005–42 ...................................................................5.36 Construction Worker v Construction Company DEC–E2008–048 ...........................................8.14 Coote v Granada Hospitality Ltd (Case C–185/97) [1998] IRLR 656, ECR I–5199 ..........................................................................................3.79, 7.06, 10.12, 10.13 Cork City Council v McCarthy EDA 0821 ...................................................................21.10, 21.12 County Cork VEC v Hurley EDA1124 .........................................................................20.12, 20.13

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Equality Law in the Workplace County Louth VEC v Equality Tribunal (4 July 2009) HC ..........................................20.18, 20.37 Cox v Ireland [1992] 2 IR 503 ..........................................................................................2.07, 2.08 Crown Suppliers (PSA) Ltd v Dawkins [1993] ICR 517 .........................................................18.12 Cullen v Connacht Gold UD 787/2006 ....................................................................................22.14 Cullen v Employment Appeals Tribunal 2008/88/JR ..............................................................22.14 Cunningham v Intel Ireland Ltd [2013] IEHC 207 ..................................................................22.17 Curran v Department of Education and Science DEC–E2009–075 .........................................18.13 Customer Perception Ltd v Leydon ED/02/1, [2004] ELR 101..........................17.13, 17.23, 17.40 Czyzyxki v Fegan Apple Orchard & Joinery DEC–E2011–260 ...................................18.35, 18.36 D D v France [1989] 35 DR 199 ..................................................................................................15.16 D v Ireland [2012] IESC 10 .......................................................................................................2.10 D v Residential Institutions Redress Review Committee [2009] [2009] IESC 59, [2010] 1 IR 262 ....................................................................................................................2.22 Danosa v LKB Līzings SIA (Case C–232/09) [2011] CMLR 45 ..............................................4.08 Darguzis v Lough Corrib Engineering Ltd DEC–E2009–038 .................................................18.44 Davis v Dublin Institute of Technology (23 June 2000) HC ...................................................18.17 de Burca v Attorney General [1976] 1 IR 38 ....................................................................2.12, 2.18 de la Villa v Cortefiel Servicios SA (Case C–411/05) [2007] ECR I–8531 .................16.34, 16.56 Deeney v Francis Brophy & Company, Dublin DEC–E2006–028 ............................................5.35 Defrenne v Sabena (No 2) (Case C–43/75) [1976] ECR 455 .......3.03, 3.25, 3.28, 4.02, 9.12, 9.23 Defrenne v Sabena (No 3) (Case 149/77) [1978] ECR 1365 ............................................3.03, 9.02 Dekker v Stichting Vormingscentrum voor Jonge Volwassen (Case C–177/88) [1990] ECR I–3941 ...................................................................................................3.25, 11.02 Delaney v Board of Management, Drumshambo Central National School DEC–E2004/067 ...5.23 Demir v Turkey [2008] ECHR 1345 ..........................................................................................6.15 Dempsey v NUI Galway DEC–E2014–039 .............................................................................11.37 Department for Work and Pensions v Thompson [2004] IRLR 348 .......................................11.73 Department of Defence v Barrett EET081 ...............................................................................21.20 Department of Finance v 7 Named Complainants EDA/068/2006 ............................................9.58 Department of Finance v Collins EDA 8/2006 ........................................................4.15, 6.06, 6.08 Department of Finance v IMPACT [2005] ELR 6 ........................................................20.08, 20.09 Department of Health and Children v Gillen ADE/03/15 ..................................11.43, 20.15, 20.18 Department of Health v Dillan DEC–EE2003–035 ...................................................................5.25 Department of Justice v Kavanagh [2012] ELR 34 .................................................................17.93 Department of Justice, Equality and Law Reform v CPSU [2008] ELR 140 ............................4.23 Department of Justice, Equality and Law Reform v Kavanagh [2012] ELR 34 ......................17.60 Department of Justice, Equality and Law Reform v Kavanagh EDA 1120 ...........................17.116 Department of Post and Telegraphs v Kennefick EP/9/1979 .....................................................9.30 Deutsche Lufthansa AG v Kumpan (Case C–109/09) [2011] ECR 1309 .....................16.47, 16.52 Deutsche Post v Sievers (Case C–271/97) [2000] ECR I–929 ..................................................3.04 Deutsche Telecom v Schroder (Case C–50/96) [2000] ECR I–743 ...........................................3.04 Dillane v Attorney General [1980] ILRM 167 ...........................................................................2.14 Doherty v Bus Éireann DEC–S2011–052 ................................................................................17.13 Domestic Worker v Employer DEC–E2011–117 ....................................................................18.47 Donaldson v Marks & Spencer (Ireland) Ltd DEC–E2013–032 .............................................17.38 Donegan v Dublin City Council [2008] IEHC 288 ....................................................................3.20

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Table of Cases Donnellan v Minister for Justice, Equality and Law Reform [2008] IEHC 467 ..............................................................................16.39, 16.40, 16.43, 16.45 Doorty v University College Dublin DEC–E2004–043 ................................................11.13, 11.14 Dory v Germany (Case C–186/01) ............................................................................................3.55 Dowdall O’Mahony & Co Ltd v 9 Female Employees EP/2/1987, DEP/6/1987 ......................9.33 Doyle v ESB International Ltd DEC–E2012–086, [2013] ELR34 ....................16.41, 16.43, 16.56 Draper v Attorney General [1984] IR 277 .................................................................................2.20 Dublin City Council v Gallagher [2008] IEHC 353 ..................................................................3.20 Dublin City Council v McCarthy EDA2/2002 ...........................................................................7.10 Dublin Corporation v Building and Allied Trades Union [1996] 2 ILRM 547 .......................22.17 Duffy v George [2013] EWCA Civ 908 ....................................................................................8.73 Dun Laoghaire/Rathdown Council v Morrissey EDA 0410 ....................................................16.30 Dunn v Institute of Cemetery and Crematorium Management (UKEAT/0531/10) ................12.04 Dyflin Publications Ltd v Spasic EDA 0823 ...........................................................................21.10 Dziedziak v Future Electronics (2012) UKEAT 0270/11/2802 ...............................................18.29 E Eagle Star Assurance Company of Ireland Ltd v Director of the Equality Tribunal [2009] IEHC 124, [2009] ELR 295 ...................................................................................20.22 Elephant Haulage Ltd v Juska EET002 ...................................................................................20.09 Employee (Claimant) v Employer (Respondent) 2014 IREAT UD 1233/2010 ........................4.29 Employee (M) v State Authority Det No EDA 074, Labour Court 2007 ................................15.40 Employee v Company DEC–E2008–018 .................................................................................10.13 Employee v Company DEC–E2010–062 ...............................................................................17.125 Employee v Credit Union DEC–E2012–190 ...........................................................................14.05 Employee v Educational Establishment DEC–E2008–072 .......................................................4.24 Employee v Employer DEC–E2003–001 ..................................................................................8.38 Employee v Employer DEC–E2010–126 ..................................................................................7.07 Employee v HSE DEC–E2007–013 ...........................................................................................4.21 Employee v Local Authority [2002] ELR 236 .........................................................................17.13 Employee v Local Authority [2002] ELR 159 .......................................................................17.104 Employee v Retailer DEC–E2011–229 ...................................................................................17.31 Employee v Telecommunications Company DEC–E2009–073 ........................17.81, 17.84, 17.88 Employer v Employee DEC–E2014–074 ................................................................................11.54 Employer v Worker ADE048 ........................................................................................17.91, 17.94 Employer v Worker EDA 0916 ..................................................................................................8.57 Employer v Worker EDA145 ...................................................................................................17.08 Employer v Worker EED053/2005 ............................................................................................8.65 Employment Equality Agency v Football Association of Ireland DEE6/1991, [1992] ELR 57 .....................................................................................................................4.13 Employment Equality Agency v Packard Electric Ireland Ltd EE/145/1985 ............................6.18 Enderby v Frenchay Health Authority (Case C–127/92) [1991] IRLR 43, [1993] ECR I–5535, [1993] IRLR 591 .........................6.09, 6.12, 9.18, 9.46, 9.54, 9.58, 21.02 Equality Authority v Ryanair DEC–E2000–014 ........................................................................5.06 Eversheds Legal Services Ltd v De Belin EAT 0352 ...................................................11.04, 11.05 Eweida v British Airways plc EAT 0123/08 ............................................................................15.42 Eweida v United Kingdom [2013] ECHR 37 ....................................................15.55, 15.58, 15.75

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Equality Law in the Workplace F F v A Financial Institution DEC–S2008–003 ..........................................................................21.09 Fagan v Revenue Commissioners DEC–E2008–004 ...............................................................16.26 Farley v Ireland (1 May 1997) SC ...........................................................................................20.20 Federation Charbonniere de Belgique v High Authority (Case C–8/55) [1954] ECR 245 ........3.48 Feighery v MacMathunas Pub, Nenagh DEC–S2003–051 ....................................3.35, 4.30, 17.53 Female Employee v Building Products Company DEC–E2007–036 ......................................20.23 Female Employee v Company [2000] ELR 147 ........................................................................8.34 Female Employee v Recruitment Company DEC–E2008–015 .................................................8.30 Female Teacher v Board of Management of a Secondary School [2013] ELR 16 ....................7.05 Feore v Alzheimer Society of Ireland DEC–E2006–010 .........................................................17.90 Fernandez v Cable & Wireless DEC–E2002–052 ...................................................................17.25 Field v Irish Carton Printers DEP 5/1994 ................................................................................11.03 Financial Techniques Planning Services Ltd v Hughes [1981] IRLR 32 ..................................5.04 Fisscher v Voorhus Henglo BV (Case C–128/93) [1994] ECR I–4583 ....................................9.74 Fitzgerald v Health Service Executive DEC/E2010/120 ..............................................16.55, 16.56 Fitzgerald v Minister for Community, Equality and Gaeltacht Affairs [2011] IEHC 180 .....................................................................................................18.08, 20.20 Flynn v Emerald Facility Service DEC–E2009–065 ...............................................................17.34 Flynn v Power [1985] IR 648 ........................................................................................13.09, 15.68 FOA, acting on behalf of Kaltoft v Kommunernes Landsforening, acting on behalf of Billund Kommune (Case C–354/13) ........................................................17.08, 17.14,17.21 Fortune v Children at Risk in Ireland [2011] ELR 49 ................................................................8.36 Fox v Lee DEE6/2003 ..............................................................................................................22.03 Foy v An t-Árd Chalaraitheoir & Ors [2007] IEHC 470 .......................................3.18, 3.20, 11.82 Freeman v Superquinn DEE0211 November 2002 ..................................................................16.13 Frylite Dublin Ltd v Sigalis EDA 108 .......................................................................................6.20 Furlong v Applus Car Testing Service Ltd DEC–E2013–084 .................................................16.42 G Gaelscoil Thulach na nÓg v Fitzsimons-Markey EED049 ......................................................13.03 Gannon v Milford Care Centre DEC–E2004–048 ...................................................................17.81 Ganusauskas v All Purpose Stone Ltd DEC–E2009–063 ........................................................18.52 Garage Proprietor v Worker EEO 2/198 ....................................................................................8.07 Gardiner v Mercer Human Resource Consulting DEC–E2006–007 .................11.17, 11.28, 11.35 Geidrikaite v Falls Hotel DEC–E2013–004 .............................................................................20.35 Georgiev v Tehnicheski Universitet – Sofia (Cases C–250/09 and C–268/09) ............16.54, 16.55 Giblin v Bank of Ireland Asset Management Ltd DEC–E2011–161 .......................................20.20 Gilroy v McLoughlin [1989] ILRM 133 ..................................................................................22.17 Glasgow City Council v McNabb [2007] IRLR 476 ...............................................................15.80 Glasgow City Council v Zafar [1998] 2 All ER 953 ................................................................18.17 Glynn v Minister for Justice, Equality and Law Reform [2014] IEHC 133 .....................8.41, 8.45 Golovan v Porturlin Shellfish Ltd DEC–E2008–032 ....................................................18.32, 18.33 Gorry v Manpower [2001] ELR 275 ........................................................................................17.13 Gorry v Office of the Civil Service Commission EDA 0521 ..................................................17.50 Gorys v Kurakin DEC–E2008–014 ............................................................................................4.23 Government Department v B EDA 061 .....................................................................................4.20

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Table of Cases Government Department v Employee ADE/05/19 Det No 062 .........................11.43, 11.45, 16.25 Government Department v Employee DEC S2002–024 .........................................................17.97 Government Department v Worker EDA 0612 .......................................................................17.69 Government Department v Worker EDA 094 ........................................16.10, 17.28, 17.40, 22.19 Government Employee v Government Department DEC–E2010–055 ..........................6.20, 17.13 Graham v Atolvo Enterprises Ltd DEC–E2012–053 ...............................................................17.24 Grant v HM Land Registry [2011] EWCA Civ 769, [2011] ICR 1390................8.39, 14.06, 14.07 Grazulis v First Bathroom Solutions DEC–E2010–135 ............................................................4.23 Griesmar v Ministre de l’Economie, des Finances et de l’Industrie (Case C–366/99) [2001] ECR I–09383 ............................................................................................................3.63 Griggs v Duke Power Company 401 US 424 (1971) .................................................................3.27 Groener v Minister for Education (Ireland) (Case C–379/87) [1989] ECR 3967 .........18.22, 18.24 Group 4 Securitas (I) Ltd v 26 Female Store Detectives EP/3/1991 .........................................9.51 Gypsum Industries plc v Ormiston EE/16/1992 ........................................................................9.51 H H v UK [1993] 16 EHRR CD 44 .............................................................................................15.23 Hallinan v Moy Valley Resources IRD North Mayo-West Sligo Ltd DEC–S2008–025 ........21.09 Handels-og Kontorfunktionaerernes Forbund i Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss (Case C–109/88), [1989] ECR I–3199 ....6.12, 6.29, 16.29, 21.02 Handyside v United Kingdom [1976] ECHR 5 .......................................................................15.56 Hannon v First Direct Logistics Ltd DEC–E2011–066, [2011] ELR 215 ...........3.15, 11.79, 11.80 Harrington v East Coast Area Health Board DEC–E2002–001 ..................................17.89, 17.118 Hartnett v Advance Tyre Company Ltd t/a Advance Pitstop [2013] IEHC 615 ..............8.74, 8.75 Hatton v Sutherland [2002] 2 All ER 1 ......................................................................................8.44 Hawkins v Atex Group Ltd [2012] ICR 1315, [2012] IRLR 807, [2011] UKEAT 0302_11_1303, [2012] Eq LR 397 ...............................................12.04, 12.08 Health Board v Worker EDA 1/2002 .....................................................................................17.118 Health Service Executive v 248 Named Complainants [2013] ELR 206 ..................................9.14 Health Service Executive v 27 Named Complainants EDA/07/20 ............................................9.44 Hennings v Eisenbahn–Bundes und Land berlin v Mai (Joined Cases C–297/10 and C–988/1) [2011] All ER (D) 72 (October) ....................................................................9.60 Henry Denny and Sons (Ireland) Ltd v Rohan EDA/1310 ........................................................9.51 Higgins v University College Dublin [2013] IEHC 508 ...................................................5.25, 5.29 HK Danmark, acting on behalf of Ring v Dansk almennyttigt Boligselskab and HK Danmark, acting on behalf of Skouboe Werge v Dansk Arbejdsgiverforening acting on behalf of Pro Display A/S (Joined Cases C–335/11 and C–337/11) [2013] IRLR 571 ..........................................................................................17.06, 17.64, 17.96 Hofmann v Barmer Ersatzkasse (Case 184/83) [1984] ECR 03047 ..........................................3.61 Horgan v DCU DEC–E2006–022 ..............................................................................................5.27 Hospira v Roper & Ors [2011] ELR 341, [2013] 24 ELR 263 .............................9.82, 16.70, 16.71 HSE Midlands Area v Sweeney EDA 0819 ..................................................................11.11, 11.14 HSE North Eastern Region v Sheridan EDA 0820 ..................................................................21.05 HSE v Buckley EDA 113 .........................................................................................9.17, 9.18, 9.58 HSE v Rauf FTD 0817 .............................................................................................................20.05 HSE v Whelehan DET EDA 0923 ..................................................................................6.19, 20.02 Hughes v Aer Lingus DEC–E2002–49 ......................................................................................5.20 Humphries v Westwood Fitness Club [2004] ELR 296 ........................17.13, 17.74, 17.84, 17.119

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Equality Law in the Workplace Hunt v Irish Prison Service DEC–E2006–021 .........................................................................11.91 Hurley v County Cork VEC EDA 1124 ........................................................................20.19, 20.33 Hussein v Labour Court [2012] IEHC 364 .....................................................................4.16, 18.47 I Iarnród Éireann v Mannion [2010] IEHC 326 .........................................................................21.01 ICE Group Business Services Ltd v Czerski [2010] ELR 8 ...........................................5.50, 18.26 ICTS (UK) Ltd v Ahmed EDA 3/2004 ....................................................................................21.08 Igen Ltd v Wong [2005] IRLR 258 ....................................................................20.26, 21.07, 21.12 International Handelsgesellschaft v Einfuhr-und Vorratsstelle Getreide (Case 11/70) [1970] ECR 1125 ............................................................................................3.48 Intrum Justitia v McGarvey EDA 095 .....................................................................................21.14 Irish Ale Breweries Ltd v O’Sullivan (2007) ELR 150 ...........................................................20.26 Irish Aviation Authority v Irish Municipal, Public and Civil Trade Union (No DEP 993) .......9.15 Irish Crown Cork Co Ltd v SIPTU DEP 1/1994 ........................................................................9.62 Irish Society of Chartered Physiotherapists v Ilieva EDA19/2005 ............................................4.14 ISKCON v UK [1994] 76A D&R 90 .......................................................................................15.12 Ivory v Ski Line [1998] IR 399 ................................................................................................11.19 J Jackson v Top Security Ltd DEC–E2007–035 ........................................................................22.15 Jankowski v Tesco Ireland DEC–E2014–070 ...............................................................20.18, 20.31 Jenkins v Kingsgate (Clothing Productions) Ltd (Case 96/80) [1981] ECR 911 ....3.29, 9.54, 9.55 Jennings v Barts and the London NHS Trust UK EAT/0056/12 .............................................17.36 Johnson v Louth VEC DEC–E2006–52 ...................................................................................16.12 Johnson v Louth VEC EDA 0712/2007 ..........................................................................5.26, 16.27 Johnston v Chief Constable of the RUC (Case C–222/84) [1986] ECR 1651 ..................3.50, 3.52 Jones v Norwich Union International Ltd DEC–E2006–062 ..................11.29, 11.35, 20.14, 20.18 JP Morgan Europe Ltd v Chweidan [2011] EWCA Civ 648 ...................................................17.45 K Kalanke v Freie Hansestadt Bremen (Case C–450/93) [1995] ECR I–3051, [1995] IRLR 660.................................................................................................3.70, 3.72, 3.79 Kapfunde v Abbey National plc [1998] IRLR 583 ....................................................................5.41 Karaduman v Turkey [1993] 74 DR 90 ...................................................................................15.16 Kavanagh v Aviance UK Ltd DEC–E2007–039 ......................................................................22.02 KB v National Health Service Pensions Agency (Case C–117/01) .........................................11.77 Keane v NUI Maynooth DEC–E2014–071 ...................................................................16.51, 16.56 Keenan v Kehoe t/a Mortgage Cabin DEC–E2012–105 ..........................................................11.43 Kehoe v Convertec [2002] ELR 236 ...........................................................................17.13, 17.114 Kelly v Chivers DEC–E2011–177 ...........................................................................................10.07 Kelly v HSE Western Area DEC–E2008–027 .........................................................................20.09 Kelly v National University of Ireland (Case C–104/10) [2012] 1 WLR 789, [2012] ICR 322, [2011] ECR I–06813 ..............................................................................20.27 Kelly v Panorama Holiday Group Ltd DEC–S2008–007 ........................................................21.09

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Table of Cases Kelly v University of Dublin Trinity College DEC–E2013–106 ..................................11.63, 20.30 Kennedy v Stresslite Tanks Ltd DEC–E2009–078 .....................................................17.87, 17.102 Kennedy v Veolia Transport Ltd EAT 2006 ..............................................................................5.66 Kenny v An Post [1998] IR 285 .................................................................................................6.05 Kenny v Minister for Justice (Case C–427/11) (2013) EqLR 380 ECJ ............................9.48, 9.58 Keogh v Convertec Ltd DEC–E2001–034 ...............................................................................17.82 Koclova v Hanley Clothing Waterford Ltd t/a Tommy Hilfiger DEC–E0211–180 ................21.15 Köhler v Land Hessen (Case–159/10 and Case C–160/10) .....................................................16.39 Kokkinanakis v Greece [1994] 17 EHRR 397 .........................................................................15.16 Kraft Foods Ltd v Hastie UK EAT/0024/10/ZT ........................................................................9.84 Kreil v Germany (Case C–285/98) [2000] ECR I–69 .......................................................3.54, 3.55 L Ladele v London Borough of Islington [2009] EWCA Civ 1357 ............................................15.54 Land Brandenburg v Sass (Case C–284/02) ..............................................................................3.60 Lawrence v Regent Office Care Ltd [2003) ICR 1092 (ECJ)] ..................................................9.24 Lazar v Dublin Bus DEC–E2010–150 .....................................................................................11.88 Lee t/a Peking House v Fox ED/01/53 .....................................................................................11.50 Lett v Earagail Eisc Teoranta DEC–E2014–076 ...............................................16.48, 16.52, 16.56 Liddle v Montague Leisure DEC–E2003–015 ...........................................................................4.08 Limerick County Council v Carroll [2009] ELR 257 ..............................................................11.10 Limited Company v One Female Employee EE10/1988 ...........................................................8.27 Lisadell Towels Ltd v IT&GWU EP/10/1986 ...........................................................................9.51 Lommers (Case C–476/99) [2002] ECR I–2891 .......................................................................3.73 London Borough of Lewisham v Malcom [2008] UKHL 43, [2008] IRLR 700 ....................17.45 Long v Hanley Group DEC–E2010–015 .................................................................................13.04 Long v Labour Court 1990 No 58 JR 25 May 1990 ................................................................20.35 Loxley v BAE Systems Land Systems (Munitions & Ordnance) Ltd [2008] ICR 1348 ...........9.84 Lynch v Centre of Deaf Studies, Trinity College Dublin DEC–E2013–029 ...........................17.63 Lynsky v Coolmine Community School DEC–E2002–035 ......................................................6.22 M M v A Language School DEC–E2004–028 .............................................................................11.86 MacCarthys Ltd v Smith (Case C–129/79) [1980] ECR 1275 ..................................................9.11 MacCulloch v ICI plc [2008] ICR 1334 ..................................................................................16.64 MacMathuna v Ireland [1989] IR 504 .......................................................................................2.13 Maguire v North Eastern Health Board DEC–E2002–039 ......................................................19.07 Maloney v MJ Clarke & Sons Ltd DEC–E2010–140 ...................................................17.20, 17.40 Manager of an English Language School v Institute of Technology DEC–E2007–019 .........18.52 Mandate (550 Sales and Clerical Assistants) v Penneys Ltd EP 06/1994 ........................6.11, 6.12 Mandla v Lee [1983] 2 AC 548 ........................................15.18, 18.09, 18.10, 18.11, 18.12, 18.13 Mangold v Rüdiger Helm (Case C–144/04) [2005] ECR I–9981 .................................16.46, 16.52 Marschall v Land Nordrhein-Westfalen (Case C–409/95) [1997] ECR I–06363, [1998] IRLR 39...................................................................................................3.72–3.73, 3.77 Marshall v Southampton and South-West Hampshire Area Health Authority (Case C–271/91) [1993] ECR I–4367 ...............................................................................22.07

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Equality Law in the Workplace Martin v Concern DEC–E2005–029 ..........................................................................................5.24 Mary Immaculate College v Sister Loye EDA 082/2008 ........................................................16.33 Maye v ADM Ringaskiddy DEC–E2006–004 ..............................................................11.12, 11.14 McAteer v South Tipperary County Council DEC–E2014–045 ........................15.29, 15.38, 15.50 McBrearty v NUI Galway EDA 091 ........................................................................................18.24 McCarthy v Dublin Corporation [2001] ELR 255 .....................................................................7.13 McCarthy v Niscayah Ltd EDA1328 .......................................................................................13.06 McCarthy’s Ltd v Smith (Case C–129/79) [1980] ECR 1275 ...................................................3.13 McClintock v Department of Constitutional Affairs [2008] IRLR 29 .....................................15.53 McCorry v Southside Partnership DEC–E2009–055 ...............................................................19.08 McDonald v Road Safety Operations Ireland Ltd t/a GoSafe DEC–E2014–069 ..................17.117 McEniff Grand Canal Hotel Ltd v Jurksa EDET EDA 1122 .....................................................5.11 McFarlane v Relate Avon [2009] UKEAT 010 609 3011 .......................................................15.57 McGarr v Department of Finance DEC–E2003–36 ..........................................................5.10, 5.16 McGarvey v Intrum Justitia DEC–E2008–041 .............................................................11.41, 11.45 McGee v Attorney General [1974] IR 284 ...............................................................................15.73 McGloin v Legal Aid Board DEC–E2009–042 .......................................................................11.60 McKeever v Board of Management of Knocktemple National School [2011] ELR 86 ..........22.11 McKeever v Board of Management of Knocktemple National School DEC–E2010–189 ......15.26 McManus v Diageo DEC–E2007–21 .........................................................................................9.62 McNally v Welltrade International Ltd (1978) IRLR 49 ...........................................................5.25 McRory Scaffolding (NI) Ltd v Worker EED 2005 ..............................................................17.122 Medical Secretary v HSE West DEC–E2103–083 ............................................17.92, 17.77, 17.97 Meehan v Leitrim County Council DEC–E2006–014 .............................................................16.25 Megner (Case C–444/93) [1995] ECR I–4741 ..........................................................................3.32 Meister v Speech Design Carrier Systems GmbH (Case C–415/10) .......................................20.27 Melbury Developments v Valpeters ADE/09/16 .....................................................................18.36 Melbury Developments v Valpeters EDA 17/2009 .................................................................21.06 Melgar v Ayuntamiento de Los Barrios (Case C–438/99) [2001] ECR I–6915 ...........11.58, 11.62 Meritor Savings Bank v Vinson 477 US 57 (1986) ...................................................................8.05 Merriman v St James’s Hospital UD 365/1986 .......................................................................15.74 Metropole Hotel v Seven Female Waitresses EP/19/1987 .........................................................9.51 Milazzo v Autocar Connaisseur Inc Motor Coach Canada, 2003 CHRT 37 .............................5.60 Minister for Education and Science v Worker ED087 .............................................................17.44 Minister for Finance v Civil and Public Sector Union [2007] ELR 36 ....................................20.07 Mitchell v Southern Health Board [2001] ELR 2001 ..............................................................18.18 Moate Community School v Moriarty EDA 0718 ...................................................................21.19 Monaghan County Council v Mackarel ED 1213 ....................................................................15.35 Monajenkovs v Realtime Technologies Ltd DEC–E2009–117 .................................................6.20 Moore Walsh v Waterford Institute of Technology ADE–03–10 ............................................11.42 Morgan v Bank of Ireland DEC–E2008–29 ..................................................................11.24, 11.34 Morgenbesser v Consiglio dell’Ordine degli avvocati di Genova (Case C–313/01) [2003] ECR I–13467 ..........................................................................................................18.28 Mortiboys v Crescent Garage Ltd 34/83 SD ..............................................................................8.07 Mulcahy v HC Cahill t/a Cahill Quality Foods UD 969/2004 & MN 769/2004 .......................5.68 Mulcahy v Minister for Justice, Equality and Law Reform [2002] ELR 12 ............................11.57 Murphy v An Bord Telecom Éireann EP/28/198, DEP/6/1984, [1986] ILRM 483, [1988] 1 CMLR 879 (ECJ), (11 April 1988, HC), Keane J, DEP/7/1988, 157/86 (1988) ICR 445 (ECJ), [1988] IRLR 267 (ECJ), [1989] ILRM 53 ............................9.37, 9.38

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Table of Cases Murphy v Attorney General [1982] IR 241 ...............................................................................2.06 Murphy v Iarnrod Éireann [2010] ELR 143, (sub nom Z v A Transport Company) .................7.12 N N v Charity DEC–E2011–246 .................................................................................................17.13 Named Female Employee v Named Respondent DEC–E2003–001 .......................................20.03 National University of Ireland v Ahern [2005] [2005] 2 IR 577, [2005] ELR 297 ...................4.23 NBK Designs and Inoue ED/02/34 No 212 .............................................................................12.05 Nevin v Plaza Hotel [2002] ELR 177 ......................................................................................19.04 Nevins v Portroe Stevedores [2005] 16 ELR 282 ....................................................................15.35 Nikloudi v Organismos Tilepikininion Ellados AE (Case C–196/02) .......................................3.33 Nolte (Case C–317/93) [1995] ECR I–4625 ..............................................................................3.34 Noonan Services Ltd v Labour Court (25 February 2004) HC ..................................................6.07 Noonan Services Ltd v Worker EDA1126 ....................................................................17.95, 18.30 Noonan v Accountancy Connections DEC–E2004–042 ............................................................5.09 Norris v Attorney General [1984] IR 36 ...........................................................................2.11, 2.19 North Western Health Board v McKenna (Case C–191/03) ECR I–7659 ...............................11.08 Nowak v Law Society of Ireland DEC–E2010–051 ................................................................18.28 Ntoko v Citibank [2004] ELR 116 .................................................4.24, 18.17, 18.19, 18.43, 22.03 Nurse v Health Service Executive DEC–E2013–111 ..............................................................17.80 Nyamhovsa v Boss World Promotions DEC–E2007–072 ..............................................4.19, 18.50 O O v A Named Company DEC–E2003–052 ..................................................................17.11, 17.12 O v Industrial Waste Management Company DEC–E2013–142 ...........................................17.103 O’B v S [1984] 1 IR 316 ............................................................................................................2.11 O’Brien and National Hardware Ltd DEC–E2013–105 ............................................................5.37 O’Brien v Manufacturing Engineering Company [1973] IR 334 ..............................................2.11 O’Brien v Persian Properties t/a O’Callaghan Hotels DEC–E2012–010, [2012] ELR 211 ...........................................................................................11.25, 11.47, 13.05 O’Byrne v Dunnes Stores [2004] ELR 96 ...............................................................................11.69 O’Connor v Lidl Ireland DEC–E2005–012 .............................................................4.17, 5.07, 5.16 O’Dowd v Sligo Young Enterprises Ltd t/a Sligo Community Training Centre DEC–E2013–133 .................................................................................................................5.13 O’G v Attorney General [1985] ILRM 61 ........................................................................2.15, 2.18 O’Halloran v Galway City Partnership EDA 077 ....................................................................21.19 O’Higgins v Labour Court and UCD [2013] IEHC 508 ........................................6.23, 6.25, 12.06 O’Leary v Minister of Transport Energy and Communications [1998] ELR 113, [1998] 1 IR 558 ..................................................................................................9.31, 9.34, 9.61 O’Mahony v Revenue Commissioners EE2002–018 ..............................................................16.23 O’Mahony v Southwest Doctors on Call Ltd DEC–E2014–031 .............................................16.38 O’N v Insurance Company DEC–E2004–052 ..................................................................8.28, 8.59 O’Neill v Board of Management, St Gabriel’s National School DEC–E2005–007 .......5.22, 16.24 O’Neill v Fairview Motors [2012] 23 ELR 340 .......................................................................16.56 O’Rourke v JJ Red Holdings Ltd t/a Dublin City Hotel DEC–E2010–045 .........4.31, 17.54, 18.38 O’Sullivan v Siemens Business Services Ltd DEC–E2006–058 ...........................................17.101

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Equality Law in the Workplace O’Sullivan v DIAGEO, Dublin DEC–E2005–026 ....................................................................4.23 O’Sullivan v Volkswagen Bank GmbH Ireland DEC–E2011–267 ...........................................8.61 Odion v Techniform (Waterford) Ltd DEC–E2007–018 .......................................8.32, 8.66, 18.51 Office National des Pensions v Jonkmann (Case C–232/06) [2007] ECR I–05149 ..................9.74 Office of the Civil Service and Local Appointments Commission v Gorry EDA 14/2006 .............................................................................................17.13, 17.111, 18.57 Office Worker v Security Company DEC–E2010–002 .............................................................8.31 Omkarananda v Switzerland [1981] 25 DLR 105 ....................................................................15.16 Österreichische Gewerkschaftsbund v Wirtschafts Kammer Österreich (Case C–220/02) [2004] ECR 1–5907 .................................................................................9.11 P P v S and Cornwall CC (Case C–13/94) [1996] ECR I–02143 ...............................................11.76 Palacios de la Villa v Cortefiel Servicios SA (Case C–411/05) [2007] ECR I–8531...............16.34 Pantry Franchise Ireland Ltd v A Worker EEO7/1993 ............................................................11.72 Panuta v Watters Garden World and Watters Garden Sheds DEC–E2008–059 ...........18.32, 18.34 Paquay v Société d’architectes Hoet + Minne SPRL [2007] ECR I–8511 ...................11.39, 11.44 Parker v Office of the President and University Advocate University of Limerick DEC–S2013–004 .................................................................................................................4.28 Pauwels Trafo (Ireland) Ltd v 15 Women Catering Machine Operators EP/48/1981 ...............9.38 Pedersen v London Borough of Camden [1981] IRLR 173 .......................................................5.04 Pendragon v UK [1998] EHRR CD 179 ..................................................................................15.12 Perry v Garda Commissioner DEC–E2001–029 ......................................................................16.11 Personal Injuries Assessment Board v Worker (CD/07/124) Recommendation No 18925 ......5.49 Petersen v Berufungsausschuss für Zähnärzte für den Bezirk Westfalen-Lippe (Case C–341/08) .........................................................................................................3.56, 3.57 Piazza v Carlton Hotel DEC–E2004–033 .....................................................8.18, 8.37, 8.56, 14.03 PMPA v Keenan [1985] IRLM 173 .........................................................................................22.25 Poplawska v Moore Cleaning Services DEC–E2013–096 ......................................................11.52 Power v An Post DEC–E2007–034 ................................................................................6.20, 20.04 Power v Greater Manchester Police Authority UKEAT/0087/10 .................................15.22, 15.39 Power v Jahan t/a Irema Irl Ltd DEC–E2013–055 ............................................11.34, 11.35, 22.16 Prison Officer v Irish Prison Service DEC–E2013–090 ............................................................5.12 Purcell v Netwatch Ireland Ltd UD 43/2007 ....................................................................5.56, 5.58 Q Quigley v City of Cork VEC [2001 No 18632P] .......................................................................2.09 Quigley v Dickinson Stationery (Ireland) Ltd DEC–E2004–026 ............................................13.02 Quinn’s Supermarket Ltd v Attorney General [1972] IR 1 ...................................2.05, 2.17, 15.12 Quirke v Sepam Specialists Ltd DEC–E2012–116 ..................................................................17.13 R R (Amicus) v Secretary of State for Trade and Industry [2004] IRLR 430 .............................15.81 R v Minister of Agriculture, Fisheries and Food ex p Fedesa (Case C–331/88) [1990] ECR I–4023 ..............................................................................................................3.49

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Table of Cases R v Secretary of State for Employment Ex p Seymour-Smith (Case C–167/97) [1999] ECR I–623, [1999] IRLR 253 ..........................................................................3.32, 9.47 R, on the application of the Incorporated Trustees of the National Council on Aging (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform (Case C–388/07) [2009] ECR I–1569 ..............................16.19, 16.35 Ratigan v Connaught Gold Co-Operative Society [2008] ELR 298 ........................................17.13 Receptionist v Hotel DEC–E2011–096 .....................................................................................8.17 Reilly v Bonny (14 November 1997, HC), Irish Times, 20 November 1997 ............................8.40 Revenue Commissioners v O’Mahony EDA 033 ....................................................................21.19 Reynolds v Limerick City Council DEC–E2002–055 ...............................................................5.20 Reynolds v Limerick City Council DEC–E2003–032 .............................................................20.09 Reynolds v Limerick City Council DEC–E2006–052 .............................................................16.14 RGIS Inventory Specialists Ltd v Davis 2014 IRLC EDA 1415 ...............................................5.34 Richmond Pharmacology v Dhaliwal (2009) IRLR 226 ..........................................................18.52 Rinner-Kühn v FWW Spezial Gebaudereiningung GmbH (Case C–171/88) [1989] ECR 2743 ........................................................................................................3.32, 9.51 Roche v Complete Bar Solutions DEC–E2013–197 ...............................16.40, 16.43, 16.53, 16.56 Rolls Royce plc v Unite [2009] EWCA Civ 387 ............................................................9.79, 10.05 Rolls Royce plc v Unite [2010] ICR 1 .....................................................................................16.63 Rommelfanger v Germany [1989] 62 DR 151 .........................................................................15.83 Roper v Hospira EDA 1315 .....................................................................................................10.08 Ryan v Dublin Airport Authority DEC–E2010–059 .................................................................6.20 Ryanair Ltd v Gallagher EDA 1320 ..............................................................................16.44, 16.45 Ryanair v Labour Court [2007] IESC 6 ............................................................................6.14, 6.15 S S v Food Preparation Company DEC–E2013–122 ..................................................................17.83 Sahin v Turkey Application No 44774/98 ECtHR 10 November 05 .......................................15.45 Samaitas v Nurendale Ltd t/a Panda Waste DEC–E2013–022 .....................................18.48, 18.49 Saunders v CHC Ireland Ltd DEC–2011–142 .........................................................................16.56 Scanlon v St Vincent’s Hospital DEC–E2007–011 ...................................................................8.18 Schnorbus v Land Hessen (Case C–79/99) [2000] ECR I–1997 ...............................................3.55 School v Worker EDA 30/2014 ....................................................................................17.65, 17.84 School v Worker EDA 122 ...........................................................................................20.19, 20.33 Sea and Shore Safety Services Ltd v Byrne EDA 143 .............................................................17.84 Seldon v Clarkson Wright and Jakes [2012] IRLR 591 ...........................................................16.38 Separated Complainant v Hospital DEC–S2010–046 ..............................................................12.10 Separated Father v Community School DEC–S2010–049 ......................................................12.10 Shannon Regional Fisheries Board v A Worker EDA 1318 ......................................................5.45 Sheehy Skeffington v National University of Ireland, Galway DEC–E2014–078 ....................6.24 Sherfi v G4S Security Services [2011] (UK) EAT/0379/10/DM ............................................15.30 Showboat Entertainment Centre Ltd v Owens [1984] 1 All ER 836 ............................18.39, 18.40 Singh Oberoi v Commissioner of An Garda Síochána [2013] IEHC 267 ...............................15.48 Singh v Rowntree Mackintosh Ltd EAT 771/78 ......................................................................15.43 Sirdar v Army Board (Case C–273/97) [1999] ECR I–7403 ............................................3.53, 3.55 Skyrail Oceanic Ltd v Coleman [1980] ICR 596 .....................................................................12.04 SM v Ireland [2007] IEHC 280, [2007] 4 IR 369 ......................................................................2.16 Smith v Advel (Case C–408/92) [1994] ECR I–4435 ...............................................................3.80

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Equality Law in the Workplace Snowball v Gardner Merchant [1987] IRLR 397 .......................................................................8.55 Southern Health Board v Mitchell DEE2/1999 [1999] ELR 322 ..............................................4.05 Southern Health Board v Mitchell [2001] ELR 201 .....................................................21.04, 21.08 Specialarbejderforbundet i Danmark v Dansk Industri, formerly Industriens Arbejdsgivere, acting for Royal Copenhagen (Case C–400/93) [1995] ECR I–1275 ..................................6.10 Spring v Guardian Assurance [1995] 2 AC 296 ...............................................................5.48, 5.52 St James’ Hospital v Eng EDA 023 ...........................................................................................4.27 St Patrick’s College Maynooth v 19 Female Employees EP/4/1984, DEP/10/1984 .................9.75 State (Nicolau) v An Bord Uachtála [1966] IR 567 ...................................................................2.13 Stobart Ireland Ltd v Beashel EDA 1411 .................................................................................17.19 Suffin v Tesco Ireland DEC–E2015–006 ......................................................................22.24, 22.26 Sunday Independent Newspapers v Kinsella [2008] ELR 53 ..................................................22.25 Superquinn v Freeman DEC–E2002–013 ..................................................................................5.20 Superquinn v Mandate DEE4/2000 ..........................................................................................11.71 Swami Omkaramamda v Switzerland [1981] 25 D&R 105 .....................................................15.12 Sweeney v Board of Management Ballinteer Community School [2011] IEHC 131 ......8.43, 8.51 Sweeney v McHale Ltd DEC–E2003–033 ...............................................................................19.06 Sweeney v Saehan Media DEC–E2003–017 ...........................................................................19.05 T Technology Company v Worker EDA 0714 ............................................................................17.46 Tele Danmark v Handlels og Kontorfunktionaeremes Foorbund (Case C–109/00) [2001] ECR I–6993 ............................................................................................................11.59 Tesco Ireland v Walsh DEE 062 ..............................................................................................11.22 Tesco v Swift EDA 0514 .........................................................................................................11.23 Thai Thanie Ltd DEC–E2008–073 ..........................................................................................11.45 Thomas Sanderson Blinds Ltd v English [2008] EWCA Civ 1421 ..............................14.02, 14.07 Thorsch v ESB National Grid/EirGrid DEC–E2011–060 .................................................9.27, 9.41 Tighe v Travenol Laboratories (Ireland) Ltd P14/1986 ...........................................................11.18 Trailer Care Holdings Ltd v Healy DET No EDA 128 ............................................................11.51 V Valpeters v Melbury Developments Ltd [2010] ELR 64 .........................................................21.17 Van Beroep te Antwerpen AR/2004/2811 ...............................................................................15.47 Von Colson v Land Nordrhein Westfalen (Case C–4/83) [1984] ECR 1891 .................8.30, 22.07 W Watters Garden World Ltd v Panuata EDA4/2009 .........................................................7.06, 22.05 Weathersfield Ltd v Sargent [1999] IRLR 94 ..........................................................................18.40 Webb v EMO Cargo (Case C–32/94) ......................................................................................11.47 Whitehouse v C&M Construction Ltd DEC–E2013–099 ........................................................19.09 Wilcox v Birmingham Citizen Advice Bureau UK EAT/0293/10 ..........................................17.37 Wileman v Minilec Engineering [1988] IRLR 144 ...................................................................8.54 Willis Risk Services (Ire) Ltd v Brennan EDA1418 ................................................................12.06 Wilson v Health and Safety Executive [2010] IRLR 59 ............................................................9.67

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Table of Cases Wilson v TB Steelwork Co Ltd (ET Case no 23662/770) .......................................................18.40 Wilton v Steel Company of Ireland Ltd [1999] ELR 1 ..............................................................4.23 Wojciechowski v Tesco Ireland Ltd DEC–2011–148 .............................................................18.20 Wolf v Stadt Frankfurt am Main (Case C–229/08) ....................................................................3.56 Woodcock v Cumbria Primary Trust [2012] IRLR 491 ............................................................9.56 Woods v St Luke’s Hospital DEC–E2012–002 .......................................................................16.32 Worker (O) v Employer (No 1) [2005] ELR 113 ..............................................17.69, 17.78, 17.84 Worker v Company [1992] ELR 40 ...........................................................................................8.23 Worker v Employer [2001] ELR 159 .......................................................................................17.13 Worker v Engineering Company DEC–E2008–038 ..............................................8.33, 8.62, 18.52 Worker v Food Manufacturer DEC–E2010–187 .....................................................................17.21 Worker v Government Department [2006] ELR 25 ................................................................17.13 Worker v Hotel DEC–E2009–062 ....................................................................................8.24, 8.25 Worker v Two Respondents EDA 1129 .....................................................................................4.31 X X (Minors) v Bedfordshire County Council [1995] 2 AC 633 ..................................................5.42 X v Church of Scientology [1978] 16 DR 68 ...............................................................15.12, 15.16 X v Electronic Component Company DEC–E2006–042 ...........................................................5.43 X v European Commission [1995] IRLR 320 ............................................................................5.61 X v France [1974] 1 DR 41 ......................................................................................................15.16 XYZ v UK [1982] 31 D&R 50 ................................................................................................15.20 Y Youghal Carpet (Yarns) Ltd v Canteen Attendants EP21/1982 ................................................9.44 Z Z v A Hotel DEC–E2007–014 ..........................................................................................8.29, 8.58 Z v Chain Store DEC–E2009–111 ...........................................................................................17.70 Z v Government Department (Case C–363/12) ............................................................11.65, 11.66 Zhang v Towner Trading t/a Spar Drimnagh DEC–E2008–01 ...............................................18.46

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TABLE OF STATUTES 17.69, 17.120, 18.01–18.04, 18.53, 19.01, 19.07, 20.01, 20.13–20.17 s 2 .................................................19.01 s 2(1) .............4.07, 17.04, 17.10, 17.22 s 2(2) ..............................................9.22 s 3 ...................................................6.13 s 6 ..........................................3.24, 4.24 s 6(1) ...................................4.27, 16.07 s 6(1)(a) ........................................18.15 s 6(1)(b) ..............................4.31, 17.51 s 6(2) .....................................3.01, 4.18 s 6(2)(c) ........................................13.03 s 6(2)(f) ........................................16.05 s 6(2)(g) .........................................4.33 s 6(2)(h) .......................................18.05 s 6(2)(i) ........................................19.01 s 6(2A) .........................................11.06 s 6(3)(c) ........................................16.53 s 7(1) ..............................................9.29 s 7(1)(a) .................................9.30–9.31 s 7(1)(b) .........................................9.32 s 7(1)(c) ..........................................9.36 s 7(2) ..............................................9.29 s 7(3) ..............................................9.37 s 8 .................................................16.22 s 8(1) ...........................4.05, 4.18, 5.02, 6.19, 8.70, 11.54 s 8(1)(a)–(e) .................................16.05 s 8(1)(b) .........................................6.19 s 8(2) ..............................................4.11 s 8(5) ..............................................5.02 s 9(1) ...............................................6.06 s 9(2) ..............................................6.06 s 9(3) ..............................................4.15 s 10 ...............................4.15, 5.02–5.05 s 11 .................................................4.12 s 12 .................................................4.13 s 12(7) ..........................................18.54 s 14A .....................................8.50, 8.76 s 14A(7)(a) .....................................8.14 s 14A(7)(b) ..................................15.34 s 15 ........................................4.03, 8.49 s 15(3) ............................................8.76 s 16 ........................16.33, 17.65–17.69, 17.74, 17.121

A Adoption Act 1974 ................................ 2.15 Anti-Discrimination (Pay) Act 1974 ............. 2.03, 3.05, 4.04, 4.18, 9.01, 9.07, 9.34 s 2 .................................................. 9.08 s 3(c) .............................................. 9.38 C Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 ............................ 11.79, 12.01 Civil Partnership Act 2012 .................. 12.03 Companies Act 2014 s 839 .............................................. 5.65 Criminal Justice Act 2011 s 19 ................................................ 8.68 D Data Protection Acts 1998–2003 .......... 5.53 s 2B(3) ........................................... 5.54 s 5 .................................................. 5.59 Disability Discrimination Act 1995 s 4 .................................................. 3.38 Diseases of Animals Act 1966 .............. 3.21 E Employment Agency Act 1971 ............. 6.01 Employment Equality Act 1977 ........... 3.05, 3.24, 4.04, 4.18, 6.13, 8.06, 8.23, 11.06, 17.07 s 2(a) .............................................. 8.06 s 4 .................................................. 6.02 s 5 .................................................. 4.14 s 6 .................................................. 4.13 s 7 .................................................. 4.12 s 9 .................................................. 4.15 s 13 ............................................ 17.118 Employment Equality Act 1998 ............. 1.29, 3.78, 4.01, 4.17, 5.02, 5.50, 8.06, 8.14, 8.37, 8.52, 9.07, 11.50, 14.01, 15.68, 16.05, 17.23, 17.57,

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Equality Law in the Workplace s 101A ..........................................22.13 s 102 .............................................20.21

Employment Equality Act 1998 (contd) s 16(1) .................. 17.57, 17.69, 17.118 s 16(1)(b) ................................... 17.123 s 16(3) .................... 4.03, 17.57, 17.118 s 16(3)(b) .......................... 17.57, 17.72 s 16(4) .......................................... 17.86 s 19 ....................................... 9.08, 9.77 s 19(1) ............................................ 9.07 s 20(1) ............................................ 9.08 s 21 ................................................ 6.04 s 21(1) ............................................ 6.02 s 23 ................................................ 8.14 s 25 .............................................. 11.85 s 27 .............................................. 11.90 s 29 ................................................ 9.77 s 32 ................................................ 8.14 s 34 ............................ 2.07, 6.08, 16.43 s 34(4) .......................................... 16.36 s 34(7) ............................... 16.28–16.29 s 34(7A) .............................. 6.07, 16.29 s 35 ................................................ 4.03 s 35(1) ............................... 9.71, 17.113 s 36(2) .......................................... 18.56 s 36(4) ............................. 17.50, 17.109 s 36(5) ........................................ 17.112 s 37 ................................... 15.26, 15.60 s 37(1) .......................................... 14.08 s 37(2)(b) ..................................... 18.58 s 37(3) .......................................... 18.53 s 63(3) ............................................ 4.03 s 76(4 ............................................. 7.08 s 77 ................................... 12.05, 17.74 s 77(1) .......................................... 22.01 s 77(5) .......................................... 20.05 s 77(5)(a) .......................... 20.02, 20.12 s 77(5)(c) ..................................... 20.04 s 77(6) .......................................... 20.21 s 77(6A) ....................................... 20.13 s 77A ........................................... 20.20 s 79 .............................................. 20.21 s 81 .............................................. 20.26 s 82(3) .......................................... 22.08 s 85 ................................................ 5.05 s 85(1)(d) ....................................... 5.07 s 85A ................................ 21.03, 21.17 s 86 ................................................ 6.07 s 87 ................................................ 6.07 s 90(1) .......................................... 22.22 s 101 ................................. 22.12–22.16

Employment Equality Act 2004 ............................. 3.78, 20.05 Employment Equality Acts 1998–2004 ........................ 11.21, 11.28 s 22(1) ..........................................18.25 s 31(1) ..........................................18.25 Employment Equality Acts 1998–2007 4.09 s 6(1) ............................................18.31 s 6(2)(h) .......................................18.31 Employment Equality Acts 1998–2011 .......... 5.01, 5.18, 5.55, 6.16, 6.21, 7.09, 8.08, 8.58, 9.10, 9.57, 10.02, 11.01, 11.65, 13.01, 15.01–15.07, 15.25, 15.34, 15.50, 16.42, 17.55, 17.121, 18.05, 18.15, 18.42, 22.13 s 1 .................................................15.61 s 2 ........................................9.50, 19.01 s 2(1) ...................................4.06, 12.01 s 2(2) ..............................................9.13 s 2(2)(b) .........................................6.01 s 2(e) ............................................17.39 s 6(1) ...................................4.20, 15.25 s 6(1)(a) .............................17.41, 18.42 s 6(1)(b) ............................17.51, 18.37 s 6(2) ............................................11.33 s 6(2)(a) ........................................11.02 s 6(2)(d) .......................................14.01 s 6(2)(e) ..................15.20, 15.25, 15.32 s 6(2)(f) ........................................14.05 s 6(2)(g) .......................................14.05 s 6(2A) ................................4.22, 11.06 s 7 ...................................................9.16 s 8 ...................................................5.02 s 8(1) ..............................................5.18 s 8(1)(b) .......................................14.05 s 8(4) ..............................................4.18 s 8(5)(a) ..........................................5.08 s 10 .................................................5.02 s 12 ......................................4.12, 15.48 s 13 .................................................4.12 s 13A ..............................................4.12 s 14 .................................................4.15 s 14(2) ...........................................19.09 s 14(a) ..........................................15.25

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Table of Statutes s 76 ...............................................20.25 s 76(1) ............................................9.21 s 76(2) ..........................................20.24 s 76(3) ..........................................20.25 s 77 ...............................................22.01 s 77(5)(a) ......................................20.16 s 77(5)(b) ..........................20.05, 20.16 s 79(1A) .......................................14.05 s 79(7) ..........................................22.21 s 82 .........................14.05, 22.01, 22.10 s 82(1)(a) ........................................9.73 s 82(1)(e) ......................................22.11 s 82(5) ..........................................22.06 s 83 ...............................................15.35 s 83(1) ..........................................22.20 s 84(2)(b) .......................................5.18 s 101 .............................................22.10 s 101(2)(b) ...................................22.15

Employment Equality Acts 1998–2011 (contd) s 14A ................. 8.14, 8.27, 8.51, 8.57, 8.61, 14.05 s 14A(2) ......................................... 8.56 s 14A(7)(a)(ii) ............................... 8.19 s 14A(7)(a)(iii) .............................. 8.16 s 15 ....................................... 8.48, 8.56 s 15(3) .......................... 8.50–8.56, 8.61 s 16(3)(b) ..................................... 17.84 s 16(4) .......................................... 17.85 s 19(2) ................................... 9.12, 9.19 s 19(3) ............................................ 9.22 s 21 .............................................. 22.10 s 22 ................................... 15.30, 22.10 s 25 .............................................. 11.84 s 26 ................................... 11.18, 11.89 s 26(1)(a)(i) ................................. 11.91 s 27 ........................ 11.18, 11.84–11.91 s 29 ................................................ 9.16 s 29(3) ............................................ 9.22 s 30(1) ............................................ 6.03 s 31 ....................... 15.25–15.28, 16.18, 17.111, 18.57 s 31(1) .......................................... 15.32 s 31(1)(d) ..................................... 18.25 s 34(1)(c) ..................................... 12.03 s 34(1)(d) ..................................... 13.08 s 34(3)(d) ................ 9.82, 10.07–10.09, 16.65–16.69 s 34(3A) ....................................... 16.66 s 34(4) ............................. 16.43, 17.111 s 34(4)(d) ..................................... 16.70 s 34(7) ............................................ 6.28 s 34(7A) .............................. 6.28, 16.28 s 35 ................................................ 9.72 s 35(1) ............................... 9.69, 17.114 s 35(2) ........................................ 17.114 s 35(3) ........................................ 17.114 s 36(4) ........................................ 17.111 s 37 ............. 12.12, 13.09, 15.26, 15.68 s 37(1) ............................... 15.62–15.65 s 37(1)(b) .......................... 15.67–15.68 s 37(2) ....... 12.11, 15.77, 17.108, 18.58 s 37(3) ........................... 17.108–17.116 s 69 ............................................... 22.11 s 70 .............................................. 22.11 s 74(2) ............. 7.02, 7.07, 15.25, 15.35 s 75 .............................................. 22.14

Employment Permits Act 2003 ............. 4.16 s 2B ..............................................18.47 Employment Permits Act 2006 ............. 4.16 Employment Permits (Amendment) Act 2014 ............................. 4.16, 18.47 s 14 ...............................................18.50 Equal Status Act 2000 ....... 3.35, 3.78, 4.01, 4.30,7.02, 17.53–17.55, 18.04, 19.01 s 22 ...............................................20.20 s 38 ...............................................20.22 s 39 ...............................................19.01 Equal Status Act 2004 s 4(a) ............................................16.07 Equal Status Acts 2000–2012 ............. 19.05 Equality Act 2004 ..... 4.02–4.03, 4.19, 4.32, 6.13, 8.03, 8.14, 15.19, 17.69, 18.25, 18.53, 20.01, 22.12 s 2(2)(b)(i) ......................................4.08 s 3 .................................4.07, 6.01–6.04 s 4 ...............................3.24, 3.36, 17.51 s 7 ...................................................4.12 s 8 ........................................8.19, 15.34 s 9 .................................................17.99 s 12 .................................................9.12 s 13 ...............................................15.30 s 16 ...............................................11.85 s 20 ...............................................18.25

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Equality Law in the Workplace s 26 ...............................................11.16 s 27 ....................................11.16, 11.17 s 27(1) ...............................11.18, 11.34 s 27(2) ..........................................11.18 s 28 ....................................11.16–11.19 s 32(3) ..........................................11.02

Equality Act 2004 (contd) s 24 ................................................ 9.70 s 25 ...................... 15.60, 17.110, 18.53 s 33 .............................................. 20.20 s 35 .............................................. 22.21 s 36 .............................................. 21.03 s 43 .............................................. 22.13

Maternity Protection (Amendment) Act 2004 ........................... 11.28, 22.16

European Convention on Human Rights Act 2003 ................................ 3.18–3.22 s 2 ......................................... 3.19–3.20 s 3 .................................................. 3.18 s 3(1)-(2) ........................................ 3.20 s 5 .................................................. 3.19

N National Vetting Bureau (Children and Vulnerable Persons) Act 2012 ....... 5.59 Non-Fatal Offences Against the Person Act 1997 ............................... 8.46, 8.68 s 10 .................................................8.46

F Finance Act 1997 .................................. 6.13 s 14 ................................................ 6.04

O

Finance Act 2004 s 7 ....................................... 7.12, 22.06 Fixed Term Work Act 2003 ..................6.19

Organisation of Working Time Act 1997 ........................................ 3.07 s 2 ...................................................6.04

I

P

Industrial Relations Act 1969 ................ 5.49

Parental Leave Act 1998 ....................... 3.07

Industrial Relations (Amendment) Acts 2001–2004 ............................. 6.14

Pensions Act 1990 ................................ 9.77 s 65(1) ............................................9.77

Interpretation Act 2005 .......... 17.111, 18.57

Pensions Acts 1990–2009 ..................... 1.30

Irish Human Rights and Equality Commission Act 2014 s 30(1) ............................................ 1.28 s 31(1) ............................................ 1.28 s 32 ................................................. 1.28 s 33(1) ............................................ 1.28 s 35(1) ............................................ 1.28 s 41(1) ............................................ 1.28

Prohibition of Incitement to Hatred Act 1989 ........................................ 8.47 Protection of Employees (Fixed-Term Work) Act 2003 .................. 6.19, 20.05, 22.13 s 2(1). ....................................6.04, 6.19 Protection of Employees (Part-Time Work) Act 2001 ........ 2.09, 3.07, 11.20–11.21, 22.13 s 11(5) ............................................6.04 s 3(1) ..............................................6.04

J Juries Act 1927 ...................................... 2.18

Protection of Employees (Temporary Agency Work) Act 2012 ...... 4.11, 9.29 s 6 ...................................................4.11 s 7(1)(b) .........................................9.33 s 9 ...................................................9.29 s 11 .................................................4.12

L Local Authorities (Higher Education Grants) Acts 1968–1992 ........................... 18.54 M Maternity Protection Act 1994 .... 3.07, 4.22, 11.02, 11.09, 11.13, 11.19, 11.27–11.28, 11.34, 22.16 s 23 ................................... 11.38, 11.44

Protection of Young Persons (Employment) Act 1996 ........................................ 6.13 s 1(1) ..............................................6.04

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Table of Statutes R

W

Redundancy Payments Act 2003 s 3 ................................................ 16.57

Workplace Relations Act 2015 ........................... 20.05, 20.23 s 42(1) ..........................................20.20

Redundancy Payments Acts 1967–2011 ................................... 16.57

UK Civil Partnership Act 2004 ................. 15.56

Refugee Act 1996 s 3 ................................................ 18.54

Employment Protection (Consolidation) Act 1978 ........................................ 9.47

Residential Institutions Redress Act 2002 ......................................... 2.22

Employment Rights Act 1996 s 94 .................................................3.38

S

Equal Pay Act 1970 .............................. 9.26

Safety, Health and Welfare at Work Act 1989 s 1 .................................................. 8.56

Equality Act 2010 ............. 5.47, 9.20, 18.50 s 60 .................................................5.47

Safety, Health and Welfare at Work Act 2005 ......................................... 5.64 s 8 .................................................. 5.64 s 13(1)(c) ....................................... 5.64 s 25 ................................................ 8.56

Sex Discrimination Act 1975 ............. 12.08 s 74 ...............................................20.26

Social Welfare (Miscellaneous Provisions) Act 2004 ......................................... 9.77

Rehabilitation of Offenders (Northern Ireland) Order 1978 (1978/1908) .. 5.57

Social Welfare and Pensions Act 2011 16.37

Sex Discrimination (Northern Ireland) Order 1976 (SI 1976/1042) ...................... 8.07

Race Relations Act 1976 .................... 18.40 s 1(1)(b) .......................................18.09 s 3(1) ............................................18.09

T

USA

Taxes Consolidation Act 1997 s 192A ................................ 7.12, 22.06

Age Discrimination in Employment Act 1967 ............................................. 16.09

Trade Union Act 1941 ........................... 6.04 s 6 .................................................. 6.04

Americans with Disabilities Act 1990 17.13 Civil Rights Act 1964 s 703(a) ..........................................3.27 Title VI ..........................................8.04 Title VII .........................................8.05

Trade Union Act 1942 s 14(1)(A) ...................................... 6.04 U

Civil Rights Act 1991 ........................... 3.27 s 105 ...............................................3.27

Unfair Dismissals Acts 1977–2011 ...... 5.56, 11.19, 17.11, 22.02, 22.15

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TABLE OF STATUTORY INSTRUMENTS Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) ............................... 18.46

European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (SI 337/2001) ............................... 21.03

Data Protection (Amendment) Act 2003 (Commencement) Order 2014 (SI 338/2014) .................................. 5.59

Industrial Relations Act 1990 Code of Practice on Access to Part-Time Working (Declaration) Order 2006 (SI 8/2006) ................................... 11.21

Employment Equality (Age) Regulations 2006 (SI 2006/2408) reg 3(1) ........................................ 16.63 reg 32(2) ...................................... 16.63

Industrial Relations Act 1990 (Code of Practice detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 (SI 17/2002) ................................... 3.78

Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660) ................... 15.22, 15.30 s 17 .............................................. 15.30

Maternity and Parental Leave Regulations 1999 (SI 3312/1999) reg 12A ........................................11.36

Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002 (SI 78/2002) ....................... 3.78, 8.03, 8.57

Public Sector Management (Sick Leave) Regulations 2014 (SI 124/2014) ............................... 11.07

Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 (SI 208/2012) .......... 3.43, 8.03, 8.19, 8.56, 8.57, 8.61, 14.04, 19.09

Rules of the District Court r 67 .................................................2.14 Rules of the Superior Courts Ord 57 r 6(6)(g) ...........................20.10 Ord 84C .......................................22.22 Ord 106 ........................................22.21

Employment Equality Act 1998, (Section 76 – Right to Information) Regulations (SI 1999/321) ............................... 20.24 reg 3 ............................................. 20.24 Sch 1 ............................................ 20.24

Safety, Health and Welfare at Work (Pregnant Employees) Regulations 2007 (SI 299/2007) ...................... 11.09

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TABLE OF EUROPEAN LEGISLATION Art 6(2) ..........................................3.80 Art 6a ............................................18.02 Art 8 .............................................21.03 Art 8(1) ........................................20.27 Art 9 ...............................................7.01

Directives Directive 75/117/EEC (Equal Pay Directive) ... 3.05, 3.09, 4.02, 9.01, 9.02 Directive 76/207/EEC (Equal Treatment Directive) .. 3.05, 3.08, 3.09, 3.28, 3.65, 3.72, 4.02, 8.01, 11.47, 11.76 Art 2.1 ........................................... 3.28 Art 2(1) .......................................... 3.70 Art 2(2) ................................. 3.50–3.53 Art 2(4) ................................. 3.70–3.72

Directive 2000/78/EC (Framework Directive on Equality) ......................... 2.07, 3.08, 3.24–3.30, 3.36–3.38, 3.45, 3.51, 3.55–3.59, 3.66, 3.79– 4.09, 4.32, 7.01, 8.12, 9.05, 9.52, 9.71, 11.65, 15.01– 15.07, 15.12–15.24, 15.34– 15.35, 15.72, 16.01, 16.18, 16.34, 16.45, 16.54, 16.57, 16.71, 17.05–17.08, 17.40– 17.41, 17.57, 17.68–17.70, 17.107 Art 1 ................3.39, 3.45, 16.01–16.06 Art 2 ..................................16.01, 16.45 Art 2(2) ...................3.50, 15.24–15.28, 15.64, 16.16, 16.65, 17.64 Art 2(2)(a) .........................15.33, 16.06 Art 2(2)(b) .........................16.17–16.20 Art 2(2)(i) ....................................16.21 Art 2(3) ..............3.61–3.62, 3.69, 8.12, 15.24, 15.34 Art 2(4) ......................3.65–3.69, 15.24 Art 3 .........................4.09, 15.17, 16.03 Art 3(1)(c) ......................................9.52 Art 4 ...........................3.45, 9.04, 15.68 Art 4(1) ..........................................3.56 Art 4(2) ..................15.65, 15.78–15.82 Art 5 .......................15.72, 17.68–17.70 Art 6 ...........16.02, 16.16, 16.19–16.20, 16.68, 22.07 Art 6(1) ........3.25, 16.04, 16.16–16.20, 16.34–16.39, 16.71 Art 6(2) ........................................16.65 Art 7 ................................................3.66 Art 8(2) ..........................................3.80 Art 10 ...........................................21.03 Art 10(1) ......................................20.27 Art 11 .......................7.01, 15.24, 15.35 Art 14 ...........................................15.55 Recital 1 .......................................15.02

Directive 79/7/EEC ............................... 3.05 Directive 86/378/EEC ........................... 3.06 Directive 86/613/EEC ........................... 3.06 Directive 92/85/EEC (Pregnancy Directive) ...... 3.07, 11.46, 11.58, 11.66 Art 10 .......................................... 11.46 Directive 93/104/EC .............................. 3.07 Directive 96/34/EC ................................ 3.07 Directive 96/97/EC ................................ 3.07 Directive 97/80/EC (Burden of Proof Directive) .................... 3.07–3.09, 4.02, 11.58, 21.02–21.03 Directive 97/81/EC ................................ 3.07 Directive 98/52/EC ................................ 3.07 Directive 2000/43/EC (Race and Ethnicity Directive) .................... 3.08, 3.24–3.30, 3.36, 3.44, 3.51, 4.01–4.08, 7.01, 8.12, 9.05, 9.52, 15.17– 15.19, 18.02–18.04, 18.14, 18.25, 18.37, 18.42, 18.53, 19.02, 21.02 Art 1 ............................................ 18.03 Art 2 ............................................ 18.42 Art 2(2)(a) ................................... 18.37 Art 2(2)(b) ................................... 18.21 Art 2(3) .......................................... 8.12 Art 3 ............................................ 15.17 Art 3(1)(c) ..................................... 9.52 Art 3(2) ........................................ 18.05 Art 4 .............................................. 3.44 Art 6 ............................................ 18.04

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Equality Law in the Workplace Art 3 ...............................................3.65 Art 5(1) ........................................11.76 Art 8(e) ...........................................3.80 Art 14 ....................................3.50, 9.04 Art 14(2) ..................3.46, 11.85–11.87 Art 14(4) ........................................3.65 Art 15 ..................................3.14, 11.34 Art 19(1) ......................................20.27 Art 24 .............................................7.01 Art 28(1) ........................................3.61 Art 141 ...........................................9.76 Recital 2 .........................................3.10 Recital 3 .......................................11.74 Recital 6–7 .....................................8.09 Recital 8–9 .....................................9.04 Recital 11 ...................3.10, 9.04, 15.20 Recital 13 .......................................9.76

Directive 2000/78/EC (Framework Directive on Equality) (contd) Recital 4 ........................... 15.02, 16.02 Recital 8 ...................................... 16.02 Recital 9 ........................................ 4.09 Recital 14 .................................... 16.04 Recital 17 .................................... 17.65 Directive 2002/73/EC ........ 3.08, 4.02, 11.31 Directive 2003/88/EC (Working Time Directive) ....................................... 3.07 Directive 2006/54/EC (Recast Equal Treatment Directive) ............ 3.08–3.12, 3.24–3.30, 3.46, 3.51, 3.59, 4.02, 7.01, 8.01, 8.09–8.12, 9.04, 9.76, 10.12, 11.34, 11.58, 11.74, 11.85, 21.02 Art 2 .............................................. 8.18 Art 2(1) ............................... 8.10, 18.14 Art 2(1)(b) ..................................... 3.30 Art 2(2)(a) ..................................... 8.11

Regulations Regulation 1612/68/EEC .................... 18.22 Regulation 492/2011/EU .................... 18.22

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TABLE OF CHARTERS, CONVENTIONS AND TREATIES Charter of the Fundamental Social Rights of Workers ................................... 16.02

Art 144 ...........................................9.45 Art 234 ...........................................3.55

European Charter of Fundamental Rights ................................... 3.16, 15.38 Art 10 .......................................... 15.14 Art 9(2) ........................................ 15.14

Treaty of Amsterdam 1997.................. 18.02 Art 141 ..................................3.74, 9.03 Treaty on European Union (Maastricht) 1992 ........................... 3.07 Art 6 ....................................3.16, 15.13 Art 6(2) ........................................15.02

European Convention on Human Rights ......... 3.16, 15.02, 15.12, 15.20, 15.38, 16.02 Art 8 .............................................. 5.62 Art 9 .......... 15.13–15.16, 15.53–15.58, 15.75–15.83 Art 9(2) ............................. 15.14, 15.51 Art 10 .......................................... 15.83 Art 26 .......................................... 15.61 Art 34 .......................................... 15.75 Art 41 ............................................ 3.19

Treaty on the Functioning of the European Union (Lisbon Treaty) 2007............ 3.16, 9.03, 15.15 Art 2 ...............................................3.09 Art 8 ......................................2.03, 3.09 Art 9 ...............................................2.03 Art 10 .............................................2.03 Art 13 ...........................................16.01 Art 19 ...........................................18.02 Art 45 ...........................................18.23 Art 157 .....3.02, 3.31, , 9.03, 9.06, 9.76 Art 216(2) ....................................17.64 Art 244-250 ....................................1.06

European Social Charter 1961 ............ 15.02 European Social Charter (Revised) 1966 ............................................. 15.02 ILO Convention No 111 ...................... 15.02 Treaty establishing the European Economic Community (Treaty of Rome 1957) ......... 3.01, 3.02 Art 3 .............................................. 3.09 Art 13 ............................................ 3.39 Art 119 ...... 3.02–3.04, 3.31, 9.02, 9.45 Art 141 ............. 3.25, 9.01, 9.25, 11.77

United Nations Convention of the Rights of Persons with Disabilities ................ 17.07, 17.64 Art 2 ..................................17.09, 17.64 Universal Declaration of Human Rights .......................................... 15.02

TABLE OF CONSTITUTIONS Art 40.1 ..........................................2.20 Art 44.1 ........................................15.12 Art 44.2.1° ...................................15.73

Constitution of Ireland Bunreacht na hÉireann ................. 2.02, 3.02 Art 40 ............................................ 2.02

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Part A The Framework of Employment Equality Law

1

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Chapter 1 INSTITUTIONS AND AGENCIES OF THE EU AND IRELAND INTRODUCTION [1.01] It is important to understand the institutions and agencies that underpin and have a bearing on the EU and Irish policies in the area of gender, family status, sexual orientation, religious belief, age, disability, membership of the travelling community, marital status and race. These institutions are diverse in nature, substantial and yet insubstantial, ranging as they do from the very structured Directorate General of the European Commission in the area of Employment Social Affairs and Inclusion to loose arrangements constituting an inter-grouping of Members of the European Parliament (MEPs) with an interest in the area of disability. However diverse, substantial or not as the case may be, all of them in their own way influence the equality agenda of the European Union and consequently the laws that are passed affect the daily lives of the citizens of the EU.

EUROPEAN UNION INSTITUTIONS The Council of the European Union [1.02] The Council of the European Union (sometimes just simply known as the Council and sometimes still referred to as the Council of Ministers) is the third of the seven institutions of the EU as listed in the Treaty on European Union. The Council is composed of several configurations of twenty-seven national ministers (one per State). The exact membership of the configuration depends upon the topic. For instance, when discussing agricultural policy, the Council is formed by the aforementioned twentyseven national ministers, whose portfolio includes this policy area (with the related European Commissioner contributing, but not voting). The Presidency of the Council rotates every six months among the governments of EU Member States, with the relevant ministers of the respective country holding the Presidency at any given time, hence ensuring the smooth running of the meetings in addition to setting the daily agenda. The continuity between Presidencies is provided by an arrangement under which three successive Presidencies, known as Presidency trios, share common political programmes. The Foreign Affairs Council (national foreign ministers) is however chaired by the EU’s High Representative. The Council is administered by the Council’s Secretary General. Its decisions are made by a qualified majority voting in most areas, whereas unanimity occurs in others. Usually where it operates unanimously, it need only consult the Parliament. However, in most areas the ordinary legislative procedure applies, which signifies that both Council and Parliament share legislative and budgetary powers equally. In other words, both have to agree for a proposal to pass. In a few limited areas the Council may initiate new EU law itself. 3

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[1.03]

Equality Law in the Workplace

[1.03] There are two committees of importance to the equality agenda: •

the Social Protection Committee with representation from the Department of Social Protection;

•

the Employment Committee with representation from the Department of Jobs, Enterprise and Innovation.

The Social Protection Committee works on the European Social Inclusion Process and the Employment Committee works on the European Employment Strategy. The Committee of Permanent Representatives (COREPER) [1.04] The committee of permanent representatives (COREPER) has the important function, along with the host nation, of preparing the business of Council meetings. COREPER is staffed by public servants and consists of each Member State’s ambassador to the EU and their supporting team. Their primary role is to prepare the meetings of the Councils of the various ministers. The Forward Studies Unit [1.05] The forward studies unit is also known as the Cellule de Prospective. Its purpose is to serve as a strategic planning body. It was originally set up to anticipate developments in foreign affairs and security policy but it has a broader brief in advising the Commission on future economic, social and political developments in Europe. It was set up in 1989 as a department of the European Commission reporting directly to the President. It consists of a multicultural, multidisciplinary team of some 15 people. The Commission decision that set up the unit gave it three tasks: 1.

to monitor and evaluate European integration;

2.

to establish permanent relations with bodies involved in forecasting;

3.

to work on specific briefs.

The European Commission [1.06] The powers, tasks and functions of the Commission are laid down in Arts 244 to 250 of the Treaty on the Functioning of the European Union (TFEU). The European Commission acts as an executive of the EU. The body is responsible for proposing legislation, implementing decisions and upholding the EU’s treaties, in addition to the general day-to-day running of the EU. The Commission is appointed for a five-year term by the Council acting by qualified majority in agreement with the Member States. It is subject to a vote of appointment by the European Parliament, to which it is answerable. The Commissioners are assisted by an administration made up of Directorates-General and specialised departments, whose staff are divided mainly between Brussels and Luxembourg. [1.07] The European Commission represents the interests of the EU as a whole. It proposes new legislation to the European Parliament and the Council of the European 4

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Institutions and Agencies of the EU and Ireland

[1.10]

Union and it ensures that EU law is correctly applied by Member States. While it has the appearance of a civil service, it is much more powerful than a domestic governmental department. It has the right of initiative to propose laws for adoption by the Parliament and the Council of the EU (national ministers). In most cases, the Commission makes proposals to meet its obligations under the EU Treaties, or because another EU institution, country or stakeholder has asked it to act. From April 2012, EU citizens may also call on the Commission to propose laws, known as the European Citizens’ Initiative. The Commission is governed by the principles of subsidiarity and proportionality, in that the EU may legislate only where action is more effective at EU level than at national, regional or local level and, in such a case, no more than necessary to attain the agreed objectives. [1.08] The Commission is divided into 33 Directorates-General (DGs), which are basically the equivalent of government departments. The main DG in the field of equality is the DG for Employment, Social Affairs and Inclusion (EMPL). DG-EMPL consists of eight Directorates: A

Analysis, Evaluation, External Relations;

B

Employment and Social Legislation, Social Dialogue;

C

Europe 2020: Employment policies;

D

Europe 2020: Social Policies;

E

Social Market Economy in Member States I: European Social Fund (ESF);

F

Social Market Economy in Member States II: ESF;

G

Resources, Communication; and

H

Audit, Control.

Directorate B is responsible for following the European social dialogue both at intersectoral and sectoral levels. Directorate B is subdivided into the following units: B/1 Social Dialogue, Industrial Relations; B/2 Labour Law; B/3 Health, Safety and Hygiene at Work; and F/4 Free Movement of Workers Coordination of Social Security Schemes. [1.09] The Commission has several ways of promoting equality. Primarily this is accomplished through the Equal Opportunities Unit, which is based in the EU Commission DG-EMP. This unit is responsible for ensuring compliance with the EU Directives on equal opportunities for women and men. This unit is also charged with the implementation of the Community Framework Strategy on gender equality. [1.10] The Commission also influences equality through the Commissioner’s Group on Equality, which comprises the President of the Commission and a number of Commissioners. This group maintains an overview on equal opportunities between 5

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[1.11]

Equality Law in the Workplace

women and men at European Commission level, and it discusses in particular the question of mainstreaming a gender perspective into all services and policies. Also of importance is the Advisory Committee on Equal Opportunities between men and women. This is an advisory body composed of ministerial representatives from each of the Member States. It meets regularly to give opinions to the European Commission on major new policies. These opinions are published. A recent example is the opinion on an EU initiative on female genital mutilation.1 [1.11] People who believe that their rights have been infringed under the European Treaties can complain to the Commission, through any Commission office in any Member State. If the Commission believes the complaint to be well-founded, it will ask the Member State for an explanation; and if the answer is unsatisfactory, the Commission can bring infringement proceedings against the Member State through the Court of Justice of the European Union (CJEU). The European Parliament [1.12] The European Parliament has been steadily gaining power over recent decades and now acts as a co-legislator for nearly all EU law. In liaison with the Council, the Parliament adopts or amends proposals from the Commission. The Parliament also supervises the work of the Commission and adopts the EU’s budget. Beyond these official powers, the Parliament also works closely with the national parliaments of EU members. The Parliament is the only directly elected European institution. It has 766 members and they are chosen to represent the EU’s 500 million citizens. Members are elected once every five years by voters from across the 28 Member States. Once elected, members organise along political lines. They form political groups better to defend their positions. Currently there are seven groups. [1.13] In order to do the preparatory work for Parliament’s plenary sittings, the members are divided among a number of specialised standing committees. There are currently 20 parliamentary committees. A committee consists of between 24 and 76 MEPs. It has a chair, a bureau and a secretariat. The political make-up of the committees reflects that of the plenary assembly. The parliamentary committees meet once or twice a month in Brussels, and their debates are held in public. They draw up, amend and adopt legislative proposals and own-initiative reports. They consider Commission and Council’s proposals and, where necessary, draw up reports to be presented to the plenary assembly. In the area of equality, there are several committees: the committee on employment and social affairs; the committee on civil liberties; and the committee on 1.

Communication from the Commission to the European Parliament and the Council – Towards the elimination of female genital mutilation, Brussels, 25 November 2013, COM (2013) 833.

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[1.18]

women’s rights and gender equality. These are important committees, as they prepare reports,2 draft opinions3 and generally influence their particular area of expertise. [1.14] Side-by-side with the committees sit inter-groups of MEPs pursuing particular interests or issues. Some of these groups deal with equality issues and, while they have no legal standing, they can be of influence. The European Economic and Social Committee [1.15] The European Economic and Social Committee has 353 members drawn from economic and social interest groups across Europe. Members are nominated by national governments and appointed by the Council of the European Union for a renewable fiveyear term. Members of the EESC are unpaid but receive allowances to cover their travel expenses and accommodation when attending meetings. Ireland currently has nine members, appointed by the government after consultation with the social partners. The committee operates on the basis of influence rather than power. However, all key policy proposals in the economic and social area must pass through it. It has the authority to issue opinions, which are forwarded to the EU decision-making bodies and then published in the official journal of the EU. Advisory committees, regulatory committees and scientific committees [1.16] The institutions – primarily the Council and the Commission – are assisted by numerous advisory, regulatory and scientific committees. The Advisory Committee on Equal Opportunities for Women and Men is one such body. This committee assists the Commission in the formulation and implementation of activities aimed at promoting gender equality. The committee is composed of representatives from ministries and equality bodies in the Member States, among others, and includes two observers from the European Women’s Lobby (EWL) at its committee meetings. [1.17] The EWL is the largest umbrella organisation of women’s associations in the EU and, as a major contributor in the field of gender equality, it follows and seeks to influence the processes of adoption or amendment of EU gender equality policies and laws at all levels of the legislative process. The European Foundation for the Improvement of Living and Working Conditions [1.18] There are several special agencies in the EU. In the area of equality, the European Foundation for the Improvement of Living and Working Conditions (Eurofound) is probably the best recognised, primarily because it is located in Ireland. Eurofound’s role is to provide information, advice and expertise on living and working conditions, 2. 3.

For example, see the Report on Sexual and Reproductive Health and Rights, 26 September 2013. For example, see the Draft Opinion on EU Roadmap against homophobia and discrimination on grounds of sexual orientation and gender identity, 1 October 2013.

7

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[1.19]

Equality Law in the Workplace

industrial relations and managing change in Europe – for key factors in the field of EU social policy on the basis of comparative information, research and analysis.4 The foundation focuses on managing research, gathering information and communicating its findings. It maintains a number of specialised operations monitoring and measuring conditions in Europe, including the European Industrial Relations Observatory (EIRO) and the European Working Conditions Observatory (EWCO). [1.19] There are other observatories, the key function of which is to ‘observe’ key developments in their specialist area. The most high-profile of these observatories is probably the Fundamental Rights Agency. The European Union Agency for Fundamental Rights (FRA) is a decentralised agency and was set up to provide expert advice to the institutions of the EU and the Member States on a range of issues, primarily the FRA helps to ensure that the fundamental rights of people living in the EU are protected.5 The Court of Justice of the European Union [1.20] The CJEU interprets EU law to ensure it is applied in the same way in all EU countries. Furthermore, it settles legal disputes between EU governments and EU institutions. Individuals, companies or organisations may also bring cases before the court if they feel their rights have been infringed by an EU institution. The CJEU has one judge per EU country. The court is facilitated by eight advocatesgeneral, whose remit is to present opinions on the cases brought before the court. They must do so publicly and impartially. Each judge and Advocate General is appointed for a term of six years, a term of office that can thereafter be renewed. The governments of EU countries agree on whom they want to appoint. To help the CJEU cope with the large number of cases brought before it, and to offer citizens better legal protection, a General Court deals with cases brought forward by private individuals, companies and some organisations, in addition to cases relating to competition law. The EU Civil Service Tribunal rules on disputes between the EU and its staff. The CJEU gives rulings on the cases brought before it. The most common types of cases are discussed below. Requests for a preliminary ruling [1.21] Notwithstanding the role of the CJEU, the national courts in each EU country are responsible for ensuring that EU law is properly applied in that country. However, there is a risk that courts in different countries might interpret EU law in different ways, so to prevent this happening, there is a ‘preliminary ruling procedure’. If a national court is in doubt about the interpretation or validity of any EU law, it may – and sometimes must – seek out the advice of the CJEU. This advice is called a preliminary ruling. 4. 5.

See www.eurofound.europa.eu. www.fra.europa.eu.

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[1.26]

Proceedings for failure to fulfil an obligation [1.22] The Commission can commence these proceedings if it believes that a Member State is failing to fulfil its obligations under EU law. These proceedings may also be commenced by another EU country. In either case, the CJEU investigates the allegations and gives its judgment. If the country is found to be at fault, it must put things right at once. If the court finds that the country has not followed its ruling, it may issue a fine. Actions for annulment [1.23] If any EU country, the Council, the Commission or (under certain conditions) the Parliament believes that a particular EU law is illegal, it may ask the CJEU to annul it. ‘Actions for annulment’ can also be used by private individuals who want the court to cancel a particular law because it directly and adversely affects them as individuals. If the court finds that the law in question was not correctly adopted or is not correctly based on the treaties, it may declare the law null and void. Actions for failure to act [1.24] The Treaty requires the Parliament, the Council and the Commission to make certain decisions under certain circumstances. If they fail to do so, Member States, other EU institutions and (under certain conditions) individuals or companies can lodge a complaint with the CJEU so as to have this failure to act officially recorded. Direct actions [1.25] Any person or company who has suffered damage as a result of the action or inaction of the community or its staff can bring an action seeking compensation before the General Court. How cases are heard [1.26] A judge and an Advocate General are assigned to each case that comes before the CJEU. Cases submitted to the court are processed in two stages: a written stage and an oral stage. A. Written stage First, all the parties involved hand in a written statement to the judge responsible for the case. The judge then writes a summary of these statements in addition to outlining the case’s legal background. B. Oral stage The second stage is the public hearing. Depending on how complex the case is, this can take place before a panel of three, five or 13 judges or in front of the whole court. At the hearing, lawyers from both sides put their case to the judges and the Advocate General, who can question them. The Advocate General then gives his or her opinion. After this, the judges discuss the case together and relay their judgment. Advocates-general are 9

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[1.27]

Equality Law in the Workplace

required to give their opinion on the case only if the court believes that the particular case raises a new point of law. The court does not necessarily follow the Advocate General’s opinions. The court’s judgments are majority decisions and are read out at public hearings. The procedure for hearings in the General Court is similar, except that no opinion is given by an Advocate General. Non-governmental agencies [1.27] Besides the formal institutions of the EU, there are numerous non-governmental and voluntary agencies that both represent and influence the equality agenda at a European level:

6.

•

In the area of the family, the Confederation of Family Organisations (COFACE) is active in arguing for family policies and for fighting against inequality in the treatment of family relationships.

•

In the area of gender equality, the EWL makes representations to the EU Commission and other institutions on legislation, various action programmes and measures to influence the equal opportunities agenda.

•

The European Federation for Older People (EURAG) and Age UK (previously known as EurolinkAge) are very active in arguing for the rights of the elderly in society. The former focuses primarily on the Council of Europe, whereas the latter represents a broader platform for older people across the EU.

•

The International Lesbian, Gay, Bisexual, Trans and Intersex Association – Europe (ILGA) is the European Region of the International Lesbian, Gay, Bisexual Trans and Intersex Association. ILGA – Europe is active in lobbying for political, legal and social change at European level. It advocates for human rights and equality for LGBTI people at European level before organisations such as the European Union, the Council of Europe and the Organisation for Security and Co-operation in Europe (OSCE). It also seeks to strengthen the European LGBTI movement by providing training and support to its member organisations and other LGBTI groups.6

•

The European Network Against Racism (ENAR) is a network of member organisations across Europe established to combat racism, racial discrimination, xenophobia and related intolerance. It links local/regional/ national initiatives with EU initiatives, and the organisation puts itself forward as the voice of the anti-racist movement in Europe.

•

There are a large number of disability organisations in Europe, which are highly organised. Principal among these is the European Disability Forum (EDF). This is an independent body that represents the interests of Europeans with disabilities. It was established by the Commission, following a resolution of the Parliament, originally as a consultative mechanism, but has since matured into an NGO as a platform run by persons with disabilities and their See www.ilga-europe.org/

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[1.28]

families. In addition to the EDF, Disabled People’s International – while originally established in Ottawa, Canada – was an organisation particularly active in the area of debates on the Directives against discrimination. These two groups are aided by many other groups with specific interests in particular areas of disability such as those for the deaf or the blind. Irish institutions The Irish Human Rights and Equality Commission [1.28] The Equality Authority merged on 1 November 2014 with the Irish Human Rights Commission to form the Irish Human Rights and Equality Commission. (IHREC). The purpose of the Commission is as an independent human rights and equality institution to protect and promote human rights and equality in Ireland. The IHREC has a number of functions under the legislation:

7. 8. 9. 10. 11. 12.

•

to provide information to the public and keep under review the effectiveness of any enactments relating to the protection and promotion of human rights and equality;7

•

to prepare draft codes of practice in furtherance of the protection of human rights, the elimination of discrimination and the promotion of equality of opportunity in employment;8

•

to invite undertakings, making up a particular industry or sector, to carry out an equality review or to prepare and implement an equality action plan, or both.9 Equally the IHREC may, if it thinks it appropriate, carry out an equality review itself or prepare an equality action plan in relation to any undertaking of 50 or more employees or group of such undertakings making up a particular industry or sector thereof;10

•

to serve, if it considers it appropriate for the purpose of an equality review or for the purpose of preparing an equality action plan a substantive notice on a person requiring the person to supply to the IHREC such information as may reasonably be required by the IHREC;11

•

to carry out inquiries where it is considered that there is a serious violation of human rights or equality of treatment in respect of a person or a class of persons;12

•

to maintain a register of equality and human rights compliance notices; Irish Human Rights and Equality Commission Act 2014, s 30(1). Irish Human Rights and Equality Commission Act 2014, s 31(1). Irish Human Rights and Equality Commission Act 2014, s 32(1). Irish Human Rights and Equality Commission Act 2014, s 32(2). Irish Human Rights and Equality Commission Act 2014, s 33(1). Irish Human Rights and Equality Commission Act 2014, s 35(1).

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[1.29] •

Equality Law in the Workplace to institute legal proceedings in any court of competent jurisdiction for the purpose of obtaining relief of a declaratory or other nature in respect of any matter concerning the human rights of any person or class of persons.13

The Workplace Relations Commission [1.29] The Workplace Relations Commission (WRC) now has responsibility for the mediation and investigation of workplace disputes, having taken over this responsibility from the Equality Tribunal. The Equality Tribunal was established by the Employment Equality Act 1998 to become the forum for the investigation and mediation of complaints of discrimination in relation to employment and in relation to access to goods and services, disposal of property and certain aspects of education. In 2013, it was brought into the WRC. This arose because in July 2011, the Minister for Jobs, Enterprise and Innovation, Mr Richard Bruton TD, announced a programme to radically reform the State’s workplace relations/employment rights and industrial-relations structures and frameworks. The programme provided for a two-tier workplace relations structure by merging the activities of the National Employment Rights Authority (NERA), the Labour Relations Commission (LRC) and the Equality Tribunal, in addition to the first-instance functions of the Labour Court and the Employment Appeals Tribunal into a new body of first instance, ie the WRC. [1.30] Despite the merging of the Equality Tribunal into the WRC, the work done by the Equality Tribunal is largely unchanged. Its principal role in the investigation and mediation of complaints of discrimination has remained untouched and it operates on a ‘quasi independent’ basis within the WRC. Most of the ‘equality work’ within the WRC is taken up with workplace complaints of discriminatory treatment on one of the nine grounds.14 However, the WRC may also investigate complaints of discrimination on the grounds of gender under the Pensions Acts 1990–2009, where an employer has failed to comply with the principle of equal treatment in relation to occupational-benefit or pension schemes.

13. 14.

Irish Human Rights and Equality Commission Act 2014, s 41(1). Gender, Civil Status, Family Status, Sexual Orientation, Religious Belief, Age, Disability, Race and Membership of the Traveller Community.

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Chapter 2 THE IRISH CONSTITUTION INTRODUCTION [2.01] The background to Irish equality law is founded on the Constitution, but in practice owes more to the EU and the implementation of the various Directives that moulded the employment equality landscape into what it has become today. Nonetheless, the starting point stems from the Constitution. [2.02] Long before Ireland’s accession to the EU, Bunreacht na hÉireann established a wide-ranging set of personal rights for the individual. Article 40, while being the personal rights article, is also the original source of equality rights in this State. Article 40.1 provides: ‘All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social functions.’

While on the face of it, this could be seen to encompass a working basis for equality that could be relied upon by citizens of the State to ground and defend claims of discrimination and unfavourable treatment, not relevant to their ability to do their job, the practice has been entirely different. An examination of how the constitutional rights to equality have been applied in the State quickly demonstrates how limited the Constitution has been in defending and bolstering the equality rights of the individual. As a consequence of the virtual irrelevance of the Constitution in this domain, it was left to the EU to fill the void. [2.03] One of the first tasks Ireland had to perform regarding equality following accession to the EU in 1973 was to eliminate gender inequality in terms of pay. This was so because Art 8 of the Treaty on the Functioning of the European Union (TFEU) detailed specifically ‘[i]n all its activities the Union shall aim to eliminate inequalities and to promote equality between men and women’. Article 9 of the TFEU went on to promote adequate social protection and Art 10 to combat discrimination on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Prior to this, there was no basis in legislation in this jurisdiction on which an individual could found a case to assert his or her rights to equality in employment. To correct this and as a consequence of accession, Ireland initially passed the Anti-Discrimination (Pay) Act 1974. [2.04] Notwithstanding that the Constitution provided little or nothing to the development of Irish equality law, and the prima developments in this area occurred mainly after Ireland’s accession to the EU, it would be erroneous to think that there is little or no provision for equality in our Constitution, nor that it could possibly be used as a future means to ground various claims and rights before the courts. In this regard, it is worth considering what precisely is protected by Art 40.1. 13

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[2.05]

Equality Law in the Workplace

ARTICLE 40.1 All persons are equal before the law [2.05] Article 40.1 provides that all citizens shall as human persons be held as equal before the law. It should be noted from the outset that the courts have adopted a restrictive approach to Art 40.1 and have seized on the phrase ‘human persons’ to limit the scope of Art 40.1. In Brennan v Attorney General,1 the Supreme Court held that the right to equality is limited to equality as human persons. It does not extend to the issue of equality in respect of the pursuit of any lawful activities, trades or pursuits in which human persons may engage. O’Higgins CJ stated ‘[t]his section deals with and only deals with the citizen as a human person and requires for each citizen as a human person equality before the law’. In the case of Quinn’s Supermarket Ltd v Attorney General,2 Walsh J declared: ‘This provision (Article 40.1) is not a guarantee of absolute equality for all citizens in all circumstances, but it is a guarantee of equality as human persons and is a guarantee related to their dignity as human beings. This guarantee refers to human persons for what they are in themselves.’

[2.06] In addition to the courts construing the equality guarantee very narrowly at the time, there was – and to some extent still is – a notable reluctance on the courts’ part to develop the concept. Indeed, when a challenge is brought against a particular statute, where a choice is available, the courts choose to ignore Art 40.1 rather than to rely on its ‘equality guarantee’. This was evident in Murphy v Attorney General,3 where a married couple established that certain provisions of the Income Tax Act 1967 discriminated against a working married couple in favour of a co-habiting working couple. Two primary constitutional arguments were made in the case: 1.

this breached the plaintiffs’ constitutional right to equality under Art 40.1;

2.

it discriminated against the institution of marriage protected by Art 41.

The plaintiffs succeeded in the Art 41 argument, with the court largely choosing to evade the equality issue. [2.07] This fairly restrictive approach of the ‘human persons’ test began to fall out of favour in the early 1990s and there was a move away from it initially in the case of Cox v Ireland.4 Indeed, the 1996 report of the Constitution Review Group recommended the removal of this narrow interpretation of Art 40.1 as referring to the guarantee of equality as a human person.5 This recommendation could have led to a very broad interpretation of Art 40.1, regarding the Supreme Court decision in Re Article 26 and the Employment 1. 2. 3. 4. 5.

Brennan v Attorney General [1984] ILRM 355. Quinn’s Supermarket Ltd v Attorney General [1972] IR 1. Murphy v Attorney General [1982] IR 241. Cox v Ireland [1992] 2 IR 503. Report of the Constitution Review Group (Stationery Office, 1996) 223–224.

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The Irish Constitution

[2.09]

Equality Bill, 19966 in its analysis of the argument made against the Bill that certain provisions discriminated on the grounds of age in violation of Art 40.1. It should be remembered that the Framework Employment Directive prohibiting discrimination on, inter alia, age came into effect only on 2 December 2000;7 therefore, there was nothing from a European perspective that the Supreme Court could rely upon, and as such the only applicable test was whether or not the provisions were consistent with that of the Constitution and more particularly those of Art 40.1. In considering the issue, the Supreme Court reasoned that age-based discrimination fell into a different constitutional category from discrimination on grounds of sex, race, language, religious or political opinion (so-called invidious discrimination), which it indicated would receive closer scrutiny from the courts than grounds of discrimination falling outside of these categories. Thus, age required a lower standard of a legitimate legislative test and, in applying this, the Supreme Court found that the provisions on age were related to a legitimate objective and were not arbitrary or irrational, and were therefore consistent with the constitutional provision on equality.8 [2.08] This decision has led some to suggest that the Supreme Court has taken a much broader approach to the definition of equality than previously perceived, covering any context in which discrimination or classification may have been based on the essential attributes of the human person.9 However, more recent decisions have gone against this: while not reverting to the earlier very narrow view, these decisions have certainly reiterated the view articulated in Cox10 that laws cannot treat persons or categories of persons unequally merely by reference to their particular characteristics or attributes as human beings. [2.09] This line of thinking was applied in the High Court in the case of Quigley v City of Cork VEC.11 That was a case that considered the position of part-time workers employed on successive contracts who sought relief arising out of inequality with identified comparators in respect of a period that pre-dated the Protection of Employees (Part-Time Work) Act 2001. In pursuit of their case, the plaintiffs relied, among other things, on a constitutional argument against their employer, a statutory body. The High Court provided a comprehensive analysis of Art 40.1 and, in so doing, demonstrated a further move away from the traditional approach to the constitutional guarantee of 6. 7. 8. 9. 10. 11.

Re Article 26 and the Employment Equality Bill, 1996 [1997] 2 IR 321. Council Directive 2000/78/EC ([2000] OJ L303/16) establishing a general framework for Equal Treatment in employment and occupation. Indeed it could be argued that this definition by the Supreme Court is entirely in keeping with the provisions of the Employment Equality Act 1998, s 34. For a fuller analysis of this aspect see Hogan and Whyte, JM Kelly: The Irish Constitution (4th edn, Tottel Publishing, 2004) p 1347. Cox v Ireland [1992] 2 IR 503 at 18. Quigley v City of Cork VEC [2001 No 18632P].

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[2.10]

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equality as a ‘human person’, yet stopped short of going so far as to endorse the position taken in Re Article 26.12 Having regard to the long line of authorities, the court opined that this prohibited the making or implementation of laws that treated a category of persons unequally as against other persons or categories of persons by reference to their particular attributes or characteristics as human beings ‘such as gender, race and the like’. While the plaintiffs had not, in the court’s view, demonstrated that they had been treated unequally or discriminated against as human persons, interestingly, the court rejected the defendants’ contention that it was being asked in effect: ‘to conjure up out of thin air a parallel equality jurisdiction of uncertain sweeping ambit, enforceable by action without any or protections found in the statutory refines which are in place governing employment law.’

[2.10] In the case of D v Ireland,13 similarly, Denham CJ went on to assert that the central principle of Art 40.1: ‘rests firstly on the common humanity which we all share and secondly on the general understanding that for the State to pass a law which treats people who are objectively in the same situation vis-à-vis the law, unequally, is an affront to fundamental ideas of justice and even to rationality.’

[2.11] Therefore, while Art 40.1 does not in and of itself create any substantive right, it does provide for equal treatment when the law creates some right or enacts some legislation, so as to ensure that that right or legislation does not either directly or arbitrarily discriminate against other persons or categories of person by reference to their attributes or characteristics as human beings. That is to say, Art 40.1 bans what the courts call invidious discrimination, ie that which is unjust, unreasonable or arbitrary.14 Thus, it does not prohibit discrimination in its entirety. Indeed, it permits discrimination once it is based on differences in physical or moral capacity and social function, provided that it is reasonable to do so.15 Permitted constitutional aspects of inequality [2.12] What is evident from the above is that the courts can and do differentiate between people – and, in some instances, justice requires that the courts do so.16 Indeed, it seems 12. 13. 14.

15.

16.

Re Article 26 and the Employment Equality Bill, 1996 [1996] 2 IR 321 at 20. D v Ireland [2012] IESC 10. In Norris v Attorney General [1984] IR 36, the High Court recognised that there might be difficulties in ascertaining the point at which discrimination becomes invidious or arbitrary. Also, in O’Brien v Manufacturing Engineering Company [1973] IR 334 it was held that the court should scrutinise the balance struck by the legislature. See also O'B v S [1984] 1 IR 316, where Walsh J said: ‘the distinctions or discriminations which the legislature creates must not be unjust, unreasonable or arbitrary and must of course be relevant to the legislation in question.’ See de Burca v Attorney General [1976] 1 IR 38 at 57.

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The Irish Constitution

[2.15]

that if the legislature failed to appreciate the fact that certain categories of people are naturally different, it would lead to inequality rather than to equality. Justice requires inequality [2.13] In The State (Nicolau) v An Bord Uachtála,17 Walsh J stated that Art 40.1 was an acknowledgment of the human equality of all citizens and declared: ‘The section itself in its second sentence recognises that inequality may or must result from some special abilities or from some deficient or from some special need and it is clear that the Article does not either envisage or guarantee equal measure in all things to all citizens. To do so regardless of the factors mentioned would be inequality.’

In MacMathuna v Ireland,18 Carroll J found that the preferential treatment of single parents over married parents in their tax-free allowances was justified discrimination under Art 40.1. This was because of the special difficulties encountered by single parents in bringing up a child that were not encountered by married couples. The peculiar difficulties encountered by single parents justified more favourable treatment. Similar reasons justified social assistance for unmarried mothers: because of the peculiar difficulties they encountered, they deserved more favourable treatment than married mothers. Discrimination on the basis of capacity or social function [2.14] Discrimination can be legitimate if it corresponds with a difference of capacity or social function. In Dillane v Attorney General,19 Rule 67 of the District Court Rules drew a distinction between a garda and an ordinary citizen when either prosecuted another person for a criminal offence. No award for costs could be made against the garda if the prosecution failed, but an award of costs could be made against an ordinary citizen if the prosecution failed. This distinction was challenged by the plaintiff, who was unsuccessfully prosecuted by a garda in the District Court and refused costs. It was held by the Supreme Court that the distinction was justified under Art 40.1, being a distinction based on a difference in social function. It encouraged gardaí to carry out their prosecuting function without fear of penalty. [2.15] Similarly, in O’G v Attorney General,20 an infant was given into the custody of a couple. Before the adoption could be finalised, the plaintiff ’s wife was killed in a car crash and he, being a widower, was no longer allowed to adopt the child, whereas a 17. 18. 19. 20.

State (Nicolau) v An Bord Uachtála [1966] IR 567 at 643. MacMathuna v Ireland [1989] IR 504. Dillane v Attorney General [1980] ILRM 167. O’G v Attorney General [1985] ILRM 61.

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[2.16]

Equality Law in the Workplace

widow in the same situation would have been so allowed under the Adoption Act 1974. McMahon J struck down the provision of the Act and stated: ‘The proviso was founded upon an idea in difference of capacity between men and women which has no foundation in fact and the proviso is therefore an unwarranted denial of human equality and repugnant to Article 40.1.’

[2.16] Laffoy J addressed this point in SM v Ireland,21 where the statutory offence for indecent assault upon a male person, which provided for a maximum sentence greater than that for the offence of indecent assault against a female person, was held to be a breach of the plaintiff ’s constitutional right to equality. Laffoy J, in considering the differences of physical capacity, moral capacity and social function, went on to find that there was nothing in the Act: ‘or in an objective consideration of the differences of physical capacity, moral capacity and social function of men and women which point to a legitimate legislative purpose for imposing a more severe maximum penalty for indecent assault on a male person than that for the same offence against a female person.’

Discrimination is justifiable but excessive in nature [2.17] Discrimination that in practice can be justified will be deemed unconstitutional if it is excessive in nature. In Quinn’s Supermarket Ltd v Attorney General,22 the plaintiff challenged the regulations governing the opening hours of butcher shops. The regulations prevented such shops opening after 6.30pm. This was not the case for Jewish shops, which enjoyed an exemption due to the fact that 6.30pm coincided with the ending of the Sabbath and Jewish shops were forbidden by their religion from opening on the Sabbath. It was held that this was excessive and was struck down as going a step too far. [2.18] In de Burca v Attorney General,23 the Juries Act 1927 excluded virtually all women from jury service and was held to be unjustified. This was also an argument put forward in the O’G v Attorney General case, where the exclusion of widowers as a whole class from completing an adoption was held to be unjustified.24 Discrimination is justifiable but not inclusive [2.19] Discrimination that can be justified but is not inclusive will be deemed unconstitutional. In Norris v Attorney General,25 Norris argued that the legislation that criminalised homosexual activity was in breach of Art 40.1 because it did so only in respect of men. The argument was rejected because of a distinction between gay men 21. 22. 23. 24. 25.

SM v Ireland [2007] IEHC 280, [2007] 4 IR 369. Quinn’s Supermarket Ltd v Attorney General [1972] IR 1. de Burca v Attorney General [1976] 1 IR 38. O’G v Attorney General [1985] ILRM 61 at 34. Norris v Attorney General [1984] IR 36.

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The Irish Constitution

[2.23]

and gay women in that gay men by their activities caused social problems not caused by gay women. [2.20] In Draper v Attorney General,26 the plaintiff, a disabled voter, failed in his attempt to convince the court that provisions allowing a postal vote to members of the gardaí and the Defence Forces but not to disabled persons was unconstitutional. The court held that while the State could make provision for disabled persons under Art 40.1, just because it had not done so did not make the legislation extending to other categories unconstitutional. Onus to prove justification [2.21] While it is the case that in certain circumstances inequality can be deemed to be constitutional, the question arises as to with whom that onus of proof sits. In Re Article 26 and the Employment Equality Bill, 1996,27 the Supreme Court distinguished between so-called invidious and other forms of discrimination, the former demanding a higher level of proof than the latter. In this case (where age was the issue, which was deemed ‘non-invidious’), the court held that the onus was on the applicant to prove that the burden of proof in establishing that any classification on grounds of age was discriminatory in a constitutional sense. Here the court was satisfied that there was no onus on the State to prove that there was a potential justification for the classification. [2.22] D v Residential Institutions Redress Review Committee28 examined the constitutionality of the Residential Institutions Redress Act 2002. This Act provides for a scheme of redress for persons who were abused as children within particular residential institutions. The Act defines a child as being a person aged 18 years or under when resident in any particular institution. D argued that this definition violated her right under Art 40.1 of the Constitution to be held equal before the law, as at the time of her entry into the institution, the definition of a child was a person under the age of 21, and that the Act therefore discriminated against children between 18 and 21 years of age. The Supreme Court held that the onus was on the applicant in cases of noninvidious discrimination to meet a burden of proof of establishing that any classification on grounds of age was discriminatory within a constitutional sense and that there was no onus on the State to prove that there was a potential justification for the discrimination. [2.23] These cases seem to point to a two-tier approach to the issue of discrimination. If the alleged act or acts of discrimination involves non-invidious grounds, then the onus rests with the applicant to demonstrate discrimination. This leaves applicants in some difficulty, as they are obliged to establish positively that there was no conceivable justification for the legislation,29 whereas the State is not required to proffer any possible 26. 27. 28. 29.

Draper v Attorney General [1984] IR 277. Re Article 26 and the Employment Equality Bill, 1996 [1997] 2 IR 321. D v Residential Institutions Redress Review Committee [2009] IESC 59, [2010] 1 IR 262. For a wider discussion on this, see Doyle, ‘Judicial Scrutiny of Legislative Classification’ (2012) 47(1) Ir Jur 175 at 178.

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justification for the alleged age discrimination. On the other hand, if there are matters of invidious discrimination before the court, it has to be mindful of the public policy issues and in particular those that justify discrimination on the basis of capacity or social function.

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Chapter 3 EUROPEAN UNION LAW EU LAW AS THE PRIMARY SOURCE OF IRISH EQUALITY LAW [3.01] Most equality initiatives in Ireland can trace their origins to EU Directives. The amount of policy development by the EU over the nine grounds1 varies considerably. In some areas, there is a long history of EU intervention and policy development, most notably in the area of gender equality. In other areas, however, such as family and sexual orientation, it is less so. This may be partially explained by the issue of competence.2 Here the EU is confined to dealing with issues and developing policies that are permitted by the Treaties of the EU. There is no basis for the EU examining policy areas that are not set out in the Treaties. The reason why gender equality is probably the most developed is that it is the longest-standing policy competence dating back to the Treaty of Rome (1957). [3.02] It seems, therefore that the starting point for the development of Irish equality law (outside the Constitution, which we know is limited in its scope) lies with the Treaty of Rome. This included a single article on equality between men and women, Art 119 EEC,3 which dealt with equal pay. This article was drafted during an era when only France among the Member States at that time recognised the right of women workers to equal pay for equal work. The French considered that they would be at an economic disadvantage within the free market if the same obligation was not imposed on the other Member States.4

DEFRENNE AND DOUBLE AIM OF ART 157 TFEU [3.03] Article 119 in effect lay dormant for over a decade until the decision of the European Court of Justice (ECJ, now renamed the Court of Justice of the European Union (CJEU)) in the Defrenne cases.5 Here, Ms Defrenne, who worked as a flight attendant for the airline Sabena and who was paid less than her male colleagues who performed the same work tasks, complained that this violated her right to equal treatment on grounds of gender under Art 119 of the Treaty of Rome (now Art 157 1. 2. 3. 4. 5.

That is the nine grounds prohibited by the Employment Equality Act 1998, s 6(2). See Harvey, Guide to Equality and the Policies, Institutions and Programmes of the European Union (Equality Authority). Now TFEU, Art 157. Barnard, ‘The Economic Objectives of Article 119’ in O’Keeffe and Hervey (eds), Sex Equality in the European Union (Wiley, 1996). See Defrenne v Sabena (Case 80/70) [1971] ECR 445, Defrenne v Sabena (No 2) (Case C– 43/75) [1976] ECR 455 and Defrenne v Sabena (No 3) (Case 149/77) [1978] ECR 1365.

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[3.04]

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TFEU). The court recognised Art 119 as having a ‘double aim’:6 first, to avoid competitive disadvantage in intra-community competition; and second, as part of the: ‘social objectives of the Communities which is not merely an economic union but is at the same time intended, by common action, to ensure social progress and seek the constant improvement of the living and working conditions of their peoples.’7

[3.04] While the double aim of Art 119 was clearly set out in the Defrenne judgment, subsequent decisions stressed the need to prioritise the social aim over and above the economic aim.8 The somewhat ‘competing’ objectives nonetheless started a period of judicial activism in the area of gender equality. This period of activism on the behalf of the judiciary was at the same time met with the decision of the EU to enact three main pieces of equality legislation in the late 1970s.

THE EQUALITY DIRECTIVES [3.05] The first piece of legislation was a Directive on equal pay.9 The second dealt with equal treatment in other aspects of employment,10 such as access to employment, vocational training, promotions and dismissals. The third dealt with equal treatment between men and women in matters of social security.11 In Ireland, these Directives were in turn met with the Anti-Discrimination (Pay) Act 1974 and the Employment Equality Act 1977. The former entitled women to be paid the same rate of remuneration as men employed in the same workplace; the latter prohibited discrimination in relation to access to employment and conditions of employment, other than remuneration or any condition relating to an occupational pension scheme. [3.06] Despite this flurry of activity in the 1970s both at EU and domestic level, the 1980s showed a marked reluctance by policy makers to push the Community’s social and equality agenda. This in part may be explained by the requirement for unanimity in voting in the Council of Ministers, which allowed a single State to veto legislation. During the 1980s, only two of several proposed Equality Directives were adopted, and 6. 7. 8. 9.

10.

11.

Defrenne v Sabena (No 2) (Case C–43/75) [1976] ECR 455 at 471. Defrenne v Sabena (No 2) (Case C–43/75) [1976] ECR 455 at 471–472. See the decisions of Deutsche Post v Sievers (Case C–271/97) [2000] ECR I–929 and Deutsche Telecom v Schroder (Case C–50/96) [2000] ECR I–743. Council Directive 75/117/EEC ([1975] OJ L45/198) on the approximation on the laws of the Member States relating to the application of the principle of equal pay for men and women. Council Directive 76/207/EEC ([1976] OJ L39/40) 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. Council Directive 79/7/EEC ([1979] OJL6/24) on the progressive implementation of the principle of equal treatment for men and women in matters of social security.

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[3.07]

both were of minor importance: one on equality in occupational social security12 and the other on equality between self-employed men and women.13 [3.07] Much of this changed in the 1990s, mostly brought about by the alteration in the voting system to allow qualified-majority voting in some areas. With this, the equality agenda saw a new lease of life and several important pieces of legislation were passed. The first of these was a Directive to deal with the rights of pregnant women, known as the Pregnant Workers Directive.14 This Directive was implemented in Ireland with the enactment of the Maternity Protection Act 1994. The second piece of legislation was the Working Time Directive, which had long been blocked by Ireland and the UK.15 The Organisation of Working Time Act 1997 implemented this Directive in Ireland. The third of these was a Directive dealing with parental leave,16 which was given legislative force in Ireland with the passing of the Parental Leave Act 1998. Next came a Directive on occupational social security, which amended the previous 1986 Directive.17 Under the Social Protocol,18 the Council adopted the Burden of Proof Directive in 1997.19 Importantly, this Directive included for the first time a legislative definition of indirect discrimination. The last of the 1990s Directives dealt with the issue of part-time workers and specifically prohibited discrimination between part-time and full-time workers in 12. 13.

14.

15. 16.

17.

18. 19.

Council Directive 86/378/EEC ([1986] OJ L225/40) on the implementation of the principle of equal treatment for men and women in occupational social security schemes. Council Directive 86/613/EEC ([1986] OJ L359/56) on the application of the principle of equal treatment between men and women engaged in an activity, including agriculture, in a self-employed capacity, and on the protection of self employed women during pregnancy and motherhood. Council Directive 92/85/EEC ([1992] OJ L38/1) on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers who have recently given birth or are breastfeeding. Council Directive 93/104/EC ([1993] OJ L307/18) concerning certain aspects of the organization of working time. Council Directive 96/34/EC ([1996] OJ L145/11) on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, eventually agreed to by the United Kingdom of Great Britain and Northern Ireland: Directive 96/34/EEC ([1997] OJ L10/24) on the framework agreement on parental leave concluded by UNICE, CEEP and ETUC. Council Directive 96/97/EC ([1997] OJ L14/13) amending Directive 86/378/EEC on the implementation of the principle of equal treatment for men and women in occupational social security schemes. The legal mechanism adopted to resolve the impasse reached over the social policy provisions of the Treaty of Maastricht. Council Directive 97/80/EC ([1998] OJ L14/6) on the burden of proof in cases of discrimination based on sex, eventually accepted by the United Kingdom in Council Directive 98/52/EC ([1998] OJ L205/66) on the extension of Directive 97/80/EC on the burden of proof in cases of discrimination based on sex to the United Kingdom of Great Britain and Northern Ireland.

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[3.08]

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certain circumstances.20 This was implemented in this jurisdiction by the passing of the Protection of Employees (Part-Time Work) Act 2001. Article 13 Directives [3.08] Perhaps the greatest push in this area came with the adoption of the two Art 13 Directives in 2000: the Race and Ethnicity Directive implemented the principle of equal treatment between persons irrespective of their racial or ethnic origin21; the Framework Employment Directive centres on the purpose of combating discrimination on the grounds of disability, sexual orientation, religion or belief and age in the workplace.22 These Directives are regarded as second-generation equality Directives. To that end, they built on previous Directives and addressed various gaps left by previous legislators. Further to these, a Directive amending the original Equal Treatment Directive23 was passed in 2002,24 and finally in 2006 a consolidated Directive on Equal Treatment was passed to amend previous Directives in this domain and to bring together in a single text the main provisions and certain developments arising out of the case law of the CJEU (the Recast Directive).25 The Recast Directive [3.09] With effect from 15 August 2009, the Recast Directive repealed, inter alia, Directives 75/117 (Equal Pay), 76/207 (Equal Treatment) and 97/80 (Burden of Proof). Prior to the Recast Directive, the emphasis had been on equal treatment between men and women. The Recast Directive moved beyond this to concentrate on ‘the implementation of the principle of equal opportunities and equal treatment of men and women’.26 The second recital to the Directive refers to equality between men and women as a fundamental principle of EU law under Art 2 of the TFEU, Art 3 of the TEC27 and the case law of the CJEU. It goes on to note: ‘those Treaty provisions proclaim equality between men and women as a “task” and “aim” of the Community and impose a positive obligation to promote it in all its activities.’ 20. 21. 22. 23. 24.

25.

26. 27.

Council Directive 97/81/EC ([1998] OJ L14/9) concerning the Framework Agreement on part-time work concluded by UNICE, CEEP, and ETUC. Council Directive 2000/43/EC ([2000] OJ L180/22) implementing the principle of Equal Treatment between persons irrespective of racial or ethnic origin. Council Directive 2000/78/EC ([2000] OJ L303/16) establishing a general framework for Equal Treatment in employment and occupation. Council Directive 76/207/EEC. Council Directive 2002/73/EC ([2002] OJ L269/15) amending Council 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. Council Directive 2006/54/EC ([2006] OJ l 204) on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (Recast). See title to the Directive. Now TFEU, Art 8.

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[3.11]

Thus the Recast Directive goes beyond the basic concept of equality between men and women and encompasses a much broader concept of equality – that is to say, equality of equal opportunity – a concept which recognises the disadvantages that many women face in the workplace.28 Mainstreaming [3.10] The Recast Directive builds on the concept of ‘mainstreaming’, which is a European effort to force governments and decision-makers to go further than implementing traditional anti-discrimination laws. Mainstreaming requires governments to build policies of equality and non-discrimination into the very foundation of their decision-making processes.29 It involves a proactive approach by governments. It is intended to be broad-based and not the preserve of a small minority with specialist knowledge. The purpose is to ensure that equality is not a periphery issue but that it becomes central to the day-to-day concerns of decision-makers. To effect this demands a degree of measurement and specificity and the establishment of a clear agenda between policy-makers and those most affected. It further requires links between governments and those less well-off, and in conjunction with impact assessments aids the democratic decision-making process in assisting and building on this process of the Recast Directive. This is evident from Recital 2, which, as stated above, goes beyond mere equal treatment to equal opportunity. Equally, Recital 11 suggests that the Member States in collaboration with the Social Partners address the problem of the continuing gender-based wage differentials by means such as flexible working-time arrangements, and it includes a specific reference to ‘appropriate parental leave arrangements’, as well as affordable child-care facilities and care for dependent persons which could be taken up by either parent. [3.11] While recasting does not allow substantial amendment of EU law, it does allow the legislature the opportunity to consolidate various disparate Directives addressing gender inequality and to make minor amendments to clarify the law.30 This prohibition on changing the law is evident in that the Recast Directive initially provided for an amendment to overturn the decision in Allonby31 (which provided that to determine what work of equal value is, the pay must come from a single source so that the plaintiff cannot compare herself with work of equal value done in another workplace). The 28. 29. 30. 31.

See Burrows and Robinson, ‘An Assessment of the Recast of Community Equality Laws’ (2007) ELJ 186 at 197. For a general discussion on this, see Pollack and Hafer-Burton, ‘Mainstreaming Gender in the European Union’ Jean Monnet Working Paper 2/00. Burrows and Robinson, ‘An Assessment of the Recast of Community Equality Laws’ (2007) 13 ELJ 186. Allonby v Accrington and Rossendale College (Case C–256/01) [2004] ECR I–173.

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[3.12]

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legislature eventually dropped the amendment to allow the CJEU to develop the case law.32 [3.12] One of the most substantial impacts that the Recast Directive has had is in the consolidation of the provisions on equal pay and equal treatment into one Directive. The same definitions of direct and indirect discrimination apply to both forms of discrimination. There is little case law to suggest how this might develop in practice. However, some commentators have suggested that this might give rise to the courts adopting a less restrictive approach to the issue of equal pay.33 [3.13] In aligning the concepts of direct and indirect discrimination in the area of equal pay, the Recast Directive introduces the notion of hypothetical comparators in proving pay discrimination.34 This allows a woman who cannot point to a comparator internally in her organisation to pick one externally in the quest to prove that if she were employed in the same organisation doing work of equal value, she would be paid more.35 [3.14] While the Recast Directive does not cover maternity leave, it does strengthen the hand of women on their return from protective leave. Article 15 states, inter alia, that a woman on her return from maternity leave will be entitled to return to her job or to an equivalent post on terms and conditions that are no less favourable to her and to benefit from any improvement in working conditions to which she would have been entitled during her absence. [3.15] The transposition of the Recast Directive has come in for some considerable criticism by the Irish Country Report of the European Network of Legal Experts in the Field of Gender Equality.36 Specifically, it criticises the lack of real protection for women returning from maternity leave both in terms of their right to return and the protection afforded to them when they do return. (On the latter, other EU countries have specified periods of protection.) They also criticise the lack of proper compensation in Irish law. Finally, there is no express provision for prohibiting discrimination on the basis of gender re-assignment in Ireland.37 32. 33. 34. 35. 36. 37.

Shaw, Hunt and Wallace, Economic and Social Law of the European Union (Palgrave Macmillan, 2007) pp 372–373. For a greater elaboration on this point see Bolger, Bruton and Kimber, Employment Equality Law (Round Hall, 2012) pp 52–65. See McCarthy’s Ltd v Smith (Case C–129/79) [1980] ECR 1275. Burrows and Robinson, ‘An Assessment of the Recast of Community Equality Laws’ (2007) 13 ELJ 186 at 199. See also The European Network of Legal Experts in the Field of Gender Equality, the Transposition of the Recast Directive 2006/54/EC (EU Commission, 2009) 48–54. In July 2013, the Department of Social Protection finally published the draft Gender Recognition Bill, the passing of which would take Ireland out of the embarrassing position of being the only country in Europe that fails to have a method of recognising transgender people legally. Notwithstanding this, the Equality Tribunal in Hannon v First Direct Logistics Ltd [2011] ELR 215 accepted that the ‘gender ground’ protected transgender persons from discrimination.

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[3.19]

THE EUROPEAN CONVENTION ON HUMAN RIGHTS [3.16] The Charter of Fundamental Rights of the European Union enshrines certain political, social and economic rights for EU citizens and residents into EU law. It was drafted by the European Convention and was solemnly proclaimed on 7 December 2000 by the European Parliament, the Council of Ministers and the European Commission. Its legal status at that stage was uncertain, and it did not have full legal effect until the entry into force of the Treaty of Lisbon on 1 December 2009, after which it had the same legal value as the EU Treaties.38 Article 6 of the Treaty on the European Union (TEU) provides that the EU recognises the freedoms and principles set out in the Charter.39 [3.17] Parallel with the entry into force of the Charter by virtue of Art 6 of the TEU, the EU also recognises the fundamental rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and as they result from the constitutional traditions common to Member States as principles of EU law. It further declares that the EU shall accede to the ECHR, albeit in a manner that will not affect the EU’s competences as defined in the Treaties. [3.18] The European Convention on Human Rights Act 2003 was enacted to give effect to the European Convention on Human Rights. While Ireland was the tardiest Member State to implement the rights in the Convention through the 2003 Act, the courts are now obliged to interpret Irish laws in a way that gives effect to Ireland’s obligations under the ECHR.40 Organs of the State are obliged to act in compliance with the ECHR.41 [3.19] Section 2 of the 2003 Act requires that subject to the existing rules of statutory interpretation, the courts should apply both common law rules and statutory provisions so that they are compatible with the ECHR. If it is not possible to interpret a statutory provision and a rule of law of the ECHR in a compatible manner under s 2, and if no other legal remedy is available, s 5 of the Act grants to the courts the power to make a declaration that a statutory provision or common law rule is incompatible with the ECHR. Such a declaration does not render the law in question invalid;42 however, the Taoiseach is obliged to bring any such declaration to the attention of both the Dáil and Seanad Éireann. A litigant who has been granted a declaration of incompatibility may receive monetary compensation in accordance with the principles of just satisfaction under Art 41 of the ECHR, but the award is entirely within the discretion of the government.43 38. 39.

40.

41. 42. 43.

TEU, Art 6. The Charter was not the first attempt to place Human Rights at the core of EU law. All EU Member States are required to be signatories to the Council of Europe’s European Convention on Human Rights. It is wrong to say that the ECHR was incorporated into Irish law. It is rather the case that the rights are now part of Irish law by virtue of the 2003 Act. This was confirmed by McKechnie J in Foy v An t-Árd Chlaraitheoir & Ors [2007] IEHC 470 at para 93. ECHR Act 2003, s 3. ECHR Act 2003, s 5(2)(A). ECHR Act 2003, s 5.

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[3.20]

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[3.20] Section 3(1) of the 2003 Act provides that every organ of the State must perform its functions in a manner compatible with the State’s obligations and conventions. This is very different to s 2, which deals with how the State must interpret its laws in a manner that is compatible with the ECHR. However, s 3 imposes an obligation on ‘every organ of the State’ (which would include ministers and state bodies) to ‘perform its functions’ in a manner compatible with the ECHR. Section 3(2) provides that a person who has suffered an injury, loss or damage as a result of the contravention of this section may, if no other remedy in damages is available, institute proceedings to recover damages in respect of the contravention in the Circuit or High Court. The 2003 Act will generate a declaration of incompatibility only where no other remedy exists.44 [3.21] Carmody v Minister for Justice,45 a decision of the High Court, was the first major case to deal with the new 2003 Act and its interaction with the Constitution. Mr Carmody was a farmer who had been charged with a number of offences under the Diseases of Animals Act 1966.46 He challenged the State’s failure to provide him with free legal aid, claiming that it was contrary to both the Constitution of Ireland and the ECHR. Laffoy J applied the rule of avoidance and concluded that in the absence of any express statement in the Act to the contrary, the court should rule on the ECHR issue before examining its constitutionality. Mr Carmody lost on both counts. [3.22] The interaction therefore between the 2003 Act and the Constitution is a difficult one. Some commentators have been very critical of the decision in Carmody.47 What is clear is that a finding of incompatibility, as per s 5, does not affect the constitutionality of the legislation.

DEFINITION OF DISCRIMINATION [3.23] Discrimination is generally the unjust or prejudicial treatment of some one person over another based on the grounds of sex, race, disability, etc. It can be either direct or indirect. Direct discrimination [3.24] Direct discrimination is a fairly easy concept to grasp. Notwithstanding this, it took our legislators several attempts to define it fully. Section 6 of the Employment Equality Act 199848 sets out the nine discriminatory grounds prohibited by the Act. This 44. 45. 46. 47. 48.

See Foy v An t-Árd Chlaraitheoir. See also Donegan v Dublin City Council [2008] IEHC 288 and Dublin City Council v Gallagher [2008] IEHC 353. Carmody v Minister for Justice [2005] IEHC 10. Diseases of Animals Act 1966. See Hogan, ‘Value of Declarations of Incompatibility and the Rule of Avoidance’ 28 DULJ p 408. As amended by the Equality Act 2004, s 4.

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[3.27]

is a substantial change from the position under the 1977 Act, which prohibited discrimination only on the basis of gender and marital status. The definitions of discrimination as set out in the Recast Directive,49 the Race and Ethnicity Directive50 and the General Framework Directive51 are broadly the same, defining as they do direct discrimination as occurring where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on the grounds outlined in the various Directives. [3.25] In the Defrenne II case52 the ECJ held that ‘direct and overt discrimination’ for gender purposes could be identified by simply applying the criteria laid down in Art 141 EC (ex Art 119) itself. In the Dekker case,53 the court held that a refusal of employment on the grounds of pregnancy could be regarded as direct discrimination, as the fundamental reason for the refusal of employment applied exclusively to one sex. Unlike indirect discrimination, direct discrimination cannot be justified under any circumstances, with the exception of age-based discriminatory treatment.54 Indirect discrimination [3.26] In contrast to direct discrimination, indirect discrimination is a much more difficult concept to grasp. It results from an action or set of actions that on the surface may appear neutral but in practice disadvantage or have a disproportionate impact on a particular group. [3.27] The origin of the concept can be found in the US case of Griggs v Duke Power Company,55 where the United States Supreme Court held that an employer’s requirement that job applicants hold a high school diploma or pass an intelligence test was unlawfully discriminatory, because it operated to exclude black applicants at a higher rate than white applicants and was not substantially related to the applicants’ ability to perform the job. This decision formed the basis for the ‘disparate impact’ jurisprudence in the US, which ultimately resulted in the passing of the Civil Rights Act 1991. Importantly, while the Act specifically set out to ‘clarify provisions regarding disparate 49.

50. 51. 52. 53. 54.

55.

Directive 2006/54/EC of the European Parliament and of the Council on the implementation of the principle of equal opportunities and equal treatment of men and women in matter of employment and occupation (Recast). Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and education. Defrenne v Sabena (No 2) (Case C–43/75) [1976] ECR 455. Dekker v Stichting Vormingscentrum voor Jonge Volwassen (Case C–177/88) [1990] ECR I–3941. Article 6(1) of the Framework Directive, Directive 2000/78, allows for direct discrimination on grounds of age where such treatment is objectively justified. There are therefore very limited circumstances in which direct discrimination can be objectively justified. Griggs v Duke Power Company 401 US 424 (1971).

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[3.28]

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impact actions’, it further went on to detail where indirect discrimination could be justified in the workplace.56 The US may have led the way initially, but the EU has since gone on to develop the concept further. [3.28] The development of the concept in the EU (similar to the US) has also been judicially driven. The Equal Treatment Directive of 197657 did not contain any express provision of what constituted unlawful indirect discrimination, although Art 2 did seek to prohibit indirect discrimination.58 Thus early judicial decisions sought to explain the difference between direct and indirect discrimination. As far back as 1976 in the Defrenne (No 2)59 case, the ECJ dealt with the issue, explaining the difference between direct and indirect discrimination: ‘... direct and overt discrimination may be identified solely with the aid of criteria based on equal work and equal pay referred to by the Article in question and secondly indirect and disguised discrimination which can only be identified by reference to more explicit implementing provisions of a community or national character …’

[3.29] Further judicial clarification came in 1986 in the case of Bilka-Kaufhaus,60 when the ECJ sought to establish a basis for indirect discrimination, which, with some legislative intervention, has remained largely intact to this day. This definition deals solely with the effect of the indirect discrimination, thus moving away from the earlier decision of the court in Jenkins v Kingsgate,61 which considered the intention of the measure. [3.30] Following these early judicial and legislative developments, the Recast Directive62 2006 defined indirect discrimination thus: ‘Where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage and the means of achieving that aim are appropriate and necessary.’63

This is similar to the provisions in the Race Directive and the Framework Directive. It is instructive and beneficial in light of the absence of any definitions in the earlier 56. 57.

58.

59. 60. 61. 62. 63.

Civil Rights Act 1964, s 703(a), as amended by the Civil Rights Act 1991, s 105. Council 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. Council Directive 76/207/EEC, Art 2.1: ‘For the purposes of the following provisions, the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status.’ Defrenne v Sabena (No 2) (Case C–43/75) [1976] ECR 455. Bilka-Kaufhaus GmbH v Weber von Hartz (Case C–170/84) [1986] ECR 1607. Jenkins v Kingsgate (Clothing Productions) Ltd (Case 96/80) [1981] ECR 911. Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (Recast). Recast Directive, Art 2(1)(b).

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[3.32]

Directive. The focus is therefore solely on the effect of the rule or practice. To some extent, it is similar to a strict liability offence. The intentions of the parties do not matter. Justification for indirect discrimination [3.31] The Equality Directives each individually allow indirect discrimination once it is objectively justified. Decisions by the CJEU have, however, demonstrated divergent approaches to the subject. The seminal analysis of the matter was provided by the court in Bilka-Kaufhaus.64 In that case the plaintiff was a part-time worker and was refused pension payments under her contract with her employer. Notwithstanding the fact that Ms von Hartz had a German State pension, she claimed that this was sex discrimination under TEEC, Art 119.65 She alleged that as more women worked part-time as opposed to full-time, they were at a disadvantage. Bilka-Kaufhaus argued that it was justified in excluding part-time workers because of the higher administrative costs for awarding pensions to part-time workers, given the limited extent of work they performed. They also claimed that 81.3 per cent of all occupational pensions were paid to women, even though only 72 per cent of employees were women, so the scheme was unrelated to sex discrimination. The ECJ considered, first, whether pension payments were perceived as pay and held that they were. They then considered whether there was potentially indirect discrimination and held that there could be, but that it was up to the individual Member State Court to determine the facts. There could be objective justification if the employer could demonstrate that the disparate treatment was based on a ‘real need’ of the business. In so determining, the court laid down a three-tier test to be fulfilled to rationalise objective justification: • • •

whether the measures chosen by the employer corresponded to a real need on the part of the undertaking; whether the measures were appropriate with a view to achieving the objectives pursued; and were necessary to this end.

Given that the court expressly referred to a ‘real need,’ any justification would require objective criteria, that is to say that the individual beliefs or subjective thoughts of the employer would not be deemed sufficient grounds for discrimination. [3.32] Notwithstanding this, a less exacting standard of justification was allowed when national legislation (as opposed to the actions of individual employers) was at issue. Where this arises, the court seems to require only that the measure reflect a legitimate social aim of the Member State and that it is appropriate to achieve that aim.66 Contrary to its decision in Bilka-Kaufhaus, the CJEU upheld the justification argued by the 64. 65. 66.

Bilka-Kaufhaus GmbH v Weber von Hartz (Case C–170/84) [1986] ECR 1607. Now TFEU, Art 157. Megner (Case C– 444/93) [1995] ECR I–4741. Initially the court seemed to apply the BilkaKaufhaus test to national social-security legislation; see Rinner-Kühn v FWW Spezial Gebaudereiningung GmbH (Case C–171/88) [1989] ECR 2743.

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German government that the national legislature was ‘reasonably entitled’ to consider that the legislation was necessary to achieve that aim. This line of reasoning has been developed further in the Seymour Smith case.67 Here the court stated: ‘If a considerably smaller percentage of women than men is capable of fulfilling (the requirement of two years’ employment imposed by the disputed rule) it is for the Member State as the author of the allegedly discriminatory rule, to show that the said rule reflects a legitimate aim of its social policy, that that aim is unrelated to any discrimination based on sex and that it could reasonably consider that the means chosen were suitable for retaining that aim.’

[3.33] The court continued along this thread in the case of Nikloudi v Organismos Tilepikininion Ellados AE.68 This involved a similar issue to that in Seymour Smith, ie a minimum requirement of two years’ employment to be appointed to an established position. Here the court held: ‘It is for the national court, which alone has jurisdiction to assess the facts and to interpret national legislation to determine whether such a justification exists. It is necessary in that regard to ascertain in light of all the relevant factors taking into account the possibility of achieving by other means the aims pursued by the provisions in question, whether those aims appear to be unrelated to any discrimination on grounds of sex and whether those provisions as a means to the achievement of certain aims are capable of advancing those aims.’

[3.34] All this has left some authors arguing that there are in effect three separate tests: 1.

the strict Bilka test;

2.

the lesser Seymour Smith test for indirectly discriminatory employment legislation; and

3.

the very weak test for social security as set out in Nolte.69

Discrimination by association [3.35] Discrimination by association was first introduced into Irish discrimination law in the Equal Status Act 2000. This Act deals with discrimination in relation to access to goods and services. In one of the first cases to be heard under this legislation, that of Feighery v MacMathunas Pub,70 a woman who was not a member of the Traveller community was asked to leave a pub after she protested that Travellers whom she knew were asked to leave the premises, having been refused a second round of drinks. She was successful in her complaint of discrimination arising from her association with members of the Traveller community. The case demonstrates that the relationship with another 67. 68. 69. 70.

R v Secretary of State for Employment Ex p Seymour-Smith (Case C–167/97) [1999] ECR I– 623. Nikloudi v Organismos Tilepikininion Ellados AE (Case C–196/02). Nolte (Case C–317/93) [1995] ECR I–4625. See Barnard and Hepple, ‘Indirect Discrimination: Interpreting Seymour-Smith’ (1999) 58 CLJ 399. Feighery v MacMathunas Pub, Nenagh DEC–S2003–051.

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person does not have to be close for the complainant to meet the test of ‘associated with’ in the context of equal status legislation. [3.36] In 2004, when the Irish employment equality legislation was updated to comply with the newly established Racial Equality Directive71 and the General Framework Directive,72 discrimination by association was introduced into the employment equality arena in Ireland for the first time. To bring this into effect, the definition of discrimination by association in the equal status legislation was simply transposed into the employment equality legislation. Section 4 of the Equality Act 2004 defines discrimination by association as occurring where: ‘a person is associated with another person and is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and similar treatment of that other person on any of the discriminatory grounds would constitute discrimination.’

[3.37] It should be noted from the above that the legislation does not provide any detail on what constitutes discrimination by association. It merely states that one must ‘be associated’ with another person, nor does it provide any guide as to the proximity of the association. The advocate general in the case of Coleman v Attridge Law73 did use the terminology ‘closely associated’ and ‘associated’ interchangeably in his opinion. Furthermore, in its conclusion on the case, the ECJ itself specifically referred to the treatment of an employee ‘related to the disability of his child’. Clearly, this could enable employers to argue that the association must be close to be covered by the definition in an employment context. Whether these comments can be used to limit how close the association must be in an employment context remains a matter of debate. [3.38] The ECJ in the case of Coleman v Attridge Law held that an employee who is not disabled can still allege direct discrimination on grounds of disability due to his or her association with a person who is disabled. The background to this was that Ms Coleman had a disabled son with bronchomalacia and congenital laryngomalacia. She worked as a secretary for a small London law firm called Attridge Law. They accused her of using the ‘f ... child’ as a way to manipulate requests for working time. Ms Coleman claimed unfair dismissal as a result of her treatment (under the UK Employment Rights Act 1996, s 94). However, under the Disability Discrimination Act 1995, s 4 states that one may consider oneself discriminated against (leading to unfair dismissal compensation) only if the treatment is ‘against a disabled person’. Because Ms Coleman was not herself disabled, the question was whether the 1995 Act had properly implemented the European Union Directive 2000/78/EC on the matter. In its defence against the claim, Attridge Law argued that the 1995 Act could not be interpreted in line with the Directive, whatever it meant. The Employment Appeals Tribunal held that it was wrong to imply that the 1995 Act could not be interpreted in line with the Directive, but 71. 72. 73.

Directive 2000/43/EC. Directive 2000/78/EC. Coleman v Attridge Law (Case C–303/06) [2007] IRLR 88.

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reserved judgment and decided to refer the question to the ECJ as to what precisely the correct interpretation of the Directive should be. The advocate general generalised his statements for all the protected categories under the Framework Directive (religion, age, sexuality). He averred: ‘One way of undermining the dignity and autonomy of people who belong to a certain group is to target not them, but third persons who are closely associated with them and do not themselves belong to the group.’74

He went on to characterise the action against Ms Coleman as direct discrimination.75 Comparing typical discrimination to this, he said ‘[i]n the former case, we think that such conduct is wrong and must be prohibited; the latter is exactly the same in every material aspect’.76 He further went on to state that Recital 6 (of the Framework Directive)77 emphasises ‘[t]he importance of combating every form of discrimination’.78 [3.39] The ECJ held that Ms Coleman should succeed in her suit against the law firm. It stated that it did not follow from the relevant provisions of Directive 2000/78/EC that the principle of equal treatment is limited to people who themselves have a disability within the meaning of the Directive: ‘On the contrary, the purpose of the Directive, as regards employment and occupation, is to combat all forms of discrimination on grounds of disability. The principle of equal treatment enshrined in the Directive in that area applies not to a particular category of person but by reference to the grounds mentioned in Article 1. That interpretation is supported by the wording of Article 13 EC, which constitutes the legal basis of Directive 2000/78, and which confers on the Community the competence to take appropriate action to combat discrimination based inter alia on disability.’

[3.40] The ECJ therefore concluded that the purpose of the Framework Directive, which deals with discrimination on grounds of age, sexual orientation, disability and religious belief is to combat all forms of discrimination on any of these four grounds (the other grounds of discrimination are covered by other Directives). Thus, the Directive is not limited to protecting people who are themselves disabled (or are not of a particular religious belief, sexual orientation or age); discrimination is a broader concept based on the four ‘grounds’ listed, rather than on an employee being a member of one of the four ‘groups’ covered by the Directive. [3.41] If the opposite interpretation was given to the legislation, in that it applied only to those actually suffering from a disability, it would be limited in its scope and prevent it from being effective, thereby in turn reducing the protection it was intended to 74. 75. 76. 77. 78.

Coleman v Attridge Law (Case C–303/06) [2007] IRLR 88 at para 12. Coleman v Attridge Law (Case C–303/06) [2007] IRLR 88 at para 20. Coleman v Attridge Law (Case C–303/06) [2007] IRLR 88 at para 22. Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. Coleman v Attridge Law (Case C–303/06) [2007] IRLR 88 at para 24.

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guarantee. Notwithstanding this welcome interpretation, the fact remains that there are still considerable hurdles to be crossed by complainants. In this regard, the burden of proof rests with complainants to establish facts from which it may be presumed that there has been direct discrimination on grounds of disability contrary to the Directive. Only after this has been established does the burden of proof shift to the employer, who must prove that there has been no breach of that principle. Harassment by association [3.42] The Coleman case also dealt with harassment by association. For the same reasons as those set out above, the ECJ concluded that the Directive must be interpreted as not being limited to the prohibition of harassment of people who are themselves disabled. If the unwanted conduct amounting to harassment suffered by an employee who is not himself or herself disabled is related to the disability of his or her child, whose care is provided primarily by that employee, such conduct is contrary to the Directive. Referring to an employee as ‘lazy’ when she sought time off to take care of her son or as using her ‘f ... child’ to manipulate her working conditions are likely to be deemed to be harassment by their own virtue, if it is ultimately proven that such comments were in fact made to Ms Coleman. [3.43] However, there is a significant problem with the issue of sexual harassment and harassment by association, in that the definitions of neither ‘sexual harassment’ nor ‘harassment’ in the legislation make any specific reference to sexual harassment or harassment by association. Nor does the 2012 Code of Practice on Sexual Harassment and Harassment at Work79 make any reference to sexual harassment or harassment by association. The 2012 code missed an opportunity to correct the lacuna in the legislation and the previous code of practice.80 However, the examples of harassing behaviour in the 2012 code all relate to the employee being subjected to certain behaviour, with the clear implication that the sexual harassment or harassment relates to the characteristic of the employee rather than the characteristic of the person with whom the employee is associated. Permitted discrimination [3.44] Whereas direct discrimination cannot be justified under any circumstance, indirect discrimination may be, but only if it is objectively justified. Permitted discrimination is an entirely different concept. This is where there is unequal treatment on the prohibited ground but it is actually permitted by law. The Equality Directives each contain provisions to permit what would otherwise be unlawful acts. 79. 80.

The Employment Equality Act 1988 (Code of Practice) (Harassment) Order 2012 (SI 208/ 2012). The Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002 (SI 208/ 2012).

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Article 4 of the Race and Ethnicity Directive81 provides: ‘Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to racial or ethnic origin shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.’

[3.45] In a similar vein, Art 4 of the Framework Directive82 provides: ‘Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 183 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.’

[3.46] Lastly, Art 14(2) of the Recast Directive84 provides: ‘Member States may provide, as regards access to employment including the training leading thereto, that a difference of treatment which is based on a characteristic related to sex shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that its objective is legitimate and the requirement is proportionate.’

Defence mechanism [3.47] There are a number of points worth noting from the above. First, it is evident from the wording that the Directives merely permit discrimination in some instances rather than requiring Member States to take positive action to protect various groups. It is therefore a defence mechanism. Proportionality [3.48] Second, the permitted discrimination is very narrow in scope, all of the Directives stating as they do that ‘The objective is legitimate and that the requirement is 81. 82. 83. 84.

Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. Council Directive 2000/78/EC, Art 1 prohibits discrimination on the grounds of religion, disability, age and sexual orientation. Directive 2006/54/EC of the European Parliament and of the Council on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (Recast).

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[3.50]

proportionate.’ This element of proportionality is in marked contrast to the objective and justifiable test of indirect discrimination. The legal concept of proportionality is recognised as one of the general principles of EU law by the ECJ (now the CJEU) since the 1950s.85 It was first recognised in Federation Charbonniere de Belgique v High Authority86 and in International Handelsgesellschaft v Einfuhr-und Vorratsstelle Getreide,87 where the advocate general provided an early formulation of the general principle of proportionality ‘[t]he individual should not have his freedom of action limited beyond the degree necessary in the public interest’. [3.49] The general concept of proportionality has since been further developed, notably in R v Minister of Agriculture, Fisheries and Food Ex p Fedesa.88 In its ruling, the CJEU held that by virtue of the general principle of proportionality, the lawfulness of the Directive depended on whether it was appropriate and necessary to achieve the objectives legitimately pursued by the law in question. When there is a choice between several appropriate measures, the least onerous must be adopted, and any disadvantage caused must not be disproportionate to the aims pursued. Professor de Búrca89 has argued that the general principle in EU law of proportionality entails a three-part test: 1.

is the measure suitable to achieve a legitimate aim?

2.

is the measure necessary to achieve that aim, or are less restrictive means available?

3.

does the measure have an excessive effect on the applicant’s interests?

Strict interpretation [3.50] The demand that the permitted discrimination be proportionate implies that if one seeks to rely on the derogation, it will come under particular scrutiny. This was the case in Johnston v Chief Constable of the RUC.90 The Chief Constable took a decision not to renew the fixed-term contract of full-time female reservists in the RUC, including Ms Johnston, on the basis that at that time female officers were not allowed to carry arms and the only duties that were available were general police duties that required the use of a firearm. Ms Johnston became a part-time reserve officer but at a proportionately lower salary than she had been receiving as a full-time reservist. She claimed before an industrial tribunal that she had been unlawfully discriminated against. 85. 86. 87. 88. 89. 90.

See Chalmers, European Union Law: Text and Materials (Cambridge University Press, 2006) p 448. Federation Charbonniere de Belgique v High Authority (Case C–8/55) [1954] ECR 245. International Handelsgesellschaft v Einfuhr-und Vorratsstelle Getreide (Case 11/70) [1970] ECR 1125. R v Minister of Agriculture, Fisheries and Food ex p Fedesa (Case C–331/88) [1990] ECR I–4023. De Burca, ‘Subsidiarity and Proportionality as General Principles of Law’ in Nerglius & Bernitz (eds), The General Principles of EC Law, (2000, Kluwer Law International). Johnston v Chief Constable of the RUC (Case C–222/84) [1986] ECR 1651.

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The CJEU held it was up to the industrial tribunal to determine whether Art 2(2)91 (now Art 14) applied ‘having regard to the specific duties which [Ms Johnston] is required to carry out.’ Referring to Art 2(2) of the Directive, the ECJ remarked: ‘It should be observed that that provision, being a derogation from an individual right laid down in the directive must be interpreted strictly. However, looking at the context it cannot be excluded that there would be more risks if policewomen carried firearms. So that may be a determining factor, and if so the member state can place a restriction, which needs periodic review under art 9(2). There must also be proportionality so derogations remain within the limits of what is appropriate and necessary for achieving the aim in view and requires the principle of equal treatment.’

The main areas in which permitted discrimination is found are those involving a genuine occupational requirement, age-based discriminatory treatment, measures for the protection of women, and positive action. Occupational requirements [3.51] The three Directives (the Race and Ethnicity Directive, the Framework Directive and the Recast Directive) all permit what would otherwise be unlawful discrimination once it ‘constitutes a genuine and determining occupational requirement,’ and ‘provided that its objective is legitimate and the requirement is proportionate.’ However, the Recast Directive permits such discrimination in only relation to access to employment. In summary, therefore, the Race and Ethnicity Directive permits discrimination based on a genuine occupational requirement in relation to race, and the General Framework Directive allows it in relation to religion, disability, sexual orientation and age, but the Recast Directive permits it solely in relation to access to employment, including the training thereto. [3.52] As a result of the more narrow application of the Framework Directive (limited as it is to access to employment and training), many of the cases have centred on the restriction placed on women in joining the armed forces. In Johnston v Chief Constable of the RUC,92 the ECJ ultimately accepted the view of the RUC that there was no or little public support for women to carry firearms and that by letting this occur, female employees would become a frequent assassination target. It is debatable whether the court would come to the same conclusion today. The decision has come in for significant criticism, reinforcing as it does the more traditional view of women as homemakers and incapable of fending for themselves.93 91.

92. 93.

That is Council Directive 76/207/EEC, Art 2(2) 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. Johnston v Chief Constable of the RUC (Case C–222/84) [1986] ECR 1651. Fredman, ‘European Community Discrimination Law: A Critique’ (1992) ILJ 119–134.

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[3.55]

[3.53] This rather limited line of thinking was followed by the ECJ in Sirdar v Army Board,94 where the Royal Marines had a policy of excluding women from service: ‘[O]n the ground that their presence is incompatible with the requirement of “interoperability”’, that is to say, the need for every Marine, irrespective of his specialisation, to be capable of fighting in a commando unit.’

Mrs Sirdar had been a member of the army since 1983. In 1990 she became a chef, but was informed in February 1994 that she would be made redundant with effect from February 1995. Mrs Sirdar received a transfer offer to the Royal Marines in July 1994, subject to her successfully completing a commando-training course. However, once the authorities realised that Mrs Sirdar was a woman, they retracted the transfer offer. Mrs Sirdar was consequently made redundant, and she brought proceedings before an industrial tribunal, arguing that she had been discriminated against on the grounds of sex. The tribunal stayed proceedings and decided to request a preliminary ruling from the ECJ. The Royal Marines argued that the discrimination was justified on the basis that male soldiers might be more inclined to protect their female colleagues and that women soldiers may not be suitable for armed to armed combat. The ECJ, in upholding the position of the Royal Marines, established: ‘The exclusion of women from service in special combat units such as the Royal Marines may be justified under Article 2(2) of Council Directive 76/207/EEC of 9 February 1976 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, by reason of the nature of the activities in question and the context in which they are carried out.’

[3.54] The issue at stake in the Sirdar case concerned the exclusion of Mrs Sirdar from a certain specialty, rather than from the armed forces in general. However, in the case of Kreil (an electronic technician), the ECJ first ruled that national provisions did not override EU law.95 In so finding, it also determined that Germany was required to give women access to further classifications and trades within the German defence forces, the Bundeswehr. [3.55] Following this, in the Dory case, a German national at an age where he was liable for compulsory military service lodged an application for exemption from conscription. Relying primarily on the ECJ judgment in Kreil, he argued that the Wehrpflichtgesetz (law on compulsory military service) violated EU law, in particular the Equal Treatment Directive. He claimed that, following Kreil, there were no longer any objective reasons for excluding women from compulsory military service on gender-related grounds. After his application had been rejected by the district recruiting office and the Wehrbereichsverwaltung (military area administration), Mr Dory appealed it to the Verwaltungsgericht (Administrative Court) of Stuttgart, which, according to Art 234 of 94. 95.

Sirdar v Army Board (Case C–273/97) [1999] ECR I–7403. Kreil v Germany (Case C–285/98) [2000] ECR I–69. German constitutional law stipulated that women could join only the hospital service and military musical service of the armed forces; therefore, there was an initial point to be considered as to the supremacy of EU law. Because of this decision, women have served in the armed forces of Germany since 2001.

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the EC Treaty, requested a preliminary ruling from the ECJ on whether community law, and in particular the Equal Treatment Directive, precluded compulsory military service for men only. Referring to the judgment of the ECJ in the case of Schnorbus v Land Hessen,96 the Administrative Court of Stuttgart pointed out, inter alia, that compulsory military service necessarily results in men suffering delayed access to employment and vocational training. In its judgment the ECJ reached the same conclusion as Advocate-General StixHackl ‘Community law does not preclude compulsory military service being reserved to men, albeit with different and less extensive reasoning’.97 Referring to its jurisprudence in the cases of Sirdar v Army Board98 and Kreil v Germany,99 the ECJ then reiterated that the Equal Treatment Directive is applicable to access to posts in the armed forces and that it is for the ECJ to verify whether the measures taken by the national authorities, in the exercise of their recognised discretion, did in fact have the purpose of guaranteeing public security and whether they were necessary and appropriate to achieve that aim. Age-based discriminatory treatment [3.56] A not too dissimilar (although perhaps broader) approach was adopted regarding permitted age-based discriminatory treatment in Petersen v Berufungsausschuss für Zähn für den Bezirk Westfalen-Lippe100 and in Wolf v Stadt Frankfurt am Main.101 In the latter case, Mr Wolf applied for a post in the Frankfurt fire service. However, he was told that his application would not be considered, as the maximum recruitment age for such posts – which involved physically demanding tasks such as fighting fires and rescuing people – was 30 years of age. Mr Wolf brought proceedings before the German courts on the basis that the maximum recruitment age was discriminatory. The court referred the case to the ECJ. The ECJ held that the maximum recruitment age of 30 was not contrary to the Directive, as it was a genuine occupational requirement within Art 4(1) of the Directive. [3.57] In Petersen,102 Ms Petersen, who practiced as a panel dentist for the German National Health Service, was informed that her authorisation to provide panel care 96.

Schnorbus v Land Hessen (Case C–79/99) [2000] ECR I–1997. In this case, the CJEU decided that the Equal Treatment Directive does not preclude national provisions governing the date of admission to the practical legal training which is a necessary prerequisite of access to employment in the civil service, in so far as such provisions are justified by objective reasons and prompted solely by a desire to counter-balance to some extent the delay resulting from the completion of compulsory military or civilian service. 97. Dory v Germany (Case C–186/01) judgment of 11 March 2003, Rec 42 . 98. Sirdar v Army Board (Case C–273/97) [1999] ECR I–7403 at 142. 99. Kreil v Germany (Case C–285/98) [2000] ECR I–69, Rec 25. 100. Petersen v Berufungsausschuss für Zähnärzte für den Bezirk Westfalen-Lippe (Case C–341/ 08). 101. Wolf v Stadt Frankfurt am Main (Case C–229/08). 102. Petersen v Berufungsausschuss für Zähnärzte für den Bezirk Westfalen-Lippe (Case C–341/ 08).

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[3.59]

would expire once she reached the age of 68. German law provided that admission to practice as a panel dentist expired at the age of 68. However, outside this panel system, dentists could practise privately without any age restriction. Ms Petersen brought a claim in the German courts for age discrimination. Consequently, the German courts sought guidance from the ECJ as to whether the Directive permitted upholding a national law that sets a maximum age for practicing as a panel dentist in order to protect patients’ health under a statutory health-insurance scheme (on the assumption, based on ‘general experience’, that after this age there would be a decline in performance). The ECJ held that the protection of patients from declining performance was a legitimate aim that might be considered necessary for the protection of health. However, the fact that panel dentists could practise privately outside the panel system after the age of 68 was inconsistent with that aim and undermined the prospect of its being consistently and systematically achieved. The ECJ then identified a further aim, that of ensuring the financial stability of the system, which could be considered necessary for the protection of health. This aim might be justified, as it provided a means of limiting the pool of dentists employed within the national health system. [3.58] In both cases, the ECJ has accepted that age-related decline in performance is capable of justifying directly age-discriminatory rules. While in Wolf (re the fire service) the German government produced substantial evidence to prove this point, the same cannot be said in Petersen (re dentists), where the argument for age-related decline in performance was made on an assumption based on ‘general experience’. Although the ECJ did not accept that the age limit could be justified (because it did not apply uniformly between the public and private sectors), it is significant that the ECJ considered age-related decline to be a valid assumption when considering whether a potentially discriminatory age cut-off date is justified. This indicates that the ECJ is willing to accept a wide interpretation of the Directive in order to justify age-related discrimination. It would have been interesting, however, to see what the ECJ’s conclusions would have been had it examined further the link between age and the decline in performance, rather than just accepting this general assumption. There seems, therefore, on the surface of it, to be more latitude given to age-based discriminatory treatment than perhaps there is for gender-based discrimination, which has been interpreted narrowly. The protection of women [3.59] Most pregnancy/maternity discrimination cases have been brought under the Recast Directive 2006/54/EC (formerly the Equal Treatment Directive). The aim of the Recast Directive is to implement the principles of equal opportunities and equal treatment of men and women in matters of employment and occupation, equality between men and women being ‘a fundamental principle of Community law under the Treaty and the case law of the Court of Justice (CJEU).’ The preamble states: ‘It is clear from the case-law of the Court of Justice that unfavourable treatment of a woman related to pregnancy or maternity constitutes direct discrimination

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[3.60]

Equality Law in the Workplace on grounds of sex. Such treatment should therefore be expressly covered by this Directive.’

[3.60] In Land Brandenburg v Sass,103 the CJEU summarised the ambit of the Equal Treatment Directive (now Recast Directive) as follows: ‘A female worker is protected in her employment relationship against any unfavourable treatment on the ground that she is or has been on maternity leave. 
A woman who is treated unfavourably because of absence on maternity leave suffers discrimination on the ground of her pregnancy and of that leave. Such conduct constitutes discrimination on the grounds of sex within the meaning of Directive 76/207. Community law requires that taking such statutory protective leave should interrupt neither the employment relationship of the woman concerned nor the application of the rights derived from it and cannot lead to discrimination against that woman.’

[3.61] While the Directive is clear that unfavourable treatment constitutes direct discrimination, Art 28(1) of the Recast Directive goes further ‘[t]his Directive shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity’. At first glance, this would appear to provide more favourable treatment for women.104 However, the court seems to be incredibly inconsistent on this point. One of the first cases to be decided on this point was Hofmann v Barmer Ersatzkasse.105 Here Mr Hofmann argued that the optional maternity leave which followed a compulsory period of eight weeks, which the State granted to mothers only, while receiving an allowance from the State, was a violation of the principle of equal treatment. Mr Hofmann argued that the goal of the leave, which was to protect mothers against the ‘multiplicity of burdens’ imposed by motherhood and employment,106 could be achieved by making the leave available to fathers as well. The ECJ, in finding against Mr Hofmann, held that the measure fell within the scope of the pregnancy and maternity exception of Art 2(3) of the Equal Treatment Directive. The court held, in its now infamous statement: ‘The Directive is not designed to settle questions concerned with the organization of the family, or to alter the division of responsibility between parents.’107 103. Land Brandenburg v Sass (Case C–284/02). 104. Note that liberal feminists take the position that maternity should be subject to equal treatment and should not, in any circumstance, constitute a special protection or special entitlement, the fear being that any kind of differential treatment that the court allows will not only be based on gendered stereotypes but will also perpetuate and reinforce these stereotypes – see Ankarra Bar Review 2009 at 78. 105. Hofmann v Barmer Ersatzkasse (Case 184/83) [1984] ECR 03047. 106. Hofmann v Barmer Ersatzkasse (Case 184/83) [1984] ECR 03047 at para 11. 107. Hofmann v Barmer Ersatzkasse (Case 184/83) [1984] ECR 03047 at para 24.

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[3.64]

The Court found that in creating an exception for pregnancy and maternity, the Directive recognised the legitimacy of protecting women in two respects. First, it is legitimate to ensure the protection of a woman’s biological condition during pregnancy and thereafter until such time as her physiological and mental functions have returned to normal after childbirth. Second, it is legitimate to protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth, by preventing that relationship from being disturbed by the multiple burdens that would result from the simultaneous pursuit of employment. [3.62] Notwithstanding this, soon after the Hofmann case the ECJ delivered its judgment in Commission v France.108 Here the Commission brought proceedings against France for failing to adopt within the prescribed period all the measures necessary for the implementation of the Equal Treatment Directive. At issue was a law that allowed the application of collective agreements granting special rights to women that were already in force. The French government argued that as the special rights were intended to protect women and ensure their effective equality with men, they did not give rise to discriminatory working conditions. Among the special rights included were the extension of maternity leave; the shortening of working hours; the advancement of the retirement age; the ability to obtain leave when a child was ill; the granting of additional days of annual leave with respect to each child; and daily breaks for women working on keyboard equipment or employed as typists or switchboard operators.109 The court found that the contested provisions could not be justified by Art 2(3), as they included ‘protection of women in their capacity as older workers or parents – categories to which both men and women may equally belong’.110 [3.63] The decisions of Abdoulaye111 and Griesmar112 appear to shed some light onto the somewhat contradictory decisions in Hofmann and Commission v France, despite the fact that they concern equal pay. It would appear that the court, as in its decisions on pregnancy-related illness, permits different treatment during maternity leave (Hofmann and Abdoulaye) but insists on returning to the norm of similar treatment once the maternity leave ends (Commission v France and Griesmar). [3.64] It is hard to conclude what the court’s position is regarding provision of special treatment for pregnant women. It appears that the court has made a distinction between maternity – a biological difference that affects only women – and parenting – where men and women are in a similar situation – regardless of actual social reality. In the cases on 108. 109. 110. 111.

Commission v France (Case C–312/86) [1988] ECR 6315. Commission v France (Case C–312/86) [1988] ECR 6315 at para 8. Commission v France (Case C–312/86) [1988] ECR 6315 at para 14. Abdoulaye and Others v Regie nationale des usines Renault SA (Case C–218/98) [1999] ECR I–05723. 112. Griesmar v Ministre de l’Economie, des Finances et de l’Industrie (Case C–366/99) [2001] ECR I–09383

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pregnancy and pregnancy-related illness, women are likewise protected before maternity leave is terminated and afterwards are to be treated equally to men. Positive action [3.65] Gender equality is the most developed area of EU equality law. While positive action is not confined to gender, it has its origins there. It was first dealt with in the Gender Equal Treatment Directive, which provided at Art 2(4):113 ‘This Directive shall be without prejudice to measures to promote equal treatment opportunities for men and women and in particular by removing existing inequalities which affect women’s opportunities in the area referred to in Article 1(1) …’

This was replaced by Art 3 of the Recast Directive, which states: ‘Positive Action Member States may maintain or adopt measures within the meaning of Article 14(4) of the Treaty with a view to ensuring full equality in practice between men and women.’

[3.66] The Framework Directive (which covers sexual orientation, age, disability and religion) at Art 7(1) states: ‘Positive Action With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to any of the grounds referred to in Article 1.’

This is subject to the right of Member States to maintain and adopt provisions on the protection of the health and safety of workers.114 [3.67] The Race Directive has a similar provision at Art 5: ‘With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to racial or ethnic origin.’ 113. Council 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. 114. Council Directive 2000/78/EC on establishing a framework for equal treatment in employment and occupation on the grounds of religion or belief, disability, age and sexual orientation, Art 7(2).

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[3.71]

[3.68] The first Community measure to deal exclusively with positive action was the non-binding Recommendation 84/35/EEC on the promotion of positive action for women.115 This encouraged Member States to: ‘adopt a positive action policy designed to eliminate existing inequalities affecting women in working life and to promote a better balance between the sexes in employment.’

[3.69] The CJEU got its opportunity to consider the matter of positive action for the first time in the case of Commission v France,116 holding that several French measures that afforded special rights to women breached the Directive and in particular Art 2(3) (on pregnancy and maternity) and Art 2(4). In interpreting Art 2(4), the court stated: ‘specifically and exclusively designed to allow measures which, although discriminatory in appearance are in fact intended to eliminate or reduce actual instances of inequality which may exist in the reality of social life. Nothing in the papers of the case, however makes it possible to conclude that a generalised preservation of rights for women in collective agreements may correspond to the situation envisaged in that provision.’

[3.70] In the case of Kalanke v Freie Hansestadt Bremen,117 the court dealt a significant blow to equal treatment. Here Mr Kalanke and a female colleague were shortlisted for promotion to a management position in the city’s parks department. Both were equally qualified. The council’s rules gave automatic priority, if two candidates were equally qualified, to women in sectors where they were under-represented. It was accepted that women were under-represented in the particular sector involved. (That meant less than half in any pay bracket.) Mr Kalanke claimed discrimination under Directive 76/207/ EEC, art 2(1) and (4). [3.71] In its decision, the ECJ stated that the rule was contrary to Art 2(1). It went on to examine whether the rule was permissible under Art 2(4). It concluded that national rules that guaranteed women absolute and unconditional priority for appointment or for promotion went beyond promoting equal opportunities and overstepped the limits of the exception allowed for in Art 2(4). The decision attracted significant criticism,118 determining as it did that Mr Kalanke had suffered only in so far as it was his gender rather than some other criterion that disqualified him from the job. The decision to appoint or not to appoint him had to be taken on some other basis, given that he had tied 115. Council Recommendation of 13 December 1984 on the promotion of positive action for women ([1984] OJ L331/34). 116. Commission v France (Case C–312/86) [1988] ECR 6315. 117. Kalanke v Freie Hansestadt Bremen (Case C–450/93) [1995] ECR I–3051. 118. See Loenen and Veldman, ‘Preferential Treatment in the Labour Market after Kalanke: Some Comparative Perspectives’ (1996) IJCCLIR 43; Dieball and Schiek, ‘Vereinbarkeit einer sog. Quotenregelung mit dem Gemeinschaftsrecht,’ Informationsdienst Europaisches Arbeits-und Socialrecht 11/95, 183; Fenwick, ‘Perpetuating Inequality in the Name of Equal Treatment’ (1996) JSWFL 263.

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for the position, leading Loenen and Veldman to point out ‘[t]o insist on equal treatment in this case implies that flipping a coin is the desired decisional mechanism’.119 [3.72] The court did, however, refine and clarify its decision in Kalanke120 in the case of Marschall v Land Nordhein-Westfalen.121 The court held that it is possible to reconcile positive action with the principle of non-discrimination, taking into account the need to ‘counteract’ the prejudicial effect on female candidates of the attitudes and behaviour described above and thus reduce the actual instances of inequality that may exist in the real world.122 In that case the civil service law of the region provided that where: ‘there were fewer women than men in the particular higher grade post in the career bracket, women are to be given priority for promotion in the event of equal suitability, competence and professional performance, unless a reason specific to an individual (male) candidate tilts the balance in his favour.’

Mr Marschall applied for a promotion but failed on the basis that fewer women than men were employed in the relevant post for which he had applied and that an equally qualified woman was to be appointed to the position. The ECJ was asked to consider whether Directive 76/207123 allowed for positive discrimination. The court held in favour of the rule ‘[s]uch a rule since, it does not guarantee absolute and unconditional priority to women does not go beyond the limits of Article 2(4)’.124 While confirming that Kalanke was still good law, a softer quota, which did allow for individual consideration of the circumstances, would fall within Art 2(4). [3.73] These two cases have established what is now deemed to be a formula for considering the legality of positive action measures: ‘A national rule which, in a case where there are fewer women than men at the level of the relevant post in a sector of the public service and both female and male candidates for the post are equally qualified in terms of their suitability, competence and professional performance, requires that priority be given to the promotion of female candidates unless reasons specific to an individual male candidate tilt the balance in his favour is not precluded by Article 2(1) and (4) of Council Directive 76/207/EEC of 9 February 1976, on the implementation of the principle of equal treatment for men and women as regards access to 119. Loenen and Veldman, ‘Preferential Treatment in the Labour Market after Kalanke’ (1996) IJCCLIR 43 120. Kalanke v Freie Hansestadt Bremen (Case C–450/93) [1995] IRLR 660. 121. Marschall v Land Nordhein-Westfalen [1998] IRLR 39. 122. Marschall v Land Nordhein-Westfalen [1998] IRLR 39 at para 31. 123. Council Directive 76/207/EEC OJ L 039 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. 124. Council Directive 76/207/EEC, Art 2(4) provides: ‘This Directive shall be without prejudice to measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women’s opportunities in the areas referred to in Art 1(1)’.

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[3.76]

employment, vocational training and promotion, and working conditions, provided that: –

in each individual case the rule provides for male candidates who are equally as qualified as the female candidates a guarantee that the candidatures will be the subject of an objective assessment which will take account of all criteria specific to the candidates and will override the priority accorded to female candidates where one or more of those criteria tilts the balance in favour of the male candidate, and

–

such criteria are not such as to discriminate against the female candidates.’125

The key is it must not ‘automatically and unconditionally give priority’. This formula has found favour with the court in most of the decisions since Marschall.126 [3.74] After the passing of the Treaty of Amsterdam, Art 141127 now contains a provision allowing for positive action in certain circumstances. There seems therefore to be some relaxation of the strict rule adopted in Kalanke, (which still remains the law), ie that any strict unconditional preference for one sex over another is unlawful. [3.75] This relaxation is evident from the more recent case of Alvarez v Sesa Start Espana ETT SA.128 This case concerned a Spanish statute which provided that women employees were entitled to time off during the working day to breastfeed a child up to the age of nine months. They were allowed to replace this right by cutting half an hour off their working day or to accumulate it and roll it into whole days. Although originally introduced to facilitate breastfeeding, the time off was subsequently made available to both fathers and mothers to spend time with their child, but with the proviso that both had to be employed. In March 2005, Mr Alvarez asked his employer for the said leave, but was told he was not eligible as his wife was self-employed. He unsuccessfully challenged the decision in the Spanish courts, which found that fathers could claim the leave only if the mother had a right to breastfeeding leave, which was available only to employees. However, it asked the ECJ whether this was contrary to the Equal Treatment Directive. [3.76] The ECJ stated that as the breastfeeding leave allowed women to reduce their working day, it therefore affected ‘working conditions’ within the meaning of Art 5.129 The court noted that although fathers might need to reduce their daily working time to look after their child, they could not claim the leave even if they were employed. So, 125. Marschall v Land Nordrhein-Westfalen (Case C–409/95) [1997] ECR I–06363. 126. See Badeck (Case C–158/97) [2000] ECR I–1875, para 23; Lommers (Case C–476/99) [2002] ECR I–2891; Abrahamsson (Case C–407/98) [2000] ECR I–05539; Briheche v French Minister for Labour (Case C–391/03) [2004] ECR I–8807 (second chamber). 127. Formerly Art 119, now TFEU, Art 157. 128. Alvarez v Sesa Start Espana ETT SA (Case C–104/09) [2010] ECR I–08661. 129. Alvarez v Sesa Start Espana ETT SA (Case C–104/09) [2010] ECR I–08661 at para 21.

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being an employed parent was not enough for them to claim entitlement, whereas it was for women. As such, the Spanish legislation created a difference in treatment on the ground of sex between mothers and fathers who are both employed. The Court averred that the discrimination could not be justified on the basis that it had been introduced to protect women, because amendments to the legislation meant that it had become ‘detached from that purpose’130 and was now accorded to workers in their capacity as parents. Nor could it be justified on the ground that it promoted equal opportunities between men and women (for instance, by helping women to keep their jobs following the birth of a child). Instead, the court deemed that it was more: ‘liable to perpetuate a traditional distribution of the roles of men and women by keeping men in a role subsidiary to that of women in relation to the exercise of their parental duties.’131

This decision certainly appears to introduce a more enlightened approach than previously. In this case, the effect of denying the leave to Mr Alvarez would mean that his wife would have to limit her self-employed activity and ‘bear the burden resulting from the birth of her child alone, without the child’s father being able to ease that burden’, thus perpetuating the role of the woman as primary caregiver. It is hard to comprehend how such a provision would constitute an effective measure to reduce existing inequalities (per the decision in the Commission v France).132 Positive action summary [3.77] The basic approach to positive action in the EU can be summarised as follows: •

positive action may be justified only where it is shown that there is existing inequality, ie one sex is under-represented;

•

the positive action must be directed at rectifying that particular existing inequality and target the conditions giving rise to the inequality; see, for example, Alvarez v Sesa Street Espana ETT SA,133 Briheche;134

•

no automatic absolute preference may be given to one sex in regards to hiring or promotion; see, for example, Abrahamsson135 and Marschall.136

130. 131. 132. 133. 134. 135. 136.

Alvarez v Sesa Start Espana ETT SA (Case C–104/09) [2010] ECR I–08661 at para 28. Alvarez v Sesa Start Espana ETT SA (Case C–104/09) [2010] ECR I–08661 at para 36. Commission v France (Case C–312/86) [1988] ECR 6315. Alvarez v Sesa Street Espana ETT SA (Case C–104199) [2010] ECR I–086661 at para 36. Brihenche v French Minister for Labour (Case C–391/03) [2004] ECR I–8807. Abrahamsson and Anderson v Fogelqvist (Case C–407/98) [2000] ECR I–05539. Marschall v Land Nordhein-Westfalen [1998] IRLR 39. See also EC law on equal treatment between women and men in practice: Seminar for the judiciary – 19 October 2009, Positive action in EC law, Lynn Roseberry.www.era-comm.eu/

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[3.79]

CURRENT INTERPRETATION OF EU LEGISLATION [3.78] Besides all of the above, both the EU and Ireland have passed and implemented numerous other statutory instruments and codes of practice, and although they are not in the form of traditional legislation and thus not legally enforceable, they may nonetheless be raised and used by various tribunals in reaching conclusions in employment matters.137 As it stands in this jurisdiction, we are met with an underlying number of Directives, which have been transposed into Irish law primarily in the 1998, 2000 and 2004 Acts, and they are underpinned by a series of codes of practice and statutory instruments. [3.79] Despite the quantity and detailed nature of legislation, the model has not been without its critics. Specifically, Barnard138 has commented that the ‘principle of equality serves a political and symbolic purpose rather than a legal function in the Community order’. This is so because the principle of non-discrimination has negative connotations. It provides a right not to be discriminated against as distinct from a right to equal treatment. Further, EU law merely provides for equality of opportunity rather than focusing on the actual results. In Coote v Granada Hospitality Ltd,139 the court held that the aim of the Equal Treatment Directive was to ‘arrive at real equality of opportunity for men and women’. This was further reiterated in Kalanke v Bremen,140 a case involving a challenge to a positive-action measure designed to promote the employment of women in senior positions: ‘… in so far as it (the challenged law) seeks to achieve equal representation of men and women in all grades and levels within a department, such a system substitutes for equality of opportunity as envisaged in the (Gender Equal Treatment Directive) the result which is only to be arrived at by providing such equality of opportunity.’

It is clear that even if there is a broad under-representation of women (at any level), there is no requirement for an employer to take any action if it can be established that there are no exclusionary elements. 137. In the EU see, eg, the Code of Practice on the implementation of equal pay for men and women for work of equal value COM (1996) 336; Council Recommendation 84/635/EEC ([1984] OJ L331/34) on the promotion of positive action for women; Commission Recommendation 92/131/EEC ([1992] OJ L49/1) on the protection of the dignity of women and men at work; including the code of practice to combat sexual harassment. In Ireland, see Industrial Relations Act 1990 (Code of Practice detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 (SI 17/2002); Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002 (SI 78/2002). 138. See Barnard, ‘The Principle of Equality in the Community Context: P. Grant, Kalanke and Marschall: Four Uneasy Bedfellows’ (1998) CLJ 352 . 139. Coote v Granada Hospitality Ltd (Case C–185/97) [1998] ECR I–5199. 140. Kalanke v Freie Hansestadt Bremen (Case C–450/93) [1995] ECR I–3051.

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[3.80] A further critic of the system has been Fredman.141 She has argued that the approach of EU law means that it can leave no better off people who are experiencing a disadvantage and who seek the protection of the law. To this end, she notes that the focus on equal treatment implies that the equality principle is satisfied by providing consistent treatment. This may not of itself cure disadvantage. First, if a comparator receives poor treatment, equality will be satisfied by providing equally poor treatment. She notes that this is particularly the case in relation to pay where women will not benefit if their whole workforce is either female or low paid. Second, while a claim of equal treatment can be met by conferring the benefit on the disadvantaged party (levelling up), it can also be met by removing it from the advantaged party (levelling down). In the case of Smith v Advel,142 the ECJ initiated this principle by stating that equality could be provided by either extending a pension provision which would allow men to claim a pension at age 60 or by denying the benefit to women until they reached age 65. While this possibility of ‘levelling down’ has been somewhat reduced by the Art 13 Directives, which contain some non-regression provisions143 (and the need to provide ‘reasonable accommodation’ exists in the Framework Employment Directive), the fact remains that the rather formal and narrow concept of equality initiated in the original Directives still prevails and the legislation primarily is aimed at addressing discrimination, as distinct from promoting equality.

141. Working Paper No 3, ‘A Critical Review of the Concept of Equality in UK Anti Discrimination Law’, submitted to the Independent Review on the Enforcement of UK Anti-Discrimination Legislation November 1999, University of Cambridge, 4. 142. Smith v Advel (Case C–408/92) [1994] ECR I–4435. 143. Race Directive, Art 6(2), Framework Employment Directive, Art 8(2) and Gender Equal Treatment Directive, Art 8(e).

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Chapter 4 THE EMPLOYMENT EQUALITY ACTS 1998– 2011 BACKGROUND [4.01] In Ireland, the Employment Equality Act 1998 predated the two Art 13 Directives.1 This Act was passed to make further provision for the promotion of equality between employed persons and to make further provision with respect to discrimination in, and in connection with, employment, vocational training and membership of certain bodies. This Act, along with the Equal Status Act 2000, greatly changed the approach to one where Europe began to look to Ireland for our experience in implementing a multiground equality agenda. The 1998 Act was subsequently updated in 2004 by the Equality Act, which was implemented both to amend the 1998 Act and to give effect to the two Art 13 Directives, ie the Race and Ethnicity Directive and the Framework Employment Directive. [4.02] The Employment Equality Act 1998 marked the transposition into Irish law of Council Directive 75/117/EEC (the Equal Pay Directive) and Council Directive 76/207/ EEC (the Equal Treatment Directive) and a number of its provisions, built on the substantial amount of case law that had been handed down by the European Court of Justice, such as that in the landmark case of Defrenne v Sabena (No 2).2 The 1998 Act was significantly amended by the Equal Status Act 2000. Following the passing of the Equality Act 2004, it also marked the transposition into Irish law of Council Directive 97/80/EC, Council Directive 2000/43/EC, Council Directive 2000/78/EC and Council Directive 2002/73/EC. The effect of the latter was to prohibit discrimination on the grounds of sexual orientation, religious belief, disability and age. Directives 75/117/ EEC, 97/80/EC and 2002/73/EC have now been recast and consolidated in Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation. [4.03] The Employment Equality Act did not enjoy plain sailing. The Employment Equality Bill 1996 passed all stages in both houses of the Oireachtas, but was referred by the President to the Supreme Court. On 15 May 1997, the Supreme Court3 held that three aspects of the Bill were repugnant to the Constitution: 1.

1.

2. 3.

sections 16(3) and 35 had been drafted so that the employer was obliged to bear the cost of special treatment or facilities, arising from the employment of a Council Directive 2000/43/EC ([2000] OJ L 180/22) implementing the principle of Equal Treatment between persons irrespective of racial or ethnic origin. Council Directive 2000/ 78/EC ([2000] OJ L303/16) establishing a general framework for Equal Treatment in employment and occupation. Defrenne v Sabena (No 2) (Case C–43/75) [1976] ECR 455. Re Article 26 and the Employment Equality Bill, 1996 [1997] 2 IR 321.

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[4.04]

Equality Law in the Workplace person with a disability, only in so far as these costs are nominal in nature. What constitutes ‘nominal’ was not defined in the Act, but the Equality Tribunal has chosen to impose a relative test in relation to the resources of the employer on a case-by-case basis. The 1996 Bill had required the employer in some instances to provide special treatment to a person with a disability unless it could show undue hardship. The Supreme Court held that this was an unjust attack on the property rights of the employer. Moving on from this, the 2004 Equality Act further amended this section by replacing nominal cost with ‘disproportionate burden’;

2.

section 15 was also redrafted so that vicarious liability is only applicable in civil proceedings. The 1996 Bill applied it to both civil and criminal proceedings;

3.

section 63(3), which allowed the use of a certificate as evidence of an offence, was also deemed unconstitutional.

[4.04] The 1998 Act replaced the Anti-Discrimination (Pay) Act 1974 and the Employment Equality Act 1997 but re-enacts that legislation with significant amendments. The Act identified new areas and defined new grounds of discrimination. Whereas the 1974 and 19774 Acts outlawed only discrimination on grounds of gender and marital status, the 1998 Act set out nine grounds of discriminatory treatment and, in particular, introduced for the first time the grounds of family status, sexual orientation, religious beliefs, age, disability, race (including nationality) and membership of the Traveller community as constituting new grounds of discriminatory treatment.5 [4.05] The 1998 Act prohibits discrimination in relation to access to employment, conditions of employment, training or experience for or in relation to employment, promotion or re-grading or classification of posts.6 There is no requirement that there be an actual intention to discriminate. In the case of Southern Health Board v Mitchell,7 the duty not to discriminate was described as one of ‘strict liability’, not subject to a requirement of fault.

SCOPE OF THE EMPLOYMENT EQUALITY ACTS [4.06] The Employment Equality Acts outlaw discrimination on nine grounds. These cover discriminatory treatment against employees (in the ordinary sense of full-time 4.

5.

6. 7.

For a detailed account of the 1974 and 1977 legislation, see Curtin, Irish Employment Equality Law (Round Hall Press, 1989) and Callender and Meenan, Equality in Law between Men and Women in the European Community: Ireland (Martinus Nijhoff, 1994). Europe quickly caught up, with the implementation of Council Directive 2000/43, which outlawed discrimination against persons irrespective of race or ethnic origin, and of Council Directive 2000/78, which prohibited discrimination on grounds of religion or belief, disability, age or sexual orientation. Employment Equality Act 1998, s 8(1). Southern Health Board v Mitchell DEE2/1999 [1999] ELR 322.

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The Employment Equality Acts 1998–2011

[4.08]

permanent employees) but the Acts also apply to part-time and temporary employees, public and private-sector employment, vocational training bodies, employment agencies and trade unions, in addition to professional and trade bodies. 
Furthermore, the Acts extend to self-employed people, partners in partnerships and State and local authority office-holders. Importantly, it is worth noting that, as well as covering existing employment relationships, the Act also covers those that have terminated.8 Definition of ‘employee’ [4.07] The definition of employee in s 2(1) was substituted by s 3 of the Equality Act 2004. The definition, as stated above, is very broad, but interestingly does not extend to the employee’s personal representative in the case of the death of an employee. There is also no service requirement under the Act as there is in the Unfair Dismissals Act. The fact that the Act also excludes the case of personal services in the home, albeit that this is only the case in relation to access to employment, is also peculiar.9 [4.08] The Acts cover those working under a contract of employment. Similar to the definition of an employee, this definition was also inserted by s 3 of the Equality Act 2004. While it covers the usual definition of a person working under a contract of service, it also extends to a ‘contract of apprenticeship’ or to ‘any other contract whereby an individual agrees with another person personally to execute any work or service for that person.’10 This latter expansion was added by the 2004 Act to ensure that self-employed persons were included within the scope of the Act as required by Directive 2000/43/EC and Directive 2000/78/EC. This definition goes beyond the normal employer/employee relationship; as well as covering the self-employed, it could be deemed to cover, for example, a contract for services or an independent contractor. In Liddle v Montague Leisure11 (which preceded the 2004 Act), the Equality Officer declined jurisdiction because she found that the claimant was a franchisee and not an employee of the respondent casino. It is doubtful whether this would remain the case today. Indeed, it is the case that the CJEU has adopted a very wide approach in determining who is covered by the Equality 8.

9.

10. 11.

Employment Equality Acts 1998–2011, s 2(1) ‘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 and, where the context admits, includes a member or former member of a regulatory body, but, so far as regards access to employment, does not include a person employed in another person’s home for the provision of personal services for persons residing in that home where the services affect the private or family life or those persons. This was defended on 18 February 2004 by the Minister of State at the Department of Justice, Equality and Law Reform (Mr O’Dea) as ‘striking a balance between the equal right of a person to private and family life and to equal treatment’ (175 Seanad Debates Col 794). Equality Act 2004, s 2(2)(b)(i). Liddle v Montague Leisure DEC–E2003–015.

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[4.09]

Equality Law in the Workplace

Directives, going way beyond what one might consider the traditional definition of an employee. Thus, in the case of Danosa v LKB Līzings SIA,12 the court held that many (but not every) company directors were covered by the Pregnancy Directive. The absence therefore of an employment relationship is irrelevant as to whether the Acts apply. The test is, rather, whether they have agreed to execute any work or service in return for remuneration. Independent contractors [4.09] The question of whether the Act extended to independent contractors was considered in the case of Masson v Safefood – Food Safety Promotions Board. Here it was argued by the respondent that the complaint was not properly a matter that should be dealt with pursuant to the Employment Equality Acts 1998–2007 as the complainant was in fact appointed as a contractor. This matter was not in dispute between the parties. The Equality Officer examined the Framework Directive13 and made particular reference to Recital (9) and Art 3. Recital (9) provides that employment and occupation are key elements in guaranteeing equal opportunities for all and contribute strongly to the full participation of citizens in the economic, cultural and social life and to realising their potential. Article 3(1) provides that within the limits of the areas of competence conferred on the Community, the Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion. In reviewing the Directive, the Equality Officer went on to hold: ‘It would appear that the scope of the Directive as set out above is not limited to employers, employment agencies or vocational training bodies within the meaning of the Employment Equality Acts and that the Directive, in establishing a general framework for equal treatment in employment and occupation extends to any person or body which, in relation to employment, self employment or occupation, controls access or sets recruitment conditions. I consider that an advertisement and selection process such as that conducted by Safefood directly concerns access to an occupational opportunity as set out in Directive 2000/78/ EC and that an applicant would be entitled to expect the protections envisaged in the Directive.’

[4.10] In so making the decision, it is now accepted that – at least for those bodies that are an emanation of the State and to whom the doctrine of direct effect applies – the Act is broad and extends to independent contractors, albeit that they are not covered within the protection afforded to others in the Acts. 12. 13.

Danosa v LKB Līzings SIA (Case C–232/09) [2011] CMLR 45. Directive 2000/78/EC.

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[4.14]

Agency workers and employment agencies [4.11] The Employment Equality Acts specifically include agency workers, albeit that the discriminatory treatment is limited to circumstances where the agency worker can show that they were treated less favourably than another agency worker, is, has been or would be treated.14 This has been nullified by the Protection of Employees (Temporary Agency Work) Act 2012, which provides that an agency worker shall, for the duration of his or her assignment with a hirer, be entitled to the same basic working and employment conditions as the basic working and employment conditions to which he or she would be entitled if he or she were employed by the hirer under a contract of employment.15 Thus agency workers can now compare themselves with non-agency workers and cannot be treated less favourably in relation to basic working conditions. [4.12] As well as covering agency workers, the Act considers any dealings employment agencies may have with those who seek their services,16 those in vocational training17 as well as applying to certain bodies including an organisation of workers or of employers, professional trade organisations and those that control entry into professions, vocations or occupations.18 It also applies to partnerships.19 In so far as employment agencies are concerned, s 11 re-enacts s 7 of the Employment Equality Act 197720 (with some amendments). [4.13] Similarly, s 12 in dealing with discrimination in relation to vocational training reenacts s 6 of the 1977 Act. It was held in Employment Equality Agency v Football Association of Ireland21 that s 6 only applied to courses of vocational training offered to persons over the school-leaving age. This section gives the power to the Minister for Health and the Minister for Education and Skills to exempt (with the consent of the Minister for Justice and Equality) programmes of training for nurses and primary teachers. [4.14] In so far as membership of certain bodies is concerned, s 13 (similar to the above) re-enacts (again, with amendments) s 5 of the 1977 Act. There have been a number of Labour Court determinations on this, not the least in the case of Irish Society of Chartered Physiotherapists v Ilieva,22 where the court held that the society was such a body as is contemplated in s 13. In a contrasting determination, the Labour Court held in Clifford v Aosdána23 that the respondents, who were established by the Arts Council in 14. 15. 16. 17. 18. 19. 20. 21. 22. 23.

Section 8(2). Protection of Employees (Temporary Agency Work) Act 2012, s 6. Section 11. Section 12. Section 13. Section 13A as inserted by the Equality Act 2004, s 7. As amended by the 1993 Act. Employment Equality Agency v Football Association of Ireland DEE6/1991 [1992], ELR 57. Irish Society of Chartered Physiotherapists v Ilieva EDA19/2005. Clifford v Aosdána EDA5/2005 [2005] ELR 202.

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[4.15]

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1981 to honour artists whose work had made an outstanding contribution to the Arts, was not such a body. Collective agreements [4.15] The Acts also apply in relation to collective agreements, employment regulation orders and registered employment agreements.24 They render null and void collective agreements to the extent to which they discriminate or provide for different rates of remuneration in relation to ‘like work’.25 Additionally, the Acts ban discriminatory advertising,26 and also deal with those who procure or attempt to procure another person to do anything that constitutes discrimination or victimisation under the Acts.27 Illegal contracts [4.16] The question of how the matter of illegal contracts should be dealt with under the Acts was addressed in the Employment Permits (Amendment) Act 2014. This matter was touched upon by Hogan J in Hussein v Labour Court,28 where the judgment concerned the provisions of the Employment Permits Act 2003 (as amended by the Employment Permits Act 2006), which unequivocally states that a non-national is not entitled to enter into employment in the State in the absence of an employment permit. By virtue of the clear wording of the Act, Hogan J found that the notice party had no legal standing to bring any claims under the employment legislation of the State on the ground that his contract of employment was, in fact, illegal.29

PROHIBITED CONDUCT [4.17] The legislation is very broad in respect of the specific areas of employment that are covered and since 1998 a prospective employee has the right not to be discriminated against in relation to access to employment.30 Prior to the 1998 Act, only persons employed under a contract of employment had a right of action. Since the introduction of the 1998 Act, prospective employees are covered, and employers are now obliged to ensure that their recruitment and interviewing practices comply with the various obligations set out in the Acts.31 24. 25. 26. 27. 28. 29. 30. 31.

Employment Equality Act 1998, s 9(3). See Department of Finance v Collins EDA8/2006. Employment Equality Act 1998, s 10. Section 14, which re-enacts the Employment Equality Act 1977, s 9. Hussein v Labour Court [2012] IEHC 364. Note that anomaly in the law has since been addressed in the Employment Permits (Amendment) Act 2014. See O’Connor v Lidl Ireland DEC–E2005–012. Generally, see Chapter 5.

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The Employment Equality Acts 1998–2011

[4.20]

[4.18] The Anti-Discrimination (Pay) Act 1974 and the Employment Equality Act 1977 were replaced when the Employment Equality Bill 1996 was eventually enacted in 1998 following some modifications that were deemed to be unconstitutional.32 The grounds for discrimination were extended so as to include not only the traditional grounds of gender and marital status but also family status, sexual orientation, religious belief, age, disability, race and membership of the Traveller community.33 The 1998 Act also provided the first statutory definitions of indirect discrimination and sexual harassment well in advance of other Member States recognising such a right and broadened the scope of discriminatory acts to include: •

access to employment;

•

conditions of employment;

•

training or experience for, or in relation to, employment;

•

promotion or re-grading;

•

classification of posts;34

in addition to any instructions or guidelines provided by, or put in place by, an employer which may treat an employee or certain class of employees in a less favourable manner.35 [4.19] The Equality Act 2004 provides that discrimination claims on more than one of the nine grounds under the Acts can be investigated as a single case. In addition to this, it provides that any claims of victimisation and claims on more than one ground may also be investigated as a single case where deemed appropriate. An example of this is the Nyamhovsa case, where the claimant was able to bring an action against her employer who she alleged had discriminated against her not only due to her race but also her gender.36 The Equality Officer, in giving his decision, found that Ms Nyamhovsa’s employer would not have degraded an Irish male employee in the same manner he did her in front of a trainee, and he awarded her €50,000 for the discriminatory treatment and discriminatory dismissal. Defining discrimination [4.20] The definition of discrimination provided by s 6(1) of the Employment Equality Acts is very broad and far-reaching: ‘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.’ 32. 33. 34. 35. 36.

Re Article 26 and in the Matter of the Employment Equality Bill, 1996 [1997] 2 IR 321. Employment Equality Act 1998, s 6(2). Employment Equality Act 1998, s 8(1). Employment Equality Acts 1998–2011, s 8(4). Nyamhovsa v Boss World Promotions DEC–E2007–072.

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[4.21]

Equality Law in the Workplace

This definition also extends to cases where a particular class of disability has been imputed to a person wrongfully. This arose in the case of Government Department v B,37 where a woman with impaired eyesight was not considered for a promotion due to the limited amount of work she was capable of carrying out as a result of her disability. The Equality Officer held in favour of the claimant and awarded her €10,000. Further, the Department was instructed to provide adequate training pursuant to its obligation to provide reasonable accommodation to any staff members with a disability. [4.21] Another example of imputed disability occurred in an Employee v HSE.38 Here a staff nurse successfully brought a discrimination claim against her employer on the basis of an imputed disability. The employer denied the complainant access to a position as a staff nurse, as there was an issue with her weight preventing her fully from carrying out the functional requirements of the post. She was awarded €3,000 and was appointed to the position of staff nurse temporarily. The need for a comparator [4.22] For a claim to be successful, it is important that the complainant establish that he or she was treated less favourably than someone in a similar position has been or would be treated. The choice of comparator is fundamental in any case, with the exception of a claim taken on the grounds of pregnancy discrimination, where a court will generally accept a hypothetical non-pregnant comparator. Discrimination on the grounds of gender has now been extended by s 6(2A) of the Employment Equality Acts so as to include any less favourable treatment suffered by a woman while pregnant or on maternity leave.39 The need for a comparator also does not apply to claims of victimisation or harassment. [4.23] For a person to be successfully nominated as a comparator in an equality case, they must be engaged in similar or ‘comparable’ circumstances to the claimant, and it must be proven that the claimant has been treated less favourably than the comparator is, was or would be treated in similar circumstances. An Equality Officer will not uphold a claim if a suitable comparator is not named,40 or if they are not in a comparative job description,41 or if the comparator was also treated in a discriminatory manner.42 A comparator may be chosen by the complainant,43 which will be examined in context and also examined as to why they were chosen.44 37. 38. 39.

40. 41. 42. 43. 44.

Government Department v B EDA 061. Employee v HSE DEC–E2007–013. This is the reason why most maternity-based claims proceed under the equality legislation as distinct from the Maternity Protection Act 1994, the latter which limits the compensation available to complainants to 20 weeks. Grazulis v First Bathroom Solutions DEC–E2010–135. O’Sullivan v DIAGEO, Dublin DEC–E2005–026. Gorys v Kurakin DEC–E2008–014. Wilton v Steel Company of Ireland Ltd [1999] ELR 1. National University of Ireland v Ahern [2005] 2 IR 577, [2005] ELR 297 and Department of Justice, Equality and Law Reform v CPSU [2008] ELR 140.

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The Employment Equality Acts 1998–2011

[4.26]

Hypothetical comparator [4.24] Section 6 of the Act states that discrimination occurs where a person has been treated less favourably than another person ‘has been or would be treated’. Accordingly, the use of a hypothetical comparator is now permitted on certain grounds of discrimination, for example, for claims of discrimination on the grounds of pregnancy and also race. The case of Ntoko v Citibank45 is a case in point. Here a temporary agency worker who was summarily dismissed for making a personal phone call after working hours was permitted by the court to rely on a hypothetical comparator because there was no agency worker of a different race to actually compare with. This does not always extend to claims for equal pay, as it was decided in Brides v Minister for Agriculture46 that an actual comparator would be required for such claims.47 The use of a hypothetical comparator can only be relied upon in the event that no such actual comparator exists or where there is no other suitable comparator. Comparable situation [4.25] The issue as to whether a full-time employee is in a ‘comparable situation’ to a part-time employee arose in Bus Éireann v A Group of Workers,48 where a claim was taken on the basis of discriminatory pay for part-time workers in comparison to the pay of full-time bus drivers. The term ‘conditions’ is in substitution for the term ‘like work’ in the part-time work legislation. However, it utilises the exact same tests for equal pay claims: •

the complainant and comparator perform the same work under the same or similar conditions; or

•

the work performed is of the same or similar nature, with any differences in the work or conditions being of such insignificance or irregular occurrence that they are not of importance; or

•

the work carried out by the complainant is equal or higher in value to that of the comparator in reference to the skill, mental or physical requirements of the job as well as the responsibility and working conditions.

[4.26] The Rights Commissioner found that the part-time workers did not satisfy any of the three conditions, and as such the different jobs were of unequal value permitting the pay differences. Upon appeal, the Labour Court carried out an inspection of the work carried out by each group with regard to the above points and found that the skill required of full-time drivers was greater, as they had to drive on busier roads and manoeuvre into more confined bays in depots. The physical and mental requirements of part-time workers were not found to be as significant, as they were not expected to be 45. 46. 47. 48.

Ntoko v Citibank [2004] ELR 116. Brides v Minister for Agriculture [1998] ELR 125. Upheld in Employee v Educational Establishment DEC–E2008–072. Bus Éireann v Group of Workers PTW/06/7, Det No 071, 18 May 2007.

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[4.27]

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familiar with numerous routes, timetables and stops, nor were they required to operate the ticket machine, handle cash and check passes. Although the responsibility owed to passengers on the school run by part-time drivers was far more important than that of the full-time drivers, the Labour Court upheld the decision of the Rights Commissioner and as such there was no necessity to look into the objective justification submitted by Bus Éireann.

CATEGORIES OF DISCRIMINATION Direct discrimination [4.27] Direct discrimination is expressly referred to in s 6(1) of the Equality Act as where a person is treated in a less favourable manner to how another person in a similar or comparable situation is or would be treated in relation to one of the prohibited nine grounds. There is no requirement that necessitates it to be demonstrated that there was an intention to discriminate for the purpose of making a successful claim if the actions are in fact discriminatory.49 In the Clay Cross case,50 Lord Denning MR addressed the issue of intention as a defence: ‘The issue does not depend on the employer’s state of mind. It does not depend on his reasons for paying the man more. The employer may not intend to discriminate against the woman by paying her less: but, if the result of his actions is that she is discriminated against, then his conduct is unlawful, whether he intended it or not.’

[4.28] The Labour Court or Equality Tribunal looks at the facts of each case when determining whether a person was discriminated against on the basis of one of the protected grounds or not. As each case is somewhat unique, there is ambiguity as to the degree of proof to be provided by the complainant in bringing a successful case forward. This issue was examined in the case of Parker v Office of the President and University Advocate University of Limerick.51 Here, the complainant tried to shift the onus of proof onto the respondent for reasons relating to the difficulty in acquiring evidence. This was rejected by the Equality Tribunal. It found that the Equality Acts did not require a respondent to show that other persons in a similar or comparable situation were treated less favourably and that the complainant had put forward a case built on mere unsubstantiated allegations and as such failed to discharge the burden of proof. Exceptions to direct discrimination [4.29] Though few, there are some exceptions for which direct discrimination may be permitted: for example, on the age ground, to those who are aged under 18 and over 49. 50. 51.

St James’ Hospital v Eng EDA 023. Clay Cross (Quarry Services) Ltd v Fletcher [1978] EWCA Civ J0711–1. Parker v Office of the President and University Advocate University of Limerick DEC– S2013–004.

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The Employment Equality Acts 1998–2011

[4.32]

64;52 another example of permissible direct discrimination occurs where a person is not competent, capable or available to carry out the work (however, not where reasonable accommodation is applicable) and where the protected ground equates to an occupational qualification. Discrimination by association [4.30] The concept of discrimination by association was introduced into Irish legislation through the Equal Status Act 2000 regarding access to goods and services. The successful case of Feighery v MacMathunas Pub (Nenagh)53 involved the complainant, who was asked to leave the pub after she became involved in a matter that was of no concern to her. She protested and was able to show that members of the Traveller community had also been asked to leave the premises and refused second orders in the pub, and as such her claim of discrimination by association to the Traveller community was successful. [4.31] From 2004, in complying with updated EU Directives, discrimination by association became a part of employment equality legislation by virtue of s 6(1)(b), which defines it as: ‘A situation whereby a person is treated in a less favourable manner by virtue of an association, connection or affiliation to a member of a particular protected class.’

In Coleman v Attridge Law,54 a woman brought a case against her employer claiming that she was discriminated against by reason of association with her disabled son. Due to the fact that UK employment legislation does not expressly deal with discrimination by association in the way that the same Irish legislation does, this matter was then referred to the CJEU. The conclusion of the CJEU was that protection on such grounds should not be limited to those who are – for example, as in this case – disabled. Although discrimination by association is outlined in Irish legislation, there have been no successful claims to date.55 Indirect discrimination [4.32] Indirect discrimination arises when a seemingly neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary. Prior to the 2004 amendment, the test was whether or not a ‘substantially higher proportion’ of persons of a particular ground (eg sex or marital status) could 52. 53. 54. 55.

Employee (Claimant) v Employer (Respondent) 2014 IREAT UD 1233/2010. Feighery v MacMathunas Pub (Nenagh) DEC–S2003–051. Coleman v Attridge Law (Case C–303/06) [2008] ECR I–05603, [2008] IRLR 722. O’Rourke v JJ Reed Holdings Ltd t/a Dublin City Hotel DEC–E2010–045 and Worker v Two Respondents EDA 1129.

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[4.33]

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comply with a specific provision, criterion or practice. However, due to the more updated definitions in the Equality Directives, the burden of proof is no longer as strict. The 2004 Equality Act outlines a more general definition of indirect discrimination and extended that definition so as to include victimisation. Discrimination by imputation [4.33] Discrimination by imputation has also arisen, generally in cases of alleged disability. In Care Attendant v HSE,56 a care attendant who applied for a position of staff nurse was sent for an occupational assessment (which was a condition precedent prior to her taking up a part-time position). She was subsequently informed that, based on her body mass index, she was morbidly obese and on that basis could not be accepted as a nurse. The HSE then wrote to her saying that her appointment was deferred subject to her satisfying ‘the standards necessary for health clearance relative to the functional requirements for the post.’ The complainant referred a case to the Equality Tribunal, alleging that the HSE directly discriminated against her on the ground of disability contrary to s 6(2)(g) of the Act. The Equality Officer found that the HSE imputed a disability to the claimant because of the problems with her weight. The Equality Officer went on to declare: ‘The precise nature of the complainant’s imputed disability, the degree of impairment and the likely duration were not defined or communicated to the complainant or discussed with her. The complainant was therefore, not allowed a full opportunity to participate in the process.’

She was awarded €3,000 and her appointment was backdated to the initial date when the health clearance was deferred.

56.

Care Attendant v HSE DEC–E2006–013.

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Part B Recruitment, Employment and Redundancy

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Chapter 5 PRE-EMPLOYMENT EQUALITY ISSUES INTRODUCTION [5.01] There are numerous matters that may arise prior to a contract of employment being executed. The Employment Equality Acts 1998–2011 regulate not only the employment relationship but also the circumstances in which an employer recruits. [5.02] Specifically, s 8(1) of the Act1 outlines discrimination in relation to access to employment, conditions of employment, pay, training or experience for or in relation to employment, promotion or re-grading or classification of posts. Section 8(5) of the Act prohibits discrimination in: ‘any arrangements the employer makes for the purpose of deciding to whom employment should be offered or 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.’

The wording in s 5(a), which concludes ‘in any arrangements the employer makes for the purpose’, is wide ranging and covers a multitude of matters, including advertising, job descriptions and pre-employment medicals. Advertising is specifically dealt with in s 10 of the Act and while encompassed in both ss 8 and 10 of the Act, the key distinguishing factor is that the exclusive locus standi in respect of breaches of s 10 lies with the Irish Human Rights and Equality Commission. (IHREC).

ADVERTISEMENTS [5.03] Practically every recruitment process starts with a job being advertised. Traditionally, this took the form of a job either being placed internally on a notice board or being advertised externally through the national or local press. In recent times, with the use of social media, recruiters operate in a much broader marketplace and can now reach a worldwide audience. While this is to be welcomed from a recruiter’s perspective, the downside of course is that an advertisement that is discriminatory in nature can have far-reaching consequences. [5.04] The first thing to be aware of in any advertisement is to get the wording of the advertisement itself correct. The UK Court of appeal in Pedersen v London Borough of Camden2 held that in construing the terms of an employee’s contract as to his duties, the UK Employment Appeals Tribunal was entitled to look at the surrounding 1. 2.

Employment Equality Act 1998. Pedersen v London Borough of Camden [1981] IRLR 173.

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[5.05]

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circumstances and in particular the advertisement that led him to apply for the job in question.3 [5.05] The second matter to be aware of is to ensure that the advertisement does not include anything that can be either directly discriminatory or inferred to as being discriminatory in nature. Section 10 of the Employment Equality Act 1998 makes it unlawful to advertise a job in such a way that the advertisement could reasonably be interpreted as indicating an intention to discriminate. Therefore, this section applies not only to employers but to the agency or publication in which the advertisement is placed. Section 85 of the 1998 Act provides that a complaint concerning the publication or display of an advertisement of a type prohibited by s 10 may be prosecuted only by the IHREC. It is clear from this section that the sole power to institute such proceedings is vested in the IHREC. [5.06] Section 10 was invoked in Equality Authority v Ryanair,4 where Ryanair placed an advertisement in the Irish Times stating that the ideal candidate should be ‘young and dynamic’. At the hearing, Ryanair argued that it was simply seeking enthusiastic candidates. The Equality Officer found that the use of the word ‘young’ in the advertisement indicated or might reasonably have been understood as indicating an intention to discriminate against a person who is not young. The Equality Authority made an award of €8,000 in its favour, and Ryanair was ordered to carry out a comprehensive review of its equal opportunities policy. [5.07] The significance of using terms such as ‘young’ or ‘junior’ is that this infers direct discrimination on grounds of age, which cannot be objectively justified, thus leaving the employer with no defence once the term has been proven. This was the case in Ryanair. An interesting point in this regard arose in Equality Authority v Tall Tales Theatre Company. Here an advertisement was brought to the Equality Authority’s attention in relation to a playwright’s workshop for ‘young female writers’ being held by Tall Tales Theatre Company in association with Bewley’s Café Theatre. The Equality Authority wrote to Tall Tales Theatre Company,5 stating that the advertisement appeared to be discriminatory and pointed out their obligations under the Acts. The artistic director replied by stating that the workshop was a positive-action measure. This was accepted in relation to the gender ground. However, the company gave an undertaking not to use the word ‘young’ in any further workshop advertisement and stated that the question of age did not arise in the selection of applicants for the workshop. Another important point to note is that the IHREC, while the only entity empowered to bring a complaint itself against an employer or publisher,6 is also empowered to apply 3. 4. 5. 6.

See also Financial Techniques Planning Services Ltd v Hughes [1981] IRLR 32. Equality Authority v Ryanair DEC–E2000–014. See Equality Authority Case Work Report 2007, www.ihrec.ie. Section 85(1)(d); see also O’Connor v Lidl Ireland DEC–E2005–012.

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Pre-Employment Equality Issues

[5.11]

to the Circuit Court or High Court for an injunction to restrain the publication of such an advertisement or display. [5.08] That is not to say that a person who feels that he or she has been less favourably treated by way of a discriminatory advertisement does not have an avenue for redress. Section 8(5)(a) of the Employment Equality Acts provides that 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 ‘in any arrangements the employer makes’. [5.09] The wide-ranging nature of this section can be seen in the case of Noonan v Accountancy Connections.7 Here the respondent placed an advertisement for two positions on the website Irishjobs.ie, which stated that the minimum required was two years of post-qualification experience. The complainant, in his 50s with some 20 years’ experience as a qualified accountant, was rejected for two ‘senior’ accountancy posts advertised. The respondent said that the applicant was too ‘senior’ and that it wanted people qualified for about two to three years. In one case, the complainant would have been older than the person to whom he reported, which the respondent felt would cause problems. The complainant argued that as accountants normally qualified in their mid20s, the position effectively excluded most candidates aged over 30. He conceded that there might sometimes be an issue over whether an over-qualified accountant would lack motivation in the job, but said that the appropriate way to resolve this concern was by discussing it with applicants. The Equality Officer accepted that the condition was one that had a substantially heavier impact on those over 30 and concluded that the respondents’ arguments amounting to mere generalisations were unsupported by any objective evidence. [5.10] Similarly, in McGarr v Department of Finance,8 where a five-year service requirement for a promotional post was determined to be indirectly discriminatory on the grounds of age, the complainant alleged that the five-year service requirement had an adverse impact on people under 30 compared with those over that age. The Equality Officer accepted that this criterion could be indirectly discriminatory against candidates under the age of 30 and that there was no objective evidence that justified this requirement, which had no particular connection with the candidates experiencing suitability for promotion. [5.11] In McEniff Grand Canal Hotel Ltd v Jurksa,9 the respondent advertised a vacancy for a night porter for which the complainant applied. The advertisement referred to a ‘young and exciting hotel’. The complainant submitted a CV in which he recorded his date of birth. The complainant was nonetheless short-listed for interview. In dealing with the matter, the Labour Court noted that the age of the staff employed by the respondent showed no signs of age discrimination in its employment practices. It went 7. 8. 9.

Noonan v Accountancy Connections DEC–E2004–042. McGarr v Department of Finance DEC–E2003–36. McEniff Grand Canal Hotel Ltd v Jurksa EDET EDA 1122.

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[5.12]

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on to opine that while the use of the term ‘young’ was inappropriate, it was clear that this did not ‘disadvantage the complainant and hence did not prevent him being called for interview’. At the interview, the respondent formed the view that the complainant was unsuitable for appointment to the post in that he was seeking a more senior position. The court regarded ‘senior’ in this context as referring to a post with higher responsibilities and concluded: ‘It is a common term and is not normally understood to relate to one’s age.’ This view was formed on the basis of the CV presented, which set out the complainant’s educational achievements and his employment experience to date. The complainant’s educational background, which included third-level degree qualifications, would not normally be pertinent to the post of night porter. In all the circumstances, the court found the respondent came to a reasonable conclusion based on performance at interview.

SHORTLISTING AND SELECTION FOR INTERVIEW [5.12] Once past the advertisement stage, candidates have to be shortlisted for interview. This can prove equally challenging for recruiters, who have to be mindful that any direct or indirect discriminatory actions on their part can give rise to very significant claims. A case in point is Prison Officer v Irish Prison Service.10 The claim concerned a prison officer who alleged he was discriminated against when the Irish Prison Service failed to place him on a panel for the position of acting chief officer. The claimant gave evidence that he could not understand why, as he was one of the more senior applicants. He claimed that he was informed that he was ‘no spring chicken himself ’ and that his previous illness (he had been out sick with cancer the previous year) had also been a factor. On foot of this, he claimed discrimination on the grounds of age and disability. He provided evidence that all the successful applicants to the panel were younger than him and also stated that his employer had failed to provide any documentation in relation to the selection criteria or feedback to the claimant. Nor did they furnish him with objective justification for their decision. Furthermore, he went on to provide evidence of a number of examples of victimisation following the referral of his complaint to the tribunal. The tribunal, in holding for the claimant, pointed to the fact that the ages of the successful applicants reflected a tendency to appoint younger candidates. In reaching its conclusion, the tribunal also took into account the fact that discrimination is usually covert and often perpetrators may not be aware of having actively discriminated against someone. Evidence of it can be found with job applications from candidates of a particular age that are treated less seriously than those of candidates of a different age. Discrimination can also be inferred from questions asked at interview, which would suggest that age is a relevant consideration. On foot of this, the tribunal concluded that the selection process for the panel was not transparent and was satisfied that there was evidence of unfairness in the process 10.

Prison Officer v Irish Prison Service DEC–E2013–090.

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[5.14]

and a ‘manifest irrationality’ in the results. The tribunal held that the claimant had been discriminated against on the age ground. It also held that his prior ailment was a factor in the selection process and this resulted in discrimination on the grounds of disability. It also found that following the referral of the complaint, there had been a number of instances that amounted to victimisation. An award of €80,000 was made, this was made up of €33,000 for the discriminatory treatment and €47,000 in respect of victimisation. The tribunal further directed the employer to ensure that a transparent and fair selection process would be adopted in all future competitions and that the selection panel would be trained in the process, and, further, to set down in writing the criteria before embarking on the selection process. This case is noteworthy as to the importance for transparent criteria for selection. [5.13] An equally important case is that of O’Dowd v Sligo Young Enterprises Ltd t/a Sligo Community Training Centre.11 Here the complainant worked as general manager of Sligo Community Training Centre. Following the birth of her second child, coinciding with the hospitalisation of her first child on a number of occasions, she requested a return to work in the less demanding role of tutor. She was informed that she should resign as general manager and would be given a fixed-term post as tutor. While working as a tutor, the general manager post was advertised. The complainant applied for it. However, the male colleague who had filled the post in an acting-up capacity during her periods of maternity leave was successful. During the interview process, the complainant was asked why she had resigned and in this regard she referenced her child’s health problems. The Equality Officer was satisfied that the complainant’s management and experience was in no way inferior and in many respects superior to that of the successful male candidate. The Equality Officer was satisfied that the complainant’s qualifications were more relevant than the successful candidate’s. After a thorough review of the selection process, she found that it fell short on transparency, objectivity, fairness and good practice, and in the circumstances the complainant had raised an inference of discrimination, which the respondent had failed to rebut. However, as the complainant and the successful candidate had the same family status, the complaint on that ground was unsuccessful. Nonetheless, the complainant was awarded €13,000, the maximum monetary award possible in a case of access to employment. [5.14] In Brandon House Hotel v Barska,12 the respondent chose another male employee with shorter service over the complainant for promotion without affording the complainant an opportunity to apply for the post. The respondent attempted to defend its position on the basis that the difference in treatment was not on any of the nine grounds. The general manager, who was a woman, gave evidence and said, inter alia, that in her time a disproportionate number of women were promoted. The Labour Court made it clear that while there is no requirement that an employer must always fill promotional 11. 12.

O’Dowd v Sligo Young Enterprises Ltd t/a Sligo Community Training Centre DEC–E2013– 133. Brandon House Hotel v Barska EDA148.

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[5.15]

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opportunities through an open selection process, the facts of a particular case had to be considered: ‘The failure to consider an equally or better qualified woman for a promotional position to which an equal or less qualified man is appointed can, in and of itself, raise an inference of discrimination. In such a case it is for the employer to prove on cogent evidence that the decision was in no sense whatsoever tainted by discrimination.’

The Labour Court, in finding that there had been discrimination, stated that from the evidence before it that ‘there were no discernible objective criteria applied by the respondent in deciding who should be selected for promotion’. It noted that the complainant was better qualified and had longer service and that there were contradictory reasons as to why she was not chosen, with one witness stating that Ms Barska’s opting to work a three-day week showed a lack of commitment and another saying that this was not a factor. The Labour Court concluded that on the balance of probabilities the decision to exclude the complainant for consideration for the post was in no sense whatsoever influenced by her gender. [5.15] In summary from all of the above, one can deduce that all selection and shortlisting of candidates must be both transparent and objective – the latter signifying that recruiters have to adhere to the criteria for shortlisting candidates that were set out in any advertisement or job description for the post from the outset.

MINIMUM AND MAXIMUM PERIODS OF EXPERIENCE [5.16] Whereas minimum periods of experience are relatively easy to justify on the basis that most employers require a minimum level of competence for various jobs that can only be gained by experience, maximum periods of experience are not easily justified. In McGarr v Department of Finance,13 a five-year service requirement for a promotional post was determined to be indirectly discriminatory on age grounds. The complainant successfully argued that the requirement had an adverse impact on people under 30 compared with those over that age. The Equality Officer held that an automatic service requirement of five years could not be justified as being reasonably required for the position and could not be objectively justified. In O’Connor v Lidl Ireland,14 the Equality Tribunal held that not inviting Mr O’Connor to interview was discriminatory. He was 51 at the time, and the advertisement for the position he applied for stated as follows: ‘The ideal candidate should be highly motivated and flexible, be ambitious and mobile, have a high interest in retail, be results orientated and work well under pressure, have excellent communication, interpersonal and leadership skills, be a graduate, ideally with not more than 2–3 years experience in a commercial environment. No retail experience required.’ 13. 14.

McGarr v Department of Finance DEC–E2003–36. O’Connor v Lidl Ireland DEC–E2005–012.

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[5.17] What one can glean from this is that in drafting minimum and maximum periods of experience, great care should be taken to ensure that there is no direct or indirect inference of discrimination. Maximum periods of experience should really be avoided. When short-listing candidates, one needs to ensure that all candidates meet the exact criteria as advertised. If employers do need to specify a number of years of experience when advertising a post, there must be a valid, objective and justifiable reason for so doing.

INTERVIEWS [5.18] In every interview, the goal is to obtain important information about the candidate. Recruiters need to be convinced that the prospective candidate can work for them or the firm that they are hiring for, but they need to be careful how they seek this information, as the scope of the Employment Equality Acts15 (as previously explained) extends to access to employment. This is a unique aspect of the Acts, in the overall context of employment law, in that they extend to prospective employees. Discrimination at this stage of the employment process is taken very seriously, as it prohibits employment in the first instance.16 [5.19] Even before the interview commences, candidates who are short-listed for interview should be asked whether they have any specific requirements in relation to conducting the interview. This may be particularly relevant in relation to candidates who have disabilities, particularly when they require access to a premises, or in relation to setting up particular facilities to conduct the interview itself. [5.20] Particular care should be taken with questioning at interview – most especially where there is an evident age gap between the majority of the applicants and some others. A case in point is Hughes v Aer Lingus.17 Here the 53-year-old complainant, having applied for a cabin crew post, was asked at interview how she would feel about being directed by ‘younger employees’. Ultimately, she was not offered the job, on the basis that she was overqualified. However, the complainant argued that undue significance in the interview was attached to her age and that the term ‘overqualified’ was self-contradictory, being merely a euphemism to mask the real reason for the refusal, namely that she was too old in the eyes of the employer. The Equality Officer held that the question was discriminatory. However, on balance, he thought that the selection process was not discriminatory and that the interviewer’s notes supported the ‘strong personality’ argument, which was the reason Aer Lingus said that they had not selected the candidate. The Equality Officer also noted that the success rate for over 50s in the interview process was in line with the success rate for younger candidates. Notwithstanding this, he found that the 15. 16. 17.

Employment Equality Acts 1998–2011, s 8(1). Given this, it is somewhat peculiar that the monetary cap for discrimination in access to employment is €13,000 (see Employment Equality Acts 1998–2011, s 84(2)(b)). Hughes v Aer Lingus DEC–E2002–49.

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discriminatory question might have affected the candidate’s interview performance and thus directed that she should be offered a fresh interview with a differently composed interview board or offered a position within 12 weeks. Quite what constitutes a significant age gap where an inference of discrimination could be made has posed problems for the tribunal. In Superquinn v Freeman,18 a gap between 28 and 31 was found not to be significant; but in Reynolds v Limerick City Council,19 a gap of eight years was found to be significant. [5.21] In Byrne v Fás,20 the complainant was 48-years-old and had applied for a technical course on interior design. All other candidates who were interviewed were substantially younger than she was. The interviewer admitted that he might have told the complainant that ‘older applicants, in his experience, tended to have difficulties on the course.’ The Equality Officer commented that no evidence was produced to substantiate the lecturer’s assertion in this regard and went on to hold that the interviewer appeared ‘to have made serious presumptions about older people and applied these to the complainant’ and this was discriminatory. [5.22] The case of O’Neill v Board of Management, St Gabriel’s National School21 is also noteworthy in this regard. Here the complainant was 48 years of age at the time of interview and had 27 years’ experience as a teacher. She was asked by the chairman of the interview panel ‘[c]onsidering that you have been teaching for 27 years, why would you be bothered with the hassle of the job of deputy principal?’. Ultimately, the complainant was unsuccessful in her application, but she appealed the decision and was granted a second interview. The Equality Officer determined that, in accordance with established case law on discrimination, the question posed to the complainant during the first interview was discriminatory on the grounds of age and that therefore the complainant had established that she had been discriminated against at that time. However, the Equality Officer was satisfied that the decision of the second interview board was not based on the complainant’s age but on performance at the interview, and concluded that although the complainant was discriminated against in the first interview, the respondent had not discriminated against her in the second interview. The respondent was ordered to pay the complainant the sum of €5,000 in compensation for the stress suffered. [5.23] A similar decision is that of Delaney v Board of Management, Drumshambo Central National School.22 At the interview, the complainant was asked three questions relating to her age. Specifically, she was asked her date of birth, her age and the year she qualified as a primary school teacher. The Equality Officer was satisfied that the 18. 19. 20. 21. 22.

Superquinn v Freeman DEC–E2002–013. Reynolds v Limerick City Council DEC–E2002–055. Byrne v Fás DEC–E2002–45. O’Neill v Board of Management, St Gabriel’s National School DEC–E2005–007. Delaney v Board of Management, Drumshambo Central National School DEC–E2004/067.

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[5.25]

complainant had been discriminated against on the grounds of age and made a number of interesting orders against the respondent: •

the competition for the permanent teaching position in the respondent’s school was to be held again. A new independent interview board should be appointed and the appropriate procedure followed;

•

all persons who act or may act in the future as interviewers on interview panels in national schools should receive comprehensive training, including training to encompass the provisions and implications of the employment equality legislation.

[5.24] In Martin v Concern,23 the complainant failed to establish that the respondent’s selection process to choose suitable candidates to be interviewed for the post of humanresources officer was anything other than fair and equitable. Here, the complainant alleged that the fact that he was not short-listed for an interview despite the fact that he satisfied all the criteria for the job was discrimination against him on the grounds of gender and age. He contended that this arose due to the fact that he was over 40 years of age and male. Of the 148 applicants for the job, 13 were selected for interview, all of whom were under 40 years of age. The Equality Officer noted that the selection process involved two phases, the first of which the complainant passed. The Equality Officer, in determining that the complainant had failed to establish a prima facie case of discrimination, went on to note that the function of the Equality Tribunal is to decide whether or not there had been discrimination and not decide on the most suitable candidate. Notwithstanding this, the Equality Officer was critical of the following aspects of the screening process: • •

only one employee carried out each phase of the screening process; and no notes were retained for either of the screening phases.

[5.25] What can be gleaned from all of the above cases is that it is vitally important that careful notes be taken of what transpires at an interview. Clearly, it is less easy for an interviewee to do so, but employers should carefully note all aspects of the interview, including when interviewees ask questions. Here, employers should carefully document the answers given by them.24 In this regard, it is clear that in dealing with claims of discrimination at the interview stage, the tribunal or court will have regard to whether interview notes were kept and whether a clear and objective marking scheme applied to all candidates. The absence of these factors generally leads to an inference of discrimination being raised.25 The requirements that are expected of interview boards are well described in the Department of Health v Dillan:26 ‘This Court has consistently stressed that interview boards both internal and external should be trained and apply strict promotion criteria agreed in advance with adequate markings and should keep comprehensive interview notes.’ 23. 24. 25. 26.

Martin v Concern DEC–E2005–029. See McNally v Welltrade International Ltd (1978) IRLR 497. Although, see Higgins v University College Dublin [2013] IEHC 508. Department of Health v Dillan DEC–EE–2003–035.

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[5.26] Perhaps the most useful guidelines in this regard are set out in the decision of Johnson v Louth VEC.27 Here the Labour Court expressed approval of the following factors which were put in place by the respondent for the interview process: •

the interview and selection criteria were fully in compliance with the relevant Department of Education and Science circular;

•

the procedures were clear and transparent;

•

the members of the interview board were independent of the employer, had extensive experience and were trained in the requirements of equality and discrimination law;

•

a pre-interview meeting was held at which the panel drew up questions relating to key areas;

•

marks were allocated for critical attributes required for the duties of the position based on objective pre-determined criteria.

[5.27] The consequences of a finding of discrimination in an interview process can be very significant for an employer. This is exemplified in the case of Horgan v DCU,28 where the claimant successfully established that the university’s failure to appoint her to the post of associate professor was discriminatory. In this regard, the claimant was able to infer discrimination from the fact that her employer had rejected a number of referees she had put forward, including one who was accepted in the same circumstances by a male candidate. The Labour Court directed that the university appoint the complainant to the position of associate professor with effect from the date on which she was interviewed for the position – which was almost five years before the court’s determination – including awarding the candidate back pay from the time it found that she should have been promoted to the position, and also awarded her damages of €10,000 for the stress caused. In addition to the above, the university was directed to set out clearly the minimum requirement in respect of the gender composition for interview panels along with a policy urging all members to make contemporary notes for the interviews. [5.28] Lastly, in respect of the interview process, it is crucial to remember that reasonable accommodation must be applied to prospective employees with disabilities. In the case of A Complainant v Employer,29 the complainant confirmed that he required an interpreter for the interview, as he was deaf. However, as the interpreter was not available, the respondent suggested that the complainant should not attend and rejected the suggestion that the interview could take place with the aid of a computer. The Equality Officer found that the prospective employer had subjected the applicant to less favourable treatment, as the interview was deferred and it refused to provide reasonable accommodation. Here the complainant was awarded €8,000. 27. 28. 29.

Johnson v Louth VEC EDA 0712/2007. Horgan v DCU DEC–E2006–022. A Complainant v Employer DEC–E2008–068.

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[5.31]

Interview panels [5.29] In addition to the guidelines set out above, it is always preferable to have a gender-balanced interview panel. This issue came in for considerable scrutiny in the case of Higgins v University College Dublin.30 The complainant, who was a lecturer in the school of business law, applied for promotion but was unsuccessful. She had a number of elements in her favour in her claim for discrimination, not least the fact that the interview panel was composed of 12 men and one woman and further that the interview board possessed no minutes or records. Despite this, the complainant failed in her action. The Labour Court – and the High Court on appeal – relied on the actual evidence given at the hearing by the respondent to the effect that the appointment was made solely by reference to published material. Cooke J in the High Court went on to aver: ‘The Labour Court was correctly concerned only to satisfy itself that the specific decision by this particular group of twelve men and one woman had not in fact been tainted by gender discrimination either overtly or subconsciously. It does so by appraising the first hand evidence given to it of what had actually taken place and by excluding the possibility that there existed some inconsistency in a pattern of results which would make a conclusion as to the presence of some institutional bias and thereby render the committee’s decision unlawful.’

This case is important in demonstrating that simply because there appears to be an inherent bias in the process, it does not mean that this will be held to be the case by the court. However, it should always be remembered that the respondent successfully defended the case by virtue of the fact that members of the panel were available to attend and give evidence. In many companies and organisations with greater turnover, this may not always be that easy to facilitate, and it is in those situations that gender balance on the interview panel along with good notes and set questions will prove vital.

JOB DESCRIPTIONS AND MINIMUM QUALIFICATIONS [5.30] Even if the job is advertised correctly, careful consideration needs to be given to ensure that the job description and subsequent selection criteria do not either directly or indirectly discriminate against potential applicants. [5.31] Requiring specific qualifications such as a particular degree might disadvantage people of different ages and nationalities unless they can be justified in objective terms. Job descriptions should therefore make it clear that equivalent alternative qualifications will be considered. Section 8(5) of the Employment Equality Acts prohibits discrimination in ‘any arrangements the employer makes for the purposes of deciding to whom employment should be offered’. This clearly extends to job descriptions. When writing a job description, therefore, and indeed a ‘person specification’, the employer needs to state clearly what tasks the person will have to perform and what skills he or she will be required to have. Job 30.

Higgins v University College Dublin [2013] IEHC 508.

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[5.32]

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descriptions should therefore accurately and genuinely describe the essential duties of the post. [5.32] Personal specifications should accurately describe the relevant, nondiscriminatory and objectively justifiable requirements to be met by the post holder. As above, this specification should not have any requirements that are not directly related to the job.

APPLICATION FORMS [5.33] There is an ongoing debate among HR practitioners about whether it is more prudent to furnish an application form or to invite prospective applicants to submit CVs. To some extent, this argument has been bypassed by the increased use of social media in terms of the recruitment process and particularly by the reliance of recruiters on LinkedIn. The downside to an application form is that if the employer gets it wrong and it is held to contain some direct or indirect inference of discrimination, then it will be liable to compensate those who relied upon it. An additional downside to application forms is that they limit the amount of questions an employer can reasonably ask. However, CVs may contain information of a personal nature freely given by candidates and may also lead to an inference of discrimination once that information is passed on. This is why it is absolutely critical to have a very clearly defined selection criteria for the role. [5.34] A case that is informative on this point is RGIS Inventory Specialists Ltd v Davis.31 This matter came before the Labour Court as an appeal against a decision by the Equality Officer. The complainant had successfully completed an online application questionnaire and was informed that his application had been successful. He was further informed at an initial briefing session surrounding the job role that he would be required to commence training the following week. The complainant noted that unfortunately due to a holiday commitment he was unable to attend the said session. However, he further stated that the manager informed him that an alternative date would be made available to accommodate him. The complainant then noted how, on returning from his holidays, he received notification from the respondent informing him that his application had been unsuccessful. The basis of the case surrounded the complainant’s belief that his age was the reason why he was unsuccessful, and he further believed that the notification from the respondent informing him that his application was unsuccessful was on the basis of his age and he viewed this as the only viable reason that could be found for such actions. The complainant further noted that at the initial briefing session he was the oldest person there, with the others in attendance averaging in their 20s. His case ultimately failed, because he was unable to produce or rely on an actual comparator in advancing his case. While the case is also important in that regard, the fact that the complainant had successfully passed the online application but then failed at the latter stage illustrates the 31.

RGIS Inventory Specialists Ltd v Davis 2014 IRLC EDA 1415.

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[5.37]

need for the application form and the process surrounding it to be compatible with the interview stage. [5.35] A similar complaint arose in the case of Deeney v Francis Brophy & Company, Dublin.32 Here the complainant submitted that he was not short-listed for interview for the position of trainee accountant because of his age. The job advertisement indicated that the post suited a graduate or a school leaver. The complainant submitted that he was directly discriminated against in the short-listing process on the basis of his age and that the provision in the advertisement in relation to suiting a school leaver or graduate indirectly discriminated against him on the age ground. The respondent denied that it indirectly discriminated against the complainant. The case failed as the Equality Officer found that there had been no discrimination and the reference to school leaver or graduate was capable of referring to a wide range of applicants in terms of age.

POST-INTERVIEW FEEDBACK [5.36] Giving feedback following an interview is equally as important as the execution of the interview itself. An interesting case that exemplifies this is Connolly v Bon Secours Hospital.33 Here the complainant, who was an existing part-time employee, was informed at a feedback session following his failure to be appointed to a full-time post he had applied for that the reason he was unsuccessful was because he was married with children. An Equality Officer awarded him €6,000 in compensation.

CONDITIONS PRECEDENT [5.37] Invariably, when an offer of employment is made to a prospective candidate, employers require certain conditions to be met before the employment contract is executed. The satisfaction of the conditions (precedent) can then give rise to difficulties if they cannot be met by the candidate. The usual conditions that employers seek before the contract becomes effective are: the taking up of satisfactory references; the passing of a pre-employment medical, including an alcohol and/drug test; proof of education and qualifications; and a successful background check, including perhaps an immigration check and confirmation that there are no restrictive covenants in place. It should always be remembered that revoking or changing an offer of employment on discriminatory grounds can amount to direct discrimination under the Acts. In O’Brien and National Hardware Ltd,34 the Equality Tribunal held that variations from the original offer to the complainant and the subsequent offer (on finding out that she was pregnant) meant that the respondent changed the entry requirements for the complainant based on her pregnancy, which constituted discrimination on gender grounds. 32. 33. 34.

Deeney v Francis Brophy & Company, Dublin DEC–E2006–028. Connolly v Bon Secours Hospital DEC–E2005–42. O’Brien and National Hardware Ltd DEC–E2013–105.

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[5.38]

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Pre-employment medicals [5.38] There is no statutory requirement on any employer to send prospective employees for medical examinations. Equally, any prospective candidate does not have to submit themselves to such an examination, although it would be reasonable for an employer to refuse to make a job offer in such circumstances. In practice, most employers insist that employees submit to a medical examination after a written offer has been made and accepted in writing. [5.39] The reason that most employers make the passing of a medical to be a condition precedent is that otherwise employers run the risk of being accused of using preemployment medicals as a screening process. In the broader employment context, preemployment medicals play a crucial role for employers, particularly as they may assist the employer in designing safe systems of work to assist the employee in their day-today activities and may also assist the employer in defending any personal injury claims where it can be proven that the person had the symptoms or similar symptoms prior to being employed. [5.40] The position of the medical practitioner in carrying out the pre-employment medical is an interesting one. From a contractual perspective, the medical practitioner does not hold a duty of care to the applicant in assessing suitability for employment, even though it is reasonably foreseeable that the applicant might suffer an economic loss and that a careless error in the doctor’s assessment could lead to the loss of opportunity of employment. [5.41] In the case of Kapfunde v Abbey National plc,35 Mrs Kapfunde was employed on a temporary contract by Abbey National and applied for a permanent post as a cashier. When she filled in her application form, she revealed details about her medical history, including the fact that she suffered from sickle-cell anaemia, which in the past had led her to being absent from work. The company retained a general practitioner, Dr Daniel, who provided medical services including pre-employment assessments. Dr Daniel’s assessment, without meeting Mrs Kapfunde, was that Mrs Kapfunde was likely to have an above-average level of absence. As a result, the company decided not to employ her. In her civil action for damages, Mrs Kapfunde claimed negligence and consequently damages for the economic loss she suffered as a result of not getting the job. She argued that the doctor owed her a duty of care in relation to the information she had provided concerning her sickness record. She argued that the doctor over-assessed the risk of her being off work due to illness related to sickle-cell anaemia and that the doctor had failed to discharge his duty of care competently and, as he was a servant of Abbey National, it was vicariously liable for his negligence. The court dismissed the claim against both Abbey National and Dr Daniel. The case was appealed, arguing the following: •

35.

Dr Daniel did owe a duty of care, because it was reasonably foreseeable that if the doctor negligently over-assessed the risk of the claimant having an aboveKapfunde v Abbey National plc [1998] IRLR 583.

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[5.44]

average level of absence from work, the company would still accept and act upon that assessment. As a result, she would suffer economic loss; •

in the circumstances, Dr Daniel did assume responsibility in a relationship that was of sufficient proximity to give rise to liability;

•

it was fair, just and reasonable in the circumstances for the court to impose a legal duty of care.

[5.42] The Court of Appeal dismissed the appeal. It agreed with the County Court judge that the doctor did not owe a duty of care to Mrs Kapfunde when carrying out the assessment. The court emphasised that there was no duty of care, because the fact that a person’s actions were likely to cause damage to another if there was failure to take due care was not sufficient in and of itself to create that duty of care. In this instance, there was insufficient proximity between Mrs Kapfunde and the doctor. It was the employer to whom the doctor owed a duty of care. Notwithstanding the above, there is a duty not to make any negligent misstatements against the applicant.36 [5.43] The common law, however, does not affect how employers must now have regard to the law on disability discrimination in making a decision to rescind an offer of employment. In X v An Electronic Component Company,37 the Equality Officer considered the appropriateness of pre-employment medicals. In considering the case, the Equality Officer determined that the operation of pre-employment medical examinations or questionnaires is not per se unlawful. The Equality Officer noted that a medical examination can be necessary to allow employers to determine the capability of prospective candidates to perform certain duties – for example, what needs to be done to accommodate a particular candidate with a disability. In stating the latter, however, the Equality Officer warned that employers need to exercise caution when using information obtained from medical assessments so as not to fall foul of the equality legislation. The employee in this instance was dismissed for failure to disclose a back condition on her pre-employment medical assessment, a condition she contested. Ultimately, the claimant’s discriminatory dismissal by reason of an imputed disability was made out on the facts. [5.44] In the case of Computer Component Company v Worker,38 a temporary employee was offered a permanent post and was requested to fill in an application form and undergo a medical examination. Although she suffered from epilepsy, the medical revealed that her condition was well under control and that she was fit to carry out the duties of the job in question. Nonetheless, the employer dismissed the employee on medical grounds. The Labour Court found this to be a discriminatory dismissal on grounds of disability, compounded by the fact that the company had carried out the dismissal before receiving the doctor’s full written report. It awarded €19,000 in compensation. 36. 37. 38.

See also X (Minors) v Bedfordshire County Council [1995] 2 AC 633. X v Electronic Component Company DEC–E2006–042. Computer Component Company v Worker [2002] ELR 124.

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[5.45]

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[5.45] A similar finding was held in the case of Shannon Regional Fisheries Board v Worker.39 The complainant fishery officer was dismissed following an epileptic fit while at work. Similar to the above case, he had declined to declare his epilepsy on his application form, because he had deemed it not to be a disability, as it was under control once he took his medication, and he was also certified fit to drive. The Labour Court, on appeal, found in his favour, awarded him €48,000 and found it to be a discriminatory dismissal on grounds of disability, similarly compounded by the fact that the Fisheries Board had taken the decision to terminate his contract prior to a final medical review and in circumstances where the doctor was not available to attend the hearing of the Labour Court case to give evidence. [5.46] Notwithstanding the above, the issue of reasonable accommodation still arises. If, following a medical examination or assessment, it is found that the applicant has a medical condition, employers must still examine the possibility of reasonable accommodation. In the absence of doing so, this would constitute disability discrimination. [5.47] The Equality Act 2010 in the UK deals specifically with the matter of preemployment medicals. Section 60 of the Act prohibits employers from asking about a candidate’s health and then relying on this information before offering the position to the candidate or placing them in a pool of applicants who may be selected in the future. Similar to discriminatory advertisements in this country, complaints under this section must be lodged by the Equality and Human Rights Commission. References [5.48] There is no general requirement in law or legislation that an employer has to provide a reference. Invariably, the contract of employment is silent on this question. The case of Spring v Guardian Assurance40 established that where an employer does write a reference, he or she may have a duty of care to both the person about whom the reference is written and to anyone who might rely on it. Subsequent to this decision, it has become commonplace for employers to issue what have become known as ‘statements of employment’ rather than to give references. Such a statement is merely a basic outline of what the employee did while in employment, including his or her main duties and functions. [5.49] The question of references was examined in this jurisdiction in a notable Labour Court case under the Industrial Relations Act 1969, Personal Injuries Assessment Board v Worker.41 Here the claimant failed to get a job with the Injuries Board because a previous employer failed to provide an adequate verbal reference. As a result, the job offer, which was conditional on two satisfactory references and the passing of a medical, was withdrawn. The Labour Court held that there is an onus on a prospective employer 39. 40. 41.

Shannon Regional Fisheries Board v A Worker EDA 1318. Spring v Guardian Assurance [1995] 2 AC 296. Personal Injuries Assessment Board v Worker (CD/07/124) Recommendation No 18925.

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[5.52]

to be fair and thorough in his assessment of the views of referees and to adopt standards that are fair and reasonable. The court found that the Injuries Board fell far short of these standards and caused financial loss and upset by revoking the job offer following the unsatisfactory recommendation. It held that the Injuries Board pay compensation to the claimant in the amount of €15,000. [5.50] In ICE Group Business Services Ltd v Czerski,42 the Equality Tribunal had awarded a Polish job seeker €7,000 following a finding that the requirement for two references amounted to indirect discrimination on the grounds of race. Following an advertisement placed by the respondent employment agency in the Western People newspaper, the complainant had applied for a position as a production operative. All applicants were required to furnish details of two referees, which the complainant failed to do. As a result, she was consequently unsuccessful in seeking employment from the agency. She contended that the respondent’s insistence on two references constituted less favourable treatment of her on grounds of gender and race contrary to the Employment Equality Act 1998. [5.51] The respondent appealed the Equality Officer’s decision to the Labour Court. The court upheld the agency’s appeal and accepted its evidence that it did inform the complainant that a character reference would be acceptable as one of the references. The court went on to opine: ‘While the Court accepts that there are inherent difficulties in applying any policy without regard to individual circumstances, the Court is of the view that the requirement to provide two references; one of which might be a character reference, does not constitute indirect discrimination on the race ground. Furthermore, the Court accepts that in the circumstances of the respondent’s business as an employment agency, where it is dependent on its reputation for clients, the requirement to seek two named referees in order to recommend a person for employment to its clients, is a reasonable requirement in all the circumstances.’

The Labour Court ultimately decided the appeal on the basis of a different finding of fact than the legal principles developed by the Equality Tribunal.43 Arguably therefore, the requirement to furnish two employment references is still indirectly discriminatory on grounds of race, as held by the Equality Tribunal. However, from the Labour Court’s decision it would appear that it considered the requirement of furnishing two named references to be reasonable in the circumstances. [5.52] Aside from the common law duty of care, as outlined in Spring v Guardian Assurance,44 it is clear that employers cannot discriminate during the reference-checking process. Reasonable care and common sense must therefore prevail when both interviewing candidates and checking references. This has led to many employers not to 42. 43. 44.

ICE Group Business Services Ltd v Czerski [2010] ELR 8. Determination EDA 0812. Spring v Guardian Assurance [1995] 2 AC 296.

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taking up references at all and relying on their own robust interview processes in the recruitment of candidates. Background and criminal record checks [5.53] There is no legal obligation on candidates to disclose previous misdemeanours and/or convictions, except in very limited circumstances. The issue of previous convictions is therefore a difficult topic and one that most employers find problematic. For a start, criminal convictions constitute ‘sensitive personal data’ and the Data Protection Acts45 provide that such data must be ‘necessary’ to exercise the legal right or obligation in question. As a result, employers must be in a position to show particular justification for this type of inquiry. Added to this, the inquiry will depend on the risk the employer is trying to prevent by vetting the employee. [5.54] Determining whether someone has a criminal record is difficult. Although the criminal conviction is a matter of public record, it is difficult to find the record – particularly because one would need to be aware of the facts surrounding the conviction, including the date of the hearing and the court in which the conviction was recorded. That said, a criminal conviction does not prevent a person from working (with the exception of unsupervised work with children). The onus is on employers to decide on the relevance of the convictions for the job in question. The Data Protection Acts46 specifically provide for the making of regulations about processing personal information in relation to the commission of offences.47 However, no such regulations have to date been made. Regulations would be welcomed as giving clarity to employers rather than expecting them to consider whether such information can be justified in any particular case. [5.55] The explosion of social-networking sites has given rise to a practice whereby employers often vet potential employees by screening sites such as Facebook and Twitter. If employers refuse employment on the basis of the content of such sites, they run the risk of giving rise to claims of discrimination under the Employment Equality Acts48 by unsuccessful candidates, alleging that they have been discriminated against on grounds such as family status, sexual orientation or religious beliefs. It is clear that the recent growth of social-networking sites has blurred the traditional lines between an individual’s professional and private personae. Despite individuals becoming more aware in recent times of privacy rights, privacy risks are increasing as individuals continue to post personal information on such sites without stopping to think about the evidence that they leave behind. [5.56] Notwithstanding the equality risks, a candidate who gives false information at interview is liable to have his or her employment terminated on grounds of 45. 46. 47. 48.

Data Protection Acts 1998–2003. Data Protection Acts 1998–2003. Section 2B(3). Employment Equality Acts 1998–2011.

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misrepresentation. A case in point is Purcell v Netwatch Ireland Ltd.49 Here the claimant was summarily dismissed by the respondent for gross misconduct after the respondent discovered that the claimant had failed to fully disclose during the recruitment process various convictions for traffic offences. A clause in the claimant’s contract of employment provided for summary dismissal in the event that he had provided inaccurate or untruthful information. As a result of a client complaint, the respondent conducted an internet search against the claimant. Following this, the claimant was called to a meeting, during which he was dismissed with immediate effect for withholding critical information about his convictions, including a suspended sentence for his fifth insurance-related conviction. While the respondent agreed in evidence that the claimant’s offences were regulatory offences and not criminal offences, the respondent argued that nonetheless the claimant would not have been employed if he had disclosed his previous convictions during the recruitment process. The tribunal determined that the respondent failed properly to investigate the claimant’s background at the time of the interview process. The tribunal also determined that the decision to dismiss the claimant was taken prior to the meeting in which the claimant was summarily dismissed and noted that there existed a conflict of evidence as to whether the claimant knew in advance of the nature of the meeting. In finding that the claimant was unfairly dismissed, however, the tribunal held that the claimant’s conduct had caused a breach of trust between him and the employer, and thus he had contributed in part to his dismissal; yet it still awarded the claimant €4,500 under the Unfair Dismissals Acts 1977–2001. [5.57] The law outside Ireland is slightly different. In Northern Ireland – in common with a number of EU jurisdictions – the law permits certain applicants not to disclose details of any previous convictions that by law are considered to be ‘spent’. For example, the Rehabilitation of Offenders (Northern Ireland) Order 1978 is based on grades of offence. Here, a person sentenced to imprisonment for a term exceeding six months but not more than 30 months will attract for this offence a rehabilitation period of 10 years, while seven years applies to those sentenced for imprisonment for a term no greater than six months. In this jurisdiction, we make no provision for ‘spent convictions’. Therefore, if an employer asks either at interview or by way of an application form for information on previous criminal convictions, the applicant is required to disclose those details, including any relating to very minor matters.50 [5.58] Best practice suggests that employers should ask applicants about criminal convictions on a character enquiry form that is a separate form from the main application form. Employers should also note that unless they raise the issue on the application form or at the interview stage, there is no legal obligation on candidates to disclose previous convictions. In the event that false information is provided on the 49. 50.

Purcell v Netwatch Ireland Ltd UD 43/2007. Note that the Data Protection Commissioner in his annual report in 2003 expressed concern over the indefinite retention of minor convictions and the fact that this did not accord with the spread of the data-protection legislation regarding retention.

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application form, an employer may rely on this information to terminate the employment on the grounds of misrepresentation. However, only after due investigation has occurred51 and in accordance with all pre-employment vetting, any inquiry should be made only where it is no less intrusive than the practical alternative and should be proportionate to the circumstances in question. [5.59] With the passing of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012, compulsory vetting of employees and volunteers with access to children and vulnerable persons came into effect. Prior to the introduction of the legislation, required organisations could submit requests to the Garda Central Vetting Unit (now replaced by the National Vetting Bureau) on a voluntary basis. Under the Act, an organisation is not allowed to engage a person until it receives a vetting disclosure from the Bureau. This, from an employer’s perspective, is welcome, insofar as the Act is clear: no employment can take place until such time as a person has received a vetting disclosure from the Bureau. The information concerning the individual need not be disclosed to the recruiting employer, however, and can be disclosed only to the organisation if the Chief Bureau Officer is satisfied that it is necessary, proportionate and reasonable in the circumstances in order to protect children or vulnerable persons. Note also that SI 338/14 brought into effect s 5(2) of the Data Protection Act 2003, which makes it a criminal offence to force a person to make a data-protection request with the purpose of giving it to a prospective employer by way of ascertaining the person’s criminal record. Alcohol and drug testing [5.60] Employers need to exercise caution when dealing with employees with alcohol or drug dependence. It has long been the case that the Equality Tribunal has deemed alcohol addiction a disability.52 Also, EU equality legislation requires that all employers take appropriate measures to assist employees with disabilities and to reasonably accommodate them.53 This also applies to pre-employment screening: while requiring job applicants to undergo a test will not generate issues that breach specific constitutional or human rights provisions, as the test is generally done with the applicant’s consent, testing that targets particular gender or ethnic groups – either directly or indirectly – or that does not provide reasonable accommodation for those with particular addictions or disabilities will be discriminatory. [5.61] In the landmark case of X v European Commission,54 in an appeal to the European Court of Justice from the Court of First Instance, it was held that prospective job applicants have the right to know what tests are to be carried out as part of a preemployment medical assessment and have the right to refuse to participate in the process 51. 52. 53. 54.

See Purcell v Netwatch Ireland Ltd UD 43/2007. DEC–E/2005/034. For a helpful discussion on reasonable accommodation, see Milazzo v Autocar Connaisseur Inc Motor Coach Canada, 2003 CHRT 37. X v European Commission [1995] IRLR 320.

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thereafter. Having provided blood samples as part of a pre-employment medical, the doctor in this case ordered blood tests for HIV (T4 and T8 lymphocyte counts) having received X’s medical records. The results were consistent with an immune deficiency, and X’s candidacy was rejected on the grounds that the applicant had full-blown AIDS. The ECJ held: ‘The manner in which the appellant had been medically examined and declared physically unfit constituted an infringement of his right to respect for his private life as guaranteed by the European Convention on Human Rights.’

The court went on to say that the right to respect for private life is a fundamental right and includes the right to a person to maintain secrecy in respect of the state of his or her health. Clearly in such circumstances it would appear that any claimant in this instance would have good grounds for a discrimination claim on the grounds of sexual orientation. [5.62] This raises the matter of fundamental human rights. Article 8 of the European Convention on Human Rights, on the right to respect a private and family life, home and correspondence, is relevant. Albeit that the right to family life as set out in the Convention is not an absolute right, it is nonetheless important that any screening and testing is both lawful and proportionate. This means that screening and testing for drugs and alcohol will be acceptable only where employees: •

are aware of the company policy and trained regularly on the types and methods of testing;

•

know what the employer will do with the test results; and

•

know that the employer is trying to do something it cannot reasonably achieve in any other way.

In the ordinary course of events, a drugs and alcohol policy document, which is intended to promote the health and wellbeing of employees, in addition to safety in the workplace, will be both proportionate and reasonable. [5.63] It should be remembered that there are generally two types of testing: 1.

55.

Random testing – this has generally proved to be the more difficult in which to argue proportionality. To meet this test, employers should be in safety-critical workplaces55 and be able to prove that their workplaces are ‘safety critical’ and that drug and alcohol consumption is identified as a hazard in the workplace. This being the case, it is clear that employers in such instances have a common law duty to ensure a safe place of work. From an equality perspective, employers have to be able to prove no direct or indirect discrimination. For instance, it may be the case that if employers decided to test only the direct It is hard to see what is not a safety critical workplace; however, see Guidance for Directors and Senior Managers on their Responsibilities for Workplace Safety and Health’ (Health and Safety Authority, 2007).

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Equality Law in the Workplace workforce,56 and if they happened to be predominately female, then this would constitute indirect discrimination.

2.

Reasonable cause testing – this generally follows an accident or reportable incident.57 In this case, it is crucial that employees are aware of why they are being tested for certain substances and of the consequences of failing such a test and/or refusing to participate in it.

[5.64] In Ireland at present, there is no general obligation to test for intoxicants, although a specific obligation does exist in some safety-critical sectors, including the rail, aviation and construction sectors. The provision requiring employees to submit to testing58 is now redundant, as the regulations setting out the circumstances to bring the section into force were never enacted. That said, there is still a general duty on all employers to ensure a safe workplace,59 and a breach by an employer of its obligations under the Safety, Health and Welfare at Work Act 2005 has very serious consequences, including a fine, where convicted on indictment, of up to €3 million and a term of imprisonment of up to two years. The fines are published on the Health and Safety Authority’s website. There is a great disparity in the sentences handed down, with some very significant cases being dealt with in a summary fashion in the District Court and some apparently more serious issues being dealt with by indictment in the Circuit Court.60 [5.65] To assist employers in testing for intoxicants, the Health and Safety Authority published an information sheet in 2011 on the requirements of the health and safety legislation. It is in the form of a question-and-answer session, and while it has no legal standing, undoubtedly it will be quoted in court cases and may be relied upon. It states that employers may carry out intoxicant testing in circumstances including the following:

56. 57.

58. 59. 60. 61.

1.

Where a workplace is described as safety critical and the consumption of intoxicants is identified as a hazard;61

2.

Where testing is provided for in the employees’ contract of employment or in a collective agreement; and

3.

Where testing is provided for in the employer’s drugs and alcohol policy or with the express consent of the employee. Generally defined as all non-managerial workers. This is defined under the General Application Regulations 1997, where a person is injured at his or her place of work and cannot perform his or her normal work for more than three consecutive days, not including the day of the accident. Safety, Health and Welfare at Work Act 2005, s 13(1)(c). Safety, Health and Welfare at Work Act 2005, s 8 requires all employers to ensure, as far as is reasonably practicable, the safety, health and welfare at work of all employees. See www.hsa.ie. Again, it is hard to see how in any workplace the consumption of intoxicants would not constitute a hazard.

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It should also be remembered that there is ongoing consultation on the introduction of a Corporate Manslaughter Bill. This legislation, as drafted, includes an offence of corporate manslaughter for corporate entities and a secondary offence for managers. It provides for an unlimited fine and up to 12 years’ imprisonment, as well as disqualification from acting as a manager in the future.62 [5.66] While this area has been little tested in the equality field, the case of Kennedy v Veolia Transport Ltd63 before the UK’s Employment Appeal Tribunal offers some guidance. Here the company had a drugs and alcohol policy for some time. The tribunal upheld the complainant’s dismissal for gross misconduct following his failing a random test. [5.67] In the case of Alstom Ireland v Worker,64 the Labour Court dealt with a situation under the Industrial Relations Acts where a tram worker had failed a random drugs test. Although the quantity of intoxicant found was very low, the company operated a zerotolerance policy. The court stated that it had: ‘… consistently supported the use of drug and alcohol testing in safety critical employments. However, given the inevitable consequences for employees who test positive it is crucial that the modalities of all aspects of the testing conform to predetermined standards which as far as possible, are agreed between the employer and trade union representing staff.’

The court ruled that the employee should be granted the benefit of the doubt, given the fact that the particulars of the testing had not been agreed. [5.68] The case of Mulcahy v HC Cahill t/a Cahill Quality Foods65 involved an allegation of drug abuse by an employee smoking a cannabis joint while at work. The Employment Appeals Tribunal initially heard an application by the claimant for the case to be heard in camera, as the dismissal concerned drug abuse at work and the gardaí were involved in the investigation of the matter. The claimant raised an issue regarding his right to privacy and feared that if it was not heard in camera, it would leave him legally exposed in the context of a garda investigation. The tribunal ruled, however, that there would be no prejudice against the claimant and dismissed the request to have the case heard in camera. [5.69] The evidence centred on the fact that the general manager of the company was called to the scene of an accident on 1 April 2014. The claimant was one of two occupants of a vehicle who was taken to hospital. The general manager discovered a half-smoked cannabis cigarette along with a small block of cannabis resin in a packet of 62.

63. 64. 65.

The Companies Act 2014, s 839 already provides that a person can be disqualified as a director or auditor or from managing a company where he or she has been convicted on indictment for any offence relating to a company. Kennedy v Veolia Transport Ltd EAT 2006. Labour Court CD/07/413. Mulcahy v HC Cahill t/a Cahill Quality Foods UD 969/2004 & MN 769/2004.

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cigarettes in the cab of the truck. Subsequent to his release from hospital, the claimant was questioned by the general manager about the discovery of the drugs in the vehicle, and the claimant admitted that the joint belonged to him. After his return to work, the claimant was summoned to a meeting, where he admitted that the cannabis resin and the joint belonged to him and that he had used the drug while at work. As a result, the claimant was dismissed for serious misconduct. [5.70] At the hearing, the claimant gave evidence that while the cannabis was his, he denied smoking the cannabis on the day of the accident. He also raised procedural issues about the fact that when he returned to work he was not told about the nature of the meeting and that there was a likelihood of disciplinary action being taken against him. The tribunal held that the dismissal was unfair, as the claimant was not afforded due process and fair procedures. However, the tribunal also held that he had contributed significantly to his dismissal by possessing the cannabis while at work and reduced the award to €4,000. [5.71] From an equality perspective, it is clear that intoxicant testing should not target specific individuals on any of the nine grounds. However, if the employee is in a safetycritical role, the employer has an obligation under health and safety law which will outweigh any employee rights under equality law, once the testing is openly communicated and where there is a dedicated policy in place. However once a person is suffering from an addiction, employers need to put in place appropriate measures to reasonably accommodate employees (without imposing a disproportionate burden) so as to enable the employee to fulfil their role. This duty need not include providing treatment or paying for it, but will certainly extend to affording time off66 for the treatment and perhaps include a phased return to work. [5.72] What one can glean from all of the above cases is that the courts are supportive of testing in safety-critical industries and will support employers once their policies are transparent and are explained clearly to employees with the consequences set out and, where addiction issues occur, reasonable accommodation is provided.

CONCLUSIONS [5.73] It is evident that employers need to take great care in the search and selection of candidates. Advertisements need to be free from any inference of discrimination, and interviews need to be arranged and carried out expertly, with clear selection criteria, a proper marking system, good, clear recorded notes and a balanced interview panel. References need to be checked correctly. Any verifications that must occur – including pre-employment medicals and pre-employment screening – ought to be transparent, and applicants need to be informed about what information may be verified and how it may be so verified. Employers would be well advised to seek a signed approval form from a job applicant for the purpose of verifying the information in order to comply with their 66.

This does not mean paid time off.

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[5.74]

own data protection obligations and to ensure that certain institutions and organisations will release the required information when requested, as they will likely not do so without a signed approval from the applicant. [5.74] Additionally, all pre-employment vetting enquiries should be confined to those areas of particular interest and of risk to the employer, clients, customers or others so that they can be objectively justified. Equally, any pre-contract enquiries should be proportionate to the job in question. This will depend on the risk that the employer is trying to prevent. As a prime example, the vetting of people working with children or vulnerable adults will generally be more extensive than most.

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Chapter 6 ASPECTS OF THE EMPLOYMENT RELATIONSHIP THE CONTRACT OF EMPLOYMENT [6.01] The employment of an employee is founded on the contract of employment, which together with the employee handbook, invariably forms part of the contract of employment and hence governs the employment relationship. A contract of employment is defined in s 2(2)(b)1 of the Employment Equality Acts 1998–2011 as: ‘(a)

a contract of service or apprenticeship, or

(b)

any other contract whereby– (i)

an individual agrees with another person personally to execute any work or service for that person, or

(ii)

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 the other person is a party to the contract)’.

This is a very broad definition of a contract of employment, encompassing as it does self-employed persons and those employed through employment agencies. [6.02] Central to all this is the over-arching requirement that all people are treated equally, and that includes when one is both drafting and entering into a contract of employment. It is a given, therefore, that a contract of employment cannot either directly or indirectly discriminate in favour of one person or group of persons. It cannot contain any terms that are discriminatory. The Act goes to significant lengths to make this point. For example, s 21(1) of the Act provides: ‘If and so far as the terms of a contract of employment do not include (expressly or by reference to a collective agreement or otherwise) a gender equality clause, they shall be taken to include one.’

In essence, this section inserts into an employee’s contract of employment a genderequality clause if it does not already include one.2 [6.03] Equally, s 30(1), in mirroring s 21(1), provides: 1. 2.

This definition was substituted by virtue of the Equality Act 2004, s 3. This section re-enacts with amendments the Equality Act 1977, s 4.

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[6.04]

Equality Law in the Workplace ‘If and in so far as the terms of a contract of employment do not include (expressly or by reference to a collective agreement or otherwise) a nondiscriminatory equality clause, they shall be taken to include one.’

This section therefore has the effect of inserting into every contract of employment that does not already contain one a non-discriminatory equality clause and, more particularly, a gender-equality clause.

COLLECTIVE AGREEMENTS [6.04] Equality in contracts also extends to collective agreements. Currently the different definitions of ‘collective agreement’ in various pieces of legislation include the following: •

Protection of Young Persons (Employment) Act 1996, s 1(1): an agreement by or on behalf of an employer, on the one hand, and by or on behalf of an entitled trade union or entitled trade unions representative of the employees to whom the agreement relates on the other hand.

•

Finance Act 1997, s 14: an agreement entered into by a company with, or on behalf of, one or more than one body representative of employees of the company where each such body is either the holder of a negotiation licence under the Trade Union Act 1941 or is an accepted body within the meaning of s 6 of that Act as amended by the Trade Union Act 1942, s 14(1)(A).

•

Employment Equality Act 1998, s 21 (as inserted by the Equality Act 2004, s 3): an agreement between an employer and a body or body representative of the employees to which the agreement relates.

•

Protection of Employees (Part-Time Work) Act 2001, s 3(1): an agreement by or on behalf of an employer on the one hand and by or on behalf of a body or bodies representative of the employees to whom the agreement relates on the other hand. Section 11(5) of the same Act refers to an approved collective agreement, which means a collective agreement as approved by the Labour Court. The same definition appears in the Protection of Employees (Fixed-Term Work) Act 2003, s 2(1) and the Organisation of Working Time Act 1997, s 2.

[6.05] Invariably, contracts of employment contain a clause incorporating collective agreements into them, for the purpose of ensuring that the collective agreement forms part of employees’ terms and conditions of employment and that there is an intention to create legal relations between the parties.3 [6.06] Section 9(2) of the Employment Equality Act 1998 renders collective agreements null and void to the extent that they discriminate or provide for different rates of remuneration in respect of ‘like work’ based on any of the nine grounds. Section 9(1)(a) and (b) were the subject of a decision by the Labour Court in Department of Finance v 3.

See Allied Irish Banks Ltd v Lupton (21 October 1983) HC; Kenny v An Post [1998] IR 285.

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[6.10]

Collins.4 Here the Labour Court went on to hold that paras (a) and (b) of sub-s (1) were conjunctive and that in order to come within the ambit of the section, a provision in a collective agreement must provide for different rates of remuneration based on one or more of the nine prohibited grounds. [6.07] Sections 86 and 87 of the Act allow for the reference of a collective agreement to the director of the Equality Tribunal by the IHREC or by a person who is affected by an allegedly discriminatory clause or clauses in a collective agreement. Section 34(7A) allows pay to be determined in a collective agreement on the basis of seniority or length of service. It is interesting to note that the Equality Tribunal has taken the view that it is only an employee who can refer an alleged discriminatory collective agreement and not an employer.5 [6.08] Section 34 was extensively dealt with in the case of the Department of Finance v Collins,6 where the Civil and Public Service Union sought to argue that the Programme for Prosperity and Fairness and the associated Benchmarking process were collective agreements. The Labour Court ultimately held that they did not constitute collective agreements [6.09] The matter has also been given consideration at a European level. The ECJ in Enderby7 considered a claim of pay discrimination in a case where two different groups (namely speech therapists and pharmacists) had concluded two separate collective agreements: ‘The fact that the rates of pay at issue are decided by collective bargaining processes conducted separately for each of the two professional groups concerned, without any discriminatory effect within each group, does not preclude a finding of prima facie discrimination where the results of those processes show that two groups with the same employer and the same trade union are treated differently. If the employer could rely on the absence of discrimination within each of the collective bargaining processes taken separately as sufficient justification for the difference in pay, he could, as the German Government pointed out, easily circumvent the principle of equal pay by using separate bargaining processes.’

[6.10] The Court of Justice rowed back on this somewhat in the Royal Copenhagen case:8 ‘The fact that the rates of pay have been determined by collective bargaining or by negotiation at local level may be taken into account by the national Court as a factor in its assessment of whether differences between the average pay of two 4. 5. 6. 7. 8.

Department of Finance v Collins EDA 8/2006. See Noonan Services Ltd v Labour Court (25 February 2004) HC, Kearns J. Department of Finance v Collins EDA 8/2006. Enderby v Frenchay Health Authority (Case C–127/92) [1993] ECR I–5535 at para 22. Specialarbejderforbundet i Danmark v Dansk Industri, formerly Industriens Arbejdsgivere, acting for Royal Copenhagen (Case C–400/93) [1995] ECR I–1275.

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[6.11]

Equality Law in the Workplace groups of workers are due to objective factors unrelated to any discrimination on grounds of sex.’

[6.11] The matter was considered here in the case of Mandate (550 Sales and Clerical Assistants) v Penneys Ltd,9 where the company argued that the difference in pay was as a result of the strength of the union in its collective bargaining negotiations during the 1970s. The Labour Court, in distinguishing the case from Enderby, held that the case involved two separate collective-bargaining processes, whereas in Enderby one trade union represented both the claimants. [6.12] As it stands, therefore, the position is as follows: •

the fact that two different groups are represented by the same trade union is not prima facie evidence that those two groups were treated the same;10

•

the fact that collective bargaining has resulted in two different rates of pay can be considered by a court in determining whether this arose due to objective factors unrelated to discrimination;11

•

it will be easier to defend an apparent difference where the difference arose out of two separate and distinct collective bargaining processes.12

Collective bargaining [6.13] It is common case that ‘collective agreements’ can come about only by virtue of ‘collective bargaining.’ A collective agreement (unlike the definitions under various other Acts) is given a rather brief definition under the Employment Equality Act.13 The Act merely states (as above) that a collective agreement is an agreement between an employer and a body or bodies representative of employees to which the agreement relates. On the other hand, the Protection of Young Persons (Employment) Act 1996 and the Finance Act 1997 have more broad-ranging definitions. The variation in definitions is mirrored by the conflicting opinions on what constitutes ‘collective bargaining’. [6.14] The matter was given some consideration in the Supreme Court case of Ryanair v Labour Court.14 The case centred on a dispute between a number of pilots, who were members of the Irish Airline Pilots Association (IALPA), which is a branch of the Irish Municipal Public and Civil Trade Union, (IMPACT), and who sought to have the union negotiate with Ryanair on their behalf. Ryanair refused to negotiate with the union and, as a result, the union processed the matter through the Industrial Relations 9. 10. 11. 12. 13. 14.

Mandate (550 Sales and Clerical Assistants) v Penneys Ltd EP 06/1994. Enderby v Frenchay Health Authority (Case C–127/92) [1993] ECR I–5535 at 332. Danmark v Dansk (Cases C–335/11 and C–337/11), [2013] IRLR 571. Mandate (550 Sales and Clerical Assistants) v Penneys Ltd EP 06/1994 at 335. Employment Equality Act 1998, s 3 as inserted by the Equality Act 2004. Ryanair v Labour Court [2007] IESC 6.

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[6.17]

(Amendment) Acts 2001–2004 to the Labour Court. When both the Labour Court and the High Court found against it, Ryanair appealed to the Supreme Court.15 [6.15] The Labour Court, in its determination, adhered to the rather traditional definition of collective bargaining: ‘Collective bargaining comprehends more than mere negotiation or consultation on individual employment related issues including the processes of individual grievances in relation to pay or conditions of employment. In the industrial relations context in which the term is commonly used it connotes a process by which employers or their representatives negotiate with representatives of a group or body of workers for the purpose of concluding a collective agreement fixing the pay and other conditions of employment applicable to the group of workers on whose behalf the negotiations are concluded.’

This rather narrow definition of collective bargaining, given that it must lead to a collective agreement, which can only be concluded between employers and trade unions, was criticised in significant respects by Geoghegan J in the Supreme Court. He referred with disapproval to the view taken by the Labour Court that the collective bargaining in a non-unionised company must take the same form and adopt the same procedures as would apply to collective bargaining with a trade union. He went on to declare that the Labour Court was not at liberty to adopt an ‘industrial relations’ interpretation of the expression ‘collective bargaining’ but instead should give that term its ordinary meaning.16 [6.16] The issue in this jurisdiction is that while the Employment Equality Acts are clear in preventing discrimination in collective agreements, they do not seem to extend to collective bargaining. There is no definition of collective bargaining contained in the Act and, as already stated, the definition of a collective agreement contained in the Act is limited. [6.17] One might comment that this is irrelevant, as the outcome of collective bargaining is a collective agreement. However, this may not always be the case. Often collective bargaining results in side agreements or informal arrangements that are neither put in writing nor formalised but rather become the practice in the organisation or company. In essence, they become implied collective agreements or ‘custom and 15. 16.

See Doherty, ‘Ryanair ruling serious for Labour Court role’ Irish Times, 2 February 2007. Ryanair v Labour Court [2007] IESC 6. More recently, the government announced that it will honour a commitment made in its programme, which will bring forward legislation for employees’ rights to engage in collective bargaining following a number of decisions in which the European Court of Human Rights recognised that the European Convention on Human Rights contains the right to collective bargaining. This has taken form into the Industrial Relations (Amendment) Bill 2014 See also Demir v Turkey [2008] ECHR 1345. See also Purdy, ‘The Industrial Relations (Amendment) Act 2001 and the Industrial Relations (Miscellaneous Provisions) Act 2004 – Have they helped?’ (2004) 1(5) IELJ 142.

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practice’.17 It is also the case that union/management agreements can unintentionally give rise to discrimination where certain practices are agreed between an employer and a trade union. [6.18] In the case of Employment Equality Agency v Packard Electric Ireland Ltd,18 an agreement where part-time women employees were denied immediate access to fulltime employment as a result of a union/management agreement, was held to be discriminatory. In summary, therefore, while a collective agreement will be deemed null and void to the extent that it discriminates, there is nothing preventing discrimination in a collective bargaining process, although it does seem reasonable to conclude that one is a corollary of the other.

TERMS AND CONDITIONS OF EMPLOYMENT [6.19] Section 8(1) of the Employment Equality Act provides that an employer shall not discriminate against an employee in relation to, inter alia, conditions of employment.19 It is sine qua non that to be discriminated against in relation to conditions of employment, you actually have to be in employment. This matter was finally put to rest in the HSE v Whelehan.20 Conditions of employment are not defined in the Equality Act, unlike in other legislation. For example, the Protection of Employees (Fixed-Term Work) Act 200321 (itself a ‘non-discrimination’ Act), defines conditions of employment as follows: ‘Conditions in respect of remuneration and matters relating thereto (and, in relation to any pension scheme or arrangement, includes conditions for membership of the scheme or arrangement and entitlement to rights thereunder and conditions related to the making of contributions to the scheme or arrangement).’

Therefore, conditions of employment can be both pay – and matters relating thereto – in so far as the Fixed Term Work Act 2003 is concerned. However, given the absence of a definition of ‘conditions of employment’ and/or pay in the Equality Act, the matter as to whether conditions of employment includes pay remains to be determined. Taking the 17.

18. 19. 20. 21.

The International Labour Organisation has attempted to address this in its Declaration on Fundamental Principles and Rights at Work, which provides for both the ‘effective recognition of collective bargaining’ and the ‘elimination of discrimination in respect of employment and occupation.’ See Constitution of the International Labour Organisation, 28 June 1919, Can TS 1946 No 48; Declaration on Fundamental Principles and Rights at Work and its Follow-up, adopted June 18, 1998, 37 ILM 1233. See also Blackett and Sheppard, ‘The Links between Collective Bargaining and Equality’ Working Paper 10/2003 (International Labour Office, September 2002). Employment Equality Agency v Packard Electric Ireland Ltd EE/145/1985. Employment Equality Act 1998, s 8(1)(b). HSE v Whelehan DET EDA 0923. Protection of Employees (Fixed-Term Work) Act 2003, s 2(1).

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definition as set out in the Fixed Term Work Act 2003, conditions of employment include pay.22 [6.20] Regardless of the above, the Equality Tribunal and the Labour Court have broadly interpreted what actually constitutes a condition of employment and have included the following: 1.

non-payment of redundancy monies;23

2.

non-payment of holiday pay;24

3.

being rostered for night shift;25

4.

allocation of various duties;26

5.

a high rate of a deduction from wages;27

6.

access to a scheme for self-employed drivers;28

7.

being denied access to management to discuss illness;29 and

8.

failing to assist in a return to work.30

In light of the above, it is probably more difficult to determine what is not a condition of employment rather than what actually constitutes one.

PROMOTIONS AND SENIORITY [6.21] As the Employment Equality Acts prohibit discrimination in relation to access to employment, it goes without saying that employers have to take care when promoting employees. The case of Boland v Eircom31 concerned the issue of ‘glass ceilings’ in relation to promotions. The complainant, a female employee, had worked for 18 years in the same job, and although no complaints were ever made about her performance, whenever she applied for promotion, less experienced male colleagues were promoted over her. These facts were held to raise a prima facie case of gender discrimination. The employer argued that the complainant had been assessed as lacking assertiveness, but the Equality Officer found that there appeared to be no objective basis for this contention and that the manner in which the employer appraised the complainant’s 22. 23. 24. 25. 26. 27. 28. 29. 30. 31.

Some authors have suggested the opposite: see Bolger, Kimber and Bruton, Employment Equality Law (Round Hall, 2012) para 10–34. Monajenkovs v Realtime Technologies Ltd DEC–E2009–117. Chasi v J & I Security Ltd DEC–E–2011–016. Cers v Securazone Manhour Ltd (in Liquidation) DEC–E–2009–116. Aukscionis v ARA Construction Ireland Ltd DEC –E2010–195. Frylite Dublin Ltd v Sigalis EDA 108. Power v An Post DEC–E–2007–034. Ryan v Dublin Airport Authority DEC–E2010–059. Government Employee v Government Department DEC–E2010–055. Boland v Eircom DEC–E–2002–019.

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suitability for promotion was unsustainable. The complainant was awarded €20,000 in compensation, and the Equality Officer made a recommendation that the company engage a professional HR expert to assist in introducing a formal appraisal process for all staff. The decision in Boland v Eircom was appealed to the Labour Court, which upheld the decision of the Equality Tribunal and further increased the award of compensation to the claimant. [6.22] In Lynsky v Coolmine Community School,32 the Equality Officer held that the respondent school had discriminated against a male candidate when a female candidate was appointed to the position of deputy principal. Applying the criteria set by the respondent for the position, the Equality Officer found that the candidates had at least comparable qualifications, while the complainant had longer relevant experience. The successful female candidate could have performed more impressively at interview; however, the Equality Officer found that the selection committee had no interview notes to explain the decision, had followed no objective criteria in its marking, had not used any marking scheme to compare candidates, gave confused evidence on a number of relevant points, and had omitted to credit the complainant for experience which he patently had. This case is a very good example of the obligations upon an employer in respect of the promotion process, particularly the interview, and how crucial it is that the process is formalised, so that, in any claim of discrimination by a dissatisfied interviewee, an employer can support its decision through the production of notes taken during the interview and the utilisation of scoring sheets to support the selection of the successful candidate. The Equality Officer found that the claimant had established prima facie evidence of discrimination, which the respondent had failed to rebut. In finding that the respondent had discriminated against the claimant on the gender ground, she recommended the payment of €5,000 for the effects of the discriminatory treatment and also recommended that all future interview boards should have specific criteria for the post being filled, utilise a formal marking scheme for the candidates and retain comprehensive written notes of the interviews for a minimum period of 12 months. [6.23] The case of O’Higgins v Labour Court and UCD33 is also instructive in this regard. Dr O’Higgins was a senior lecturer in the school of business and law at University College Dublin. She applied for a promotion to professor under a noncompetitive scheme, which was in effect a promotional exercise by reference to a number of defined and objective criteria. There was no limit to the number of applicants who could receive promotion. Promotions were carried out by a committee, which comprised 12 men and one woman. Six men and two women were ultimately promoted, but Dr O’Higgins was not one of those promoted. While the Equality Tribunal held that no prima facie case of discrimination had been established, the Labour Court on appeal 32. 33.

Lynsky v Coolmine Community School DEC–E–2002–035. O’Higgins v Labour Court and UCD [2013] IEHC 508.

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overturned that decision and held that a prima facie case of discrimination had been established. The Labour Court was particularly concerned with three issues: 1.

there was independent evidence that Dr O’Higgins met the selection criteria;

2.

the gender composition of the committee being weighed heavily in favour of men was harmful in its effect;

3.

no notes were takes by the committee of the deliberations in reaching its decision.

As a consequence, the onus of proof shifted to the university. However, the Labour Court concluded that the fact that 15 of the 19 applicants were men and four were women was inconsistent with the conclusion that the committee was subconsciously disposed to promote men instead of women. Dr O’Higgins then appealed to the High Court on a point of law, asserting that the Labour Court erred in failing to carefully evaluate the evidence tendered by the university. Cooke J found that the committee was not incapable of reaching an unbiased decision merely because it was male dominated and held that the Labour Court properly took account of all the material considerations; the appeal was rejected. [6.24] In the case of Sheehy Skeffington v National University of Ireland, Galway,34 the complainant had applied for promotion to senior lecturer four times. She was not shortlisted on her first two attempts. She was shortlisted for the second two, but was unsuccessful at interview stage. She asserted that the interview process was weighted against women. The complainant presented evidence of her academic qualifications, credentials and experience. She also presented a witness, Dr B, who was the subject expert on her interview panel. Dr B stated that some interviewers arrived for the interview only a minute before the start and that there was no discussion as to the complainant’s application or what questions would be asked. He also indicated that he had requested the marking scheme and guidelines by email prior to the interview but had not received a reply. He stated that the interview fell short of best practice and, while not a friend of the complainant, that he felt an injustice had been done to her. There was one female on the interview panel and the complainant asserted that she was entirely passive throughout. The complainant also presented statistics of male/ female grade distribution in the respondent and asserted that four candidates were actually ineligible, as they had not reached the maximum level of the lecturer scale. In addition, she asserted that three successful male candidates had significantly less than the minimum student contact hours. She presented a report that had examined these matters at the university previously. The respondent rejected the assertions and stated that the process was fair and transparent. The female interviewer stated that she was not the designated questioner for the interview. 34.

Sheehy Skeffington v National University of Ireland, Galway DEC–E2014–078.

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[6.25] The Equality Officer, in referring to O’Higgins,35 found that the complainant had established that the process, while appearing fair with definitive criteria on paper, fell well short of best practice on several grounds: •

there was no training of interviewers;

•

there was no pre-meeting;

•

notes were only kept by the rapporteur;

•

the failure to communicate with Dr B, who had requested the marking scheme and guidelines.

All of the above led the Equality Officer to conclude that there was a ‘ramshackle approach’ to the process. Having reviewed the applications, the Equality Officer found that the complainant was correct in her assertion that three successful male candidates had significantly less than the minimum contact hours with the student body. The Equality Officer also found, having examined the statistics available, that men were in the minority in the college lecturer grade but that this was almost inverted in the seniorlecturer grade level: ‘It is clear from the above table that male applicants have a one in two chance of being promoted to senior lecturer while women who apply have a less than one in three chance of the same promotion. For these reasons I am satisfied that the complainant has established a prima facie case of direct discrimination and the respondent has failed to rebut it.’

[6.26] The Equality Officer then considered whether indirect discrimination had occurred and found one apparently neutral provision that put women at a particular disadvantage: the application form asked applicants to state when they were on maternity or other unpaid leave so that it could be discounted. Male applicants left this blank, whereas female applicants included maternity leave, parental leave, adoptive leave, job sharing and, for the complainant personally, care of her mother in the 1990s. While the Equality Officer accepted that the question had a legitimate purpose, the effect was discriminatory: ‘I cannot escape the conclusion that the majority of female applicants drawing attention to the caring responsibilities outside the workplace disadvantaged them against the male applicants. Therefore the means chosen was neither appropriate nor necessary and so one cannot be objectively justified. Therefore I find that the respondent had indirectly discriminated on the ground of gender in relation to this issue.’

The complainant was awarded €70,000 and the university was instructed to appoint her as senior lecturer from 1 July 2009, including full payment of the necessary salary adjustment and other benefits from that date. The university was also ordered to conduct a review of its policies, with a progress report to be sent to the Irish Human Rights and Equality Commission within one year. 35.

O’Higgins v Labour Court [2013] IEHC 508.

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[6.29]

[6.27] Notwithstanding the obvious – that one cannot directly or indirectly discriminate in a promotion process – one can gather the following from the above cases: 1.

promotion criteria should be transparent and applied equally to all candidates;

2.

all panels dealing with promotions should be gender balanced;

3.

all panels need to mark each candidate against the promotion criteria and to keep legible notes;

4.

it is useful to carry out periodic reviews of promoted candidates to ensure that despite an apparently transparent process, it is does not favour males over females or vice versa.

[6.28] Although it is less prevalent now, in the past organisations have often based promotion on years of service. In the main this has been replaced by performance-based promotion competition.36 On the surface, promotion based primarily on seniority is indirectly discriminatory in terms of age; however, s 34(7) and (7A)37 of the Employment Equality Acts permit the provision of different rates of pay or differing terms and conditions of service on the basis of seniority or length of service. [6.29] This apparent anomaly was supported by the CJEU in the Danfoss decision:38 ‘The recourse to the criterion of length of service is appropriate to attain the legitimate objective of rewarding experience which enables the worker to perform his duties better.’

This rule is subject to an exception where the claimant can produce evidence ‘capable of raising serious doubts’ as to the connection between length of service and performance in their employment. No such exception is allowed for in the Acts; however, this has yet to be challenged. It is interesting to think about salary scales and performance. Is, for example, a very short salary scale, with perhaps six or seven increments, valid and representative of the decision in Danfoss? And might a very long salary scale of say 20 increments not be? In the latter, it may be more difficult to argue from an employer’s perspective that a 20point salary scale is necessary to reward experience to enable the worker to perform his duties better.

36. 37. 38.

For example, the Irish Defence Forces operate a merit-based promotion scheme for both commissioned and non-commissioned officers. Employment Equality Acts 1998–2011, s 34(7A) refers to collective agreements. Handels-og Kontorfunktionærernes Forbund i Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss (Case C–109/88), [1989] ECR I–3199 at 14.

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Chapter 7 VICTIMISATION INTRODUCTION [7.01] Article 24 of the Recast Directive1 provides that: ‘Member States shall introduce into their national legal systems such measures as are necessary to protect employees, including those who are employees’ representatives provided for by national laws and/or practices, against dismissal or other adverse treatment by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment.’

Article 24 thus provides for protection against victimisation. In addition, Art 9 of the Race Directive2 and Art 11 of the Framework Directive3 provide protection against victimisation. [7.02] Section 74(2) of the Employment Equality Acts 1998–2011 defines victimisation as dismissal or other adverse treatment as a reaction to:

1.

2. 3.

•

a complaint of discrimination made by the employee to the employer;

•

any proceedings by a complainant;

•

an employee having represented or otherwise supported a complainant;

•

the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act;

•

an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment;

•

an employee having opposed by lawful means an act which is unlawful under this Act of the said Act of 2000 or which was unlawful or any such repealed enactment; or

•

an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs. Directive 2006/54/EC ([2006] OJ L204/23) of the European Parliament and of the Council on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast). Racial Equality Directive 2000/43/EC. Council Directive 2000/78/EC ([2000] OJ L303/16) establishing a general framework for equal treatment in employment and occupation.

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[7.03]

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CAUSE OF ACTION IN ITS OWN RIGHT [7.03] It is important to note that victimisation is a cause of action in its own right and therefore it is important to plead victimisation by way of a separate claim. This provides a second and separate avenue of redress to complainants. [7.04] Further, it should be noted that a complainant may succeed in a claim for victimisation, even if their claim for alleged discrimination is not upheld. In the case of A v State Authority,4 the complainant was unsuccessful in his claim of discrimination on the grounds of religion but was awarded €40,000 compensation for the victimisation he suffered as a consequence of having made a referral to the Equality Tribunal. [7.05] Equally, in the case of Female Teacher v Board of Management of a Secondary School,5 a teacher unsuccessfully argued that she was sexually harassed but succeeded in arguing that she was dismissed during the probationary period as a reaction to a complaint or complaints of discrimination made to her employer. The effectiveness of the claimant as a teacher was at issue and the arguments that the respondent was acting in the best interests of the school was no defence. The claimant was awarded €75,000 for the acts of victimisation, which corresponded to 18 months’ salary.

SCOPE OF VICTIMISATION [7.06] In Watters Garden World Ltd v Panata,6 the Labour Court rejected the proposition that victimisation could arise only where a person suffered a detriment to his or her conditions of employment. The court referred to the ECJ decision in the case of Coote v Granada Hospitality Ltd7 as authority for the proposition that the concept of ‘victimisation’ should be: ‘construed as widely and liberally as can fairly be done and should be given a sufficiently wide ambit so as to encompass all forms of detriment inflicted on a worker by his or her employer for committed a protected act.’

[7.07] In considering a claim for discrimination, it is also important to note that Equality Officers have significant scope in investigating claims of victimisation. Thus, during the course of the case in Employee v Employer,8 the Equality Officer formed the opinion that a claim of victimisation should be investigated even though the complainant had not pleaded victimisation in her claim. The Equality Officer invited observations from the 4. 5. 6. 7. 8.

A v A State Authority DEC–E2006–015. Female Teacher v Board of Management of a Secondary School [2013] ELR 16. Watters Garden World Ltd v Panata EDA8/2009. Coote v Granada Hospitality Ltd (Case C–185/97) 1998 ECR I–5199. Employee v Employer DEC–E2010–126.

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[7.10]

respondent employer. The respondent did not reply. The Equality Officer went on to aver: ‘I find that the way in which the respondent sought to put the complainant under pressure in terms of communications, and the way in which the respondent sought to pressurise the complainant into waiving her legal rights, and the manner in which the respondent attempts to place blame for communication difficulties on the complainant at a time when the complainant was very seriously ill from a pregnancy-related condition, to be adverse treatment within the meaning of s.74(2) and that this has not been rebutted. Accordingly, I find that the respondent has victimised the complainant contrary to s.74(2) of the Acts, and in my opinion, has done so in a very serious manner.’

The Equality Officer awarded €50,000 compensation for victimisation in addition to €50,000 for the discrimination claimed. [7.08] Not every instance of adverse treatment amounts to victimisation. In the case of Chief Constable of West Yorkshire Police v Khan,9 the court held that employers ought to be able to take steps to protect their positions in pending discrimination proceedings without laying themselves open to a charge of victimisation. Here the employer had refused to give a reference pending the outcome of proceedings against him.10 However, whereas actions taken by employers to protect their legal position and to avoid prejudicing their claim may not automatically come within the scope of victimisation, this is always going to be determined on the facts of each case.

SIGNIFICANCE OF A CLAIM OF VICTIMISATION [7.09] The first serious point to note is that there is nothing in the Employment Equality Acts 1998–2011 that allows an employer to justify victimisation. From this alone, it can be inferred that claims of victimisation are taken very seriously. [7.10] In Complainant v Department Store,11 the Equality Officer emphasised that ‘victimisation’ was a matter that must be considered ‘very seriously’ and that ‘significant compensation’ should be awarded to successful complainants. In Dublin City Council v McCarthy,12 the Labour Court agreed with this view: ‘The victimisation of a person for having in good faith taken a claim under the equality legislation is very serious as it could have the impact of undermining the effectiveness of the legislation and is completely unacceptable.’

Here, the Labour Court awarded the complainant €25,000. 9. 10. 11. 12.

Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830. Note the entitlement of an employer to do this in Ireland is specifically protected by the Employment Equality Act 1998, s 76(4). Complainant v Department Store DEC–E2002–017. Dublin City Council v McCarthy EDA2/2002.

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[7.11]

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[7.11] The seriousness of a claim of victimisation can also be seen in the case of A v Contract Cleaning Company.13 Here the employee alleged that she had been sexually assaulted by a security guard who worked in the same premises but was employed by a different company. The employee reported the incident to the Gardaí and was subsequently threatened with dismissal by her employer if she did not withdraw the complaint. The sexual assault was also referred to in a disciplinary meeting that had been called regarding another matter. The employee took a case against her employer on the grounds of sexual harassment and victimisation, and she was awarded the maximum compensation payable under the legislation. [7.12] In Murphy v Iarnród Éireann,14 the claimant was awarded the maximum two years’ remuneration in addition to one year’s salary for distress caused by victimisation. The total award came to €189,000.15 [7.13] In McCarthy v Dublin Corporation,16 both the Equality Officer and the Labour Court on appeal concluded that as the effect of victimisation is to undermine the entire purpose of the legislation, it will always be dealt with severely. [7.14] In addition to the above, if an employee is dismissed in circumstances amounting to victimisation, the employer shall be guilty of an offence. On conviction, the Labour Court may make that order if it considers that the court would have the power to make an order of reinstatement or re-engagement. The court may in addition to imposing a fine for an offence, order that compensation is paid to the employee. Compensation will be in the amount that the adjudicating authorities can award under the Act or, if the order is made by the District Court, the amount payable would be €15,000 (ie, the limit of the District Court jurisdiction). The employer may appeal against the conviction, and the employee may also appeal against the level of the compensation awarded. Any person found guilty of an offence under the Act shall be liable, on summary conviction, to a fine not exceeding €2,500 or to a term of imprisonment not exceeding one year or both or, on conviction on indictment, to a fine not exceeding €31,743.45 or to imprisonment for a term not exceeding two years.

SUMMARY [7.15] In summary, victimisation, being a cause of action in its own right, is taken very seriously both by the tribunal and the court. The term itself is given a very wide interpretation and, if found to have victimised an employee, employers face a very large penalty and possible criminal prosecution. 13. 14. 15. 16.

A v Contract Cleaning Company EE/2001/166. Murphy v Iarnrod Éireann [2010] ELR 143, (sub nom Z v A Transport Company). Note that this amount is not subject to income tax per the Taxes Consolidation Act 1997, s 192A as amended by the Finance Act 2004, s 7. McCarthy v Dublin Corporation [2001] ELR 255.

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Chapter 8 HARASSMENT AND SEXUAL HARASSMENT INTRODUCTION [8.01] At a European level, there is currently no existing Directive in place that deals directly with sexual harassment. Notwithstanding this, the Recast Equal Treatment Directive contains specific provisions that define harassment and sexual harassment as a form of discrimination.1 [8.02] In 1991, the Code of Practice on the Protection of the Dignity of Women and Men at Work2 was created in the EU for the purposes of creating awareness of the problem of sexual harassment in the workplace. It has provided a practical guide for employers in both the public and private sector to implement measures that may prevent and deter such conduct. The code also identified the vulnerable groups of people that may be subjected to such behaviour, such as young women, women who are divorced or separated, homosexuals and those with disabilities. The definition describes sexual harassment as ‘unwanted conduct of a sexual nature, or other conduct based on sex affecting the dignity of women and men at work’ and outlines the range of behaviour that may constitute sexual harassment including ‘unwelcome physical, verbal or non-verbal conduct.’ [8.03] As a result of amendments to the Equality Acts, a more updated code of practice was created, the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002.3 This was subsequently repealed following the amendments to the 1998 Act in 2004 and replaced by a 2012 code of practice.4 The Equality Act 2004 changed the previous requirement whereby the conduct had to be unwelcome and be reasonably regarded as offensive, humiliating or intimidating: the requirement now sets out that the behaviour must be unwanted and have the purpose or effect of violating a person’s dignity and of creating a hostile environment in the workplace. 1.

2. 3. 4.

Council Directive 76/207/EEC ([1976] OJ L39/40) 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 Directive 2006/54/EC ([2006] OJ L204/23) of the European Parliament and of the Council on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast), Art 2(1)(c) and (1)(d) and Recital 6. Commission Recommendation 92/131/EEC ([1992] L49) on the protection of the dignity of women and men at work. Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002 (SI 78/2002). Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 (SI 208/2012), which came into force on 31 May 2012.

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[8.04]

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[8.04] Sexual harassment can be described as any unwanted form of sexual advance in the workplace. The term ‘sexual harassment’ first became synonymous with sex discrimination in the US during the 1970s, a time when women’s participation in the labour force was increasing, which ultimately resulted in a social movement aimed at bringing about a working environment free from unwanted sexual advances for these working women.5 Title VII of the Civil Rights Act 1964 in the US which ‘prohibits employment discrimination based on race, colour, religion, sex and national origin’ came to include sexual harassment in the case of Barnes v Castle,6 in which a female employee was dismissed because she would not comply with the sexual demands of her employer after numerous unsuccessful cases being brought forward. [8.05] Sexual harassment has over time become compartmentalised into two types of sexual harassment: ‘quid pro quo’ sexual harassment and ‘hostile environment’ sexual harassment. The first relates to a situation in which a female employee does not comply with the sexual demands of her superior or colleague and is victimised as a result. The second does not involve any demands of a sexual nature but instead involves the creation of a hostile environment through the conduct of an employer or a colleague. The two forms of sexual harassment were first identified by MacKinnon7 in 1979, but were only recognised by a US Supreme Court some seven years later in Meritor Savings Bank v Vinson,8 where it was held that hostile environment sexual harassment was actionable under Title VII of the Civil Rights Act and that the language of Title VII was not limited to just an economic effect as a result of discrimination. [8.06] As with many other areas of law, the development in this area in Ireland and the UK was somewhat slower to progress compared with that in the US. There was no formal definition for sexual harassment until the Employment Equality Act 1998. Notwithstanding this, the Equality Act 1977 did state that discrimination would occur in situations ‘where by reason of his sex a person is treated less favourably than a person of the other sex.’9 5.

6. 7.

8. 9.

MacKinnon, The Sexual Harassment of Working Women (Yale University Press, 1979); Farley, Sexual Shakedown: The Sexual Harassment of Women on the Job (McGraw-Hill, 1978). Barnes v Castle 501 F.2d 983. Apparently, McKinnon first became interested in sexual harassment when learning of an administrative assistant in Cornell University who quit her job after being refused a transfer when she complained of her supervisor’s harassing behaviour and then was denied unemployment benefits because she quit for personal reasons. See Dinner, ‘A Firebrand Flickers’ (March/April 2006) Legal Affairs, reviewing MacKinnon, Women’s Lives, Men’s Laws (Harvard University Press, 2005) and Are Women Human? And other international dialogues (Harvard University Press, 2006). Meritor Savings Bank v Vinson 477 US 57 (1986). Employment Equality Act 1977, s 2(a).

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Harassment and Sexual Harassment

[8.10]

[8.07] In the 1983 case of Mortiboys v Crescent Garage Ltd,10 sexual harassment was first applied successfully as an actionable wrong under the Sex Discrimination (Northern Ireland) Order 1976, recognising ‘hostile environment’ sexual harassment as a form of sex discrimination from the outset. Two years following this decision, the Labour Court decided similarly, in the historic case of Garage Proprietor v Worker.11 The approach of the Irish courts was consistent for many years: ‘Freedom from sexual harassment is a condition of work which an employee of either sex is entitled to expect. The Court considers that employers have a duty to ensure their employees enjoy such a working condition.’12

[8.08] ‘Quid pro quo’ and ‘hostile environment’ sexual harassments are not distinctions used in any of the Employment Equality Acts. This is due to the fact that the Irish and English courts did not have the same struggle to determine the meaning of both for the purposes of identifying sex discrimination as the US courts did.

APPLICABLE LEGISLATION EU law [8.09] The preamble to the Recast Directive13 at recitals 6 and 7 provides: ‘(6) Harassment and sexual harassment are contrary to the principle of equal treatment between men and women and constitute discrimination on grounds of sex for the purposes of this Directive. These forms of discrimination occur not only in the workplace, but also in the context of access to employment, vocational training and promotion. They should therefore be prohibited and should be subject to effective, proportionate and dissuasive penalties. (7) In this context, employers and those responsible for vocational training should be encouraged to take measures to combat all forms of discrimination on grounds of sex and, in particular, to take preventive measures against harassment and sexual harassment in the workplace and in access to employment, vocational training and promotion, in accordance with national law and practice.’

As can be seen from recital 6, it clearly provides that harassment and sexual harassment can occur not only in the workplace but also in access to employment. Importantly, recital 6 sets out the position that any such conduct should be subject to ‘effective, proportionate and dissuasive penalties’. [8.10] Harassment and sexual harassment are defined in Art 2(1)(c) and (d) respectively of the Directive as follows: ‘“Harassment”: where unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment; 10. 11. 12. 13.

Mortiboys v Crescent Garage Ltd 34/83 SD. Garage Proprietor v Worker EEO 2/1985. Company v Worker EE02/88. Directive 2006/54/EC.

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[8.11]

Equality Law in the Workplace “Sexual harassment”: where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment’.

[8.11] Discrimination, which includes both direct and indirect discrimination, also includes harassment and sexual harassment as well as any less favourable treatment based on a person’s rejection of or submission to such conduct.14 Importantly, the inclusion of the words ‘purpose and effect’ in the definition means that there is no requirement to demonstrate an intention on the perpetrator’s behalf to harass or sexually harass; it is enough that it occurs in the first instance. There is a small distinction also between the definitions in that harassment must create an intimidating, hostile, degrading or offensive environment. The definition of sexual harassment creates no such requirement. The use of the words ‘in particular’ points to the fact that it is enough that the sexual harassment has the purpose or effect of violating the dignity of a person; but this is particularly so where it goes on to create an intimidating, hostile, degrading, humiliating or offensive environment. By making this distinction, the definition of sexual harassment recognises not only ‘quid pro quo’ sexual harassment but also ‘hostile environment’ sexual harassment. [8.12] In addition to the Recast Directive, the Race Directive at Art 2(3) and the Framework Directive at Art 2(3)15 provide for practically identical definitions of harassment. Art 2(3) of the Race Directive defines harassment: ‘Harassment shall be deemed to be discrimination within the meaning of paragraph 1, when an unwanted conduct related to racial or ethnic origin 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. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member States.’

[8.13] In addition to direct and indirect discrimination on the grounds of harassment and sexual harassment, the ECJ held in the case of Coleman v Attridge Law,16 that the plaintiff – who was the mother of a disabled child – had been discriminated against by her employer because of her association with her child, and consequently because she was in receipt of unwanted conduct and that this amounted to discrimination. Irish legislation [8.14] The Employment Equality Act 1998 prohibited harassment, including sexual harassment, before the EU even recognised it as a workplace issue and began to include definitions of harassment and sexual harassment in the European Directives. The 2004 14. 15. 16.

Directive 2006/54/EC, Art 2(2)(a). Racial Equality Directive (2000/43/EC) OJ L 180; Employment Framework Directive 2000/ 78/EC OJ L 303 Coleman v Attridge Law (Case C–303/06) [2008] ECR I–5603.

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Harassment and Sexual Harassment

[8.17]

Act replaced ss 23 and 32 of the 1998 Act, which dealt with sexual harassment and nongender harassment respectively by inserting a new section (s 14A) into the Act. The 1998 Act now defines harassment and sexual harassment as follows: ‘(i)

References to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii)

References to ‘sexual harassment’ are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.’17

The conduct is no longer limited to opposite sex harassment,18 nor is it limited to just the employer or a fellow employee.19 [8.15] Harassment or sexual harassment occurs where the conduct has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the employee. Examples of such conduct are acts, words, gestures, emails and posters. Scope and test [8.16] Before the 2004 Act was implemented, the definitions of harassment and sexual harassment were objective in the sense that such behaviour constituted what would ‘reasonably’ be deemed as sexually offensive, intimidating or humiliating. The requirements of subjective and objective aspects in the 1998 Act have since been removed, leaving the test for harassment and sexual harassment to be, in theory, purely subjective. The 1998 Act made reference to what conduct would be ‘reasonably’ deemed as offensive to the victim. However, the approach now taken by the courts is whether or not the conduct had the ‘purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person’.20 [8.17] This is a step away from the requirement of a comparator when determining what a reasonable person may find offensive to a more personal focus on the consequential harm caused to the individual by the alleged sexual harassment. Notwithstanding this, there has not been a complete abolition of the objective test. Both the Labour Court and the Equality Tribunal will still examine the behaviour complained of and require that the claimant establish a prima facie case of harassment before considering whether or not the employer took reasonable steps to prevent the sexual harassment and whether or not they are to be found vicariously liable.21 17. 18. 19. 20. 21.

Employment Equality Act 1998, s 14A(7)(a). Construction Worker v Construction Company DEC–E2008–048. See Company v Worker EE03/1991 [1992] ELR 40. Employment Equality Acts 1998–2011, s 14A(7)(a)(iii). Receptionist v Hotel DEC–E2011–096.

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[8.18]

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[8.18] An example of adopting both tests occurred in the case of Scanlon v St Vincent’s Hospital,22 where the tribunal, in finding that the claimant did not establish a prima facie case, relied on the fact that the supervisor was not aware of the claimant’s nationality at the time the derogatory comments about the English football team were made. The intention of the alleged harasser is of little relevance in a sexual harassment case and cannot be relied upon as a defence for such conduct.23 [8.19] Section 14A(7)(a)(ii) of the 1998–2011 Acts (as inserted by the Equality Act 2004, s 8) provides: ‘References to sexual harassment are to any form of unwanted verbal, non verbal or physical conduct of a sexual nature.’

It is clear, therefore, that the conduct itself must be of a ‘sexual nature’. The code of practice24 provides an illustrative non-exhaustive list of forms of behaviour that can constitute sexual harassment, and this can occur (unlike bullying) if there is one single incident. These include physical conduct of a sexual nature, such as unnecessary touching, patting or pinching, brushing against another employee’s body, assault and coercive sexual intercourse. It also includes verbal conduct of a sexual nature, which covers unwelcome sexual advances, propositions or pressure for sexual activity, continued suggestions for social activity outside the workplace after it has been made clear that such suggestions are unwelcome, unwanted or offensive flirtations, suggestive remarks, innuendos or lewd comments. [8.20] The 2012 code additionally deals with non-verbal conduct of a sexual nature, which is defined as including the display of pornographic or sexually suggestive pictures, objects, written materials, emails, text-messages or faxes. It may also include leering, whistling or making sexually suggestive gestures. [8.21] In BH v Named Cab Company t/a Cab Company,25 the Equality Officer awarded the maximum compensation available for conduct that created a hostile working environment for the female complainant, who was subjected to conduct including being exposed to sexually explicit posters and having laxatives put in the kettle that she used, on the grounds of her gender and sexual orientation.

CATEGORIES OF HARASSMENT AND SEXUAL HARASSMENT Harassment by non-employees [8.22] The Employment Equality Acts allow for an action to be taken for harassment and sexual harassment by fellow employees, customers or clients and other non22. 23.

24. 25.

Scanlon v St Vincent’s Hospital DEC–E2007–011. See the Recast Directive, Art 2: the definition of sexual harassment states that it has the purpose or effect. These words have the effect of ruling out the intention of the perpetrator as a defence. See also Piazza v Carlton Hotel DEC–E2004–033. Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 (SI 208/2012). BH v Named Cab Company t/a A Cab Company DEC–E2006–026.

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[8.27]

employees. For example, the Equality Officer in 2 Female Claimants v Boys’ Secondary School,26 found the board of management of a school vicariously liable for the sexual harassment of teachers by the pupils. [8.23] Although the Equality Act 1977 did not expressly deal with sexual harassment and the extent for which an employer may be liable, the Labour Court found in Worker v Company:27 ‘It was irrelevant that the perpetrator of the harassment was not an employee of the company since he was on company premises with the agreement of the employer who was in a position to protect the worker.’

The court went on to articulate that because the employer had not taken necessary measures to ensure the safety of the employee, the employer had ‘in effect imposed discriminatory conditions of employment on the worker.’ [8.24] The Equality Officer awarded €30,000 to the claimant in Worker v Hotel,28 which was a claim for sexual harassment and discriminatory dismissal. The claimant successfully alleged that she was forced to leave her employment as a result of the respondent’s failure to respond effectively to the worker’s complaints of sexual harassment by a customer. [8.25] In A v Contract Cleaning Service29 the Equality Officer awarded the claimant the maximum level of compensation for the sexual harassment she suffered during the course of her employment by a security guard in her place of work. Also in the case of Worker v Hotel,30 the unwelcome conduct of a customer was deemed to constitute sexual harassment as the employer did not take reasonable steps to prevent it. [8.26] In the case of Atkinson v Carty,31 the plaintiff was found to have been sexually harassed by an independent contractor who provided accountancy services to the defendant, and was awarded €137,000 (less 25 per cent for contributory negligence). Sexual harassment outside the workplace [8.27] Section 14A of the Employment Equality Acts 1998–2011 also recognises that sexual harassment can take place outside the workplace. In Limited Company v One Female Employee,32 for example, the alleged harassment occurred during a residential company training programme in a hotel. 26. 27. 28. 29. 30. 31. 32.

2 Female Claimants v Boys’ Secondary School DEC–E2001–005. Worker v Company [1992] ELR 40. Worker v Hotel DEC–E2009–062. A v Contract Cleaning Service DEC–E2004–068. Worker v Hotel DEC–E2009–062. Atkinson v Carty [2005] ELR 1. Limited Company v One Female Employee EE10/1988.

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[8.28]

Equality Law in the Workplace

[8.28] In an interesting decision in the case of O’N v An Insurance Company,33 the sexual harassment occurred while the complainant was on a night out at a sports and social club, sponsored by the employer. Here the Equality Officer did not consider that financial sponsorship by an employer at an event where sexual harassment occurred was in and of itself sufficient in the absence of other factors to bring an act of sexual harassment within the course of employment. [8.29] The case of Z v A Hotel34 also illustrates the liability of an employer for the actions of employees at work-related social events, in this case a Christmas party. Here the complainant was employed as a part-time casual worker. At the Christmas party, she claimed that her manager invited her to sit next to him, told her she looked gorgeous that evening and that he wanted to go home with her, and also suggested that they should get a taxi home together. In the New Year, she was laid off from work. Although there was no inappropriate physical contact, his behaviour was deemed to be sexual harassment, and the Equality Tribunal awarded the complainant €12,000 for harassment in addition to the discriminatory treatment that followed when she was not re-engaged after the layoff. Text messages [8.30] An award of €25,000 was awarded to an employee in the case of Female Employee v Recruitment Company35 for sexual harassment by text message on a night out from work and victimisation when she was dismissed following her complaint. Her manager accepted that the messages were sent from his phone but denied that he sent them. The Equality Officer held that the complainant was sexually harassed via text message and that no evidence was presented to indicate that the employer had taken any steps that were reasonably practicable to prevent sexual harassment occurring in the workplace. The respondent then failed to investigate the complaint of sexual harassment and the complainant was dismissed, which amounted to her successful claim of victimisation. The Equality Officer stated: ‘In considering redress for victimisation, I have considered that victimisatory dismissal is totally unacceptable as it has the potential to undermine the effectiveness of the equality legislation. In relation to the issue of compensation, I have had regard to the Judgment of the European Court of Justice in Von Colson & anor v Land Nordrhein-Westfalen[36] wherein it was stated that for the purpose of imposing a sanction for a breach of the prohibition of discrimination: “In order to ensure that it is effective and that it has a deterrent effect, that compensation must in any event be adequate in relation to the damage sustained and must therefore amount to more than purely nominal compensation.”’ 33. 34. 35. 36.

O’N v Insurance Company DEC–E2004–052. Z v A Hotel DEC–E2007–014. Female Employee v Recruitment Company DEC–E2008–015. Von Colson v Land Nordrhein-Westfalen (Case C–14/83) ECR 1984–01891.

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[8.35]

Verbal harassment [8.31] Even where the harassment is verbal, it can evoke results in very significant awards. For example, an award of €45,000 was made to the complainant in Office Worker v Security Company.37 Here the complainant successfully alleged that she had been subjected to sexually offensive remarks and treatment, in addition to inappropriate touching, since she commenced employment in March 2002 when she was 15-years-old. [8.32] In the case of Odion v Techniform (Waterford) Ltd,38 a Nigerian national was awarded €7,500 as a result of being subjected to remarks regarding his nationality and colour. Despite the fact that the company had appointed an independent investigator to deal with his complaints, and that the investigator found that there was no foundation to his claims for bullying and harassment, the Equality Officer was not satisfied that the outcome of the investigation adequately described the circumstances between the workers. [8.33] In the case of Worker v Engineering Company,39 an award of €20,000 was given to a British national who alleged that during the course of his employment with the respondent he was subjected to constant harassment because of his race, which included name calling, sniggering and his colleagues gathering around him and singing antiBritish rebel songs while jumping like a football crowd. This caused him to take lunch in his car. While he did not make a complaint during the course of his employment, the Equality Officer deemed that this was not material, as his supervisor at the time had also participated in the treatment that was the source of the complaint. [8.34] In Female Employee v Company,40 the complainant claimed that she was sexually harassed and victimised resulting from the behaviour and lewd comments made by a foreman, manager and other colleagues in the company. The employer’s defence to these claims was that the comments were not unwelcome, as the claimant would often partake in the ‘banter’ and no complaints were made until 1997 (two years after she claimed the harassment began). The Labour Court heard the conflicting evidence presented by both parties and concluded that the conduct of her fellow colleagues amounted to sexual harassment. [8.35] The ‘banter’ defence/argument has not often gone in the favour of the employer, as can be seen in this case and also in Worker v Engineering Company discussed above. It seems that where there is conflicting evidence, the tribunal will generally find in favour of the injured party once he or she has established a prima facie case of harassment in the first instance. 37. 38. 39. 40.

Office Worker v Security Company DEC–E2010–002. Odion v Techniform (Waterford) Ltd DEC–E2007–018. Worker v Engineering Company DEC–E2008–038. Female Employee v Company [2000] ELR 147.

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[8.36]

Equality Law in the Workplace

Harassment and age [8.36] In Fortune v Children at Risk in Ireland,41 the complainant psychotherapist was questioned by a colleague as to her training, her years in practice and her accrued clinical hours. The colleague also stated that there should be a high minimum age for intake into a psychotherapy course and questioned her success in being promoted. The complainant argued that this was a clear inference that she was too young to be a psychotherapist and that this constituted harassment on the age ground. She further contended that the harassment went on over a two-year period, after which she resigned, as her employer had failed to deal with the situation. The Equality Officer, in upholding her complaint and awarding her €35,000, went on to declare: ‘… the drawn-out haphazard, start-and-stop manner in which the respondent attempted to deal with the situation placed further stress on her and I accept the complainant’s evidence that the reason she resigned her employment was because she felt herself to be at “breaking point”.’

Harassment and sexual orientation [8.37] In the main, complaints on the sexual orientation ground relate to harassment. In Piazza v Carlton Hotel,42 the complainant was awarded €10,000 following a number of derogatory and offensive comments relating to his sexual orientation. This followed proofs of an email sent between members of management and a co-worker calling him a ‘queer bastard’ and a sexually explicit and offensive comment relating directly to his sexual orientation made between two workers in the complainant’s presence. The complainant reported each incident to the general manager, who investigated the complaints under the hotel’s grievance procedure. The respondent subsequently wrote to the complainant stating that nobody had intended to offend him and argued at the hearing of the case that the complainant had a difficult personality. The Equality Officer held that each of the comments was unwelcome and could reasonably be regarded as offensive, humiliating or intimidating to the complainant because he was gay and that this amounted to harassment: ‘It is clearly the effect and intention of the Employment Equality Act, 1998 that employees are entitled to expect freedom from being harassed at work on the sexual orientation ground by gestures, words and written material.’

The Equality Officer took particular umbrage by virtue of the fact that the employer appeared to place some of the blame for the harassment on the complainant during the hearing, and held that the intention of the harasser was irrelevant and that it was unacceptable that the employer appeared to be blaming the complainant for what had occurred: ‘(a)ny interpersonal difficulties between the complainant and his colleagues does not excuse them harassing him on a ground protected by the Act’. 41. 42.

Fortune v Children at Risk in Ireland [2011] ELR 49. Piazza v Carlton Hotel DEC–E2004–033.

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[8.40]

[8.38] In Employee v Employer,43 a male heterosexual employee claimed that he was harassed by a male colleague who he maintained was gay and who resented his refusal to partake in various social invitations. The Equality Officer, however, was not convinced, and noted that the complainant had written to the respondent threatening to publicise an alleged gay affair between the respondent and an unidentified third party if the respondent did not pay him money. [8.39] An interesting point arose in the case of Grant v HM Land Registry.44 Here, the Court of Appeal in England and Wales held that ‘outing’ an employee to work colleagues where he had previously disclosed to staff that he was gay did not constitute harassment.45 Elias LJ presiding held that the fact that the claimant had come out was highly significant and that it would make ‘a mockery of discrimination law to impose liability in these circumstances’.46 He further contended: ‘The implications of a finding of discrimination in these circumstances would be far reaching. Similar concepts of direct discrimination and harassment are found in other discrimination legislation, relating to such areas as sex, religion, race and disability. An individual may choose to make generally known in the workplace certain aspects of his or her private life, such as the fact that he or she has contracted some debilitating illness, or is pregnant, or has become a Christian. In my judgment if that information is discussed in the course of conversation, even in idle gossip, provided at least there was no ill intent, that would not make the disclosure of that information an act of disability, sex or religious discrimination, as the case may be. That is so even if the victim is upset at the thought that he or she will be the subject of such idle conversation. By putting these facts into the public domain, the claimant takes the risk that he or she may become the focus of conversation and gossip.’47

BREACH OF CONTRACT [8.40] One of the first cases that dealt with sexual assault in the workplace was Reilly v Bonny.48 Here, the plaintiff had worked in the defendant’s pub and claimed that the defendant had sexually assaulted her while working there between September 1992 and May 1993. She stated that she had wanted to kill herself and had spent time in psychiatric care. The case, which was heard by a judge and jury found that the defendant had assaulted the plaintiff, that the assault was sexual in nature and that it violated the plaintiff ’s constitutional rights to sexual integrity. She was awarded IR£135,000 in compensatory damages and IR£5,000 in aggravated damages plus costs. Arising out of 43. 44. 45. 46. 47. 48.

Employee v Employer DEC–E2003–001. Grant v HM Land Registry [2011] EWCA Civ 769. For a fuller discussion of this case, see Arthur Cox Employment Law Yearbook 2012 (Bloomsbury Professional, 2012). At para 45. At para 46. Reilly v Bonny (14 November 1997, HC); reported in Irish Times, 20 November 1997.

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[8.41]

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this, it became clear that an employee may bring a claim for personal injury and breach of contract in relation to harassment, sexual harassment and bullying in the workplace.

BULLYING [8.41] Bullying has seen a plethora of cases come before the courts, and their treatment by judges varies greatly. In Glynn v Minister for Justice, Equality and Law Reform,49 Kearns P set out a welcome clarification of the law in this area. Here the plaintiff was employed as a civil servant performing clerical duties at a garda station in Gort, Co Galway, and took a claim for damages arising out of events which she alleged occurred in May 2005. Kearns P in his judgment noted that until the hearing of the matter the plaintiff had not revealed that she had any prior psychological history and/or had suffered from depression. [8.42] Kearns P went on to make a number of important distinctions. He noted that bullying, workplace stress and occupational stress are all things that, conceptually at least, are quite different from each other, though on occasion they could overlap and coincide He also made the following findings: •

occupational stress is not actionable, given that it is something that every employed person may experience at some stage of his or her working life and can occur for reasons quite distinct from and unrelated to bullying;

•

workplace stress, on the other hand, may be actionable if certain legal criteria are met. It can be the result of behaviour falling short of bullying, the result of negligence, where excessive demands are made of an employee or where complaints about shortcomings in the workplace go unheeded. Kearns P stated that work-related stress lacked a degree of deliberateness that is a hallmark of bullying;

•

insofar as bullying is concerned, Kearns P stated that the first question that must be asked in every bullying case is whether the behaviour in complaint, by reference to an objective test, imports that degree of calibrated inappropriateness and repetition that differentiates bullying from workplace stress or occupational stress.

[8.43] The court noted that reliance had been placed by counsel on the decision of Herbert J in Sweeney v Board of Management Ballinteer Community School50 to argue that the legal test for bullying was a two-prong test, the second part of which is to enquire whether the activities complained of met a test of reasonable foreseeability that the particular claimant would suffer harm or damage. Kearns P stated that such a test was more appropriate in cases where it is alleged an employer failed to alleviate workplace stress, which it knew, or should have known, was likely to cause injury to the employee. 49. 50.

Glynn v Minister for Justice, Equality and Law Reform [2014] IEHC 133. Sweeney v Board of Management Ballinteer Community School [2011] IEHC 131.

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[8.44]

In the Sweeney case, the plaintiff was a teacher who claimed psychiatric injury following being bullied and harassed by the principal of the school. The principal had engaged a private investigator, which the court considered to be serious harassment, and the school was held to be vicariously liable. [8.44] In the Glynn case, the court observed that the relevant legal principles were laid down in Berber v Dunnes Stores,51 which adopted the practical propositions derived by Hale LJ from case law set out by her in Hatton v Sutherland52 as follows: ‘1.

There are no special control mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do. The ordinary principles of employer’s liability apply …

2.

The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable … : this has two components: (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors) …

3.

Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury but may be easier to foresee in a known individual than in the population at large… An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability …

4.

The test is the same whatever the employment: there are no occupations that should be regarded as intrinsically dangerous to mental health …

5.

Factors likely to be relevant in answering the threshold question include: (a)

The nature and extent of the work done by the employee … Is the workload much more than is normal for the particular job? Is the work particularly intellectually or emotionally demanding for this employee?

(b) Signs from the employee of impending harm to health … Has he a particular problem or vulnerability? Has he already suffered from illness attributable to stress at work? Have there recently been frequent or prolonged absences which are uncharacteristic of him? Is there reason to think that these are attributable to stress at work, for example because of complaints or warnings from him or others? 6.

51. 52.

The employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary. He does not generally have to make searching enquiries of the employee or seek permission to make further enquiries of his medical advisers …

Berber v Dunnes Stores [2009] ELR 61. Hatton v Sutherland [2002] 2 All ER 1.

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[8.45]

Equality Law in the Workplace 7.

To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it …

8.

The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it and the justifications for running the risk …

9.

The size and scope of the employer’s operation, its resources and the demands it faces are relevant in deciding what is reasonable. These include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties …

10.

An employer can only reasonably be expected to take steps that are likely to do some good: the Court is likely to need expert advice on this …

11.

An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty …

12.

If the only reasonable and effective step would have been to dismiss or demote the employee, the employer will not be in breach of duty in allowing a willing employee to continue in the job …

13.

In all cases, therefore, it is necessary to identify the steps that the employer both could and should have taken before finding him in breach of his duty of care …

14.

The claimant must show that that breach of duty has caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm …

15.

Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is truly indivisible. It is for the defendant to raise the question of apportionment …

16.

The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress-related disorder in any event …’

[8.45] In the Glynn53 case, the court stated that it believed there were two issues that greatly exercised the plaintiff in the case: her sense of injustice that she as a civilian employee was not paid the same rate for her work as her garda colleague; and the working conditions in which both were obliged to work in 1996. The court found the facts fell far short of substantiating an allegation of bullying. 53.

Glynn v Minister for Justice, Equality and Law Reform [2014] IEHC 133.

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[8.49]

CRIMINAL OFFENCES [8.46] The Non-Fatal Offences against the Person Act 199754 makes harassment a criminal offence. A person is guilty of harassment where he or she either intentionally or recklessly seriously interferes with the others’ peace and privacy and causes alarm, distress or harm to the other person and where a reasonable person would realise that those acts would have such an effect. The 1997 Act provides for fines and imprisonment and also protection for the person who was harassed.55 [8.47] The Prohibition of Incitement to Hatred Act 1989 prohibits incitement to hatred on account of race, religion, nationality or sexual orientation. It is an offense for a person: •

to publish or distribute written material;

•

to use words, to engage in behaviour or to display written material in any place other than a private residence (unless the words, behaviour or material are heard or seen by persons outside the residence); or

•

to distribute, show or play a recording of visual images or sounds;

which are threatening, abusive or insulting or are likely to stir hatred.56 Hatred is defined in s 1 as: ‘Hatred against a group of persons in the State or elsewhere on account of their race, colour, nationality, religion, ethnic or national origins, membership of the Travelling community or sexual orientation.’

VICARIOUS LIABILITY [8.48] Section 15 of the Employment Equality Acts 1998–2011 provides that an employer may be vicariously liable for the acts of its employees, whether or not they were done with the employer’s knowledge or approval.57 This new section was inserted into the 1998 Act. The absence of such a provision in the 1998 Act was seen as a major lacuna. [8.49] Section 15 provides for a very broad concept of employer liability and in practice extends vicarious liability to potentially criminal acts by an employee or a self-employed person or possibly an agency worker. Section 15(2) specifically states: ‘Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purpose of this Act as done also by that person. Thus it can be argued if the 54. 55. 56. 57.

Non-Fatal Offences Against the Person Act 1997, s 10. Non-Fatal Offences Against the Person Act 1997, s 10(6). Prohibition of Incitement to Hatred Act 1989, s 21. Employment Equality Acts 1998–2011, s 15(1).

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[8.50]

Equality Law in the Workplace employer is liable for the payment of an agency worker than they could be seen to be vicariously liable for the acts of the agency worker.’

[8.50] Section 15(3) provides that it shall be a defence for an employer in respect of an alleged act done by an employee, for the employer to prove that he took such steps, as were reasonably practicable to prevent the employee: ‘(a)

from doing that act, or

(b)

from doing in the course of his/her employment, acts of that description.’

This is a similar defence to that set out in s 14A of the Act, in that it permits an employer to avoid liability if it can demonstrate that it took reasonable steps to prevent the incident and that it dealt with any complaints raised after the incident. [8.51] Whether this covers actions of a sexual assault is debatable. However, the scope of the section can be seen in the case of Sweeney v Board of Management Ballinteer Community School,58 where the school was held to be vicariously liable for the acts of the principal following the harassment of a female teacher who had complained of a psychiatric injury following bullying and harassment by her school principal. The apparent harshness of the section is ameliorated by s 15(3), which allows for a similar defence as in s 14A.

DEFENCES [8.52] Before the 1998 Act was brought into effect, the courts had a very strict approach when it came to sex discrimination: irrespective of an employer’s knowledge or efforts to prevent it, the employer would be found prima facie liable in the event that an employee was found to have been sexually harassed. This approach has become less exacting with time. The position now is that where an employer can prove that there were policies or procedures implemented formally to investigate and prevent sex discrimination, the employer will be less likely to be found liable for such conduct. [8.53] In Allen v Dunnes Stores,59 the Employment Appeals Tribunal deemed that every employer has a liability to advise and educate its employees regarding sexual harassment. In this case, a security guard was doing a bag check on a colleague when he commented on her perfume then tried to kiss her. An investigation was carried out and the security guard was dismissed on grounds of sexual harassment. When he brought forward his case for unfair dismissal, the EAT found that the penalty of dismissal was disproportionate to the conduct of the security guard and that the employer had failed to implement sufficient policies to deal with such complaints. 58. 59.

Sweeney v Board of Management Ballinteer Community School [2011] IEHC 131. Allen v Dunnes Stores [1996] ELR 203. See also AIB v A Worker DEE 4/93.

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[8.57]

[8.54] In Wileman v Minilec Engineering,60 the employer tried to defend a claim of sexual harassment by relying on the fact that the claimant would wear provocative clothing to work and posed for scantily dressed photos in a newspaper and as a result of this the behaviour was not unwelcome or unsolicited. The court rejected this defence, stating that her conduct was not a contributing factor to the sexual harassment suffered. [8.55] In Snowball v Gardner Merchant,61 the claimant was a catering manager who alleged that she was sexually harassed by her district manager, who denied such allegations. She was cross-examined about her sexual attitudes in an attempt to show that, even if the sexual harassment had taken place, there would have been no injury to feelings. The claimant objected, claiming that this was irrelevant to the claims of sexual harassment. However, the EAT held that the cross-examination was admissible: ‘Compensation for sexual harassment must relate to the degree of detriment and in that context there has to be an assessment of the injury to the woman’s feelings.’

Importance of a policy on harassment [8.56] Therefore, insofar as harassment and sexual harassment are concerned, the only defence is to ensure that a proper equality policy is in place, one that it is published and in which employees are properly trained. This allows employers to argue in accordance with s 14A(2) and s 15(3)62 of the Employment Equality Acts 1998–2011 that they took such steps as were reasonably practicable to prevent the employees from carrying out such acts that were found to constitute harassment or sexual harassment. The policy should be produced following consultation with the safety and employee representatives.63 It needs to be signed by all parties and updated periodically. It is also clear that it should be a dedicated policy on harassment and that employers should not rely on a standard grievance policy.64 [8.57] The Employment Equality Act 1998 (Code of Practice) (Harassment) Order 201265 emphasises the need for employers to have a policy in place and provides practical assistance on how to draw up such a policy, how to implement it and how to communicate it, the latter to include other persons such as clients and business contacts. In the absence of same, it is not up to the employer to argue that it operated an open-door 60. 61. 62. 63.

64. 65.

Wileman v Minilec Engineering [1988] IRLR 144. Snowball v Gardner Merchant [1987] IRLR 397. Employment Equality Acts 1998–2011, s 15 deals with vicarious liability. The Safety, Health and Welfare at Work Act 1989, s 1 provided that this is a statutory duty. This was repealed by the Safety Health and Welfare at Work Act 2005. Safety, Health and Welfare at Work Act 2005, s 25 provides for the appointment of safety representatives, who must be consulted and liaised with on matters relating to health and safety. The Code of Practice on Harassment (SI 208/2012) also provides that equality policies should address the contribution to be made by trade unions (Part 4). Piazza v Clarion Hotel DEC–E2004–033. Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 (SI 208/2012).

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[8.58]

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policy66 or to seek to rely on s 14A where a policy is not in place but where the allegations are investigated, even where it may take action.67 [8.58] Thus the absence of a policy makes defending a claim practically impossible. In Z v A Hotel,68 the Equality Officer found that at the time of the sexual harassment incident the employer had no policy, written or verbal, in operation. The Equality Officer found that during new employees’ familiarisation discussions with the restaurant supervisor, there was no reference as to how one might report such incidents. The Equality Officer awarded the complainant compensation and directed the employer to do the following: •

develop a code of practice on harassment on all of the nine discriminatory grounds covered by the Employment Equality Acts and put this code in place within three months from the date of the decision;

•

provide a copy of the code to all existing and new staff (on arrival) and ensure that staff were fully acquainted with its contents;

•

display copies of the code, or a brief synopsis of it, in prominent positions in areas of the hotel frequented by staff; and

•

provide appropriate training in the policy to any staff member who had staff management functions and keep that training under review in light of developments and best practice in the area.

[8.59] The Equality Tribunal has even gone so far – in cases where the employer successfully defended claims of sexual harassment – as to make non-binding recommendations in relation to the employer’s existing code of practice69 or recommending the implementation of such a code of practice.70 [8.60] Thus, in A v Health Board71 the Equality Officer recommended that the employer consider very seriously its practice and procedures in dealing with harassment and sexual harassment. The Equality Officer found that it was clear that training in relation to the policy had been less than adequate. The fact that local management declined to deal with the complainant’s complaint of sexual harassment in accordance with the policy had demonstrated a significant failure of the procedure. The Equality Officer declared that any member of staff who makes a complaint in accordance with the employer’s stated policy was owed a duty of care that the policy would be adhered to. Senior management at the company headquarters was on notice of the failure to follow procedure, since the sexual harassment complaint was referred to headquarters on no less than three occasions, and those managers should have taken steps to ensure the matter was dealt with appropriately. 66. 67. 68. 69. 70. 71.

Atkinson v Carty [2005] ELR 1. Employer v Worker EDA 0916. Z v A Hotel DEC–E2007–014. O’N v Insurance Company DEC–E2004–052; B v Employee DEC–E2004–002. Complainant v Company EE 01/1999. A v Health Board DEC–E2005–016.

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[8.63]

The Equality Officer pointed out that had the complaint of sexual harassment been upheld, it is unlikely that the employer would have been able to avail of the statutory defence. The Equality Officer strongly recommended that the employer re-consider dissemination of and training in relation to its policy on harassment and sexual harassment, with a particular emphasis on the duties and obligations of both management and staff in this regard. [8.61] There is no obligation that a policy should comply strictly with the code of practice72 in order to successfully rely on the defence in s 14(A) and 15(3). In O’Sullivan v Volkswagen Bank GmbH Ireland,73 the Equality Officer found that although the policy did not conform strictly with the code, the shortcomings were not significant and the employer had ensured that the appropriate training was received after the complainant had ceased employment. [8.62] Once a policy is in place, it is imperative that it is communicated effectively. In Worker v Engineering Company,74 the complainant had not made any complaints during the course of his employment, but this was due to the fact that his supervisor had participated in the harassment, and while the supervisor admitted that certain statements had occurred, he described them as ‘banter.’ The Equality Officer pointed out that the defendant was unable to show that the policy had been disseminated to staff and awarded the complainant €20,000.

INVESTIGATION OF COMPLAINTS [8.63] Notwithstanding the need for a policy to address harassment and sexual harassment, there is a requirement to investigate such complaints and to do so fairly and in accordance with the rules of natural justice. The 2012 code of practice75 sets out in detail how complaints should be investigated: ‘The procedure should provide that investigation of any complaint will be handled with fairness, sensitivity and with due respect for the rights of both the complainant and the alleged perpetrator. The investigation should be, and be perceived as, independent and objective: to this end it is essential that the principles of natural justice be adhered to. Those carrying out the investigation should not be connected with the allegation in any way. It is preferable that at least two people should investigate a complaint but it is acknowledged that this may not always be practicable. Such an investigation team should have gender balance and ideally should seek to ensure diversity across the other eight grounds. All of those on the investigation team should have received appropriate training. Every effort should be made to resolve the complaint speedily. External assistance may be necessary to deal 72. 73. 74. 75.

Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 (SI 208/2012). O’Sullivan v Volkswagen Bank GmbH Ireland DEC–E2011–267. Worker v Engineering Company DEC–E2008–038. Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 (SI 208/2012).

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[8.63]

Equality Law in the Workplace with complaints in some circumstances so as to ensure impartiality, objectivity and fairness in an investigation. To ensure procedural fairness both the complainant and alleged perpetrator should be informed of the following: —

what the formal procedure entails and the relevant time frame

—

that both parties have the right to be accompanied and/or represented, by a representative, trade union representative, a friend or colleague

—

that the complaint should be in writing and that the alleged perpetrator will be given full details in writing of the nature of the complaint including written statements and any other documentation or evidence including witness statements, interview notes or records of meetings held with the witnesses

—

that the alleged perpetrator will be given time to consider the documentation and an opportunity to respond

—

that confidentiality will be maintained throughout any investigation to the greatest extent consistent with the requirements of a fair investigation

—

that a written record will be kept of all meetings and investigations — that the investigation, having considered all of the evidence before it and the representations made to it, will produce a written report to both parties outlining its findings and the reasons for its final decision

—

if the complaint is upheld against an employee the report will recommend whether the organisation’s disciplinary procedure should be invoked

—

if the complaint is upheld against a non-employee the report should recommend appropriate sanctions against the non-employee or his/her employer which could extend where appropriate to:

—

•

exclusion of the individual from the premises

•

suspension or termination of service

•

suspension or termination of a supply service or other contract

•

the report may also, or as an alternative, recommend other actions such as training, or more effective promotion of the organisation’s policy on sexual harassment and harassment

if a right of appeal exists both parties should be informed of it and the time limits and procedures involved. Both parties to a complaint should receive support (for example, counselling or other intervention as appropriate) and regular review following the investigation, as the process is likely to result in tension and disharmony between the parties, co-employees, teams, etc, at least in the short-term

It is the responsibility of the employer to provide for proper notifications regarding the investigation process and for a fair determination of the complaint. What is required in any particular instance will depend on the circumstances and/or complexity of the case and may require the adaptation of the procedures.’

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[8.69]

Need for independence [8.64] There are a number of interesting aspects to this, not least requirements for independence and gender balance. Also of interest is the statement that external assistance may be necessary in some instances to ensure impartiality, objectivity and fairness in the investigation. While the code does stop short of recommending that employers utilise external expertise in every incident, the practical reality for a lot of employers – particularly SMEs, many of which are too small to have HR departments and are perhaps too close to the alleged perpetrator – is that in order to comply with the code, they have to appoint external expertise. External investigators [8.65] From the case law, it is clear that the Equality Tribunal and the Labour Court generally support the appointment of an external investigator in such instances; but it should be borne in mind that if a company does so, it is probably wise to comply with any recommendations that the investigator might make. Thus in Employer v Worker,76 the court was very critical of the company who chose to ignore the advice of its doctor to whom the employee had been referred. [8.66] However, the appointment of an external independent investigator does not absolve companies from all blame, and companies need to be mindful of both the skills and qualifications of the investigators and any recommendations that they might make.77 Issues arising in investigations [8.67] Questions that trouble employers include what to do when an employee makes a complaint but then states that he or she does not want it to be investigated, or where an employee refuses to name the alleged perpetrator or refuses to allow the allegation to be put to that person. This is complicated by the fact that a person against whom allegations are made has a right to fair procedures and natural justice. [8.68] In the first instance – where the employee makes the complaint and names the alleged perpetrator but then states that he or she does not want it to be investigated – it would seem that there is nonetheless an obligation on the employer (regardless of the employee’s wishes) to proceed with the investigation. This is because the alternative of not investigating the alleged complaint will leave the employer exposed to future claims.78 [8.69] In the second instance – where the employee makes a complaint but refuses actually to name the alleged perpetrator or where he or she refuses to allow the 76. 77. 78.

Employer v Worker EED053/2005. See Odion v Techniform (Waterford) Ltd DEC–E2007–018. It should be remembered that harassment is a criminal offence under the Non-Fatal Offences Against the Person Act 1997. Also, under the Criminal Justice Act 2011, s 19 it is a criminal offence not to disclose a criminal offence to the gardaí.

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[8.70]

Equality Law in the Workplace

allegations to be put to that person – it would seem on the surface that it would be impossible for an employer to investigate such matters, particularly given the rights of the alleged perpetrator to fair procedures and natural justice. [8.70] Notwithstanding this, the Labour Court in Complainant v Hospital79 took the view that the employer in the period before the alleged harasser was named had a duty to put in place procedures that would allow the complainant to avail of working conditions free of harassment. Here the complainant had made very serious allegations of sexual abuse but refused to name the abuser, as she had been sexually abused as a child and wanted to receive counselling before naming him. Eventually she did actually name him. The Labour Court stated that the employer should have been proactive and taken various measures, including contacting the gardaí, contacting the trade union, speaking to co-workers to establish the truth or otherwise of the allegations, transferring the appellant to another area and explaining to her and providing her with a copy of the bullying and harassment policy: ‘By its failure to take these steps the employer failed to provide the employee with working conditions free from discrimination and accordingly was in breach of its duty to the appellant under section 8(1) of the Act. The Court wishes to emphasise that it is not suggesting that any or all of these steps should be taken in every case of sexual harassment. The appropriate response to each case must be studied by the employer who should then put in place procedures proportionate with the gravity of the offence.’

[8.71] Whereas the advice of the Labour Court regarding the provision of the bullying and harassment policy is sound, it is difficult to accept that it would be prudent for any employer to start talking to co-workers about any alleged incident, given the rights of the alleged perpetrator to natural justice and fair procedures. Equally, it would not be advisable to contact the employee’s union official without first having had the authority to do so from the employee in question. Cross-examination of witnesses [8.72] Another dilemma that vexes employers is the approach to take if an accused asks to cross-examine a complainant on foot of a formal complaint of harassment or sexual harassment. Often complainants will be off sick at the time of the investigation, or may simply refuse to face the accused when asked. In Cassidy v Shannon Castle Banquets,80 Budd J made the following comment: ‘When an employer is confronted with an allegation of misconduct against an employee, then it seems before a decision is made to dismiss, the person accused must be informed clearly of that with which he is charged. He must then get a fair hearing. This does not necessarily mean such a hearing as he would get in a court of law but it does mean that he should be treated fairly according to the 79. 80.

Complainant v Hospital DEE029/2000. Cassidy v Shannon Castle Banquets [2000] ELR 248.

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[8.74]

ordinary reasonable standards of fair play. He must be given a fair opportunity of refuting the charges and implicit in this is that he must be told reasonably full particulars of the charges.’

This case clearly demonstrates the importance of the principle of ‘audi alteram partem’: hear the alternative party too. This being the case, it is critical that employers allow an accused to cross-examine a complainant even where there are very serious allegations and where the accused may be frightened. [8.73] In Duffy v George,81 the appellant appealed to the Court of Appeal in the UK on the basis that he had suffered a disadvantage as a result of the respondent’s nonattendance at an EAT hearing; having considered the evidence entirely upon the written evidence and documentation, the EAT had concluded that objectively viewed his behaviour constituted sexual harassment. The Court of Appeal held that the tribunal erred in not holding a pre-trial hearing to consider how the respondent could have given oral evidence about her sexual harassment claim without having been subjected to crossexamination by her alleged harasser. This was despite the fact that solicitors for the respondent had written to the tribunal to inform it that she was still affected by the appellant’s conduct and suffered from anxiety and panic as a result of contemplating contact with him. The Court of Appeal noted that a civil court owes a common law duty of fairness to witnesses who give evidence before it, and therefore if a witness is justifiably frightened to give evidence by reason of circumstances personal to a witness, the court will need to consider whether and how its procedure may be adapted to make the process of taking evidence fair to the witness. The court further went on to hold that it was inappropriate to deal with the respondent’s request without further exploring the means by which she could have given oral (and therefore better) evidence without having been subjected to cross-examination by the appellant in person. [8.74] In Hartnett v Advance Tyre Company Ltd t/a Advance Pitstop,82 the company had refused to let the plaintiff cross-examine another employee (a Mr Wehrmeyer, who was outside the jurisdiction) who had made serious allegations of wrongdoing against him. Ryan J observed: ‘[An inquiry] would and should have arranged for the plaintiff to have an opportunity in some satisfactory mode of cross examining Mr Wehrmeyer. His evidence was crucial – it was the only evidence as to the alleged misconduct. … There was no way that Mr Wehrmeyer could avoid some form of cross examination by Mr Hartnett’s representative.’

The judge went on to declare that the company investigation was wrong and in breach of fair procedure as laid down by the Constitution and that it was ‘a manifestly unfair and unreasonable way for an inquiry to arrive at a conclusion’. Ryan J concluded: ‘It is clear that there was a breach of the plaintiff ’s constitutional rights which must be implied into his contract if they were not already there. If follows from 81. 82.

Duffy v George [2013] EWCA Civ 908. Hartnett v Advance Tyre Company Ltd t/a Advance Pitstop [2013] IEHC 615.

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[8.75]

Equality Law in the Workplace that, in my view, that he has a strong case to say that his constitutional rights were infringed. It also follows irresistibly as I think that he has a strong case that his dismissal was unlawful because it was arrived at following a flawed process in one crucial respect …’

In arriving at this conclusion, Ryan J made a number of interesting observations as to how the company might have facilitated the cross-examination and went on to say: ‘I do not have to decide what facility regarding Mr Wehrmeyer might have satisfied at the requirement of fair procedures. In other words, if a video link had been arranged, would that have been satisfactory – I would have thought yes, but that does not arise for consideration. Would it have been sufficient to have a conference call? The answer is more doubtful and I would think that the answer is probably no, unless there was some other feature that is relevant.’

[8.75] Thus, any investigation must take into account the rights of the accused to fair procedures and natural justice. It is certainly not correct for companies merely to take the view that they will not allow cross-examination once an objection to it is raised. Companies must consider both parties and consider how it can adapt matters to make its process fair, in keeping with the Hartnett judgment all alternative methods of communication should be considered.

CONCLUSION [8.76] The burden and duty to protect workers from harassment and sexual harassment is placed directly on employers. While employers may well feel slightly aggrieved by the onerous legal responsibilities as set out in the Employment Equality Acts, the fact remains that the defences under ss 14A and 15(3) can be easily met by the drafting of a policy in which employees are trained and which is communicated properly.

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Chapter 9 EQUAL PAY INTRODUCTION [9.01] Since Ireland joined the EU in 1973, the number of women in the Irish workforce has risen from 27 per cent to 42 per cent.1 The reasons for this are complex and multifaceted, and unfortunately are beyond the reach of this book. However, as a result of EU accession, Ireland implemented the Equal Pay Directive by enacting the AntiDiscrimination (Pay) Act 1974. This Act required equality of pay for men and women for work of equal value. This principle is enshrined in Art 141 of the EC Treaty. While the implementation of the Directive and the Anti-Discrimination (Pay) Act were welcome, there remains a significant pay gap between men and women in the EU. It is still the case that women are paid almost 13 per cent less than their male counterparts.2 The reasons for this, as stated, are beyond the scope of this chapter. The purpose of this chapter is to examine the current law on equal pay, its development throughout the EU and the current position in Ireland.

THE EU AND EQUAL PAY [9.02] Article 119 of the Treaty of Rome forced Member States to provide equal pay for equal work. It was thought initially that Art 119 did not give rise to any legal effects and therefore Directive 75/117 was enacted with the purpose of giving legal effect to the principle of equal pay. The interpretation of Art 119 changed following the landmark case of Defrenne v Sabena.3 Here the European Court of Justice (ECJ) agreed with a the plaintiff ’s argument that an entitlement to equal pay derived directly from Art 119. [9.03] Following the Defrenne judgment, Directive 75/117 was seen as giving more detailed guidance on the requirement of equal pay. However, in 1997 Art 141 of the Treaty of Amsterdam amended the definition and principle of equal pay, and a further amendment occurred with the passing of the Lisbon Treaty in 2007 (known as the Treaty on the Functioning of the European Union (TFEU)). With the passing of the Lisbon Treaty, Art 141 became Art 157, and Art 157 of the TFEU now provides for equal pay between men and women as follows:

1. 2. 3.

‘1.

Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.

2.

For the purpose of this Article, “pay” means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or

See www.eumatters.ie. CSO National Employment Survey, October 2009. Defrenne v Sabena (No 3) (Case C–149/77) [1978] ECR 1365.

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[9.04]

Equality Law in the Workplace in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer. Equal pay without discrimination based on sex means: (a)

That pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement.

(b) That pay for work at time rates shall be the same for the same job. 3.

The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, and after consulting the Economic and Social Committee, shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value.

4.

With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.’

[9.04] In addition to Art 157, the Recast Directive in its totality sets out the legal principles as developed by the ECJ. Chapter 1 of the Recast Directive deals with Equal Pay and Art 4 provides for the prohibition of discrimination as follows: ‘For the same work or for work to which equal value is attributed, direct and indirect discrimination on grounds of sex with regard to all aspects and conditions of remuneration shall be eliminated. In particular, where a job classification system is used for determining pay, it shall be based on the same criteria for both men and women and so drawn up as to exclude any discrimination on grounds of sex.’

Recital 8 of the Recast Directive states: ‘The principle of equal pay for equal work or work of equal value as laid down by Article 141 of the Treaty and consistently upheld in the case-law of the Court of Justice constitutes an important aspect of the principle of equal treatment between men and women and it is essential that an indispensable part of the acquis communautaire, including the case-law of the Court concerning sex discrimination. It is therefore appropriate to make further provision for its implementation.’

Recital 9 indicates the broad range of factors that may be taken into account in the assessment of the performance of the same work or work of equal value. Recital 11 states that Member States should continue to address gender-based wage differentials.4 Article 14 prohibits discrimination either directly or indirectly on grounds of sex. 4.

See Meenan and Garvey, ‘The gender pay gap in Ireland – legal review’ (2010) 17(11) CLP 225.

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Equal Pay

[9.09]

[9.05] In addition to the Recast Directive, the Race Directive5 and the Framework Directive6 extend the concept of equal pay beyond mere gender-based discrimination to discrimination on race and ethnicity, religion or belief, disability, age or sexual orientation. [9.06] It is clear that Art 157 has both horizontal as well as vertical direct effect, and therefore in the absence of national legislation provides rights between private individuals and vertically between the State and its citizens.

IRISH POSITION ON EQUAL PAY [9.07] As previously stated, the Irish position on equal pay started with the passing of the Anti-Discrimination (Pay) Act 1974. However, this was overtaken by the Employment Equality Act 1998. Section 19(1) of the 1998 Act provides: ‘It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer.’

The 1998 Act provides for the right of men and women to receive the same rate of remuneration if employed in ‘like work’ by the same (or associate) employer. A man and woman perform ‘like work’ where they perform the same duties under the same or similar conditions, where the work performed is of similar nature, with any differences being infrequent or small in relation to the work as a whole, or where the work is equal in value, judged by the demands it makes in terms of skill, responsibility, working conditions and physical or mental effort. [9.08] This section re-enacts with amendments s 2 of the 1974 Act and implies into a contract of employment the term entitling the worker to equal pay. This is specifically provided for in s 20(1) of the 1998 Act, which provides: ‘Where a person is employed under a contract which does not include (expressly or by reference to a collective agreement or otherwise) a term satisfying subsection (1) of Section 19, the contract shall be taken to include a term giving effect to that subsection: and, if such an implied term conflicts with express term, it shall override the express term.’

PRELIMINARY REQUIREMENTS [9.09] The 1998 Act provides that discrimination on the gender ground shall be taken to occur where a woman is treated less favourably than a man or vice versa. There are a 5. 6.

Council Directive 2000/43/EC. Council Directive 2000/78/EC.

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[9.10]

Equality Law in the Workplace

number of preliminary requirements that a person must satisfy before being able to ground an equal pay claim: • • •

there must be a comparator and that comparator must be a real individual and not a hypothetical member of the opposite sex; the person must be employed by the same or an associated employer as the comparator; the person must be employed to do like work as the comparator.

Comparators [9.10] The Employment Equality Acts 1998–2011 provide that discrimination will occur on the grounds of gender where a woman is treated less favourably than a man, or vice versa. This requires a comparator, and remains the major issue in equal pay claims insofar as the person seeking equal pay must compare his or her work to that of somebody else. [9.11] In this regard, the ECJ has consistently stated that there is a need for an identifiable comparator and not a hypothetical one.7 While the comparator must be a real comparator, there is no obligation that they are employed at the same time. However, the comparator must be in an identical situation with the claimant.8 [9.12] In Brides v Minister for Agriculture,9 Budd J stated that there must be ‘an actual concrete real life comparator of the other sex’ performing like work within what the ECJ in Defrenne v Sabena (No 2)10 described as the same establishment or service. While the person need not be contemporaneously employed, the comparator may be the claimant’s predecessor or successor, albeit that s 19(2)11 imposes a time limit of three years either side of the claimant’s employment. In Brides, the claimants and the comparators were not employed by the same or an associated employer, and thus were not entitled to equal pay. The claimants were employed as poultry officers in the Department of Agriculture and the male comparator was employed by Teagasc as an agricultural development officer. [9.13] An ‘associated employer’ is where: ‘two employers shall be taken to be associated employers if one is a body corporate of which the other (whether directly or indirectly) has control or both are bodies corporate of which a third person (whether directly or indirectly) has control.’12 7. 8.

9. 10. 11. 12.

MacCarthys Ltd v Smith (Case C–129/79) [1980] ECR 1275. See Österreichische Gewerkschaftsbund v Wirtschafts Kammer Österreich (Case C–220/02) [2004] ECR 1–5907, where a woman absent from the workplace and parental leave was not in a similar situation to a man absent from the workplace on military service. Brides v Minister for Agriculture [1998] 4 IR 250, 270. Defrenne v Sabena (No 2) (Case C–43/75) [1976] ECR 455. As inserted by the Equality Act 2004, s 12. Employment Equality Acts 1998–2011, s 2(2).

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[9.16]

[9.14] In dealing with the issue of a direct comparator in Health Service Executive v 248 Named Complainants,13 the Labour Court held: ‘Gender discrimination is binary in nature. In order for the Acts to take effect the pay of a woman must be compared with that of a man performing like work. Where grades are involved the pay of a predominantly female grade must be compared with the pay of a predominantly male grade in order to establish if a prima facie case of discrimination has been made out. The Acts have no effect where the pay of a woman is compared with that of another woman or the pay of a predominantly female grade is compared with that of a grade that is gender neutral. To do otherwise is to extend the concept of equal pay beyond the law as enacted in this State or as set out in the Directive.’

[9.15] Insofar as identifying the correct comparator is concerned, in Irish Aviation Authority v Irish Municipal, Public and Civil Trade Union,14 26 named women employed as data assistants sought to argue that they were entitled to the same rate of pay as that paid to seven named male comparators employed in the air navigation service with the Department of Transport, Energy and Communications. The Labour Court held: ‘In this case the difference in remuneration between the claimants and the comparators derives from the grading structure operated by the respondent. Therefore a case of discrimination does not arise.’

The Equality Officer had previously found that there were grounds other than sex to justify the pay differential between the claimants and the comparators. The court went on to conclude: ‘The gender imbalance within the grading structure is not sufficient to establish a prima facie case of indirect discrimination. It is only if such a prima facie case is made out that the respondent is required to show objectively justifiable grounds in the differences in pay. In these circumstances the claimant’s case must fail.’

[9.16] The issue of a comparator is even more difficult when there are numerous employees concerned. This matter was considered extensively in 248 Named Complainants (represented by Irish Nurses and Midwife’s Organisation) v Health Service Executive (represented by Corporate Employee Relations).15 This dispute concerned an equal pay claim assistant directors of public-health nursing. They claimed that they performed like work in terms of s 7 of the Employment Equality Acts with a number of named comparators who were assistant directors of nursing in mental health, and as a result that they were entitled to the same rate of remuneration as paid by the respondent to those comparators in accordance with s 29 of the Acts. The claim was made on the grounds of gender. At issue, therefore, was a claim that public health 13. 14. 15.

Health Service Executive v 248 Named Complainants [2013] ELR 206. Irish Aviation Authority v Irish Municipal, Public and Civil Trade Union (No DEP 993). 248 Named Complainants v Health Service Executive DEC–E2012–009.

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nursing – which was predominantly performed by women – was remunerated less well than mental health nursing – which had historically been dominated by men. [9.17] The Equality Officer noted that the Labour Court in HSE v Buckley16 stated that it did not accept that even if pay scales were originally gender based, that this was of itself sufficient to establish a prima facie case of discrimination within the statutory meaning of that term. In order to establish a prima facie case, the complainants must identify the ‘provision, criteria or practice’ complained of and that they allege disproportionately and adversely affects their gender. The complainants must present credible evidence to the effect that this would indicate that the ‘provision, criteria or practice’ continues at the time the complaint is first made, and that it adversely affects the complainant’s gender. [9.18] The Equality Officer noted the case of Enderby v Frenchay Health Authority,17 where the ECJ stated: ‘where significant statistics disclose an appreciable difference in pay between two jobs of equal value, one of which is carried out almost exclusively by women and the other predominantly by men, Article 119 of the Treaty requires the employer to show that the difference is based on objective justification unrelated to any discrimination on grounds of sex.’

The Labour Court accepted in Buckley18 that the degree of gender imbalance referred to in Enderby must be considered in the context of the material facts of that case, as set out in the reference by the Court of Appeal in England and Wales. The ECJ did, however, consider that the degree of gender imbalance in both the claimant and the comparator grade must be particularly marked before a prima facie case of discrimination can arise. [9.19] In 248 Named Complainants,19 the Equality Officer considered the gender breakdown of the complainant’s grade and noted that it was 100 per cent female. The Equality Officer went on to opine: ‘in order to succeed in their claim the complainants should be able to prove that the alleged gender imbalance continued up to at least three years prior to which the compensation may be awarded.’

The complainants had previously contended that the ‘relevant time’ that the Equality Officer should consider was the date when the pay-grading structure for all nurses and management was established, which was in 1995/1996. The Equality Officer then noted that the comparator group was not predominantly male, and that during the ‘relevant time’ under s 19(2) of the Acts it constituted only a 53/47 split at worst. The Equality Officer stated that she was clear that since the comparative grade consisted of a similar number of men and women since April 2002, the argument that 16. 17. 18. 19.

HSE v Buckley EDA 113. Enderby v Frenchay Health Authority (Case C–127/92) [1991] IRLR 43. HSE v Buckley EDA 113. 248 Named Complainants v Health Service Executive DEC–E2012–009.

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[9.24]

the comparative rate was predominantly male could be sustained and went on to state ‘I find that Section 19(2) of the Acts is crystal clear in relation to what constitutes relevant time in relation to an equal pay claim’. [9.20] Note that the UK by virtue of the Equality Act 2010 permitted the use of hypothetical comparators where there are no comparators within the establishment doing the work undertaken by the complainant. [9.21] It is clear that the naming of a comparator poses significant difficulties for complainants, despite the fact that complainants have an entitlement to seek information under s 76(1). The provision of information is dependent on the employer, and this may not be sufficient to ground an actual claim. There is also no entitlement to discovery of documents, and the only real provision to assist complainants is that the Equality Tribunal and the Labour Court can investigate the complaint further in order to obtain more information.20 Same or associated employer [9.22] Notwithstanding the need for a comparator, complainants must work for the same or an associated employer. Section 2(2) of the 1998 act defines ‘same or associated’ employer for the purposes of the Act arising where: ‘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.’

Other conditions are imposed by ss 19(3) and 29(3), which provide that a claimant and comparator employed by associated employers cannot be regarded as employed to do ‘like work’: ‘unless they both have the same or reasonably comparable terms and conditions of employment.’

[9.23] While the Defrenne II21 judgment was the first to hold for the principle that women and men should receive equal pay for equal work carried out in the same establishment or service whether it be public or private, this naturally gives rise to the query as to what constitutes the same establishment. [9.24] Lawrence v Regent Office Care Ltd22 sought to establish that the comparison with male workers in a local government service held good after a transfer of an undertaking had occurred by arguing that the workers were all employed in the same service, even if not employed by the same employer. Some of the applicants in the case had been dismissed by the council and hired on new and reduced terms by independent 20. 21. 22.

This is perhaps why a lot of these claims are now being brought in the Circuit Court, where the normal rules of discovery apply. Defrenne v Sabena (No 2) (Case C–43/75) [1976] ECR 455. Lawrence v Regent Office Care Ltd [2003) ICR 1092 (ECJ).

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[9.25]

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contractors; others had transferred over straight from the council; and some employees had never worked for the council and been employed only by the contractor, but on local government work. An employment tribunal in the UK had rejected the female employees’ arguments, holding that in order to make the comparison ‘[t]he person who discriminates has to be in control of both the women’s wage and the comparator’s wage’. The Court of Appeal then referred the case to the ECJ. [9.25] In a particularly short and ambiguous judgment, the ECJ rejected the women’s claim. The court did reiterate the position that equal pay rights and in particular Art 141 of the Treaty of Rome are not limited to the situation where men and women work for the same employer. It repeats that the principle of equal pay may be invoked in cases involving pay discrimination arising directly from legislative provisions or collective labour agreements, as well as in cases in which the work is carried out in the same establishment or service, whether private or public. However, where the differences identified in the pay and conditions of workers cannot be attributed to a single source, there is no body that is responsible for the inequality and that could restore equal treatment, the claim falls outside the scope of Art 141. In summary, comparisons across employers are valid only where there is a single source of funding. [9.26] The ECJ dealt with the issue further in Allonby v Accrington & Rosendale College.23 Here, part-time lecturers did not have their contracts renewed. They were rehired through an agency and were said to be ‘self-employed independent contractors’ under the new arrangement. They were denied access to the teachers’ superannuation scheme. It was apparent that more of the part-time lecturers were women than the staff that remained under permanent contracts with the college. The ECJ held that despite the contract stating that they were self-employed and despite national legislation24 applying only to employees, workers and those personally performing work (which might have put them outside the protection of the legislation), the lecturers did fall within the Community definition of worker. However, while the ECJ held that they fell within the definition of ‘worker’, their claim failed, because they could not point to a comparator of the opposite sex working for the same employer who had been adversely affected by the rule. [9.27] Similarly, in this jurisdiction, in Brides v Minister for Agriculture,25 employees of Teagasc were unsuccessful in comparing themselves with employees of the Department of Agriculture. However, in Thorsch v ESB National Grid/EirGrid,26 the Equality Officer rejected the argument that the claim was taken against the incorrect respondent. Ms Thorsch was legally qualified and worked as a regulatory analyst with the 23. 24. 25. 26.

Allonby v Accrington & Rosendale College (Case C–256/01) [2004] ECR I–2002. Equal Pay Act 1970. Brides v Minister for Agriculture [1998] 4 IR 250. Thorsch v ESB National Grid/EirGrid DEC–E2011–060.

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[9.30]

respondent, initially on a three-year contract until she was made permanent in 2003. She sought unsuccessfully to compare herself to an engineer who commenced employment in the same section as her in 2003. The respondent argued unsuccessfully that Ms Thorsch had worked for the ESB and not ESB National Grid/EirGrid and that the claims had therefore not been taken against the correct employer. [9.28] In summary, therefore, there has to be a ‘single source’ of employment. However, this does not apply where the comparators are in the same employment. Despite the requirement for a single source, the principle of equal pay can be invoked where it arises out of collective agreements or legislation. Like work [9.29] In addition to having a comparator and working for the same or associated employer, complainants must be employed in like work. Section 7(1) of the Employment Equality Act 1998 defines ‘like work’: ‘7. (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.’

This applies to all workers except agency workers, who may only be compared with another agency worker. This provision does not apply to workers to whom the Protection of Employees (Temporary Agency Work) Act 2012 applies.27 Exactly the same work [9.30] Section 7(1)(a) defines like work as being the same work. A case where the issue of same work was considered was Department of Post and Telegraphs v Kennefick.28 Here the employer argued that a claimant’s work was not the same as the comparator’s because the comparator had a liability for additional duties, which included attendance duties. However, it was found that in fact the work was substantially the same, and equal 27. 28.

Employment Equality Act 1998, s 7(2) and Protection of Employees (Temporary Agency Work) Act 2012, s 9. Department of Post and Telegraphs v Kennefick EP/9/1979.

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pay was awarded on the basis of the practicalities of the work situation rather than the additional work, which rarely occurred. Identical or interchangeable work [9.31] Section 7(1)(a) also provides that the work can be interchangeable. The notion that work is interchangeable seems to infer that a complainant should be able to assume responsibility from his or her comparator and to do so without notice or training. In O’Leary v Minister of Transport Energy and Communications,29 it was established that the complainant was capable of doing most of the duties performed by the comparator on a day-to-day basis but did not hold the qualifications of the comparator’s job. It was held that the higher qualifications were sufficient to justify a higher level of pay. Similar work [9.32] Section 7(1)(b) defines like work as being of similar in nature to that performed by the other where the differences between the work performed and the conditions under which it is performed are all of small importance in relation to the work as a whole or occur with such irregularity so as not to be significant to the work as a whole. [9.33] There have been several significant decisions in this area. In Dowdall O’Mahony & Co Ltd v 9 Female Employees,30 women on a lower grade maintained that they were doing similar ‘like work’ to men of a higher grade. The Labour Court, in order to determine whether the work performed by each complainant was similar in nature to that performed by each comparator, pondered a number of questions: •

were there any differences between the work performed by each complainant and each comparator?

•

did the differences occur infrequently?

•

were the differences of small importance in relation to the work as a whole?

The Labour Court determined that the work performed was of a similar nature. Here the complainants and their comparators each performed general operative factory work and the court took the view that the intention of the definition in s 7(1)(b) was to address claims from persons employed in such situations as opposed to persons employed directly on the same work. In examining the role, the court found that there were differences between the work performed by each complainant and each comparator, and that these differences occurred on an ongoing basis and thus frequently. In determining what was or was not of small importance, the court noted that the Act did not provide a basis for assessing same and that this must therefore be a matter of judgment. 29. 30.

O’Leary v Minister of Transport Energy and Communications [1998] ELR 113. Dowdall O’Mahony & Co Ltd v 9 Female Employees EP/2/1987, DEP/6/1987.

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[9.35]

The court had difficulty in assessing what criteria were to be used in assessing the work classified as Grade 1 (the complainants) as opposed to that of Grade 2 (the male comparators). In the absence of any such criteria, the court decided that it had to examine the work itself and make a judgment on its own experience in grading structures, salary scales and rates of pay. The court addressed this in a two-step fashion: first, it sought to identify the differences between the jobs; second, it then used that to establish whether or not the differences were of such import that they would normally be used as a basis for establishing a different grade, salary scale or rate of pay, irrespective of the sex of the workers concerned. Here the major difference concerned the physicality of the jobs. However, the court considered that this was not significant and did not justify a difference in pay, and thus it determined that the complainants and comparators were doing ‘like work’ and were thus entitled to equal pay. [9.34] In O’Leary v Minister of Transport Energy and Communications,31 the complainants were working at Dublin airport and claimed equal pay under the 1974 Act,32 contending that they carried out work of a ‘similar nature’ to male radio operators and that any differences in work were both infrequent and of small importance. Having examined the work, the Equality Officer concluded that the work was of a similar nature but that the differences that occurred were not of a small importance, in that they required of the comparators additional qualifications and skills. Accordingly, the Equality Officer determined that the complainants and comparators did not perform ‘like work’. This was upheld on appeal by the Labour Court, on further appeal to the High Court and again, on further appeal, by the Supreme Court. The Supreme Court in dismissing the appeal, declared that for the claim to succeed, it would have to be established that the appellants and the comparators were engaged in ‘like work’. The Supreme Court noted that it might be a difficult task to compare blatantly different categories of work from one another by reference to the demands that they make on skill, effort and responsibility. However, where there is a degree of similarity, that should be easier, as in this instance. [9.35] In a subsequent case, the High Court determined in An Comhairle Oiliúna Talmhaíochta v Doyle33 that in order to make a finding under s 7(1)(b), the Labour Court must find that:

31. 32. 33.

•

either there are no differences in the work performed; or

•

any differences are either infrequent or of small importance in relation to the work as a whole. O’Leary v Minister of Transport Energy and Communications [1998] ELR 113, [1998] 1 IR 558. Anti-Discrimination (Pay) Act 1974. An Comhairle Oiliúna Talmhaíochta v Doyle [1989] IR 33; [1990] IRLM 21.

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Work equal in value [9.36] Section 7(1)(c) provides that 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 and responsibility in working conditions. This definition allows for comparisons to be made between jobs that are radically different in content. This is a much more difficult comparison to establish, as it necessarily involves an assertion that both jobs – although profoundly different – have equal value. [9.37] Section 7(3) of the 1998 Act provides that if workers are earning less remuneration than their comparators and the work they are performing is higher in value than that carried out by the comparators, then for the purpose of the Act the work performed by the complainant is regarded as work of equal value. This section confirmed the decision of the ECJ in Murphy v An Bord Telecom Éireann.34 [9.38] In assessing the nature of the work the Equality Officer does not have to be absolutely precise in his/her comparison. In the Murphy case Keane J stated that the words ‘equal in value’ ‘… should not be used so as to require a mathematical exactitude of equality having regard to the statutory context in which they are used’. The statement by Keane J seemed to follow the determination of the Equality Officer in Pauwels Trafo (Ireland) Ltd v 15 Women Catering Machine Operators,35 where the Equality Officer averred: ‘There is no method by which the Equality Officer nor any assessor can determine with mathematical precision that the women’s work and the men’s work comes out exactly the same. The Equality Officer must therefore take a practical approach to the work under examination and determine whether the total package of every individual’s work under examination can be reckoned as being of equal value in terms of Section 3(c).’36

[9.39] On the basis that there is no mathematical process for comparing jobs, an objective judgment must be made. A difficulty is that the Act does not provide any assistance as to how jobs should be assessed and compared. The 1998 Act does not specifically provide for job evaluation, and invariably both employer and complainants provide their own job evaluation and use such reports as the basis for their arguments. While such job evaluations can be taken into account in assessing cases, it is clear that they will be only one of a number of considerations to be borne in mind, but not the determining one. Invariably, it comes down to an extensive comparative exercise by the Equality Officer involved. 34.

35. 36.

Murphy v An Bord Telecom Éireann EP/28/198, DEP/6/1984, [1986] ILRM 483, [1988] 1 CMLR 879 (ECJ), (11 April 1988, HC), Keane J, DEP/7/1988, 157/86 (1988) ICR 445 (ECJ), [1988] IRLR 267 (ECJ), [1989] ILRM 53 (ECJ HC). Pauwels Trafo (Ireland) Ltd v 15 Women Catering Machine Operators EP/48/1981. Anti-Discrimination (Pay) Act 1974, s 3(c).

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[9.43]

[9.40] There are many examples where the Equality Officer has conducted detailed and complex assessments. In 24 Female Employees v Spring Grove Services,37 the Equality Officer compared one of the claimants to one of the comparators under the headings of skill, physical effort, mental effort, responsibility and working conditions, and subsequently determined that the said female employee was not doing work of equal value. [9.41] In Thorsch v ESB National Grid/ EirGrid,38 the Equality Officer, having examined the jobs in detail, determined that the comparator was involved with project management, exercised greater responsibility, had greater autonomy, was expected to exercise his own initiative and was in a position that involved higher mental requirements than the position held by the claimant. [9.42] In 29 Named Complainants v Courts Service,39 the Equality Officer grouped the 29 complainants into various categories in order to evaluate their claim, compared them with the named comparators and then undertook a series of work inspections agreed in advance by the parties in various court locations throughout the country. The Equality Officer set out the job descriptions in respect of the posts of the complainants and comparators who were the subject of the inspection based on the duties, roles and responsibilities outlined by each and made a comparison of both categories under five headings: 1.

skill;

2.

physical requirements;

3.

responsibilities;

4.

mental requirements;

5.

working conditions.

In the last three categories, he found that the comparators’ work was greater than the complainants’ work; in the first two, he found that the complainants’ work was equal to that of the comparators. On balance, therefore, he determined across the five categories that the complainants did not perform work of equal value. On appeal, the Labour Court held: ‘That it was quite satisfied that the inspection carried out by the Equality Officer was exceptionally thorough and no unreasonableness or irrationally had been shown to have occurred in his work which would justify the necessity for further work inspection to be carried out.’

[9.43] It is clear, therefore, that while equal pay for work of equal value is a welcome concept that attempts to address the undervaluation of women’s work in the labour market, in the absence of any formula for comparing jobs, complainants rely on the 37. 38. 39.

24 Female Employees v Spring Grove Services [1996] ELR 147. Thorsch v ESB National Grid/EirGrid DEC–E2011–060. 29 Named Complainants v Courts Service DEC–E2010–016, EDA 1125.

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objective assessments of the Equality Officer and the courts. It is thus for the court, not the employer, to determine what is ‘like work’. Even if the employer’s evaluation of the work is incorrect and done without malice, it cannot be relied upon to avoid liability under the Act.40 [9.44] Finally, in this regard, a reporting relationship is not a factor to be taken into account in determining whether jobs are of equal value.41 When women’s jobs are evaluated and assessed in relation to men’s, it often emerges that the demands of women’s jobs are greater or equal in terms of skill, responsibility and mental effort and less in terms of physical effort and less or equal in terms of working conditions. In many such cases, it has been determined that the overall value of the jobs are equal.42

INDIRECT DISCRIMINATION [9.45] Notwithstanding the need of complainants to demonstrate that there has been a gender imbalance between their grade and that of their comparator for a period of three years prior to the claim, the first issue for consideration is whether discrimination, as alleged, is to be characterised as either direct discrimination or indirect discrimination. It is for the employees who believe themselves to be victims of discrimination in unequal pay to establish that the conditions giving rise to the presumption for unequal pay, prohibited by Art 119 of the Treaty and by the Directive are satisfied.43 [9.46] As has already been stated, there is no mathematical certainty as to what constitutes work of equal value, but statistics are often relied upon as an evidential tool in seeking to establish a prima facie case of indirect discrimination. In Enderby v Frenchay Health Authority,44 the issue concerned speech therapists, a predominantly female group, who had significantly lower pay than pharmacists, a predominantly male group. Notwithstanding that there were fully transparent and separate collective bargaining processes, it was accepted that the work of both groups was equal in value. The ECJ, in considering the issue of the use of statistics, stated: ‘17. It is for the national Court to assess whether it may take into account those statistics, that is to say, whether they cover enough individuals, whether they illustrate purely fortuitous or short-term phenomena, and whether, in general, they appear to be significant.’ 40. 41. 42. 43. 44.

See decision of Barron J in C & D Food Ltd v Cunnion [1987] 1 IR 147. Health Service Executive v 27 Named Complainants EDA/07/20. See Youghal Carpet (Yarns) Ltd v Canteen Attendants EP21/1982. Brunnhofer v Bank der Österreichischen Postsparkasse AG (Case C–381/99) [2001] ECR I– 4961. Enderby v Frenchay Health Authority (Case C–127/92) [1993] ECR I–5535, [1993] IRLR 591.

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[9.48]

[9.47] The methodology for applying the test inherent in the definition of ‘indirect discrimination’ was considered by the ECJ in R v Secretary of State for Employment, Ex p Seymour-Smith45 as follows: ‘58. As regards the establishment of indirect discrimination, the first question is whether a measure such as the rule at issue has a more unfavourable impact on women than on men. 59. Next, ... the best approach to the comparison of statistics is to consider, on the one hand the respective proportions of men in the workforce able to satisfy the requirements of two years employment under the disputed rule and those unable to do so, and, on the other, to compare those proportions as to regards women in the workforce. It is not sufficient to consider the number of persons effected, since that depends on the number of working people in the Member State as a whole as well as the percentage of men and woman employed in that State.46 60. As the Court has stated on several occasions, it must be ascertained whether the statistics available indicate that a considerably smaller percentage of women than men is able to satisfy the condition of two years employment required by the disputed rule. That situation would be evidence of apparent sex discrimination unless the disputed rules were justified by objective factors unrelated to any discrimination based on sex. 61. That could also be the case if the statistical evidence revealed a lesser but persistent and relatively constant disparity over the long period between men and women who satisfy the requirement of two years employment. It would, however, be for the national Court to determine the conclusions to be drawn from such statistics. 62. It is also for the national Court to assess whether the statistics concerning the situation of the workforce are valid and can be taken into account, that is to say, whether they cover enough individuals, whether the industry is purely fortuitous or a short term phenomena, and whether in general, they appear to be significant ….’

[9.48] In Kenny v Minister for Justice, Equality and Law Reform,47 Advocate-General Cruz Villalión stated: ‘54. In a situation such as this of indirect discrimination on grounds of sex, it is for the appellants to provide sufficient evidence of the existence of a difference which, they allege in practice, disadvantages woman. As I have indicated they must establish that a “relatively large” number of men, or enough of them are engaged in equivalent work and are paid at a higher rate than the appellants and, 45. 46.

47.

R v Secretary of State for Employment, Ex p Seymour-Smith [1999] IRLR 253. The applicant’s case was that a new rule requiring two years’ service to fall within the service requirement of the Employment Protection (Consolidation) Act 1978 (for unfair dismissal) was discriminatory against women, as they were less likely to have this new service requirement. Kenny v Minister for Justice, Equality and Law Reform (Case C–427/11) (29 November 2012, ECJ).

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[9.49]

Equality Law in the Workplace more generally, at a higher rate than a couple of individuals predominantly made up of women. They must do so in a way it would suggest something that is systemic or indicative of a pay structure that is intrinsically discriminatory, rather than a fortuitous or short term phenomena.’

[9.49] Thus, the criteria or provisions will be held to be indirectly discriminatory where they bear significantly more heavily on workers of one gender than on those of another. The statistics must suggest something that is systemic or indicative of a pay structure that is intrinsically discriminatory rather than fortuitous or short-term phenomena.

DEFINITION OF PAY [9.50] The definition of pay is constructed in a very broad manner. Remuneration is defined in s 2 of the 1998 Act: ‘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 received, directly or indirectly, from the employer in respect of the employment.’

[9.51] When assessing an equal pay claim, it is necessary to take an employee’s entire package into consideration. This includes sick pay48 as well as paid periods for union training49 and payments for ex-gratia redundancy schemes.50 Pay also includes accommodation,51 health insurance,52 commission and bonus payments,53 overtime, sickness payments and cleaning allowances for uniforms.54

ENTITLEMENT TO EQUAL PAY ON OTHER DISCRIMINATORY GROUNDS [9.52] Besides gender, the same principles apply to the application of equal pay to the other eight discriminatory grounds. The Race Directive55 and the Framework Directive56 both provide for non-discrimination in relation to pay. 48. 49. 50. 51. 52. 53. 54. 55. 56.

Rinner-Kühn v FWW Spezial Gebaudereiningung GmbH (Case C–171/88) [1989] ECR 2743. Arbeiterwohlfahrt der Stadt Berlin v Botel (Case C–360/90) [1992] EUECJ. Barber v Guardian Royal Exchange Assurance Group (Case C–262/88) [1990] ECR I– 1889; Henry Denny and Sons (Ireland) Ltd v Rohan EDA/1310. Metropole Hotel v Seven Female Waitresses EP/19/1987. CIE v IT&GWU DEP/1/1978. Gypsum Industries plc v Ormiston EE/16/1992. Lisadell Towels Ltd v IT&GWU EP/10/1986. Group 4 Securitas (I) Ltd v 26 Female Store Detectives EP/3/1991, where a uniformcleaning allowance was deemed to be remuneration as it was a cash payment. Race Directive, Directive 2000/43/EC, Art 3(1)(c). Framework Directive, Directive 2000/78/EC, Art 3(1)(c).

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[9.56]

DEFENCES [9.53] The possible defences that an employer can raise in relation to a claim for equal pay are varied, but they generally centre on the fact that the woman and her comparator are not doing equal work. This will necessarily fall to the Equality Officer and the court to determine. However, there are other defences, which may be related to market forces, cost, the fact that various jobs have been ‘red circled,’ etc. Market forces [9.54] In Jenkins v Kingsgate Clothing,57 it was acknowledged that lower rates of pay for part-time workers were unlawful discrimination, but the ECJ held that the employer would have a defence if it was able to show that a lower rate of pay for part-time workers was genuinely part of its business strategy on economic grounds and that this could be objectively justified. In Bilka-Kaufhaus,58 the employer was able to convince the ECJ that the nonpayment of pension contributions to part-time employees was part of its strategy to encourage staff to work full-time. In Enderby,59 the employer argued unsuccessfully that a higher rate of pay paid to pharmacists, who were predominately male, than to speech therapists, who were predominately female, was justified on the basis of having to pay higher salaries to attract suitable candidates. Cost [9.55] The defences of cost and market forces often overlap,60 and it is generally the case that cost alone will not afford a genuine defence to an employer. If this were the case, it would be open to every employer to merely argue that equal pay costs too much. [9.56] The need to combine cost with another defence was recognised by the Court of Appeal in the UK case of Woodcock v Cumbria Primary Trust,61 which considered whether issuing a dismissal letter before the claimant’s 50th birthday – which ultimately saved the Trust money – was discriminatory on the age ground, notwithstanding that it was accepted that there was a surplus of managers and that redundancies would have to be made. In a particularly considered decision, Rimer LJ held: ‘67. If the Trust’s treatment of Mr Woodcock is correctly characterised as no more than treatment aimed at saving or avoiding costs, I would accept that it was not a means of achieving a “legitimate aim” and that it was therefore incapable of justification. It would fall foul of the limitations upon justification explained in cases such as Hill and Stapleton. On the unusual facts of this case, I would 57. 58. 59. 60. 61.

Jenkins v Kingsgate (Clothing Productions) Ltd (Case C–96/80) [1981] ECR 911. Bilka-Kaufhaus GmbH v Weber von Hartz (Case C–170/84) [1986] ECR 1607. Enderby v Frenchay Health Authority (Case C–127/92) [1993] ECRI–5535. Jenkins v Kingsgate (Clothing Productions) Ltd (Case C–96/80) [1981] ECR 911. Woodcock v Cumbria Primary Trust [2012] IRLR 491.

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[9.56]

Equality Law in the Workplace not, however, regard that as a correct characterisation. The dismissal notice of 23 May 2007 was not served with the aim pure and simple of dismissing Mr Woodcock before his 49th birthday in order to save the Trust the expense it would incur if he were still in its employ at 50. It was served, and genuinely served, with the aim of giving effect to the Trust’s genuine decision to terminate his employment on the grounds of his redundancy. The EAT had no doubt that the dismissal of an employee on such grounds is a legitimate aim – “It is an entirely legitimate aim for an employer to dismiss an employee who has become redundant”. I agree; and it cannot in my view cease to be a ‘legitimate aim’ simply because, if there is no dismissal, the employer will continue to incur costs that such dismissal is directed at saving. 68. I also agree with both the ET and the EAT that it was a legitimate part of that aim for the Trust to ensure that, in giving effect to it, the dismissal also saved the Trust the additional element of costs that, had it not timed the dismissal as it did, it would be likely to have incurred. In considering the timing of the steps it needed to take towards dismissing Mr Woodcock for redundancy it was obviously legitimate for the Trust to have that consideration in mind, as it clearly did as early as March 2007. It would, in my view, have been irresponsible of the Trust not to have done so. Mr Woodcock had, by 2007, no right, entitlement or expectation to the enjoyment of the enhanced benefits that he would have enjoyed had he remained in the Trust’s employment until he was 50. Had he in fact so remained so as to enjoy them, he would have been the beneficiary of a pure windfall. He could and would not have had any reasonable hope or chance of doing so if (a) he had been given notice to expire at the end of (or shortly after) June 2007, as ought to have happened in accordance with the guidance of the NW SHA; (b) he had been able to attend the meeting on 10 April 2007, as the Trust had originally intended, and he had been given notice at or after that meeting; (c) it had been possible to arrange a subsequent meeting before June 2007, and he had been given notice after it; or (d) he had been given notice on or shortly after the meeting that was eventually fixed for 6 June 2007. If any of these things had happened, he could have had no possible grounds for complaint on age discrimination grounds. 69. The only difficulty generated by the case is that, on the ET’s findings, the dismissal was tainted with discriminatory treatment on the grounds of age. That was because the difficulties in arranging an earlier consultation meeting with Mr Woodcock resulted in the Trust taking the view in May 2007 that, because his 49th birthday was fast approaching, it needed to cut a procedural consultation corner in order to ensure that the notice expired before his 50th birthday. (In fact it was wrong about this: it could have given its dismissal notice immediately after the meeting of 6 June 2007; had it done so, it is difficult to see what complaint Mr Woodcock could have had). 70. In my view that consideration goes, however, only to the proportionality of the treatment adopted by the Trust. That required the striking of an objective balance between the discriminatory effect of the treatment of Mr Woodcock and the needs of the Trust. The ET found that, in the circumstances, the treatment was proportionate (paragraphs 83 and 84 of its reasons). It was ground 2 of Mr Woodcock’s appeal to the EAT that focused exclusively on proportionality, and it relied upon the fact that the Trust’s procedure deprived him of his right to consultation in advance of the dismissal notice. Underhill J explained why, in

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[9.60]

what he described (and I agree) as the “very particular” circumstances of the case, the EAT agreed that that consideration did not undermine the proportionality of the Trust’s treatment. I have explained the EAT’s reasoning at [35] and [36] above.’

Thus, Woodcock has become the authority for the assertion that while cost considerations in and of themselves cannot be a legitimate aim of a discriminatory measure, they can be argued in ‘the round’, where other non-cost considerations arise. Collective agreements [9.57] The Employment Equality Acts 1998–2012 imply into each contract of employment an entitlement to equal remuneration and equal treatment. Thus, if the terms of a collective agreement is discriminatory, it will be held to be null and void. Collective agreements, in the main, form part of an employee’s contract of employment and generally provide and set out rates of pay, conditions of employment, hours of work, leave arrangements and sick pay, disciplinary and grievance procedures and related matters. [9.58] The ECJ in Enderby62 held that despite both groups having their own collective agreement, the employer could not rely on this as a defence to a claim for equal pay. In Ireland, benchmarking under a Social Partnership Agreement has been held not to be a collective agreement for the purpose of the equality legislation.63 While there have been some inconsistencies in the treatment of collective agreements in relation to claims of pay and discrimination, difficulties can also arise where historic reasons impose themselves on the rationale for the current collective agreement.64 In Kenny v Minister for Justice,65 it was held that ‘the interests of good industrial relations’ could be taken into account in the justification for different rates of pay. Red-circling [9.59] So-called ‘red-circling’ arises in the workplace where a higher-paid employee is moved to a lower grade and yet maintains his or her higher rate of pay. This can either be on a ‘personal to holder’ basis – that is to say, where the person maintains the differential ongoing between him or her and the others in the grade – or where the person moves into the role and the rate of pay is frozen until such time as others within the grade catch up. [9.60] In Hennings v Mai,66 the ECJ held that where a system of pay under a collective agreement red-circled pay on transition from a former discriminatory pay system to a 62. 63. 64. 65. 66.

Enderby v Frenchay Health Authority (Case C–127/92) [1993] ECR I–5535. Department of Finance v 7 Named Complainants EDA/068/2006. See HSE v Buckley EDA 113. Kenny v Minister for Justice (Case C–427/11) (2013) EqLR 380 ECJ. Hennings v Eisenbahn – Bundes und Land berlin v Mai (Joined Cases C–297/10 and C– 988/1) [2011] All ER (D) 72 (October).

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new non-discriminatory one with the result that certain pay differentials that discriminated on grounds of age were perpetuated under the new regime, this was justified and lawful under the Equal Treatment Framework Directive if: •

its aim was to avoid losses of pay and to enable the social partners to implement the changeover to the new non-discriminatory system; and

•

the continuing discriminatory effects were transitional and temporary in nature.

[9.61] The justification of red-circling was accepted in Campbell v Minister for Transport.67 Here the applicants were employed as communications assistants responsible for processing the charges levied on international users of air or ground communications and the data relating to flights departing from Ireland. They compared themselves with male radio officers. The Department of Transport argued that due to ill health the comparators (who were radio officers) had been assigned to posts that were less onerous than the previous positions and that this was the reason for the differential in wages. The Labour Court held that a defence of red-circling could be made: ‘Where for specific reasons an individual or group may not be required to perform what would normally be considered the full list of the duties of their grade and an arrangement is made whereby those concerned retained their grade while being re-assigned to duties, which, in the normal course, would attract a lower rate of pay.’

On appeal, Keane J in the High Court held that the Labour Court had misdirected itself in law in holding that the onus rested on the employer to prove not just that it was a genuine case of red-circling, but also that a recognised factual and acknowledged position of red-circling existed. When the matter was returned to the Labour Court, it found:68 ‘that the differential in pay between the claimants and the comparators is not genuinely based on grounds other than sex. It finds that the defence of “red circling” on grounds of unsuitability for shift work was put forward in an attempt to justify the position of the particular comparators in this case. What the real reason for the differential in pay is that the Radio Officers are male and the Communications Assistants are female.’

The award ultimately made to the four claimants was in excess of £100,000 each – one of the largest ever equal pay awards made in this jurisdiction. [9.62] Equally in the case of Irish Crown Cork Co Ltd v SIPTU,69 red-circling was not accepted as a defence. More recently in McManus v Diageo70 and in the case of 58 Named Complainants v Good Concrete71 the defence of red-circling was accepted. 67. 68. 69. 70. 71.

Campbell v Minister for Transport [1996] ELR 106. O’Leary v Minister of Transport Energy and Communications [1998] ELR 113. Irish Crown Cork Co Ltd v SIPTU DEP 1/1994. McManus v Diageo DEC–E–2007–21. 58 Named Complainants v Good Concrete DEC–E–2008–020.

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[9.69]

Seniority and length of service [9.63] Differences in pay are often sought to be explained by length of service. Indeed, the whole of the public service operates pay grades that award pay increments for years of service. [9.64] In Cadman v HSE,72 the ECJ held as a general rule that the criterion of length of service is appropriate to the legitimate objective of rewarding experience acquired which enabled the employee to perform his or her duties of employment better. [9.65] Notwithstanding this, the extent to which employers can rely on the criterion of length of service as a legitimate defence is fraught with difficulties. This is so because if an employer rewards an employee for length of service, it naturally pays more to older workers, who generally tend to be male, as women tend to take more time off for family and caring reasons. This criterion therefore, by its very nature, discriminates against younger people and females. [9.66] In Brierton v Calor Teoranta,73 the Equality Tribunal, having examined Cadman, further applied it and set a number of hurdles that employers must cross to justify the defence of seniority or length of service: • •

there is a need for transparency within the pay system in order that judicial scrutiny of the length of service can be undertaken; an employer must be able to demonstrate the reasons why experience is required for the particular position and why.

[9.67] In Wilson v Health and Safety Executive,74 the UK Court of Appeal held that the effect of Cadman was that an employer could be required to provide objective justification for the use of a length of service criterion as well as its adoption in the first place. In this case, the court upheld the employment tribunal’s finding that a 10-year incremental scale had not been shown to be objectively justified. [9.68] Thus the harshness of the strict rule in Cadman has been somewhat watered down by the Equality Tribunal and the UK Court of Appeal, both of whom have determined that a close examination is required before a defence regarding the length of service criterion is raised.

DISABILITY AND EQUAL PAY [9.69] Section 35(1) of the Employment Equality Acts 1998–2011 provides: ‘Nothing in this Part or Part II shall make it unlawful for an employer to provide, for an employee with a disability, a particular rate of remuneration for work of a 72. 73. 74.

Cadman v Health and Safety Executive (Case C–17/05) [2006] ECR I–09583, [2006] IRLR 969. Brierton v Calor Teoranta DEC–E2010–034. Wilson v Health and Safety Executive [2010] IRLR 59.

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[9.70]

Equality Law in the Workplace particular description if, by reason of that disability, the amount of that work done by the employee during a particular period is less than the amount of similar work done, or which would reasonably be expected to be done, during that period by an employee without a disability.’

[9.70] This section was amended by s 24 of the Equality Act 2004 and now allows for the provision for persons with a disability to be paid special rates of remuneration and to be given special treatment and/or facilities. This section thus allows employers to directly discriminate against those with a disability, if by reason of a disability the amount of work done by the employee during a particular period is less than the amount of similar work done, or which could reasonably be expected to be done, during that period by an employee without a disability. [9.71] Section 35(1) does appear to be in breach of Art 3(1)(c) of the Framework Directive,75 which provides that the Directive should apply to all persons in relation to employment and working conditions, including dismissals and pay, thus providing no derogation in relation to pay and disability. This has yet to be tested in this jurisdiction. [9.72] An added difficulty with s 35 arises in the use of the words ‘what could reasonably be expected to be done.’ There are no guidelines for employers or employees on what this signifies. Hence, this leaves it up to employers to determine what a fullbodied person would be capable of in terms of productivity or general output, which of course is subjective and open to challenge.

REDRESS AND EQUAL PAY [9.73] Redress amounts to an order for equal pay plus arrears. Section 82(1)(a) of the Employment Equality Acts 1998–2011 limits any order for compensation to arrears for remuneration to the period of three years before the date of referral. [9.74] In pension cases, it has been held that while national rules limiting the period of compensation are permissible, they are so only as long as they do not make it impossible to exercise the right in the first instance. Thus employees have been held to be entitled to join pension schemes retrospectively and employers have been ordered to pay arrears76 beyond the three-year time limit, but they are not required to pay interest on the arrears or to pay the arrears in one lump sum.77

PART-TIME WORKERS AND EQUAL PAY [9.75] Bilka-Kaufhaus GmbH v Weber von Hartz78 determined that part-time workers cannot be discriminated against on pay matters simply because they are part-time, and discrimination must be justified on other grounds. 75. 76. 77. 78.

Directive 2000/78/EC. Fisscher v Voorhus Henglo BV (Case C–128/93) [1994] ECR I–4583. Office National des Pensions v Jonkmann (Case C–232/06) [2007] ECR I–05149. Bilka-Kaufhaus GmbH v Weber von Hartz (Case C–170/84) [1986] ECR 1607.

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[9.79]

In St Patrick’s College Maynooth v 19 Female Employees,79 the Equality Officer held that the employees’ lower rate of pay arose solely because they were part-time employees, and thus this was considered indirectly discriminatory.

PENSIONS AND EQUAL PAY [9.76] It has been clear from the decision in Barber v Guardian Royal Exchange Insurance Group80 that an occupational pension scheme does fall within the scope of Art 157.81 The decision in Barber was enshrined in Recital 13 of the Recast Directive:82 ‘In its judgment of the 17th May 1990 in case C–262/88, the Court of Justice determined that all forms of occupational pension constitute an element of pay within the meaning of Article 141 of the Treaty.’

[9.77] In Ireland, the Pensions Act 1990, as amended by the Social Welfare (Miscellaneous Provisions) Act 2004, provides at s 65(1): ‘Occupational benefit means benefits (other than remuneration) to which Sections 19 and 29 of the Employment Equality Act, 1998 apply.’

[9.78] Thus the principle of equal treatment in relation to pensions means that there can be no discrimination on any of the discriminatory grounds in respect of any rule of this scheme, for example membership, access, eligibility criteria for membership, benefits and defined pension schemes, pension age, whether membership is compulsory, accrual rates in a defined-benefit scheme, options and leaving service and survivors’ benefits.

SEVERANCE PACKAGES AND EQUAL PAY [9.79] In Rolls Royce plc v Unite the Union,83 the UK Court of Appeal confirmed that using length of service as one of many selection criteria for redundancy can be lawful. However utilising ‘last in, first out’ (LIFO) as the sole criterion might not be. The claim related to whether or not Rolls Royce’s collectively agreed redundancy policy complied with age discrimination legislation. While the High Court and the Court of Appeal in the UK both agreed that the policy was lawful, the Court of Appeal averred that although the scheme did discriminate against younger workers, it legitimately rewarded loyalty and set out to achieve a stable workforce in the context of a fair process of redundancy selection. As length of service was only one of a number of criteria used to select redundancy, it was not the deciding factor. 79. 80. 81. 82. 83.

St Patrick’s College Maynooth v 19 Female Employees EP/4/1984, DEP/10/1984. Barber v Guardian Royal Exchange Insurance Group (Case C–262/88) [1990] ECR I– 1889. TFEU, Art 157. Directive 2006/54/EC. Rolls Royce plc v Unite [2009] EWCA Civ 387.

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[9.80]

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[9.80] In the Rolls Royce case, the courts were persuaded that the practice was justified, as it protected older employees from being put onto the labour market ‘at a time when they were particularly likely to find alternative employment hard to find.’ The High Court did, however, state that had the court been concerned with a scheme that was LIFO alone, then that might have been objectionable. [9.81] Whereas the matter of LIFO has not been determined in this jurisdiction, it does appear that the sole criterion of selection of last-in, first-out is discriminatory and employers would be well advised to avoid using LIFO as a sole criterion in any redundancy exercise. [9.82] The issue of severance packages – and, more particularly, the tailoring of such packages dependent on length of service – was considered by the Labour Court in Hospira v Roper & Ors.84 In that case the Labour Court overturned a decision of the Equality Tribunal, which had held that caps on redundancy payments constituted indirect discrimination on grounds of age, which would have been lawful only if objectively justifiable. The Labour Court decided that the differences in redundancy payments were permitted by virtue of s 34(3)(d) of the Employment Equality Acts 1998–2011. This section provides that it shall not constitute discrimination on the age ground to: ‘provide different rates of severance payment for different employees or groups or categories of employees, being rates based on or taking into account the period between the age of an employee on leaving the employment and his/her compulsory retirement age, provided that that does not constitute discrimination on the gender ground.’

[9.83] Here the agreed redundancy terms provided for payment of five weeks’ pay per year of service in addition to statutory redundancy entitlements. However, in the case of employees who were close to retirement, it was agreed that they would receive either the terms of the agreed package or the amount of salary that they would have earned had they remained in employment until the normal retirement age of 65, whichever was the lesser. The Equality Tribunal held that the cap constituted age discrimination and provided that the employees be paid the agreed package. The Labour Court on appeal overturned this decision: ‘It appears that the Oireachtas considered it reasonably and objectively justifiable, within the meaning of Article 6(1) of the Directive, to provide for the differences in treatment allowed for by Section 34(3)(d) of the Act. The Court cannot see any basis upon which it could be held that the Oireachtas was precluded from reaching that conclusion by a provision of Directive 2000/78/EC as interpreted in the jurisprudence of the CJEU.’ 84.

Hospira v Roper & Ors [2011] ELR 341.

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[9.85]

[9.84] In the UK, in Kraft Foods Ltd v Hastie85 and in Loxley v BAE Systems Land Systems (Munitions & Ordnance) Ltd,86 where a cap on a redundancy payment under a contractual scheme limited the payment to the amount equal to the salary the employee would have received had he or she remained employed to the normal retirement age was deemed to be indirectly age discriminatory but justified on objective grounds, as it was a proportionate means of achieving a legitimate aim.

CONCLUSIONS [9.85] Equal pay (in keeping with equality law in general) appears on the surface to be perfectly logical and easy to understand, but it is in fact quite complex. It demands a profound understanding and analysis of the law, and an equal, if not greater, analysis of what employees actually do. While the law is itself complex, trying to determine the intricacies of any person’s job can be even more challenging.

85. 86.

Kraft Foods Ltd v Hastie UK EAT/0024/10/ZT. Loxley v BAE Systems Land Systems (Munitions & Ordnance) Ltd [2008] ICR 1348.

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Chapter 10 POST EMPLOYMENT EQUALITY ISSUES INTRODUCTION [10.01] It would be understandable to think that all equality issues end once a person leaves the workplace. However, this would ignore the fact that employees have up to six, and in some instances twelve, months to take claims against their previous employers. It also ignores the fact that even when employees leave, many issues demand that they maintain contact with their employers, even for a short time. This may arise because of outstanding pay, annual leave or other such issues. It may also be the case that there may be an agreement on a voluntary termination payment or a reference may have to be agreed. [10.02] It is well settled that severance payments constitute pay within the definition of pay outlined in the Employment Equality Acts 1998–2011. Notwithstanding this, two critically important factors arise for employers from an equality perspective when it comes to considering and making employees redundant. The first of these is that employees are selected correctly, such that they are not either directly or indirectly discriminated against on any of the nine grounds. The second of these is to ensure that any severance package, be it voluntary or compulsory, is structured in such a way as does not directly or indirectly discriminate.

SELECTION FOR REDUNDANCY [10.03] Selection for redundancy is a thorny issue. Before selecting employees on a compulsory basis, employers will typically seek volunteers. However, even where a voluntary package is offered and employees put their names forward freely, employers have to be careful not to discriminate. [10.04] Voluntary packages vary, but typically they consist of employers offering employees a number of weeks ‘pay per year of service’ in order to attract sufficient volunteers. While this may seem relatively straightforward, such packages can be tailored to suit the particular needs of the business. For instance, it may be the case that an employer would prefer those employees who have longer service to apply and thus may tailor the package such that it provides a more generous package depending on service, such as three weeks’ pay per year of service up to 10 years, five weeks’ pay per year of service from 10 to 15 years and six weeks’ pay per year of service in excess of that. Of course, on the surface this is indirectly discriminatory to younger employees. Equally, it may be the case that an employer may wish to target the package at a particular area of the business, but this may be an area in which more part-time employees or women are employed and thus be indirectly discriminatory on the gender ground. Employers therefore have to be punctilious in tailoring severance payments. 157

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[10.05] Similarly, selection on the basis of ‘last in, first out’ (LIFO) is common practice. In the UK case of Rolls Royce plc v Unite,1 the Court of Appeal held that LIFO used in isolation, without reference or included with other criteria, was discriminatory on the age ground.2

SEVERANCE PACKAGES [10.06] Severance packages vary greatly. As it is, statutory redundancy is calculated as two weeks’ pay per year of service plus one week,3 thus it favours longer-serving employees. Employers’ severance packages typically mirror this formula, again favouring longer-serving staff, thus with an inference of indirect discrimination. [10.07] This matter was considered in the case of Kelly v Chivers.4 The Equality Officer held that there had been discrimination on the grounds of age against both complainants, who were over 60, in that the redundancy package being offered by the respondent favoured those under 60 years of age. The Equality Tribunal found that although s 34(3)(d) of the Employment Equality Acts 1998–2011 allows employers to give different severance payments to employees who have not reached their compulsory retirement age, any such exemption must, in accordance with EU law, be objectively and reasonably justified by a legitimate aim, including legitimate employment policy, the labour market and vocational-training objectives, and the means of achieving that aim must be appropriate and necessary. The discriminatory treatment in this case did not comply with those conditions. The decision was appealed by the employer to the Labour Court, but before judgment could be given, the respondents withdrew their appeal. [10.08] This issue was also examined in Roper & Ors v Hospira.5 The complainants’ employment had been terminated upon the redundancy of their positions when Hospira decided to close its plant in Donegal in 2005–2006. A redundancy package was agreed with the trade unions. All five complainants were close to retirement age at their termination date and Hospira paid them a package representing the amount of salary they would have earned had they remained in employment until their normal retirement age of 65. Given their periods of service, the package paid to them was lower than what they would have received had it been based purely on their periods of continuous service. The five complainants brought a complaint of age discrimination before the Equality Tribunal, which found in their favour and held that it was necessary for the employer to provide objective justification for its treatment of the redundancy payments. Hospira appealed the Equality Tribunal’s decision to the Labour Court. 1. 2. 3. 4. 5.

Rolls Royce plc v Unite [2009] EWCA Civ 387. See para 9.79 et seq above. This is currently capped at €600 per week. Kelly v Chivers DEC–E2011–177. Roper & Ors v Hospira EDA 1315. See also para 9.82.

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[10.13]

[10.09] The Labour Court held that the Oireachtas had provided for differences in treatment based on age in respect of severance payments in its enactment of s 34(3)(d) of the Employment Equality Acts 1998–2011. The court commented that the rationale underlying the legislative provision was that workers close to retirement are in a substantially different position to younger workers who have longer periods during which they could expect to remain in the labour force and that, accordingly, as a matter of social and labour market policy, the difference in treatment could legitimately be reflected in the construction of redundancy packages. Finally, the Labour Court held that the difference in the treatment of the complainants’ redundancy payments fell within the exception in s 34(3)(d), and it overturned the decision of the Equality Tribunal. [10.10] Thus, the position as it now stands is that differences in severance packages that favour longer-serving employees do not constitute discrimination on the age ground and do not have to be objectively justified. This does not mean, however, that employers have carte blanche when it comes to structuring severance packages: it must be remembered that severance payments constitute pay and thus must not be discriminatory on the other eight grounds.

ISSUING REFERENCES [10.11] While it is clear that employers need to ensure that they are fully satisfied as to the content of a reference provided by a potential employee before offering a contract of employment, it is also clear that discriminatory treatment can occur by an employer after the employment is terminated by the non-provision and/or provision of a reference. [10.12] In Coote v Granada Hospitality Ltd,6 the ECJ ruled that the EC Equal Treatment Directive7 required that there must be a remedy for ex-employees whose former employer victimises them by not providing a reference to a prospective employer because those employees brought sex-discrimination proceedings. [10.13] Regarding the provision of a poor reference, Coote was followed in this jurisdiction in the case of Employee v Company.8 In that case, the complainant was employed as an accounts assistant with the company. She pursued an equality case and alleged that she was treated less favourably on the grounds of her gender, marital status and family status. After she had left the respondent’s organisation, the complainant alleged that two prospective employers received bad references about her from the respondent, with specific mention being made to the equality case she had brought against the respondent and that, as a result, one of these prospective employers refused 6. 7.

8.

Coote v Granada Hospitality Ltd [1998] IRLR 656, ECR I–5199. Directive 2006/54/EC ([2006] OJ L204/23) of the European Parliament and of the Council on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast). Employee v Company DEC–E2008–018.

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[10.14]

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to offer her a job. The respondent denied all the allegations of discriminatory treatment and victimisation. While the Equality Officer found that the complainant had failed to establish a prima facie case of discriminatory treatment on the grounds of gender, marital status and family status, the Equality Officer did hold that the complainant was victimised by the respondent when reference was made to the equality and other employment claims she had brought against the respondent. In this regard, the Equality Officer ordered the respondent to pay the complainant the sum of €15,000 in compensation for the stress suffered as a result of the victimisation. [10.14] Aside from the duty of care and the risk of an equality claim, employers also need to be aware that details of an employee’s sickness record and/or disciplinary record constitute sensitive personal data and to disclose same requires the agreement of the employee in question. [10.15] This was held in the case of AB v Chief Constable.9 Here the plaintiff had been offered a new job which was conditional on the receipt of a satisfactory reference. The employee had been off sick for about six months following a disciplinary investigation into suspected misconduct. His manager agreed to provide a standard reference and not to continue the disciplinary proceedings. The reference request sought by the employee’s new employer asked for details of the plaintiff ’s sickness record in the last 12 months, his reason for leaving and anything further that might be relevant. A standard reference was provided, which confirmed the dates of employment, job title, etc. The job offer was confirmed and the employee resigned. When the chief constable discovered that a standard reference had been provided, he considered it misleading and wrote to the employee telling him that he would be providing a further corrected reference with details of his sickness record and the outstanding disciplinary allegations. On foot of this, the employee issued legal proceedings. The UK High Court ruled that the employer did not owe a duty of care to the new employer to provide further information and that a duty of care arises only where there has been an assumption of responsibility and since the first reference contained a clear disclaimer, a reasonable recipient of the reference would take it to mean that the employer’s policy was to provide only basic information and that it was not assuming any responsibility in relation to the giving of the reference and the accuracy of the information provided, and concluded therefore that the reference was not misleading.

BRINGING A CLAIM [10.16] If a discriminatory act occurs in the giving of a reference after employment, the question arises then as to whom the employee takes the case against. While there are no cases in this jurisdictions, the case of Bullimore v Pothecary Witham Weld Solicitors10 is instructive. 9. 10.

AB v Chief Constable [2014] EWHC 1965 (QB). Bullimore v Pothecary Witham Weld Solicitors UK EAT/0189/10/JOJ.

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Post Employment Equality Issues

[10.17]

In that case the claimant had left her previous employment, a solicitor’s firm, bringing claims for unfair dismissal and sex discrimination against it before securing another job. When she was made redundant from her post she was offered, subject to satisfactory references, employment with another firm. A damaging and negative reference was written by a partner of her former employer, which also included the fact that the claimant had brought proceedings against them, in effect labelling the claimant as ‘trouble’. Her new employer subsequently altered its terms and conditions, adding a probationary period to the contract, which the claimant refused to accept. Subsequent to this, the offer of employment was withdrawn. At the initial hearing, the Employment Tribunal ruled that the claimant had been unlawfully discriminated against by victimisation both by the partner at her old firm and her new employer as a result of her having performed a protected act. The level of compensation payable by the new employer was settled before the remedy hearing and an award of £7,500 for injury to feelings was made against her former employer. However, no award was made against her former employer in respect of loss of earnings. The tribunal ruled that the withdrawal of the job offer by the new employer had broken the chain of causation. [10.17] The claimant appealed to the Employment Appeals Tribunal against both the level of compensation for injury to feelings and the lack of an award relating to loss of earnings. It found that the Employment Tribunal had erred in concluding that the job withdrawal had broken the chain of causation, saying that the withdrawal of the offer was entirely foreseeable and therefore her previous employer as a matter of policy and fairness ought plainly to be made liable and remitted the matter back to the same tribunal. This decision should stand as good law in this jurisdiction, as it seems reasonable to conclude that any prospective employer who takes action on foot of a bad reference by refusing employment will be liable along with the previous employer for loss of earnings in addition to any award for discriminatory treatment.

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Part C Discrimination: The Nine Grounds

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Chapter 11 GENDER INTRODUCTION [11.01] The 2013 Annual Report of the Equality Tribunal shows that there were 694 claims referred to it in 2013. Disability, gender and race account for the greater number of claims. The average award in 2013 was €18,363 compared with €16,247 in 2012.1 The Employment Equality Acts 1998–2011 set out nine grounds in respect of which it is illegal to discriminate against an employee or prospective employee: 1.

Gender;

2.

Marital status (now civil status);

3.

Family status;

4.

Sexual orientation;

5.

Religious belief;

6.

Age;

7.

Disability;

8.

Race;

9.

Membership of the Traveller community.

This chapter examines discrimination on the grounds of gender. [11.02] Section 6(2)(a) of the Employment Equality Acts 1998–2011 prohibits discrimination on the following basis: ‘(a)

that one is a woman and the other is a man (in this Act referred to as “the gender ground”)’.

Section 6(2A) expands on this and provides: ‘(2A) Without prejudice to the generality of subsections (1) and (2) discrimination on the gender ground shall be taken to occur where on a ground related to her pregnancy or maternity leave, a woman employee is treated, 1.

Awards have steadily increased over the years. This may be caused by several factors. In particular, during the economic slowdown, claimants were unable to secure alternative employment. Unlike under the Unfair Dismissals Acts, claimants do not have to mitigate their loss; however, the lack of employment may certainly have led to a more sympathetic approach. Equally, the increase in awards in the Employment Appeals Tribunal could have led to some corresponding increase in awards by the Equality Tribunal. Lastly, the increase could be attributed to the tribunal taking a more robust stance with employers, which at the time of writing have had nearly 18 years to comply with the 1998 Act and 11 to comply with the amendments in 2004.

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[11.03]

Equality Law in the Workplace contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.’

This section makes it clear that less favourable treatment on the grounds of pregnancy or maternity leave is included as ‘discrimination’, which reflected the jurisprudence of the ECJ in cases such as Dekker.2 As a result of this, the majority of cases being taken on the gender ground relate to areas such as pregnancy and maternity and often overlap with claims of discrimination on family status. It has also led to the virtual absence of claims under the Maternity Protection Act 1994, where compensation is limited to 20 weeks’ remuneration.3

MALE GENDER DISCRIMINATION [11.03] Most gender-based discrimination claims have been taken by women. However, men have succeeded in many instances. For example, in Field v Irish Carton Printers,4 the Labour Court held that the male claimant was entitled to be afforded the provision of a taxi facility during times when public transport was not available, as was provided by the company for its female staff, on the basis that the provision of taxis for the female staff was ‘remuneration’. [11.04] In the case of Eversheds Legal Services Ltd v De Belin,5 the EAT in the UK dealt with a case where the employer had to make one of two employees redundant. The claimant’s colleague was on maternity leave at the time. One of the scoring criteria was the length of time each employee took to recover money from their clients, but since the claimant’s colleague had not been at work during the relevant period, (having been on maternity leave), she was awarded the maximum possible score in this area. Her score ended up being marginally higher than the claimant’s and as a result he was made redundant. The EAT held that the different scoring did constitute unfair treatment and that the claimant had been unfairly dismissed. Therefore, while employers cannot take into account periods of maternity leave to the detriment of women, any employers choosing to overcompensate for same may also lead to findings of discriminatory treatment. [11.05] In the case of Shuter v Ford Motor Company,6 an Employment Tribunal in the UK rejected a male employee’s claim that his employer’s failure to pay enhanced additional paternity pay amounted to direct and indirect sex discrimination. Following the birth of his son, the claimant took additional paternity leave between 15 July and 6 December 2013. Under the terms of the company’s policy, women on maternity leave were entitled to full pay for up to 52 weeks. The claimant here took 20 weeks’ additional 2. 3. 4. 5. 6.

Dekker v Stichting Vormingscentrum voor Jonge Volwassen (Case C–177/88) [1990] ECR I–3941. Maternity Protection Act 1994, s 32(3). Field v Irish Carton Printers DEP 5/1994. Eversheds Legal Services Ltd v De Belin EAT 0352. Shuter v Ford Motor Company (UK EAT) ET/3202504/13.

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[11.08]

paternity leave but received only the statutory rate of £136.78 per week, thus leaving him at a disadvantage to the amount of £18,000 compared with a woman receiving enhanced maternity pay. The Tribunal held that the comparator used, a woman on maternity leave after 20 weeks following the birth of a child, was not correct and that the correct comparator would have been a female applying for additional paternity leave, ie the partner of a woman who had given birth.

PREGNANCY AND MATERNITY [11.06] As discussed above, s 6(2A) of the Employment Equality Acts makes it absolutely clear that where a woman is treated less favourably due to her pregnancy, this will constitute unlawful direct discrimination on the grounds of gender.7 The Equality Acts thus prohibit any discrimination against a woman in relation to access to employment, her conditions of employment, or the termination of her employment where that is related to her pregnancy or the consequences thereof and any such discriminatory treatment will be deemed unlawful direct discrimination. Payment of sick pay during pregnancy [11.07] There is no specific applicable legislation governing sick leave for private sector workers, so generally it derives from the contract of employment, from the company handbook, by way of custom and practice and very occasionally from the common law. Commonly, the employee handbook or the contract of employment details the employer’s position in relation to sick leave, including reporting procedures, medical examinations, wider occupational and health policies, back-to-work interviews and entitlements to sick pay, if any. The rules for sick pay in the public sector are set out in the Public Sector Management (Sick Leave) Regulations 2014.8 These came into operation on 31 March 2014, except for certain workers in the educational sector. Notwithstanding the lack of statutory provisions for sick pay in the private sector, it clearly goes without saying that the application of sick pay in either the public or private sectors should not be discriminatory. [11.08] This matter was dealt with by the ECJ in the North Western Health Board v McKenna.9 Ms McKenna was employed by the North Western Health Board and was absent from work for the majority of her pregnancy with a pregnancy-related illness. 7.

8. 9.

Employment Equality Act 1998, s 6(2A). This cleared up any ambiguity and made it certain that pregnancy discrimination constituted unlawful direct discrimination. Whereas the Equality Act 1977 outlawed discrimination on grounds of sex, the Labour Court and the Equality Tribunal sought to exploit this rather narrow definition to challenge pregnancy discrimination as unlawful indirect discrimination. Public Sector Management (Sick Leave) Regulations 2014 (SI 124/2014). North Western Health Board v McKenna (Case C–191/03) ECR I–7659.

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[11.09]

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The health board operated a sick-pay scheme whereby employees were granted 365 days’ sick leave in a four-year period, with full sick pay for 183 days and half pay for the remainder of the leave. When Ms McKenna went on sick leave, she was paid the full rate for the first 183 days and then her pay was reduced for the balance of her sick leave until she went on maternity leave. Her absence on pregnancy-related illness was treated in the same manner as absence for any other illness. She took a case against her employer on the grounds of gender discrimination in treating her pregnancy-related absence the same as a non-pregnancy-related illness and won her case at the Equality Tribunal. The North Western Health Board appealed the decision to the Labour Court and the Labour Court referred a case stated to the ECJ. The ECJ held: •

the question regarding sick pay was one of equal pay and not equal treatment;

•

the reduction in pay was not discriminatory on the grounds of gender so long as the rules of the scheme were applied equally to female and male employees and that the pay was not so low as to undermine the objective of protecting pregnant workers.

As it is, therefore, it is not discriminatory to treat a pregnancy-related illness any differently to any other type of illness once the rules of the sick-pay scheme are applied equally to men and women (who are both pregnant and not pregnant). Change of duties and health and safety leave during pregnancy [11.09] The matter of moving women who are pregnant to light duties is a complex one. It is made more so by virtue of the fact that this issue often becomes intertwined with the woman’s rights under the Maternity Protection Act 1994 and the Safety, Health and Welfare at Work (Pregnant Employees) Regulations 2007.10 The latter provide that where a woman is pregnant or has recently given birth or is breastfeeding, she may be entitled to health and safety leave in certain situations. The 2007 Regulations oblige employers to assess any risk to the safety or health of any pregnant employee, an employee who is breastfeeding, or an employee who has recently given birth. This assessment should identify any workplace conditions or tasks that might put the woman’s health or her baby’s health and safety at risk. If it is not possible for an employer to do this, the woman must be provided with other work. Health and safety leave is granted only when the health and safety of either the mother or the child is at risk due to the job the woman is performing. In this situation, leave is granted if it is not possible for the employer to move the woman to other work, if moving the woman to other work is unreasonable or if a doctor says that it is necessary for a woman’s safety or health. Employers cannot make a female employee do night work during pregnancy or for 14 weeks after the birth of the baby. In these circumstances, ‘other work’ means work that is suitable and appropriate for the woman to do. It is therefore a subjective test (in the eyes of the woman). 10.

Safety, Health and Welfare at Work (Pregnant Employees) Regulations 2007 (SI 299/2007).

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[11.12]

[11.10] However, employees will not be allowed to take an entirely subjective view. In the case of Limerick County Council v Carroll,11 the employer carried out a risk assessment on becoming aware that the employee was pregnant and determined that they should move her to clerical duties while maintaining her pay and allowances. The employee, however, wished to remain on active fire service duty. As there were no clerical positions available, she proposed that she would undertake non-operational duties for the duration of her pregnancy. The court found: ‘It could not be held that the respondent was reasonably required to make the adjustments which the complainant had sought in her working conditions. The situation may be different in a case in which there is no other suitable alternative work available or where the pregnant employee may lose financially.’

[11.11] In the case of HSE Midlands Area v Sweeney,12 the Labour Court was critical of the complainant, who had been offered alternative work before being placed on health and safety leave when she failed to turn up for same, despite the fact that the HSE’s doctor confirmed that the position did involve such duties as she was prohibited from doing because of her pregnancy. [11.12] In Maye v ADM Ringaskiddy,13 Ms Maye claimed discrimination on the gender ground in that she was treated less favourably than other employees because of her pregnancy. During her pregnancy, she provided her employer with a medical certificate that stated that she should be given daytime and light duties during her pregnancy. Her employer placed her on health and safety leave. Her union intervened, and her employer then provided her with daytime light work for a six-week period. Ms Maye claimed that her employer had facilitated other employees with light duties and day work. The employer argued that there was no suitable alternative work available for Ms Maye that did not pose a risk to her pregnancy, that it had complied with its health and safety obligations and that, due to its financial position, it could not create work for her. The employer also stated that it was the policy of the company to provide light and/or daytime duties for short-term periods. The Equality Officer held that on the balance of probabilities the company had provided light duties to another employee for a five-month period. The Equality Officer also held that no evidence was presented that short-term options were considered by the respondent to give it time to carry out a thorough assessment of their obligations and the options available. No evidence was presented that it complied with its own policy to discuss with the employee her potential absence to see whether she could perform a useful function and also that no evidence was available that the respondent kept under review the availability of other appropriate work during Ms Maye’s health and safety leave. The Equality Officer awarded Ms Maye €8,000 compensation for the discrimination and a further €5,981.18, equivalent to the complainant’s gross financial loss. 11. 12. 13.

Limerick County Council v Carroll [2009] ELR 257. HSE Midlands Area v Sweeney EDA 0819. Maye v ADM Ringaskiddy DEC–E–2006–004.

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[11.13]

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[11.13] In Doorty v University College Dublin,14 the complainant was a research scientist employed by UCD on a two-year fixed-term contract. She was employed to work on a dedicated research project that was externally funded. Laboratory work made up 70 per cent of her total workload. During the course of her fixed term of employment, Dr Doorty informed her employer that she was pregnant. UCD engaged an outside firm to carry out a risk assessment of her work and workplace. The assessment found that it was unsafe for her to carry out her laboratory work and that the risk could not be sufficiently reduced. The complainant expressed an interest in alternative work such as lecturing; however, UCD placed her on health and safety leave as per the Maternity Protection Act 1994 and recruited a replacement to her post. Dr Doorty claimed that she was discriminated on the gender ground, as the payment to her while on health and safety leave was substantially less than her contractual pay. UCD argued that no suitable alternative work was available for Dr Doorty, as she was employed on a specific pharmacology research project, that it had an obligation to the funders to have the work completed on time and that it was obliged to protect the health and safety of the claimant and her baby. The Equality Officer held that UCD also had obligations to the complainant for the duration of her contract of employment. The Equality Officer was not satisfied from the evidence that UCD gave adequate consideration to finding creative solutions to an undoubted problem, and held that the complainant was discriminated against by being placed on health and safety leave without due consideration. UCD was ordered to pay the complainant the sum of €5,000 in compensation for the effects of the discrimination and also to put in place an adequate and appropriate policy to deal with the placing of employees on health and safety leave. Summary conclusions [11.14] The following conclusions can be drawn from the above cases:

14. 15. 16. 17. 18.

•

if a woman is to be provided with alternative duties during pregnancy, it is a subjective test:

•

a woman cannot behave unreasonably and cannot necessarily insist on creating her own work;15

•

however, this may not be the case where there is no alternative work available or where the employee may lose out financially;16

•

if alternative work is offered in the face of the employee being deemed unfit to carry out her existing work, the employee should at least try that work;17

•

employers need to make sufficient effort to provide alternative work;18 Doorty v University College Dublin DEC–E–2004–043. Carroll v Limerick County Council [2009] ELR 257. Carroll v Limerick County Council [2009] ELR 257. HSE Midlands Area v Sweeney EDA 0819. Doorty v University College Dublin DEC–E–2004–043.

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Gender •

[11.18]

employers need to be consistent in dealing with pregnant employees and be mindful of any precedents created.19

Right to return to work after a period of protective leave [11.15] It is a given right that a woman has a right to return to the same or no less favourable job at the end of her period of protective leave. This is somewhat selfevident, as any denial of the right to return would clearly undermine the right to take maternity leave in the first instance. [11.16] Sections 26 and 27 of the Maternity Protection Act 1994 deal with a woman’s legal rights on her return from protective leave and provide, inter alia, that a woman will be entitled to return to work with the employer20 in the job which she held immediately before the period of maternity leave21 and under the contract of employment in which she was employed before the period of maternity leave.22 These general rights are subject to the woman complying with the notification requirement as set out under s 28 of that Act. Notwithstanding s 28, the rights conferred on women at the end of their period of protective leave are very specific and straightforward. However, the willingness of the Equality Tribunal and Labour Court to deal with claims that a woman has not been allowed to return to the position she held before the period of protective leave, or that there is a forced diminution in role and status, has meant that very few (if any cases) are now pursued under the 1994 Act. This is so because of the greater remedies allowable under the Employment Equality Acts, whereas compensation under the Maternity Protection Act 1994 is limited to 20 weeks. [11.17] However, ss 26 and 27 retain an important function in the realm of protection for women returning from a period of protective leave, as both the Labour Court and the Equality Tribunal undoubtedly defer to the wording of the 1994 Act when hearing cases under the employment equality legislation.23 [11.18] Whereas s 26 deals with the general right of a woman to return to work, s 27 allows employers, ‘where it is not reasonably practicable’, to permit the employee to return to the same job, to offer ‘suitable alternative work under a new contract of employment.’24 However, work ‘must be suitable in relation to the employee concerned,’25 and the terms and conditions of the new contract must be no less 19. 20. 21. 22. 23. 24. 25.

Maye v ADM Ringaskiddy DEC–E–2006–004. Maternity Protection Act 1994, s 26(1)(a). Maternity Protection Act 1994, s 26(1)(b). Maternity Protection Act 1994, s 26(1)(c). See Gardiner v Mercer Human Resource Consulting DEC–E–2006–007. Maternity Protection Act 1994, s 27(1). Maternity Protection Act 1994, s 27(2)(a).

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[11.19]

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favourable than those that applied prior to the period of protective leave.26 This means that whether the work is suitable is a subjective test. In other words, it is not for the employer to determine that the work is suitable alternative work – this decision lies with the woman in question.27 [11.19] Insofar as the notification requirements as set out under s 28 are concerned, the High Court held in the case of Ivory v Ski Line28 that this was a mandatory requirement, and the failure to notify the employer in accordance with the section entitled the employer to refuse to allow the employee to return to work. However, s 28(3) of the 1994 Act allows the failure to give notice, or the giving of notice other than within the timeframe provided for, to be taken into account in determining an employee’s rights under the Unfair Dismissals Act 1977 or the Maternity Protection Act 1994 or any other relevant enactment in so far as the remedies of reinstatement, re-engagement or compensation are concerned. Alternative working arrangements on return from maternity leave [11.20] There is no provision in Irish law for a statutory entitlement to alternative working arrangements either before or after maternity leave29 (such as part-time or flexible work). The Protection of Employees (Part-Time Work) Act 2001 does, however, makes provision for the Labour Relations Commission to carry out studies for the purposes of identifying obstacles that may exist in particular industries or sectors to access to part-time work, and for the Commission, in consultation with the social partners, to prepare a code of practice which would be of practical benefit to employers and employees in addressing such obstacles. [11.21] Arising out of this, the Industrial Relations Act 1990 Code of Practice on Access to Part-Time Working (Declaration) Order 200630 was passed. The code seeks to encourage best practice and conformity with the provisions of the Employment Equality 26. 27.

28. 29.

30.

Maternity Protection Act 1994, s 27(2)(b). See Tighe v Travenol Laboratories (Ireland) Ltd P14/1986, where the EAT held that whether a job is suitable should be interpreted subjectively, ‘from the employee’s standpoint including the general nature of the work which suited her and her domestic arrangements’. It went on to say, when comparing office to production work, ‘While it might be argued that from the management standpoint that the production work was appropriate for her to do in the circumstances, the nature of work involved in production was so very different from office work that we do not consider it appropriate from her standpoint.’ Ivory v Ski Line [1998] IR 399. This is unlike the UK, where employees with children under age 17, or who are carers of an adult, have a statutory right to request flexible working arrangements, provided they have over 26 weeks’ continuous service at the date of their request. This right to request flexible working arrangements is soon to be extended to all employees with 26 weeks’ continuous service, regardless of whether they have children or caring responsibilities. Industrial Relations Act 1990 Code of Practice on Access to Part-Time Working (Declaration) Order 2006 (SI 8/2006).

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[11.23]

Acts 1998–2004 and the Protection of Employees (Part-Time Work) Act 2001.31 This mention of the Employment Equality Acts is important, in that there is a direct reference to equality in the code. The code then goes on to suggest that companies should introduce policies in conjunction with their employees to provide for flexible working arrangements.32 The code provides, inter alia, that management must accept the following responsibilities:33 •

have clear and objective criteria for identifying part-time work options and procedures for their adoption to meet employee needs;

•

consider the implications of part-time working for the organisation;

•

communicate the working arrangements to all staff;

•

monitor and review the new practices on a regular basis.

[11.22] Given all of the above, the Labour Court and the Equality Tribunal have imposed a requirement on all employers that they must treat applications for alternative working arrangements reasonably. An example of is Tesco Ireland v Walsh,34 where an employee sought part-time work on her return from maternity leave just before the summer. Her request was refused over the summer months due to staff shortages and summer holidays. As an alternative, she was given every Friday or Saturday off during the summer and was eventually transitioned to part-time work some months after she had returned to work. The employee claimed that she had been discriminated against on the grounds of gender in not being permitted to return to part-time employment on her return from maternity leave. The Labour Court held that her employer had acted reasonably in considering her request, having regard to its business needs, and found no evidence of discrimination on the grounds of gender. [11.23] Another case concerning Tesco is also instructive in this regard. In Tesco v Swift,35 Ms Swift sought to work a 15-hour (part-time) week on her return from maternity leave over Mondays, Tuesdays and Wednesdays. Tesco refused to accommodate her request but did offer 18 hours over the same three days. The Labour Court held that an employer is obliged to give reasonable consideration to flexible working requests and was satisfied that, in this case, the employer had discharged this burden. 31. 32. 33. 34. 35.

Industrial Relations Act 1990 Code of Practice on Access to Part-Time Working (Declaration) Order 2006 (SI 8/2006), Sch, s 3. Industrial Relations Act 1990 Code of Practice on Access to Part-Time Working (Declaration) Order 2006 (SI 8/2006), Sch, s 6(2). Industrial Relations Act 1990 Code of Practice on Access to Part-Time Working (Declaration) Order 2006 (SI 8/2006), Sch, s 13. Tesco Ireland v Walsh DEE 062. Tesco v Swift EDA 0514.

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[11.24]

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[11.24] In Morgan v Bank of Ireland,36 the matter of delay in granting alternative working arrangements was addressed. The Equality Officer deemed that the delay constituted indirect discrimination on grounds of gender and awarded Ms Morgan €30,000. The Labour Court, however, overturned the decision on the evidence. [11.25] A successful claim in this regard was in O’Brien v Persian Properties.37 Here, the tribunal held that a belligerent response to a request from the employee for a fourday working week following a return from maternity leave, coupled with comments from her manager indicating that he would prefer if the employee did not remain in employment if she became pregnant for a third time, constituted harassment linked to gender and family status. Defences to refusing alternative working arrangements [11.26] To successfully defend claims of this nature, employers must comply with the following: •

employers must have a policy in place that deals with requests for alternative working arrangements. Needless to say, this policy must not in itself be discriminatory and must be operated in a transparent and objective way. It would be important, for example, for any overseeing committee to have a proper gender balance;

•

any refusal must be for legitimate business reasons and for no reason connected to the person’s gender;

•

any refusal must be proportionate in light of the business reason.

Less favourable treatment after maternity leave [11.27] It has already been discussed that women under the Maternity Protection Act 1994 have the right to return to the same position that they held prior to the period of protective leave. However, this is not an absolute right if it is not reasonably practicable for the employer to do so. Both the Equality Tribunal and the Labour Court have, however, insisted on a high level of proof from employers who seek to justify returning an employee to a different position after a period of protective leave. [11.28] The case of Gardiner v Mercer Human Resource Consulting38 is one such case and related to a claim by the complainant that she was discriminated against on the grounds of gender and family status. When the complainant returned to work in December 2003 after an absence on maternity leave, she was informed of a new reporting structure. Her post had been re-organised, certain tasks had been removed from her and she also claimed that there was a lack of clarity as to her functions, which was not the case prior to her absence on maternity leave. She stated that this was less 36. 37. 38.

Morgan v Bank of Ireland DEC–E2008–29. O’Brien v Persian Properties [2012] ELR 211. Gardiner v Mercer Human Resource Consulting DEC–E–2006–007.

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[11.30]

favourable treatment and therefore discriminatory, despite there being no reduction in her salary, nor change in her job title. The respondent, in denying the claim, attempted to argue that the question before the Equality Tribunal was covered by the Maternity Protection Acts 1994 and 2004 and that the tribunal did not have jurisdiction to hear the claim. The Equality Officer considered the Maternity Protection Acts 1994 and 2004 and the Employment Equality Acts 1998– 2004, and held that there was no restriction on this matter being dealt with the by the Equality Tribunal and therefore that it had jurisdiction. The Equality Officer held: ‘Having examined the totality of the evidence presented I am satisfied on balance, that the fact the complainant was returning from maternity leave and now had a young child significantly influenced the respondent’s decision to restructure her job and remove certain tasks from her ... I do not accept that the respondent would have reached the same decision had they been faced with a man, or indeed a man or a woman who did not have a child, who was returning to work after a similar period of absence for whatever reason.’

The Equality Officer held that the complainant had been discriminated against on the grounds of gender and family status and ordered the respondent to pay her €15,000 for the distress suffered. The respondent was also ordered to: ‘put in place a mechanism to ensure employees who are absent from work on any sort of statutory leave, but maternity leave in particular, are advised of any issues which have a potential to impact on their employment with the respondent.’

[11.29] Further evidence of the high level of proof required if an employee is to be given alternative work after a period of maternity leave was also addressed in Jones v Norwich Union International Ltd.39 The complainant alleged that her employer discriminated against her on the grounds of gender with regard to a promotion competition and her terms and conditions of employment, including the allegation that the post that she held prior to going on maternity leave was downgraded prior to her return to work from maternity leave. She also alleged victimisation. The Equality Officer awarded her €20,000 compensation for the discrimination and a further €10,000 for the victimisation. [11.30] In the case of Campbell v Bank of Ireland Private Banking,40 the complainant wrote to the company indicating that she would return to work following her maternity leave on 23 September 2008. On 12 September, the complainant stated that she was requested to dial into a conference call during which her manager indicated that there would be changes in the structure of the business. On her return to work, the complainant stated that her replacement continued to deal with her portfolio of clients while she was given a different portfolio, which she deemed to be a demotion. As a result, the complainant invoked the grievance procedure and submitted her grievance in writing. The respondent submitted that the decision to appoint an additional 39. 40.

Jones v Norwich Union International Ltd DEC–E2006–062. Campbell v Bank of Ireland Private Banking DEC–2013–046.

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[11.31]

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private banking manager to the complainant’s area was taken in accordance with its business requirements and objectives. However, at no time was it envisaged that the new appointee would replace the complainant as alleged, but rather that the appointee would complement the complainant’s work. The respondent stated that during the complainant’s maternity leave, the replacement covered the complainant’s work region. Also during this period, the economic downturn worsened considerably and the respondent’s business levels decreased. The respondent submitted that the complainant’s duties upon her return were consistent with the changes that were required across its business generally. The respondent submitted that at no time did it say or admit that the complainant’s return to work was a ‘charade’ or that it had been badly handled, and that in fact it was handled with the greatest of competence and sensitivity. [11.31] The Equality Officer noted that EU Directive 2002/73/EC (as amended) sets out the situation regarding a woman returning to work after maternity leave: ‘A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would be entitled during her absence.’

He further asserted that these provisions are enshrined in the Maternity Protection Acts and that any departure from this entitlement constituted direct discrimination of the woman concerned on grounds of gender. [11.32] The Equality Officer remarked that although the complainant returned to a position where the rate of pay which applied before and after maternity leave had not changed, a number of other factors were important in determining whether she was less favourably treated: ‘Given that the complainant’s old position existed and was being filled by another employee, I consider that the complainant has established facts from which discrimination may be inferred …’

He further opined: ‘Matters that stand out in establishing whether the two posts were equivalent relate to the reporting structure of the positions, the point of contact elements with clients, the identification of the post-holders in management information reports and the issue of performance targets (KRA) and the annual performance review.’

He went on to state: ‘I am not satisfied that the position to which the complainant returned following her maternity was equivalent to that which she had left. On balance, I consider this position dilutes the level of responsibility accorded to the complainant and the manner in which she was managed appears to be less favourable to how others were treated in the circumstances of the ongoing banking crises extant at that time. In this regard, I do not consider that the respondent has established that

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[11.35]

this new role was equivalent to the position which the complainant occupied prior to going out on Maternity Leave and was less favourable to the complainant.’

[11.33] The Equality Officer concluded as follows: •

the complainant was not subjected to discriminatory treatment on the basis of a disability and this element of the complaint failed;

•

the respondent has not rebutted the inference of discriminatory treatment following the complainant’s return from maternity leave as raised by the complainant and this element of the complaint succeeded;

•

the respondent did subject the complainant to discriminatory treatment on the grounds of gender in terms of s 6(2) of the Employment Equality Acts.

The complainant was awarded €30,000 in compensation for the discriminatory treatment suffered, which equated to six months’ salary. [11.34] Power v Jahan t/a Irema Irl Ltd41 was pursued under both the Maternity Protection and Equality Acts. It is a useful case in that it provides that a woman on return from maternity leave is entitled to an ‘equivalent post’, ie a job that is consistent with the nature of the work the woman was contracted to carry out and did carry out before going on maternity leave. This is materially different from the provisions of the Maternity Protection Act 1994, which provides that a woman is entitled where it is not reasonably practicable to permit her to return to her previous post to ‘suitable alternative employment’.42 The Recast Directive, however, provides that a woman is entitled to ‘return to her job or to an equivalent post on terms and conditions which are no less favourable to her.’43 What constitutes an equivalent post will depend on the facts of each case.44 Summary [11.35] What can be deduced from the above case law is the following:

41. 42. 43.

44. 45. 46.

•

a woman is entitled to return (under the Equality Acts) to ‘an equivalent post’ after maternity leave;45

•

any restructuring of her job cannot have anything to do with the return from maternity leave;46 Power v Jahan t/a Irema Irl Ltd DEC–E2013–055. Maternity Protection Act 1994, s 27(1). Directive 2006/54/EC ([2006] OJ L204/23) of the European Parliament and of the Council on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast), Art 15. See also Morgan v Bank of Ireland DEC–E2008–29. Gardiner v Mercer Human Resource Consulting DEC–E–2006–007. Gardiner v Mercer Human Resource Consulting DEC–E–2006–007.

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[11.36]

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•

the Equality Tribunal and Labour Court impose a high level of proof on employers who seek to return women to alternative jobs following a period of maternity leave;47

•

any new post has to be at least equivalent to the previous position, and great scrutiny will be used in comparing the old and the new posts;48

•

if the post is at least equivalent, it will not be discriminatory.49

Contact during maternity leave [11.36] The UK regulations50 allow employees to perform up to ten days’ work during their maternity leave – known as ‘keeping in touch’ days. However, there are no similar provisions in this jurisdiction. The days are entirely voluntary, and there is no obligation on either party to grant or accept them. Similarly, the UK regulations allow for ‘reasonable contact’ between the employer and employee during maternity leave. Again, there are no similar provisions in this jurisdiction: as it stands, employers have no right to contact women during maternity leave. [11.37] An interesting case here is Dempsey v NUI Galway,51 where the Equality Officer, in finding for the complainant, went on to say: ‘I am satisfied that the complainant’s maternity leave and an ongoing disability after that leave together with the fact that she had raised her treatment in relation to having being asked to work while she was suffering from pregnancy related sick leave and also while she was on maternity leave was a contributing cause and had a “significant influence” on the respondent’s deliberations about the terms of the contract and in the overall treatment of the complainant.’

Taking all of that into consideration, the Equality Officer was satisfied that the complaint was well founded. Unlike in the UK, therefore, there is no basis for contacting a woman during her maternity leave and, more particularly, no basis whatsoever for asking her to work during that period. Hence, employers in this jurisdiction need to proceed with the utmost caution. Redundancy during maternity leave [11.38] Section 23 of the Maternity Protection Act 1994 provides that any purported termination, notice of purported termination or suspension of an employee during a period of protective leave or natal care is void. This section provides unconditional protection from dismissal or notice of dismissal. 47. 48. 49. 50. 51.

Jones v Norwich Union International Ltd DEC–E2006–062. Campbell v Bank of Ireland Private Banking DEC–E2013–046. Power v Jahan t/a Irema Irl Ltd DEC –2013–055. Maternity and Parental Leave Regulations 1999, as amended (SI 3312/1999), reg 12A. Dempsey v NUI Galway DEC–E2014–039.

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[11.42]

[11.39] As a woman cannot be dismissed during her period of protective leave, this means that there is an absolute bar on making a woman redundant during such a period. This level of protection was recognised by the ECJ in Paquay,52 which extended the right not to be made redundant to prohibiting employers from taking steps during the period of protective leave with a view to making a woman redundant on her return. [11.40] Notwithstanding this absolute unconditional right of a woman not to be made redundant during a period of protective leave, this right does not extend to the pregnancy as a whole. However, employers have a very high burden of proof to meet, in that they must prove that the redundancy arose for exceptional reasons unconnected to the pregnancy. [11.41] This matter was given very significant consideration in McGarvey v Intrum Justitia.53 The Labour Court, in following the ECJ case of Brown v Rentokil,54 went on to hold that the entire period of pregnancy and maternity leave constitutes a special protected period. In this instance, as the employer knew the complainant was pregnant, the Equality Officer found a prima facie case was established which then shifted the onus of proof to the employer to prove that the redundancy was for exceptional reasons – unconnected with the complainant’s gender or family status. To justify the selection of the complainant, the employer submitted a matrix of ten criteria that were weighted, against which the complainant was scored. The complainant received the lowest score in the finance department and accordingly was selected for redundancy. There were a number of other things of interest, most notably the fact that the finance manager who did the scoring did admit to asking the complainant whether she would be flexible enough for the role, and the complainant alleged that she had been asked several times during her employment about her level of commitment when she was forced to take time off for family reasons. The Equality Officer found that the method of choosing staff for redundancy was not sufficiently objective or transparent. There were no objective assessments, nor was input sought from immediate line managers. It is clear from this that prior to making anyone redundant, but particularly where a pregnant woman is involved, there must be a transparent process, which is capable of being justified on objective grounds. [11.42] A case that is interesting in this regard is Moore Walsh v Waterford Institute of Technology.55 While it is a case dealing with access to employment, it is equally as valid in a selection for redundancy matter. Here the Labour Court held that where it is satisfied that: ‘an interview panel was properly constituted and conducted its business in accordance with accepted good practice, it would not seek to undertake its own 52. 53. 54. 55.

Paquay v Société d’architectes Hoet + Minne SPRL ECR 2007 I–8511. McGarvey v Intrum Justitia DEC–E2008–041. Brown v Rentokil [1998] ECR I–1485. Moore Walsh v Waterford Institute of Technology ADE–03–10.

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[11.43]

Equality Law in the Workplace assessment of the candidates ... unless there was clear evidence of unfairness or irrationality.’

[11.43] To ensure transparency and robustness of process, a redundancy should be carried out only by those who are in the best position to apply the criteria, and these should be agreed in advance.56 Also, in the case of Government Department v Employee,57 the Labour Court stated: ‘In particular adequate records must be retained in order to demonstrate that the (process) is objective and free from any bias on any of the grounds covered by the Act.’

An example of how strictly the Labour Court deals with these types of issues can be seen in Keenan v Kehoe t/a Mortgage Cabin,58 where a mortgage consultant was awarded one year’s pay for redundancy during pregnancy. Summary [11.44] What we can deduce from all of the above cases is the following: • •

•

women have an unconditional right not be made redundant during maternity leave;59 this right extends to planning to make a woman redundant during her period of maternity leave with a view to implementing it on her return to work post maternity leave;60 nothing prevents an employer from making a woman redundant while pregnant but not on maternity leave.

[11.45] However, the dismissal of a pregnant woman raises a prima facie case of discrimination. Once that occurs, the onus of proof moves to the employer to prove that discriminatory treatment did not occur. That onus of proof can only be met by reference to all the following criteria: • • • • 56. 57. 58. 59. 60. 61. 62. 63.

it is proven that the redundancy was for exceptional reasons unconnected with the pregnancy; the reason must be set out in writing;61 the process must be both objective and transparent and input from direct line managers is appropriate;62 good records must be kept.63 See Department of Health and Children v Gillen ADE/03/15. Government Department v Employee ADE/05/19 Det No 062. Keenan v Kehoe t/a Mortgage Cabin DEC–E2012–105. Maternity Protection Act 1994, s 23. Paquay v Société d’architectes Hoet + Minne SPRL [2007] ECR I–8511. Thai Thanie Ltd DEC–E2008–073. McGarvey v Intrum Justitia DEC–E2008–041. Government Department v Employee ADE/05/19 Det No 062.

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[11.49]

Pregnancy-related dismissals [11.46] Irish law, in keeping with the EU, takes a very hard stance on pregnancy-related dismissals. The Equality Tribunal has typically placed a strong emphasis on Art 10 of the Pregnancy Directive64 (albeit that this has never been implemented in Irish law), which requires employers to provide for ‘duly substantiated grounds in writing’ in an instance where a pregnant employee is dismissed. [11.47] In keeping with this, in the case of O’Brien v Persian Properties t/a O’Callaghan Hotels,65 the Equality Officer held that pregnancy is ‘a special protected period’ and that the Labour Court had found that only in ‘the most exceptional circumstances not connected with the condition of pregnancy could a woman be dismissed while pregnant’.66 [11.48] It appears from the above, and from other decisions of the tribunal and the Labour Court, that Art 10 has been implied into Irish law by stealth. Now a pregnancyrelated dismissal is tantamount to a strict liability offence:67 if an employer dismisses an employee during her pregnancy, regardless of the reason or reasons for same, the employer must have duly substantiated its decision in writing; and where this is not done, it is likely that the dismissal will be deemed to be unlawful. [11.49] This dictum by the tribunal and court has been exemplified in a number of cases. In Assico Assembly v Corcoran,68 the Labour Court held: ‘Where an employee is dismissed while pregnant or on maternity leave, both legislation and case law states that the employer must show that the dismissal 64.

65. 66.

67.

68.

Council Directive 92/85/EEC ([1992] OJ L348/1) on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (Pregnancy Directive). O’Brien v Persian Properties t/a O’Callaghan Hotels DEC–E2012–010, [2012] ELR 211. See also Brown v Rentokil (Case C–394/96) [1998] ECR I–4185 and Webb v EMO Cargo (Case C–32/94) ECR I – 3567, (1995) ICR 1021 where the court ruled that the entire period of pregnancy and maternity leave is a special protected period during which both the Council 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 (Equal Treatment Directive) and the Pregnancy Directive (92/85/ EEC) prohibit pregnancy-related dismissal on the grounds of equality. This is in view of the harmful effects which the risk of dismissal may have on the physical and mental state of pregnant women, including the particularly serious risk that they may be prompted voluntarily to terminate their pregnancy. See also Banks and Russell, Pregnancy Discrimination in the Workplace: Legal Framework and Review of Legal Decisions 1999 to 2008 (HSE Crisis Pregnancy Programme and the Equality Authority, May 2011). Strict liability is a term generally used in criminal law, where mens rea (Latin for ‘guilty mind’) does not have to be proven in relation to one or more elements comprising the actus reus (Latin for ‘guilty act’) although intention, recklessness or knowledge may be required in relation to other elements of the offence. Assico Assembly v Corcoran EED 033/2003.

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[11.50]

Equality Law in the Workplace was on exceptional grounds not associated with her pregnancy and such grounds, in the case of dismissal, as a matter of law and in the case of discrimination as a matter of good practice, should be set out in writing.’

[11.50] Even where alternative arguments are put forward justifying the dismissal, the Labour Court takes a very strict view. Again, only in exceptional circumstances will it take them into consideration. An example of this is Lee t/a Peking House v Fox.69 The case concerned a woman employed by a Chinese takeaway restaurant, who, within weeks of advising her employer that she was pregnant, was dismissed with three weeks’ notice. The complainant gave evidence that she had not experienced any difficulty in her employment prior to becoming pregnant, that she had never received any warnings and that her employers had not advised her of any performance-related issues. The respondents contended that she was dismissed due to performance-related issues, in particular, a claim that there were financial irregularities at the restaurant and that the complainant was responsible for those irregularities. It was decided by the Labour Court that the complainant was dismissed contrary to the 1998 Act, on the grounds of her pregnancy. The court stated that it was satisfied that there was no basis whatsoever for allegations that were made during the case and that there was no evidence to substantiate them. In making this finding, the court awarded the complainant compensation in the amount of €25,000 and it was understood that a substantial part of this award was made by way of punitive damages to penalise the respondent in this case. [11.51] Pregnancy-related dismissals in general are treated harshly by the Labour Court, and this extends even more so to redundancies during a protected period. In Trailer Care Holdings Ltd v Healy,70 the court reiterated that women are to be afforded special protection from adverse treatment and, in particular, from dismissal, and it went on to say that the Charter of Fundamental Rights of the EU may be regarded as part of the primary legislation of the EU, which is an approach now clearly embedded in the decisions of the Court of Justice of the European Union (CJEU). [11.52] In the case of Poplawska v Moore Cleaning Services,71 the Equality Officer found that the complainant had informed the respondent of her pregnancy at the appropriate time. The Equality Officer was unconvinced by the respondent’s assertions that the complainant had terminated her employment by not attending work, and awarded her €10,000. From an employer’s perspective, it must be accepted that mere assertions will be insufficient to rebut a prima facie case of discrimination. Summary [11.53] The following can be deduced from the above cases: • 69. 70. 71.

pregnancy is a special protected period; Lee t/a Peking House v Fox ED/01/53. Trailer Care Holdings Ltd v Healy DET No EDA 128. Poplawska v Moore Cleaning Services DEC–E2013–096.

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[11.54]

•

only in the most exceptional circumstances not connected with the pregnancy can a woman be dismissed while pregnant;

•

there is thus a very high onus of proof on employers tantamount to strict liability;

•

the onus of proof can only be met where the reasons for the dismissal are put in writing;

•

even where there are alternative reasons put forward for the dismissal only in exceptional circumstances will these be taken into account;

•

cogent evidence must be put forward to prove those exceptional circumstances and mere assertions will be insufficient.

Dismissal of agency workers during pregnancy [11.54] Employer v Employee72 was the first application in relation to the provisions relating to a ‘provider of agency work’. Here the complainant was an agency worker, paid by the agency, and was placed with a pharmaceutical company, Rottapharm. The employee became pregnant in January 2011 and subsequently was requested to work a shift pattern involving nights, in response to which she submitted a medical certificate advising her employer that she could not undertake night work. In April, Rottapharm informed the recruitment agency that it no longer required the complainant due to a downturn in work and its consequent decision to cease using agency workers. The employee lodged complaints against both the agency and Rottapharm. The agency gave evidence that the complainant worked rotating day and night shifts before her pregnancy. Rottapharm accepted that the complainant was moved subsequent to her becoming pregnant, but argued that it was to accommodate her. The Equality Officer examined s 8(1) of the Employment Equality Act 1998 which provides: ‘… an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.’

The Equality Officer found that: ‘the combined effect of these provisions is that both the first named respondent (Noel Recruitment) and the second named respondent (Rottapharm) can be an impleaded party under the Act; the former as the Complainant’s employer and the latter as the provider of the agency work on which the Complainant was employed. It follows, therefore that each or either of the named respondents may potentially be considered liable for any discrimination deemed to have arisen.’

The Equality Officer found that although the recruitment agency was technically the employer, he was satisfied that it did not have any role to play in the central issue of the case, and the claim against it was not upheld.73 72. 73.

Employer v Employee DEC–E2014–074 at para 5.4. The case was subsequently upheld on appeal – see Determination EDA 159.

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[11.55]

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[11.55] The Equality Officer then went on to consider the claim against Rottapharm. In this regard, the complainant alleged that other agency workers with less service than her were kept on while she was made redundant, and she produced a list of 12 such workers. The respondent asserted that this was not the case, but produced no evidence to that effect. In finding against the respondent, the Equality Officer stated: ‘the evidence before me, however does not show any objective rationale for the complainant’s selection for redundancy prior to other less experienced agency workers’.

He went on to note and accept that albeit that the complainant would have been eventually laid off he was satisfied that her employment ended prematurely because of her pregnancy. She was awarded €20,000.00 for finding of discrimination contrary to s 8(2)74 and a separate finding contrary to s 6(2A).75 Burden of proof in pregnancy-related dismissals [11.56] One of the main questions arising in pregnancy-related dismissals is when the burden of proof shifts to the employer to prove that the less favourable treatment was unrelated to the pregnancy or maternity leave. [11.57] Despite the strict liability approach of the tribunal and the court, Sullivan J in the High Court in Mulcahy v Minister for Justice, Equality and Law Reform76 took the view that the mere fact of a pregnancy or the existence of maternity leave is not sufficient to shift the burden of proof to an employer where a woman is dismissed or treated less favourably during her pregnancy or maternity leave: ‘Something else is required’. This may well be the case, but experience suggests that the court and the tribunal require very little else to shift the burden of proof. Non-renewal of a fixed-term contract during maternity [11.58] The ECJ dealt with this matter in the case of Melgar v Ayuntamiento de Los Barrios.77 Here the applicant was employed as a home help under a number of fixedterm contracts with the Spanish local authority. Her employer became aware that she was pregnant and her latest fixed-term contract was not renewed or extended. The court, in dealing with the matter, found that the non-renewal did not contravene the Pregnant Workers Directive78 (as it did not constitute a dismissal). However, the court did find that if the reason that the contract was not renewed was because the employee was pregnant, it might constitute discrimination contrary to the Equal 74. 75. 76. 77. 78.

Treatment less favourable in relation to another agency worker. Ground related to pregnancy. Mulcahy v Minister for Justice, Equality and Law Reform [2002] ELR 12. Melgar v Ayuntamiento de Los Barrios (Case C–438/99) [2001] ECR I–6915. Directive 92/85/EEC.

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[11.61]

Treatment Directive,79 and whether it did was for the national court to decide. The court went on to state: ‘[w]here non renewal of a fixed term contract is motivated by the worker’s state of pregnancy, it constitutes direct discrimination on grounds of sex’. [11.59] The question was also dealt with in the Tele Danmark case.80 Here, the claimant was recruited for a period of six months but her employer was not informed of her pregnancy. The ECJ stated: ‘Since the dismissal of a worker on account of pregnancy constitutes direct discrimination on grounds of sex, whatever the nature and extent of the economic loss incurred by the employer as a result of her absence because of pregnancy, whether the contract of employment was concluded for a fixed or an indefinite period has no bearing on the discriminatory character of the dismissal. In either case the employee’s inability to perform her contract of employment is due to pregnancy.’

[11.60] The matter was dealt with in this jurisdiction in McGloin v Legal Aid Board.81 The claimant, who had worked on a series of fixed-term contracts as a clerical officer, became ill with a pregnancy-related illness and had to be hospitalised from 9 February 2006 to 14 March 2006. The claimant’s husband notified her manager of the pregnancy on 23 March 2006. By letter dated 27 March 2006, the claimant was informed that her contract would not be renewed. The reason stated in the letter was that an officer who was on career break at the time would be returning to resume her duties. The claimant contended that a temporary replacement had been employed by the respondent until the officer concerned resumed her duties in mid-May 2006. Importantly, the letter from the respondent also referred to the number of sick days taken by the claimant. The claimant contended that the non-renewal of her fixed-term contract constituted discriminatory dismissal on the grounds of gender and was due to her pregnancy. In its defence, the respondent contended that it was not apprised of the nature of the claimant’s illness or that it was related to her being pregnant. The respondent also contended that since the claimant had been employed to cover for this permanent employee, it was not possible to offer the claimant another contract of employment. It also contended that the decision not to renew the claimant’s contract of employment was made before the respondent was apprised of her pregnancy, and that therefore the issue of discrimination on the ground of gender did not arise. [11.61] The Equality Officer noted that the claimant’s sick leave was a decisive factor in the decision not to renew her contract, even though the respondent had been apprised that most of the sick leave was pregnancy related. There had been a gap of six weeks between the permanent staff member coming back and the claimant’s dismissal. The 79. 80. 81.

Council Directive 97/80/EC ([1998] OJ L14/6) on the burden of proof in cases of discrimination based on sex, since repealed by Directive 2006/54/EC (the Recast Directive). Tele Danmark v Handlels og Kontorfunktionaeremes Foorbund (Case C–109/00) [2001] ECR I–6993. McGloin v Legal Aid Board DEC–E2009–042.

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[11.62]

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Equality Officer was satisfied that the claimant had raised a prima facie case that nonrenewal of her fixed-term contract of employment was directly related to her pregnancy and that the employer failed to rebut the presumption. The respondent was unable to adduce evidence in the form of minutes or similar documentation to support its contention that the decision not to renew the fixed term contract was made on 13 March, before the respondent was apprised of the claimant’s pregnancy, and therefore unrelated to it. [11.62] In this case, the Equality Officer was persuaded that the non-renewal of the fixed-term contract was related to the claimant’s pregnancy by reason of the respondent’s letter of 27 March, which specifically raised the sick leave and was issued four days following the communication by the claimant’s husband of her pregnancy. The Equality Tribunal, relying on Melgar, awarded the claimant €15,000 and stated: ‘This award takes into account that the respondent is a statutory body, which specialises in legal representation and advice. In so determining I follow the observations of the ECJ in Melgar that “it must therefore be concluded that the provisions of Article 10 of Directive 92/85 impose on Member States and in particular in their capacity of employer precise obligations which afforded them no margin of discretion in their performance”.’

[11.63] This matter was also dealt with in the case of Kelly v University of Dublin Trinity College,82 where the Equality Officer found in favour of the respondent in determining that the clamaint had not been discriminated against by the failure to renew her contract following a period of maternity leave. [11.64] More recently the case of Agnieszka v Sami Swoi Ltd83 also examined the issue. Here the complainant was employed by the respondent from June 2012. In October 2012 she informed her employer that she was pregnant. The following December she became unwell and was on certified sick leave until 31 December 2012. On 1 January 2013 she attempted to contact her employer but the following day her manager contacted her and informed her that her contract was over and would not be renewed. On taking up the position the complainant initially had a three-month contract with an end date of 31 December 2012. She presented evidence that the job was advertised on 10 January 2013. The Equality Officer was satisfied that the complainant had established a prima facie case of discrimination on the gender ground and awarded her €10,000. This case is interesting in that the complainant was aware of the end date of her contract and had been advised of it before telling her employer that she was pregnant. Whilst there is no absolute entitlement not to be dismissed during pregnancy, every case will be examined in detail and employers need to be aware that any inference of discrimination will be punished. 82. 83.

Kelly v University of Dublin Trinity College DEC–E2013–106. Agnieszka v Sami Swoi Ltd DEC–2015–016.

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[11.66]

Surrogacy and adoptive leave [11.65] The CJEU dealt with this issue in two interesting opinions on the entitlement of women to maternity leave and/or adoptive leave who had their children through a surrogate. The first of these was an Irish case, Z v Government Department.84 The complainant applied for adoptive leave but was refused, since there is no express provision in Irish legislation for leave arising from the birth of a child through a surrogacy arrangement and instead she was offered unpaid parental leave. She then proceeded to take a claim under the Employment Equality Acts 1998–2011, alleging that she had been discriminated against on the grounds of sex and disability arising from her inability to give birth. The Equality Tribunal referred the case to the CJEU, asking the court whether the refusal to grant the employee paid leave from employment constituted a breach of EU anti-discrimination rules. In particular, the CJEU was asked the specific question as to whether the mother was discriminated against on the grounds of sex or disability under the employment equality legislation. In this regard, Advocate General Wahl was of the view that the mother had not been discriminated against on the grounds of sex because any male parent of a child born through a surrogate would not be entitled to leave either, and further that the mother was not discriminated against on the grounds of disability (that being her inability to carry a child), as that disability did not impede her full and effective participation in her professional life. The Advocate General further stated that the differential treatment of the mother was as a result of the failure of national authorities ‘to equate her situation with that of either a woman who has given birth, or an adoptive mother’, and he outlined that the failure of Member States to align adoptive leave entitlements meant that she could not benefit from same. Of note from an Irish perspective, was the fact that the Advocate General went on to opine that where a Member State allows for paid adoptive leave, then it should be considered whether the application of differing rules to adoptive parents and to parents who have a child through a surrogacy arrangement constitutes discrimination. In the judgment on the case which was delivered on 18 March 2014, the CJEU went on to hold that Directive 2000/78/EC85 must be interpreted as meaning that a refusal to provide paid leave equivalent to maternity leave or adoptive leave to a female worker who is unable to bear a child and who has availed of a surrogacy arrangement does not constitute discrimination on the ground of disability.86 [11.66] The second case in which a ruling was issued by the CJEU originated in the UK. In CD v ST87 a woman who had a child through a surrogacy arrangement initiated legal proceedings after she was refused maternity and adoptive leave. In this case, the CJEU 84. 85. 86. 87.

Z v Government Department (Case C–363/12). OJ C311, 13.10.2012. Directive 2000/78EC establishing a general framework for equal treatment in employment and education. Z v Government Department (Case C–363/12). OJ C311, 13.10.2012. CD v ST (Case C–167/12), OJ C 194, 30.6.2012.

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was asked the specific question as to whether the Maternity Directive88 covers mothers of children born through a surrogacy arrangement. In answering the aforementioned question, Advocate General Kokott opined that a mother who has a child through a surrogacy arrangement had a right to receive maternity leave as provided for under EU law. Interestingly, it appears from the opinion of the Advocate General that the leave would have to be shared between the mother and the surrogate. In the judgment issued on the same day as the Z89 case, the CJEU held that Directive 2006/54/EC90 must be interpreted as meaning that an employers refusal to provide maternity leave to a commissioning mother who has had a baby through a surrogacy arrangement does not constitute discrimination on grounds of sex. [11.67] From an Irish perspective, there are a number of issues that can be gleaned from the above. In the first instance, it is unclear whether mothers whose children are born through a surrogacy arrangement are entitled to maternity leave. It would appear from the decision in the Z case that there is no entitlement in this regard, but it must be borne in mind that the specific question as to whether the Pregnancy Directive (92/85/EEC) covers mothers of children born through a surrogacy arrangement was not asked. However, it seems likely that if the aforementioned question would ever be referred to the Irish courts, the line of reasoning applied in CD v ST would be followed. [11.68] With regard to adoptive leave, the current position is that mothers whose children are born through a surrogacy arrangement have no such entitlement: the legislation as it is drafted allows only mothers who are not ‘natural mothers’ to benefit from adoptive leave and thus excludes surrogate mothers. According to the judgment in the Z case, there is nothing in EU law that entitles a mother whose child is born through surrogacy to adoptive leave. However, it seems likely that the Irish courts will have to assess this regarding Member States such as Ireland that allow for paid adoptive leave, namely that it should be considered whether differing rules pertaining to adoptive leave constitute discrimination.

DRESS CODES [11.69] The issue of dress codes can be a particularly difficult one for employers. There is little by way of case law in this jurisdiction. However, the case of O’Byrne v Dunnes Stores91 is instructive. It concerned the dismissal of an employee for his violation of the dress code by his refusal to either wear a facemask at work or to shave off his beard. The employee claimed that such a requirement was discriminatory based on gender. The company argued that such a requirement could not be deemed discriminatory, in that as 88. 89. 90. 91.

Directive 92/85/EEC. Z v Government Department (Case C–363/12); OJ C311, 13.10.2012 Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast). O’Byrne v Dunnes Stores [2004] ELR 96.

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[11.73]

far as women were concerned, it could have no application except to a degree that could be disregarded. The Equality Tribunal found for the employee on the grounds that the complainant’s beard was neatly trimmed, that the requirement that he wear a facemask transcended that which was conventional and that it interfered with his right to determine his appearance to a greater degree than that regarding women. In reaching this conclusion, the tribunal considered the issue of whether or not the complainant should be allowed to wear a beard in conjunction with the respondent’s dress code for men and women, and stated that the nature of dress codes was that there could be a divergence in rules as regards men and women. Anti-discrimination law, it held ‘does not require that men and women be treated the same in every circumstance. What it requires is that they be treated equally’. In upholding the decision, the Labour Court held that the requirement was imposed ‘in a way that restricted his freedom to determine his own appearance to a significantly greater degree that it does in the case of women’. Thus, this constituted unfavourable treatment on grounds of gender. [11.70] In Conlon v Arcout Ltd t/a Sheldon Park Hotel and Leisure Club,92 it was held that the requirement for female employees to wear a skirt constituted discrimination on gender grounds. It is thus advisable to allow female employees a choice of trousers or skirts. [11.71] In the case of Superquinn v Mandate,93 the Labour Court held that it did not consider that ‘the provision of different styles of uniform to male and female staff is discrimination per se.’ The court did add that such discrimination may arise ‘in circumstances in which the female staff wish to wear trousers as part of the uniform and are refused the facility to do so by their employer.’ [11.72] In the case of Pantry Franchise Ireland Ltd v Worker,94 the Labour Court held that the insistence on short hair for male staff but not female staff was discriminatory. A prohibition on male staff wearing earrings was also held to be discriminatory in 3 Male Employees v Power Supermarkets Ltd.95 In that case, the Equality Officer also indicated that a prohibition on male employees wearing lipstick or a skirt would be commercially justifiable and would not amount to discrimination. [11.73] The case of Department for Work and Pensions v Thompson96 concerned a requirement that male members of staff wear a collar and tie at work. The Employment Appeals Tribunal said that the question was whether, in the context of a requirement for staff to dress in a professional and business-like way, the level of smartness the employer required, applying contemporary standards of conventional dress-wear, could be achieved for men only by requiring them to wear a collar and tie. If that could be 92. 93. 94. 95. 96.

Conlon v Arcout Ltd t/a Sheldon Park Hotel and Leisure Club DEC–E2008–057. Superquinn v Mandate DEE4/2000. Pantry Franchise Ireland Ltd v A Worker EEO7/1993. 3 Male Employees v Power Supermarkets Ltd EE9/1994. Department for Work and Pensions v Thompson [2004] IRLR 348.

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achieved by men dressing otherwise than in a collar and tie, the lack of flexibility in the dress code would suggest that men were being treated less favourably than woman, because it would not have been necessary to restrict men’s choice of what to wear in order to achieve the standard of smartness required.

TRANSGENDER EMPLOYEES [11.74] There is no legal provision in Ireland that deals specifically with transgender issues.97 The recognition and the protection afforded by the institutions of the State in this jurisdiction arise because of how the CJEU has interpreted the sex discrimination provisions of EU Directives and, more specifically, recital 3 of the Recast Directive: ‘The Court of Justice has held that the scope of the principle of equal treatment for men and women cannot be confined to the prohibition of discrimination based on the fact that a person is of one or other sex. In view of its purpose and the nature of the rights, which it seeks to safeguard, it also applies to discrimination arising from the gender reassignment of a person.’98

[11.75] Albeit therefore that there is still no express provision in Irish law dealing with transgender issues, in so far as such discrimination is now prohibited by the CJEU and detailed in the Recast Directive, it is arguable that it now forms part of Irish law by virtue of the principle of indirect effect. [11.76] The decision in P v S99 paved the way in this domain. Here the court deemed that the dismissal of a transgender employee who was about to undergo gender reassignment was direct discrimination due to gender. This, in turn, allowed the Equality Tribunal and Labour Court to follow suit here. Advocate General Tesauro in his opinion suggested that the Community law principle of equality meant that ‘connotations relating to sex and/or sexual identity cannot be in any way relevant’ in assessing an employee’s suitability for continued employment. The ECJ then stated in its judgment: ‘The scope of the Directive could not be confined simply to discrimination based on the fact that a person is of one sex or the other sex. In view of its purpose and the nature of the rights, which it seeks to safeguard, the scope of the Directive is also to apply to discrimination arising, as in this case, from the gender reassignment of the person concerned. Such discrimination is based essentially if not exclusively, on the sex of the person concerned. Where a person is dismissed on the ground that he or she intends to undergo, or has undergone, gender 97.

98. 99.

The Employment Equality (Amendment) Bill 2013 seeks to correct this. This bill, if enacted, includes a definition of ‘Gender Identity’, being each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including a person’s sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other experience of gender including dress, speech and mannerisms. Directive 2006/54/EC. P v S and Cornwall CC (Case C–13/94) [1996] ECR I–02143.

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reassignment, he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment. To tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled, and which the Court has a duty to safeguard.’

The court therefore deemed that the dismissal of such a person was contrary to Art 5(1) of the Directive.100 [11.77] In KB v National Health Service Pensions Agency,101 the ECJ concluded that a rule that restricted a survivor’s pension to married couples, excluding unmarried couples, was contrary to Art 141 where domestic law prohibited transgender persons from marrying, contrary to ECHR law. [11.78] As a result, the UK amended its sex discrimination legislation so as to make specific provisions that outlawed direct discrimination in the employment field on the ground that a person intended to undergo, was undergoing or had undergone gender reassignment. [11.79] Despite being given the opportunity to address this issue in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, the legislature overlooked it.102 However, the matter was given detailed consideration in Hannon v First Direct Logistics Ltd.103 The complainant was diagnosed with gender-identity disorder in or around 2005 and was a transgender female. She worked as a man as a business development manager for the company for five years before disclosing to management that she was a transsexual. In December 2006, she met company officials to discuss the workplace implications of a transition to female and was asked to wait a few months to accommodate a new staff member. After changing her name by deed poll in March 2007, she arrived at the office. However, she was told that she would have to work the phones in her ‘male identity’ from home while a new office was being set up. After that, she was advised that she would have to revert to a male identity when meeting clients. She was also forbidden to use the women’s toilet at work. Despite several requests from her to return to the office, she was eventually told that a new employee had been hired and there was no room for her at the office. In March 2007, the complainant had also been approached by the operations manager, who expressed concerns about her productivity. She was again asked if she 100. Council Directive 76/207/EC, since repealed by Directive 2006/54/EC. 101. KB v National Health Service Pensions Agency (Case C–117/01) OJ 1975 L 45, p 19. 102. The Employment Equality (Amendment) Bill 2013, if enacted, will address this. For a broader discussion on this topic, see Ryan, ‘Current Legal Protections for Transgender Employees’ (GLEN, the Gay and Lesbian Network, 2013) and Barry, ‘The Potential of the Equality Legislation’ paper presented to Irish Research Council for the Humanities and the Social Sciences Thematic Project on Gender Equality, Religious Diversity and MultiCulturism in Contemporary Ireland. Symposium: Towards a gender recognition framework in Ireland; the potential of the equality legislation. 103. Hannon v First Direct Logistics Ltd [2011] ELR 215.

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would revert to her male identity for another three-month period. Following this, on 19 July 2007 she was told by the company director that he was not happy with her work. She again requested permission to work from the office, but was refused. After this she left the company, claiming that she had been constructively dismissed. The Equality Officer found that: ‘requesting Ms Hannon to switch between a male/female identity whenever the respondent felt the need for it, constituted direct discrimination on the gender and disability grounds.’

Accordingly, she found that the complainant was discriminated against by her employer on the basis of gender and disability and was awarded €35,422.71 plus interest. The respondent was also ordered to pay the complainant interest at the Court’s Act rate in respect of the period beginning on 20 December 2008 (the date of the reference of the claim) and ending on the date of payment. [11.80] The Equality Officer then set out the position for employers as follows: ‘Transsexualism is a recognised medical condition. Transsexualism is treated by a combination of hormone therapy, surgery (in some cases) and “real life experience”, that is; living as a member of the other sex. This also applies to the workplace and it is clear that these Acts impose an obligation on an employer to enable a person with a gender identity disorder to grant, within the confines of said workplace, (allowing for health and safety, uniform etc.) requirements to accommodate such a “real life experience”.’104

[11.81] After the complainant resigned from her employment she took up alternative employment in late July. However, this fell through a number of weeks later, and subsequently she sought to re-join the respondent company. The Equality Officer noted that while it could be argued that the circumstances implied that the conditions of work could not be found to be too bad if the complainant was willing to return, she did not accept this premise: ‘the fact that the complainant sought to return to work to the respondent company, when this job fell through it is not illustrative of anything other than that the complainant did not want to be unemployed.’

Gender Recognition Advisory Group [11.82] The Gender Recognition Advisory Group was established by the Minister for Social Protection in May 2010 following a High Court ruling in the Foy case105 that Ireland was in breach of the European Convention on Human Rights in not having the legal process to recognise the required gender of transsexual persons. Its terms of reference were to advise the Minister on the legislation required to provide for the legal recognition of the changed gender of transsexuals. 104. Hannon v First Direct Logistics Ltd DEC–E2011–066, para 4.4. 105. Foy v An t-Árd Chalaraitheoir & Ors [2007] IEHC 470.

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[11.83] The report proposed legislative recognition and proper legal status for transgender people. When the report was published in July 2011, legislation was apparently to be brought before the Dáil within the year. However, this has still not occurred, with the exception of a private member’s bill, the Employment Equality (Amendment) Bill 2013, which, if enacted, would extend the general definition of discrimination to the new ground of gender identity.

EXEMPTIONS [11.84] Sections 25 and 27 of the Employment Equality Acts 1998–2011 provide for derogations from a general principle of non-discrimination on the grounds of gender. Genuine occupational requirement [11.85] The most important exclusion is set out in s 25. This section was substituted by s 16 of the Equality Act 2004 and provides that it will not be unlawful to confine a post to a man or woman where gender is a bona fide occupational qualification.106 This provision is permitted by Art 14(2) of the Recast Equal Treatment Directive,107 which provides that the sex of a worker should be allowed as a determining factor as regards access to employment where such a characteristic constitutes ‘a genuine and determining occupational requirement, provided that its objective is legitimate and the requirement is proportionate’. [11.86] Given that this is an exemption, the Equality Tribunal takes a very restricted interpretation of the exclusion and will not allow it to be used lightly. It also has to have a legitimate aim and to be proportionate. In the case of M v A Language School,108 the respondent attempted to rely upon this provision to limit applications for a teaching post to female staff only, on the basis that the successful candidate would be required to spend time with Italian students in their host homes and deal with the problems of emotional and homesick adolescents. It felt that a woman would be inherently more suitable to this type of role. The Equality Tribunal was not, however, satisfied that this constituted a genuine and determining occupational requirement that could be satisfied only by woman in the circumstances. The Equality Officer found that the respondent had acted under the mistaken belief that only women were capable of carrying out the duties required for the position and therefore discriminated against the complainant in an unlawful manner. [11.87] In Brady v Irish TV Rentals Ltd,109 the tribunal held that the wording of Art 14(2) did not permit an employer to plead gender as an occupational qualification where the 106. 107. 108. 109.

Employment Equality Act 1998, s 25. Directive 2006/54/EC. M v A Language School DEC–E2004–028. Brady v Irish TV Rentals Ltd DDEE–8/1985.

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post involved security and related duties, even where the employer genuinely believed that the presence of male staff would deter robberies. [11.88] In Lazar v Dublin Bus,110 while the Equality Officer found that a height range could constitute a potential and genuine occupational requirement for a bus driver, the complainant succeeded in her complaint of indirect discrimination on the grounds of gender on the basis that the respondent could not establish the height range applicable. Gardaí and prison service [11.89] The other exceptions to gender discrimination are contained in s 26: ‘Nothing in this Act should make it unlawful for an employer to arrange for or provide treatment which confers benefits in connection with pregnancy and maternity (including breast-feeding or adoption).’

[11.90] Section 27 excludes from the legislation certain posts in the Garda Síochána and the Prison Service. The section allows for the assignment of a man or woman to a particular post while the assignment is considered necessary in the interest of privacy or decency111 or from a security point of view. It also allows the application of one criterion as to height for men and another for women.112 [11.91] The scope of the ‘privacy and decency’ derogation in s 26(1)(a)(i) was considered in Hunt v Irish Prison Service.113 Again, the Equality Officer held that any deviation from the principle of equal treatment, such as that under s 27, must be construed strictly. Here, the employees, who were prison officers in Limerick Prison, had argued that their general working conditions constituted gender discrimination in relation to their access to annual leave, rotation of posts and compulsory assignments, which were less favourable than that of their male colleagues. In the end, the Equality Officer accepted the respondent’s argument to the effect that maintaining an adequate female officer presence in a woman’s prison required a certain number of female prison officers and deemed it to be essential in terms of privacy and decency.

110. 111. 112. 113.

Lazar v Dublin Bus DEC–E2010–150. Employment Equality Act 1998, s 27(1)(a)(i). Employment Equality Act 1998, s 27(1)(b). Hunt v Irish Prison Service DEC–E2006–021.

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Chapter 12 CIVIL STATUS INTRODUCTION [12.01] Since the Civil Partnership Act 2010,1 ‘marital status’ in Ireland’s equality law has been replaced by civil status. The Civil Partnership Act amended s 2(1) of the Employment Equality Acts 1998–2011 and defined civil status as being: ‘… single, married, separated, divorced, widowed, in a civil partnership or being a former civil partner in a civil partnership that has ended by death or been dissolved’.

[12.02] As a result of this amendment, any discrimination on the basis of civil status is prohibited under the 2010 Act. This includes – but is not limited to – claims for access to employment, conditions of employment, pension schemes and equal pay. This definition defines a couple’s civil partnership as the grounds for protection, while it is clearly the case that same-sex couples could also pursue claims of discrimination on grounds of their sexual orientation. [12.03] Section 34(1)(c) of the Employment Equality Acts states that nothing in it shall make it unlawful for an employer to provide ‘a benefit to an employee on or by reference to an event occasioning a change in the marital status of the employee’. This in effect means that employers can provide benefits to employees on or by reference to an event occasioning a change in the civil status of the employee. However, with the passing of the Civil Partnership Act 2012 it is clear that any such benefits must now be offered to those in civil partnerships. This will include survivor benefits connected with pension schemes. In the case of Bundesrepublik Deutschland v Dittrick,2 the CJEU held that, in certain circumstances, civil partners were permitted to be treated as spouses for the purposes of employer-financed medical expenses and assistance.

CASE LAW [12.04] Given the change in the law recently, cases on the marriage ground are extremely rare. A UK case that is instructive in this area, however, is Hawkins v Atex Group Ltd.3 The background to this case is that the complainant was married to the chief executive of the respondent company. She had for some time worked for the company as a contractor. It was the respondent’s case that the chairman told the chief executive that from the end of 2009 he should not employ any member of his family in the business, 1. 2. 3.

Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. Bundesrepublik Deutschland v Dittrick (Cases C–124/11, C–125/11 and C–143/11) ECR OJ 2000 L 303, p.16 Hawkins v Atex Group Ltd [2012] ICR 1315, [2012] IRLR 807, [2011] UKEAT 0302_11_1303, [2012] Eq LR 397.

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because of concerns about perceived conflicts of interest and nepotism. The complainant became an employee of the company at the beginning of 2010, and her daughter with the chief executive also became an employee in late 2009. The complainant was dismissed on the ground that her employment was in breach of the instruction to the chief executive, her daughter also being dismissed on similar grounds. The complainant’s claim of discrimination on the ground that she was married, under s 3 of the Sex Discrimination Act 1975 was struck out by the judge on the basis that it had no reasonable prospect of success. In dismissing her appeal, the judge held: ‘Less favourable treatment on the basis that the complainant is married to a particular person falls within section 3, but only if the ground for the treatment is, specifically, that they are married, rather than only that they are in a close relationship which happens to take the form of marriage.’4

This decision, therefore, in effect states that prohibition on discrimination because of marriage only covers discrimination based on the fact of marriage per se. This is unlike various judgments of the Equality Tribunal in Ireland prior to the change to civil status. Here most claims relating to marital status were generally intertwined with those of family status and gender. [12.05] The case of NBK Designs and Inoue,5 is an example of a case where the grounds of marital status, family status and gender were pleaded. This case was heard before the Labour Court, which decided that the complainant had been unfairly dismissed, pursuant to s 77 of the 1998 Act. The court held that the complainant had been indirectly discriminated against on the gender ground and by reference to her family status and marital status, and she was awarded €10,000 in compensation. The complainant was a secretary with a firm of architects. She was employed on a part-time basis and she job-shared with another secretary. The directors of the firm decided that the job-sharing arrangement did not suit the demands of the firm and required the complainant to work on a full-time basis. Due to the complainant’s family commitments, she was not able to take up the position on a full-time basis and her employers were aware of this. When the complainant advised her employers that she would not be able to take up the full-time position, she was given notice of her dismissal. The complainant contended that the requirement to work full-time was a condition of employment that disadvantaged significantly more women than men, and significantly more people who came within the grounds of marital status and family status than people of a different marital status and family status. Accordingly, it was contended that this amounted to indirect discrimination on the grounds of gender, family status and marital status. The court upheld the complainant’s argument and found that the complainant had been indirectly discriminated against, and that there was no objective justification that 4.

5.

In reaching this decision, the judge referred to Skyrail Oceanic Ltd v Coleman [1980] ICR 596, followed Chief Constable of Bedfordshire v Graham [2002] IRLR 239 and doubted aspects of the reasoning in Dunn v Institute of Cemetery and Crematorium Management (UKEAT/0531/10). NBK Designs and Inoue ED/02/34 No 212.

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[12.08]

corresponded to a real need on the part of the company to require the complainant to work on a full-time basis. [12.06] The case of Willis Risk Services (Ire) Ltd v Brennan6 related to an appeal against the decision of the Equality Tribunal. The complainant had applied for the position as head of compliance with the respondent. This was a full-time post, and the complainant stated that she was prepared to work full-time if she was successful in her application. Ultimately another woman – an external candidate who was not married and who had no children – got the job. The complainant argued that she was discriminated against on the basis of her civil and family status and sought to rely on what she regarded as irregularities in the manner in which the competition was conducted, contending that a number of candidates received exactly the same marking under the same headings, arguing that this showed a pre-disposition of the interview panel to appoint the successful candidate. The respondent argued that it was unaware of the civil or family status of the successful applicant. It also testified that each candidate had been asked pre-determined questions and that after each interview the panel discussed the relative merits of the candidates and arrived at a consensus mark. The Labour Court pointed out the nature of its role: to assess whether the process was tainted by discrimination rather than to assess the merits of the candidates. It referred to the judgment of Cook J in O’Higgins v Labour Court and UCD.7 On the facts, the court determined that the respondent had relied solely on the marking system it applied and rejected the claim. [12.07] In the case of Andoo v Pagewell Concession (ILAC) Ltd,8 the complaint was submitted on the family status ground, but as both the complainant and the respondent argued the case on the civil status ground, the Equality Officer addressed the complaint on both grounds. The background was that both the complainant and his wife were employed by the respondent, but in different locations. The complainant’s wife, before going on maternity leave, asked if her husband could move to the same store location for reasons of family convenience. It was agreed that a comment was made to the complainant by a manager in respect of a policy that married couples could not work together. Ultimately, the Equality Officer found that the policy stated that related persons could not work together, but upheld the complaint of discriminatory treatment on the civil status ground on foot of the comment. The complainant was awarded €500, as the Equality Officer was of the view that the complainant did not suffer a material disadvantage by the discriminatory treatment. [12.08] This case should be contrasted with the UK case of Hawkins v Atex Group Ltd, discussed above.9 The complainant’s claim of unlawful discrimination on the marriage 6. 7. 8. 9.

Willis Risk Services (Ire) Ltd v Brennan EDA1418. O’Higgins v Labour Court and UCD [2013] IEHC 508. Andoo v Pagewell Concession (ILAC) Ltd DEC–E2013–151. Hawkins v Atex Group Ltd [2012] ICR 1315, [2012] IRLR 807, [2011] UKEAT 0302_11_1303, [2012] Eq LR 397. See para 12.04 above.

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ground contrary to the Sex Discrimination Act 1975 was struck out on the basis that the reason for the treatment was because she was married to a particular person rather than because she was a married person. Underhill J distinguished between marriage and a ‘close personal relationship’: the claimant was dismissed not because she was married, but because of the close personal relationship with her husband, the chief executive of her employer, and the problems that were hence perceived to have arisen as a consequence of this relationship. [12.09] To fall within the statutory prohibition in this jurisdiction, the ground for the employer’s action must be the ‘fact of being married’ (or in a civil partnership). The appropriate comparator will usually be someone in a relationship akin to marriage but who is not actually married. [12.10] Despite the dearth of decisions under the Equality Act, there have been a number of relevant decisions under the Equal Status Act. In the case of Separated Complainant v Hospital,10 the tribunal found that the hospital’s decision to request a separated father to go through a solicitor in order to obtain information relating to his daughter’s medical treatment to be tantamount to discrimination on the ground of marital status. Similarly, in the case of Separated Father v Community School,11 the tribunal found that the school’s failure to provide the father, who was separated and joint guardian, with information and documentation in relation to his children’s progress in school was discriminatory on grounds of marital status.

EXEMPTIONS Genuine occupational requirement [12.11] Section 37(2) of the Employment Equality Acts 1998–2011 provides for the ‘genuine occupational requirement’ exemption across all the nine grounds (with the exception of gender).12 Section 37(2)(b) provides that it will not be discriminatory to confine a post to a person with a distinct civil status once it is a bona fide occupational requirement and where the objective is legitimate and the requirement proportionate. It is difficult to see how this would operate in practice. Religious ethos [12.12] Section 37 of the Employment Equality Acts allows a general exemption for religious, educational or medical institutions, as well as for a body that is under the direction or control of a body established for religious purposes.13 Section 37(1)(b) 10. 11. 12. 13.

Separated Complainant v Hospital DEC–S2010–046. Separated Father v Community School DEC–S2010–049. There is a separate section for this: s 25. The Employment Equality (Amendment) No 2 Bill 2013 provides for certain changes in the exemptions provided under s 37. If enacted, the Bill would amend the exemptions available to educational or medical institutions that are in receipt of funding by the Oireachtas.

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provides that this could be used to justify less favourable treatment for employees of particular institutions where it is ‘reasonably necessary to prevent an employee or prospective employee from undermining the religious ethos of the institution.’ What is reasonably necessary is an objective test and each case has to be resolved on its own merits as viewed by an independent neutral bystander.

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Chapter 13 FAMILY STATUS DEFINITION [13.01] Despite the fact that the definition of family status is very broad, similar to the ground of marital/civil status, most of the cases involving discrimination on the basis of family status involve multiple allegations, with complainants also claiming discrimination on the basis of marital status, gender and age. Family status is defined under s 2(1) of the Employment Equality Acts 1998–2011 as meaning responsibility: ‘(a) as a parent, or a person in loco parentis, in relation to a person who has not attained the age of eighteen 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.’ The first ground is the one most relied upon, covering as it does discrimination in the form of less favourable treatment on the basis of having responsibility for children either as parents or as persons in loco parentis. [13.02] What actually constitutes a ‘child’ for the purposes of the above was dealt with in the case of Quigley v Dickinson Stationery (Ireland) Ltd,1 where the Equality Tribunal held that there is no difference, for the purpose of the legislation, between a parent of a young child in comparison with the parent of an older child and that there is no difference in the level of protection granted to a parent based on the age of the child/ dependent. [13.03] A strict interpretation is taken by the tribunal in its definition of family status. This was evident in the case of Gaelscoil Thulach na nÓg v Fitzsimons-Markey,2 where a school decided to terminate the complainant’s employment as school secretary because it did not want to have a parent of a child in the school employed in that position. It was held that in relying on the family status ground, complainants can compare themselves only to someone who does not have family status;3 claimants who compare themselves against someone who has a different form of family status, eg locus parentis, did not come within the legislation. 1. 2. 3.

Quigley v Dickinson Stationery (Ireland) Ltd DEC–E2004–026. Gaelscoil Thulach na nÓg v Fitzsimons-Markey EED049. Employment Equality Act 1998, s 6(2)(c).

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CASE LAW [13.04] The case of Long v Hanley Group4 illustrates the difficulty for employers when they endeavour to alter an employee’s duties and responsibilities and that employee is unable to comply with the changes due to family circumstances. Here the employee, prior to commencing her employment with the company as a sales manager, had informed them that she was not available for travel due to family commitments. She was assured at interview that this would not cause any issues. Subsequent to her taking up employment, her manager changed, and she was then asked and expected to travel frequently in order to generate business. She raised issues with this and sought a copy of the grievance procedure, upon which her employment was terminated and a new employee was recruited shortly afterwards. The Equality Officer was satisfied that she was discriminated against on the ground of family status and awarded Ms Long €50,000. [13.05] An even higher award was made in the case of O’Brien v Persian Properties (t/a O’Callaghan Hotels).5 In that case, the Equality Tribunal awarded the complainant €315,000 for discriminatory dismissal, harassment and victimisation on grounds of gender and family status. The Equality Officer stated that the ‘award must dissuade O’Callaghan hotels and other employers from unlawful discrimination.’ In summary, shortly after informing the hotel that she was pregnant for the third time, the complainant was asked to take voluntary redundancy, which she declined. From that point on, the complainant said that she was pressurised to resign from her employment. The employee was subject to discriminatory comments, her fuel card was removed without warning and access to her mobile phone was blocked. Furthermore, she was not paid for the full duration of her maternity leave as had been the case previously. The Equality Officer, preferring the evidence of the complainant, found that the respondent had harassed the complainant on grounds of gender and family status and also victimised her. The Equality Officer additionally found that the respondent discriminatorily dismissed the complainant. The complainant’s salary was €126,000 per annum plus benefits. The Equality Tribunal awarded the complainant €220,500 (the equivalent of 21 months’ salary) in compensation for the harassment and discriminatory dismissal and €94,500 (the equivalent of nine months’ salary) in compensation for the distress caused by the victimisation. [13.06] In McCarthy v Niscayah Ltd,6 the complainant was held to have established a prima facie case of discrimination in relation to her selection for redundancy. The complainant demonstrated that she was discriminated against on the grounds of family status on the basis of her parental leave and her complaints about proposed changes to 4. 5.

6.

Long v Hanley Group DEC–E2010–015. O’Brien v Persian Properties (trading as O’Callaghan Hotels) DEC–E2012–010, [2012] ELR 211. This case is also dealt with under gender and alteration of terms and conditions after maternity leave. McCarthy v Niscayah Ltd EDA1328.

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[13.09]

the respondent’s maternity leave policy. It was held that the respondent’s procedures for implementing the complainant’s redundancy were inadequate and therefore it could not rebut the discrimination claim.

ALTERNATIVE WORKING ARRANGEMENTS [13.07] For a general discussion on alternative working arrangements, see para 11.22 which deals with this matter in the context of return from maternity leave, which is equally applicable to family status.

EXEMPTIONS [13.08] There is a general exemption in s 34(1)(d) of the Employment Equality Acts 1998–2011 to permit positive treatment in benefits to employees to provide or assist in the provision, during working hours, of care for a person for whom the employee has responsibility. [13.09] The other provision of importance is the s 37 exemption on religious grounds. In effect, this preserves the rule seen in Flynn v Power,7 where being an unmarried parent conflicted with the ethos of the school.

7.

Flynn v Power [1985] IR 648.

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Chapter 14 SEXUAL ORIENTATION INTRODUCTION [14.01] Section 6(2)(d) of the Employment Equality Acts 1998–2011 prohibits discrimination on the ground of sexual orientation. This was a new ground introduced by the 1998 Act and is defined as meaning ‘of heterosexual, homosexual, or bisexual orientation’. In order to prove less favourable treatment, a claimant must show that a person of a different sexual orientation has been treated more favourably than them. [14.02] Sexual orientation does not necessarily mean that one has to be gay. In a UK case, Thomas Sanderson Blinds Ltd v English,1 the Court of Appeal held that the fact that Mr English was not gay, and that his colleagues knew this, did not prevent him from being protected from sexual orientation discrimination. This case highlighted two interesting points: 1.

homophobic comments made about an employee by colleagues where the employee is not gay, and the colleagues know that the employee is not gay, can still amount to sexual orientation discrimination;

2.

an employee’s own conduct can be taken into account when deciding whether or not the comments or actions of colleagues had the purpose or effect of violating an employee’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.

HARASSMENT [14.03] There have been very few cases in this jurisdiction where discrimination on the grounds of sexual orientation has been argued before the Equality Tribunal. One of the first of those was Piazza v Clarion Hotel.2 Mr Piazza claimed that he was harassed on the grounds of his sexual orientation in the form of e-mails and verbal comments made by fellow colleagues. This included verbal abuse by a manager and various staff members, making comments such as ‘just a bloody woman’ and ‘gay bastard’. The complainant reported each incident to the general manager. Management gave evidence that they had utilised the grievance procedure to investigate the incidents. The Equality Tribunal was particularly critical of the respondent using what was stated to be a procedure for ‘general grievances’ for investigating serious complaints of this nature. The complainant was awarded €10,000 on the grounds of harassment based on sexual orientation. 1. 2.

Thomas Sanderson Blinds Ltd v English [2008] EWCA Civ 1421. Piazza v Clarion Hotel DEC–E2004–033.

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[14.04] In the case of BH v Named Company t/a A Cab Company,3 the complainant received the maximum compensation available under the Act: 104 weeks’ pay. In this case, Ms BH commenced employment with the respondent cab company in March 2002. She worked in the company base, usually three 12-hour shifts a week. She was gay and in a relationship. Ms BH claimed that a number of serious incidents had occurred during the course of her employment, including dead fish being thrown onto the internal roof of the base office of the respondent company, which directly affected her work area. Laxative tablets and steroids had been placed in an office kettle used by the complainant. Grossly offensive and humiliating pictures had been displayed in the base office. It was alleged by the complainant that the respondent company failed to address her complaints about the incidents. A representative of the respondent company admitted that the incidents did occur. The Equality Tribunal held that the incidents amounted to sexual harassment. The respondent company also admitted that there were no policies in place to prevent sexual harassment. The tribunal awarded compensation equal to 104 weeks’ pay and also ordered the respondent company to introduce a policy to prevent sexual harassment and harassment, in accordance with the Code of Practice.4 [14.05] Another decision that is interesting in this regard is the case of Employee v Credit Union.5 Here the complainant (a man), who worked as an office administrator, won his case at the Equality Tribunal after claiming he was victimised because of his sexual orientation. He said he was subjected to comments about his sexuality and dress style, while workers claimed he was having a homosexual relationship with a colleague. The complainant said an assistant manager made comments about his ‘camp’ accent and told staff not to ask him for help with IT issues, although he was the contact person. He also stated that he overheard conversations between board members in which one man asked if he was gay, which was followed by laughter. He said the man said: ‘I had better not be left alone in a room with him. I hope it’s not contagious.’ He said that he was so upset, he went to the toilet to compose himself, but was afraid to make a complaint. He said a colleague told him that he had heard another staff member refer to him as ‘one of them … a queer, like’. He said a female colleague referred to him constantly as ‘one of the girls,’ while others made insulting comments about his dress and manner. He further stated that a colleague made comments such as: ‘Do you like taking it up the back passage?’ The worker said he was aware that there were unfounded and hurtful rumours that he was in a relationship with the credit union’s treasurer. He said he felt constantly on edge at work and physically sick due to the harassment. He told the tribunal that he made a formal complaint but there was no investigation, and he got a letter to say that there were not sufficient grounds to back up his grievance. The credit union denied that it had treated him badly because of his sexuality, or that there 3. 4.

5.

BH v Named Company t/a A Cab Company DEC–E2006–027. The Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002, which has since been repealed by the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 (SI 208/2012). Employee v Credit Union DEC–E2012–190.

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[14.07]

was a homophobic atmosphere in the office. Colleagues denied they made discriminatory comments. The Equality Officer found that the complainant failed to establish a prima facie case that the respondent had discriminated against him on the sexual orientation ground pursuant to s 6(2)(g) of the Employment Equality Acts 1998–2011, in terms of his conditions of employment (other than harassment) contrary to s 8(1)(b) of the Acts. However, the Equality Officer did find that the respondent discriminated against the complainant on the sexual orientation ground pursuant to s 6(2)(f) of the Acts in terms of harassment contrary to s 14A of the Acts. In accordance with s 82 of the Acts, the respondent was ordered to pay to the complainant the sum of €8,000 in respect of the discrimination and further, pursuant to s 79(1A) and in accordance with s 82 of the Acts, €16,000 in respect of the victimisation caused.

DISCLOSURE OF SEXUAL ORIENTATION [14.06] In Grant v HM Land Registry,6 the Court of Appeal in the UK held that the disclosure of an employee’s sexual orientation did not amount to discrimination and harassment in circumstances where the employee had previously told other colleagues that he was gay. The background to the case is that Mr Grant was promoted to a new post in a different office of the Land Registry. Mr Grant had disclosed that he was gay to colleagues in his old office but did not disclose this information to colleagues in his new office. His new line manager knew that Mr Grant was gay and mentioned this to Mr Grant’s new colleagues. Mr Grant alleged that his line manager’s comments were acts of discrimination and harassment. The Court of Appeal found that the line manager’s comments did not have the purpose or effect of violating Mr Grant’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for him. A key consideration was that Mr Grant had chosen to reveal his sexual orientation to other colleagues. The court also noted that this case was in a different category to the situation where an employee actually requests that his sexuality be kept secret.

SUMMARY [14.07] We can deduce from all of the above cases the following:

6. 7.

•

in order to prove less favourable treatment, the person must show that a person of a different sexual orientation has been treated more favourably than he or she was;

•

although disclosure of an employee’s sexuality will not always amount to discrimination, if the employee has requested that his or her sexuality be kept confidential, a failure to comply with this request can amount to discrimination;7 Grant v HM Land Registry [2011] ICR 1390. Grant v HM Land Registry [2011] ICR 1390.

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•

light-hearted conversations and ‘banter’ between colleagues may not amount to discrimination where an employee similarly participates in these discussions; but these conversations can reach a ‘tipping point’ where certain comments or actions can constitute harassment. Employers should avoid the possibility of an atmosphere in the workplace being created where offensive comments can frequently be made, exposing the employer to the risk that someone will ‘overstep the mark’. Accordingly, a general culture of respect and tolerance should be promoted throughout the workplace;8

•

staff should understand that harassment means any unwanted behaviour that makes someone feel intimidated, degraded, humiliated or offended, which includes teasing, name calling, mimicking, gossip and ‘banter’;9

•

employers should ensure that dignity at work and harassment policies are up to date and cover discrimination on grounds of sexual orientation;10

•

when complaints are made, they should be handled sensitively, in good time, and in accordance with the employer’s policy and the ACAS code of practice on disciplinary and grievance procedures.11

EXEMPTIONS [14.08] There are no specific exemptions relating to sexual orientation. However, the general exemptions for religious, educational or medical institutions apply.12 These exemptions still provide the possibility that religious-run institutions can lawfully discriminate against gay people if they take the view that their sexual orientation could undermine the ethos of the institution.

8. 9. 10. 11. 12.

Thomas Sanderson Blinds Ltd v English [2008] EWCA Civ 1421. Thomas Sanderson Blinds Ltd v English [2008] EWCA Civ 1421. Thomas Sanderson Blinds Ltd v English [2008] EWCA Civ 1421. Thomas Sanderson Blinds Ltd v English [2008] EWCA Civ 1421. Employment Equality Act 1998, s 37(1).

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Chapter 15 RELIGIOUS BELIEF INTRODUCTION [15.01] Irish law on religion dates back to the Constitution, but is now part of our equality legislation, pursuant to the Employment Equality Acts 1998–2011. Whereas the Framework Directive on Equality1 (introduced in 2000) required all Member States to protect against discrimination on the grounds of religion and belief in employment, occupational and vocational training, the Directive was amended at the insistence of the Irish government to ensure consistency with the protection for religious employers provided for in the national legislation. As a result, no changes or amendments were required to the provisions of the Employment Equality Acts. [15.02] Arguably, the ground of religious belief is the most complex of all the grounds. This is so because the inclusion of religion and belief as grounds that are protected reflects principles of EU law which ensure that the law is respected within the application of the treaties, such as the European Convention on Human Rights (ECHR), which protects freedom of religion and belief.2 It also reflects Members States’ obligations under the Universal Declaration of Human Rights and ILO Convention No 111, which prohibits discrimination on a number of grounds, including religion and belief.3 The interpretation of the Directive is also influenced by the case law and jurisprudence of the ECHR, the 1961 European Social Charter and the 1966 revised European Social Charter, which between them provide for protection against discrimination and protection of religious freedom. [15.03] As a consequence, determining the proper scope of protection against discrimination on the grounds of religion and belief raises many complex and contested questions. Other difficulties also arise in determining the parameters of the nondiscrimination provisions of the Directive and the Employment Equality Acts. For instance, groups may be minorities because they are members of new religions; equally, they may be minorities because they are immigrants into the EU and have brought with them their religion from their land of origin. Complexity also arises because of the fundamental tension that exists between freedom of religion as a fundamental human right and the right to equality. Whereas at times both these rights are complementary, in practice they can also be in conflict. Particular problems may arise because of conflict between the collective rights of the religious and the rights of those external to various religious groups. 1. 2. 3.

Council Directive 2000/78 ([2000] OJ L303/16) establishing a general framework for equal treatment in employment and occupation. EU Treaty, Art 6(2) and Directive, Recital 1. Directive, Recital 4.

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[15.04] In addition to the above, many states – including our own – have strong commitments to Christianity. The Irish Constitution makes express reference to being founded on Christianity and goes on to state in its preamble: ‘In the name of the most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred, We the people of Éire, Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, who sustained our Fathers through centuries of trial, … do hereby adopt, enact, and give to ourselves this constitution.’

There is a similar provision in the Polish constitution, the UK has an established church and in Finland both the Evangelical Lutheran Church and the Orthodox Church have the right to levy tax and they also receive a share of corporation tax. [15.05] Religion is also complicated by virtue of the fact that protecting the religious freedom of one group will inevitably involve acting against the interests of those outside that group. For example, full enjoyment of freedom of origin and freedom of association naturally entails allowing religious groups to employ those who share the same religion, the immediate consequence of which is less favourable treatment of individuals who do not share the group’s religion, or who do not share all aspects of it. This in itself raises a number of difficult questions. If religious groups employ others, does religious freedom require that they be able to refuse to employ those from outside the group? If they can demand that employees live their working lives in accordance with the tenets of their faith, will dismissal for non-compliance breach equality legislation? [15.06] Conflict can also arise between equality and religious freedom, for instance where a religious group does not believe in the equality of women. Equally, equality on the grounds of sexual orientation can conflict with some religious beliefs.

DEFINING RELIGION AND BELIEF [15.07] Neither the Framework Directive nor the Employment Equality Acts 1998–2012 provide any great assistance in defining religion. While the terms ‘religion’ and ‘belief ’ are fundamental to determine the proper scope of the Directive and the Acts, they remain undefined. Defining ‘religion’ [15.08] Given the lack of definition in the Framework Directive and in the Employment Equality Acts, it is likely that we will have to await guidance from the Court of Justice of the CJEU on a suitable definition. Notwithstanding this, the court expressed a desire in Chacón Navas v Eurest Colectividades4 for an ‘autonomous and uniformed interpretation’ of the Directive throughout the Community with respect to other grounds of discrimination. 4.

Chacón Navas v Eurest Colectividades SA (Case C–13/05) [2006] ECR I–6467.

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[15.12]

[15.09] Regardless, a uniform interpretation of religion may prove difficult, primarily because although there exists a large number of recognised religions, one immediately runs into difficulty in defining them. For example, a belief in one God might unite Judaism, Islam and Christianity, but it is clearly an insufficient definition, because religious beliefs such as Hinduism are arguably polytheistic. Equally, Buddhism would be excluded, as it does not include a belief in a God. [15.10] While it has been argued that the lack of definition of religion or belief will permit a modern understanding of the definition of religion or belief to develop and to be captured, thus allowing a broad definition of religion or belief reflecting a common approach in international legal texts,5 this may not be possible. For instance, the Australian High Court has held that no single characteristic is determinative of a religion.6 The German definition of religion and belief can be found in the interpretation of the Guarantee of Freedom of Religion by the Federal German Constitutional Court, where religion is defined as any specific certainty as regards the whole of the world and the origin and purpose of mankind which gives sense to human life and the world and which transcends the world.7 The Netherlands distinguishes in its case law between religion and belief on the basis that for religion a high authority (‘God’) is central. [15.11] The lack of a clear definition – either modern or outdated – gives rise to an inconsistency of treatment across the EU. Scientology, for example, is recognised as a religion in Italy8 and Australia,9 but is not recognised in the UK with respect to the laws on charitable status, nor by the German labour courts.10 Relationship between religion and human rights11 [15.12] Given the inconsistency in approach and the desire of the CJEU to have a uniform interpretation of the Directive across the EU,12 it may well be the case that courts throughout the EU will be guided by the ECHR, which has already deemed 5. 6. 7. 8. 9. 10.

11. 12.

See Bolger, Bruton and Kimber, Employment Equality Law (Round Hall, 2012), para 9–09. Church of the New Faith v Commissioner of Pay-Roll Tax (Victoria) [1982–3] 154 CLR 120. BVerwGE (Decisions of the Federal Administrative Court) 90, 112 (115). European Network of Legal Experts in the Non-Discrimination Field, Country Report: Italy (Human European Consultancy, Migration Policy Group (MPG), 2006). Church of the New Faith v Commissioner of Pay-Roll, Tax (Victoria) [1982–3] 154 CLR 120. Federal Labour Court Bundesarbeitsgericht March 22 1995 Neue Jurisistiche Wochenschrift 1996, p 143, For a greater discussion on this see also Country Report: Germany, European Network of Legal Experts in the non-discrimination field (Human European Consultancy, Migration Policy Group (MPG), 2005) For a broader examination of this subject, see Witte and Green (eds), Religion and Human Rights, An Introduction (Oxford University Press, 2011). Chacón Navas v Eurest Colectividades SA (Case C–13/05) [2006] ECR I–6467.

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[15.13]

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Scientology to be a religion.13 The protection against religious discrimination provided by the Framework Directive forms part of a range of protection in Europe for religious interests, with protection for freedom of religion also provided in the ECHR and in the constitutions of many Member States.14 [15.13] The ECHR provides in Art 9: ‘1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.’

Article 6 of the Treaty on the European Union provides that the EU should respect: ‘Fundamental rights as guaranteed by the ECHR and as they result from the constitutional traditions common to Member States, as general principles of community law.’

Thus, the ECHR is important when determining the definition of religion. [15.14] Equally, the European Charter of Fundamental Rights, at Art 10 replicates Art 9(1) of the ECHR but provides at Art 9(2): ‘The Right to conscientious objection is recognized, in accordance with the national laws governing the exercise of this right’.15 [15.15] The Charter of Fundamental Rights is now attached to the Treaty of the Function of the European Union and as a consequence of the Lisbon Treaty it has the same legal value as all preceding and subsequent treaties. Article 9 of the ECHR, in providing for freedom of religion and conscience, contains two elements: first, there is an absolute protection for freedom of thought, conscience and religion; but this is 13.

14.

15.

X v Church of Scientology [1978] 16 DR 68. The ECtHR and European Commission of Human Rights have also deemed the following to be religions: Druidism (Chappel v UK [1988] 10 EHRR 510; Pendragon v UK [1998] EHRR CD 179); Krishna Consciousness (ISKCON v UK [1994] 76A D&R 90]; and Divine Light Zentrum (Swami Omkaramamda v Switzerland [1981] 25 D&R 105). The Irish Constitution in its preamble states that on the basis that the Constitution is adopted and enacted: ‘In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred, We the people of Éire, Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ …’. Also, Art 44.1 of the Constitution provides ‘The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.’ This is not merely limited to Christianity; see Quinn’s Supermarket Ltd v Attorney General [1972] IR 1. European Charter of Fundamental Rights, Art 9(2).

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[15.18]

limited by the second part of the Article, which qualifies the right to manifest religion and beliefs in ‘worship, teaching, practice and observance’. [15.16] This scope of the protections covered in Art 9 is broadly encompassing, as it considers ‘thought, conscience and religion’. The broadness of this definition has led the European Court of Human Rights (ECtHR) to hold an equally expansive definition of religion. Thus, the court has held that the mainstream religious beliefs are protected convictions.16 That said, it has also held Druidism17 and Divine Light Zentrum18 to be religions. In Kokkinanakis v Greece,19 Art 9 was described as a ‘precious asset for atheists, sceptics and the unconcerned’. In essence, from all the above decisions it appears that for a religion to exist, there must be a clear structure and belief system. Relationship between religion, race and ethnicity [15.17] Another complication in respect of the concept of religion is the blurring of the boundaries between race and religion. Within the Directives, there is a distinction drawn between religion, race and ethnic origin. The scope of the Racial Equality Directive20 is substantially more extensive than that of the Framework Directive.21 Whereas the latter applies to employment and education, the Racial Equality Directive applies to discrimination in employment, social security, healthcare, social advantage, education and access to and supply of goods and services, including housing.22 [15.18] The blurring of the boundaries between the Directives is caused by a number of complex factors, not least that ethnicity is sometimes defined to include religious identity. Religious groups may be predominantly from one particular racial group and vice versa. For example, Sikhs in the UK have been defined as an ethnic group23 even though they are also a religious group. Another reason for the blurring of the lines is that in many Member States those of a particular religious creed are predominantly from one racial or ethnic group. Thus, in Northern Ireland Protestants are generally seen to be supporters of the UK and Catholics 16.

17. 18. 19. 20. 21. 22. 23.

See X v France [1974] 1 DR 41 (Buddhism); D v France [1989] 35 DR 199 (Judaism); Karaduman v Turkey [1993] 74 DR 90 (Islam); X v Church of Scientology [1978] 16 DR 68 (Scientology). ARM Chappell v United Kingdom [1978] ECHR 241. Omkarananda v Switzerland [1981] 25 DLR 105. Kokkinanakis v Greece [1994] 17 EHRR 397. Council Directive 2000/43/EC ([2000] OJ L180/22) implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. Framework Directive 2000/78/EC. Framework Directive 2000/78/EC, Art 3; Racial Equality Directive 2000/43/EC, Art 3. Mandla v Lee [1983] 2 AC 548. It was held that in determining an ethnic group, one of the factors to be considered was whether the group shared a religion.

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[15.19]

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supporters of the Irish Republic, and in the UK the Muslim population is predominantly Asian. [15.19] The blurring of race and ethnicity is not particularly important in the workplace, as the protection under both Directives is similar and by virtue of the fact that the Racial Equality Directive has been given effect by the Equality Act 2004. Defining ‘belief’ [15.20] The argument that the ground of religion is the most complex of all grounds is not assisted by the inclusion of the word ‘belief ’ in the Framework Directive.24 It is noteworthy that the Framework Directive defines discrimination based on religion or belief, whereas the Employment Equality Acts merely prohibit discriminatory treatment on the grounds that one person has a different religious belief from another, or that one has a religious belief and the other has not.25 Therefore the inclusion of the word ‘belief ’ exacerbates the burden of definition. However, given that the term ‘belief ’ as set out in Recital 11 of the Directive comes after the word ‘religion’, it appears that ‘religion’ was intended to place some sort of a perimeter around the meaning of belief. This limitation on the scope of protected beliefs is reflected in ECHR case law, which provides that in order to qualify for protection, beliefs do not need to be religious but must ‘attain a certain level of cogency, seriousness, cohesion and importance.’26 [15.21] Therefore, as the concept of religion is used to reflect the seriousness of a belief, it is clear that beliefs in themselves do not have to be religious in their content. Thus, in the case of Angelini v Sweden27 it was held that atheism is protected. [15.22] In Power v Greater Manchester Police Authority,28 the EAT in the UK upheld a decision that a dismissed employee was not discriminated against on the grounds of his belief in spiritualism and the ability of mediums to contact the dead. Here the EAT held that the tribunal was correct in accepting that the employee’s beliefs (which included a belief in psychic and paranormal powers) were protected by the Employment Equality (Religion or Belief) Regulations 2003.29 [15.23] It will be a matter for both the CJEU and the Labour Court in due course to determine the definition of religious belief in this jurisdiction. However, there seems to be a distinct lack of consensus on how to define the boundaries of what constitutes a 24. 25. 26. 27. 28. 29.

Recital 11. Employment Equality Acts 1998–2011, s 6(2)(e). XYZ v UK [1982] 31 D&R 50, and Campbell v UK [1982] 4 EHRR 293. Angelini v Sweden [1988] 10 EHRR 123 (Eur COM.HR). Power v Greater Manchester Police Authority UKEAT/0087/10. Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660). These Regulations were revoked by the Equality Act 2010.

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[15.26]

protected belief, particularly when one considers that the ECHR has been extended in some cases to beliefs that are arguably single issues, such as pacifism30 and legalism.31

FRAMEWORK DIRECTIVE AND EMPLOYMENT EQUALITY ACTS [15.24] The Framework Directive prohibits direct and indirect discrimination,32 harassment,33 instruction to discriminate34 and victimisation.35 Consistent as to the discussion so far on this topic, several problems are likely to arise in relation to religion and belief discrimination, which may be unique to this ground. Direct discrimination [15.25] Consistent with the Framework Directive, the Employment Equality Acts 1998– 2011 prohibit direct discrimination (including discrimination by association and imputed discrimination),36 indirect discrimination,37 harassment38 and victimisation39 in the context of a person’s religious beliefs. The definition of discrimination on grounds of religion or belief provides that a comparison is permitted between persons of different religious beliefs, or between a person with no religious belief and a person with a religious belief.40 Direct discrimination therefore covers treatment based on the discriminator’s assumption about a person’s religion, even though this assumption may be mistaken. Equally, it can occur based on a person’s association with people of a particular religion. [15.26] In McKeever v Board of Management of Knocktemple National School,41 the complainant, who was a member of the Church of Ireland, had been offered and accepted a job with the respondent school when she was asked whether she had a Catholic religious certificate. The complainant informed the chairperson of the board of management that she did not have such a certificate, but that she was familiar with and willing to teach the ‘Alive-O’ religious programme.42 The complainant was later 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42.

Arrowsmith v UK [1978] 19 D&R 5. H v UK [1993] 16 EHRR CD 44. Framework Directive 2000/78/EC, Art 2(2). Framework Directive 2000/78/EC, Art 2(3). Framework Directive 2000/78/EC, Art 2(4). Framework Directive 2000/78/EC, Art 11 on grounds of religion and belief. Employment Equality Acts 1998–2011, s 6(1). Employment Equality Acts 1998–2011, s 31. Employment Equality Acts 1998–2011, s 14(a). Employment Equality Acts 1998–2011, s 74(2). Employment Equality Acts 1998–2011, s 6(2)(e). McKeever v Board of Management of Knocktemple National School DEC–E2010–189. The Alive-O programme is the core resource for the teaching of religious education in every Catholic primary school in Ireland.

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[15.27]

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informed that the offer of employment had been made in error and that the position had to be advertised. Although the complainant was invited to interview, she did not attend, and she received a letter from the chairperson which stated that the earlier offer of employment had been a procedural error and that only the board of management had the right to appoint a teacher. The respondent maintained this position at the hearing. Significantly, the employer did not seek to rely on the s 3743 exemption. Ultimately, the Equality Officer found that there was no requirement in the procedures in place at the time which mandated that permanent appointments could not be made from previously interviewed candidates and the minutes of the board of management meetings were inconsistent with the arguments of the employer. The Equality Officer found that the claimant’s religion had influenced the school’s decision to withdraw the offer of employment and that the employer had discriminated against the claimant on the grounds of religion. The Equality Officer awarded the maximum level of compensation available for access-to-employment cases at that time (€12,697) and ordered the employer to follow good practice in relation to the recruitment of staff by following established procedures and keeping adequate interview notes. The school was also ordered to record properly all decisions of the board of management in minutes. [15.27] Given that the employer in McKeever had maintained that the offer had been withdrawn due to a clerical error, it is understandable why it did not raise the s 37 defence. It would have been interesting, however, to see the approach the tribunal would have taken had the employer raised it, in particular given that the certificate in religious studies is a compulsory requirement of the Irish Catholic Bishops Conference for teachers working in Catholic-managed primary schools. Having discovered that the complainant’s religion was discussed at a meeting of the board of management and had a bearing on the withdrawal of the job, the determination of the Equality Officer in the matter seems to have been the correct and proper one. Indirect discrimination [15.28] Indirect discrimination occurs where an apparently neutral provision, criterion or practice would put persons of a particular religion or belief at a certain disadvantage compared with other persons, unless it can be justified.44 Thus, it is necessary to ensure that job requirements are appropriate to the job in question and that they prevent the imposition of unnecessary requirements that have a disproportionate burden on those of any particular religion. Indirect discrimination is unlawful unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.45 43. 44. 45.

Employment Equality Act 1998, s 37 provides a general exemption to religious, education and medical institutions to maintain a religious ethos. Framework Directive 2000/78/EC, Art 2(2). Employment Equality Acts 1998–2011, s 31.

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[15.30]

[15.29] A case in which indirect discrimination on the ground of religion was argued was that of McAteer v South Tipperary County Council.46 Here the complainant was employed by the respondent as a civil engineer between December and July 2010. He was a born-again Christian and was dismissed in 2010 following a number of complaints about him ‘preaching to staff and members of the public during working hours’. He received multiple warnings and attended disciplinary meetings in which he was told not to discuss his religion during working hours or on lunch breaks. He was also compelled to seek professional help to control his compulsion to speak to people about his beliefs, and he attended four counselling sessions. The Equality Officer found that as the complainant was an evangelical Christian and as it is one of the fundamental tenets of his religion to share his faith with others, imposing restrictions on him had a greater impact on him as an evangelical Christian than on other people of different religious beliefs or those who had no religion. This led the Equality Officer to find that the complainant had established a prima facie case of indirect discrimination. The respondent sought to objectively justify the indirect discrimination and, inter alia, argued that the policy was to prevent the complainant from bringing the Council into disrepute; but this was also rejected. [15.30] Another interesting case concerning indirect discrimination is the UK EAT case of Sherfi v G4S Security Services.47 The respondent was bound under the terms of one of its client contracts to provide a prescribed number of security guards on site at all times during operational hours. The claimant was Muslim, who frequently left the client’s site on Friday lunchtimes to attend prayers at a mosque. The respondent informed the complainant in 2008 that he would no longer be able to leave the site at lunchtime, as the respondent would be in breach of its contract when the requisite number of guards were not present at the client’s site. The respondent made a number of efforts to accommodate the claimant, offering him an amended work pattern of Monday to Thursday, with the option of working Saturday or Sunday so that he would not suffer financially. However, the claimant did not wish to work weekends and discussions did not result in agreement. Thereafter, the claimant ensured that he was not present at work on Fridays, by either taking sick leave, annual leave or authorised unpaid leave. The respondent expressed discontent at that and, as a result, the complainant brought a claim for indirect discrimination under the Employment Equality (Religion or Belief) Regulations 2003, arguing that Muslims were put at a particular disadvantage by the employer’s requirement for all security guards to remain on site on Friday lunchtimes. The EAT, on appeal, upheld the tribunal’s judgment that there was no indirect discrimination, finding that the tribunal had carried out the necessary balancing exercise between the operational needs of the employer and the disadvantageous effect on the employee. It considered several factors in concluding that the requirement for all security staff to remain on site all day on Fridays was a proportionate means of achieving a legitimate aim (namely to meet the respondent’s operational needs). Section 46. 47.

McAteer v South Tipperary County Council DEC–E2014–045. Sherfi v G4S Security Services [2011] (UK) EAT/0379/10/DM.

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[15.31]

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17 of the Employment Equality (Religion or Belief) Regulations 2003 are very similar to s 22 of the Employment Equality Act 1998 as amended by s 13 of the Equality Act 2004. [15.31] While the question of objective justification seems to be determined in this jurisdiction, it is not clear what type of factors the Labour Court should accept as justifying indirect religious discrimination. In the Sherfi case, operational needs were taken as being acceptable. It is submitted that this may be a difficult matter for the court to balance. For example, could an employer refuse to accommodate an employee merely for financial reasons? To what ends will employers have to go to justify operational needs? Comparators [15.32] Both direct and indirect discrimination require comparisons to be made with others. Section 6(2)(e) of the Employment Equality Acts require a complainant to show in relation to direct discrimination a comparison with a person who has a different religion or a person with no religious belief. Section 31(1) of the Acts requires complainants who allege indirect discrimination to show that the discrimination involves a disadvantage as compared with other employees of a different religion or who hold no religious beliefs. [15.33] By virtue of Art 2(2)(a) of the Framework Directive any comparator can be actual or hypothetical, as a complainant can argue that he or she has been treated less favourably than another would have been or would be treated in a comparable situation. This will allow a prospective employee to compare himself or herself with hypothetical employees of a different religion. Harassment [15.34] The Framework Directive and the Employment Equality Acts deem harassment to be a form of discrimination where there is unwanted conduct related to religion and belief with the purpose or effect of violating the dignity of a person and creating an intimidating, hostile, degrading, humiliating or offensive environment.48 Neither the Act nor the Directive set out how to determine whether or not dignity is violated, nor do they determine how to assess whether the environment is intimidating, hostile, degrading, humiliating or offensive. This can cause particular problems with regard to religious harassment. Not only are the terms ‘religion’ and ‘belief ’ undefined, but whilst sexual harassment and the effects of same are broadly accepted there could be a significant lack of shared understanding on the likely effects of harassment on the religious ground on religious people. 48.

Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, Art 2(3) and the Employment Equality Act 1998, s 14A(7)(b) as inserted by the Equality Act 2004, s 8.

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[15.36]

The UK has tried to address this by utilising an objective test. However, tests in other states, such as Slovakia, refer to treatment which ‘that person can justifiably perceive as harassment’ – that is to say, they use a subjective test. Victimisation [15.35] The issue of victimisation and religion was dealt with in Monaghan County Council v Mackarel,49 which concerned an appeal by the complainant against the respondent under s 83 of the Employment Equality Acts 1998–2011. The claim was based on the grounds of his religious belief, including religious background. The complainant was employed by the respondent as a part-time fire-fighter from October 2001 until he was dismissed on 10 December 2007. The complainant, who was a member of the Presbyterian Church, made a complaint that he had been subjected to harassment on the grounds of religion and victimisation by way of dismissal. On appeal to the Labour Court, he dropped the harassment claim. The Labour Court examined the definition of victimisation under s 74(2) of the Employment Equality Acts and Art 11 of the Directive,50 and noted that both provide that victimisation occurs where: ‘a detriment is imposed on a worker “as a reaction to” a complaint or other protected act. The use of the expression, “as a reaction to” connotes that the making of a complaint, or other protected act, must be an influencing factor in the decision to impose the impugned detriment although it need not be the only or indeed the principal reason for the decision.’

The court further stated that it must be alert to the possibility of ‘subconscious or unrecognised influence by surrounding events operating in the mind of the decision maker’. It referred to the case of Nevins v Portroe Stevedores.51 [15.36] The court in the Mackarel case noted that there was undoubtedly procedural unfairness leading to the complainant’s dismissal, in that while a report by an independent expert was commissioned to enquire into the alleged misconduct of others in relation to the complainant, and the terms of reference were similarly circumscribed, the report went on to deal with a complaint of serious misconduct against the complainant. However, the court held that the report itself did not establish victimisation but noted: ‘the juxtaposition in the report of the conclusions on the complaints made by the complainant, with those made against him, coupled with the peremptory manner in which the respondent acted, makes it impossible for the Court to discount the possibility that but for the complainant’s complaints of harassment he may not have been treated as such.’ 49. 50. 51.

Monaghan County Council v Mackarel ED 1213. Directive 2000/78/EC. Nevins v Portroe Stevedores [2005] 16 ELR 282.

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[15.37]

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The court noted that it seemed probable that ‘but for’ the disclosure of the incident in the report, it would not have come to the attention of the director of human resources, and the court concluded that the respondent failed to prove ‘as a matter of probability, that the complainant’s dismissal was not as a reaction … to his complaints of harassment on grounds of his religious belief or outlook’. The complainant was awarded €17,000.

THE ‘RELIGION’ AND ‘BELIEF’ GROUND [15.37] The legislation prohibits discrimination on the grounds that one person has a religious belief and that another has not, or that the other has a different religious belief. Manifestation or promotion of religious beliefs in the workplace [15.38] In the case of McAteer v South Tipperary County Council,52 the Equality Officer considered whether the right to hold a religious belief, which is covered by the Employment Equality Acts, also protects a right to manifest that religion or belief. Considering this question, the Equality Officer noted that both the Charter of Fundamental Rights of the European Union and the ECHR cover the right to manifest one’s religion or belief. She was therefore satisfied that such a right is covered within the religion ground in the Employment Equality Acts. Having reached that decision, the respondent then sought to objectively justify the indirect discrimination, arguing, inter alia, that the purpose of the policy was to prevent the complainant from bringing the Council into disrepute by the inappropriate promotion of his religion. The Equality Officer rejected this argument: ‘It is difficult to see how the complainant’s activities in manifesting his religion had the potential to bring the Council into disrepute … approaching people the complainant was seen having a conversation with and prying into the content of that conversation with a view to catching out the Complainant was wholly inappropriate and unnecessary.’

[15.39] A somewhat contrary view to the McAteer case was taken in the UK in Power v Greater Manchester Police Authority,53 where the EAT held that the claimant had not been dismissed because he held protected beliefs,54 but rather because he had manifested those beliefs at work in an unacceptable manner. Here the employee was dismissed because he had brought spiritualist DVDs and posters into work. One has to ponder, however: if the beliefs that the claimant held were more akin to a ‘mainstream religion’, would the same result have occurred? 52. 53. 54.

McAteer v South Tipperary County Council DEC–E2014–045. Power v Greater Manchester Police Authority UKEAT/0087/10. The beliefs in this instance were beliefs in spiritualism and the ability of mediums to contact the dead.

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[15.42]

[15.40] Religious belief includes religious background or upbringing. The case of Employee (M) v State Authority55 dealt with a claim of discrimination on the grounds of religion and victimisation. The complainant was a Roman Catholic and employed by the respondent as a chaplain. He was excluded from a compensation scheme, which was available to all other employees, even though he was exposed to the same risks and hazards as the other employees. He claimed that this exclusion was because of his position as chaplain, and was therefore discriminatory on the grounds of religion. He also claimed religious discrimination when he was unsuccessful in obtaining the post of head chaplain. The Equality Officer found that the compensation scheme was available to employees for which the union had recognition rights. The effect was to exclude the chaplain, because of the lack of union recognition and not because he was Roman Catholic. The same exclusion would have applied to all chaplains regardless of their religion. The Labour Court determined that the complainant’s position as a priest was not due to his religious background. He was also unsuccessful in his claim regarding discrimination on the grounds of religion for the post of head chaplain, as the successful candidate was of the same religion, ie Roman Catholic. However, the court did state that ‘religious background’ in the definition is intended to cover situations in which persons suffer discrimination because of their education or upbringing in a particular religion which they may no longer espouse. Religious dress and symbols [15.41] While the Irish case law is relatively sparse on examples of this type of religious discrimination, there are far more examples in the UK that have tested this matter. The one case that came before the EAT here, Tavoraite v Dunnes Stores,56 where the claimant alleged that she was told that she could not come to work wearing a hijab, was ultimately settled. [15.42] In the case of Eweida v British Airways plc,57 a devout practicing Christian was employed as a member of the check-in staff. BA’s uniform policy prohibited customerfacing members of staff from wearing any visible item of adornment, unless it was worn because of a mandatory religious requirement and could not be concealed under the uniform. On a number of occasions, Mrs Eweida visibly wore a silver cross on a chain around her neck. On two occasions, she complied with management’s requests to conceal the necklace. However, on one occasion she refused to conceal the necklace and as a result was sent home without pay. 55. 56.

57.

Employee (M) v State Authority Det No EDA 074, Labour Court 2007. There has been considerable controversy in this jurisdiction regarding the wearing of headscarves in schools. In 2008, the principal of Gorey Secondary School requested the Minister for Education and Science to give guidance following a request from a Muslim student to wear a hijab (a headscarf that covers the hair while leaving the face exposed), but no guidance was provided. Eweida v British Airways plc EAT 0123/08. See also para 15.75.

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[15.43]

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Her claims of religious discrimination were rejected by both the tribunal and, on appeal, by the EAT. The EAT held that the purpose of indirect discrimination is to counter group disadvantage and that Mrs Eweida had not shown that the prohibition on the wearing of jewellery had acted as a barrier to anyone other than herself. In effect, Ms Eweida had not shown that the wearing of the cross was a mandatory requirement of her religion. [15.43] In the case of Singh v Rowntree Mackintosh Ltd,58 the EAT held that requiring the employee, an orthodox Sikh, to shave off his beard in compliance with hygiene regulations at a food company did not constitute discrimination. The issue was ‘whether the company had shown that the rule prohibiting beards at the Edinburgh factory was justifiable irrespective of colour, race, nationality or ethnic or national origins’ and the company in fact did so on the grounds of hygiene. Regard was also had to what was objectively equitable and reasonable. [15.44] In the case of Azmi v Headfield Church of England Junior School,59 a British Muslim teacher was suspended after she insisted on wearing her face veil while teaching. She brought a claim for discrimination based on religious grounds before the employment tribunal. The school submitted that both pupils and teachers had raised concerns that they were finding it difficult to understand what she was saying and believed that face-to-face contact was essential to the performance of her role. Furthermore, the school insisted that her suspension had ‘nothing to do with religion’ and that they were simply trying to ensure that the children got the best possible education. The claim for discrimination was overruled; however, she was awarded compensation in light of her victimisation claim. The EAT held that refusing the claimant permission to wear a veil, which she wore for religious reasons, was a proportionate means of achieving a legitimate aim: •

it was based on the need for facial expression and contact when teaching younger children;

•

it had been decided only after considerable thought, consultation and advice from the relevant education authority and after observing a teaching session during which the teacher wore a veil;

•

the claimant was allowed to wear a veil in any open part of the school.

[15.45] There are many conflicting arguments about the wearing of headscarves even in the Muslim community. In Sahin v Turkey,60 the ECtHR noted that the wearing of a headscarf could put other students under pressure to adopt more fundamentalist approaches to their faith. Thus, banning the headscarf could uphold the freedom of others of the same faith group to enjoy greater personal freedom in the interpretation and expression of their faith. The banning of headscarves is also complicated by gender, 58. 59. 60.

Singh v Rowntree Mackintosh Ltd EAT 771/78. Azmi v Headfield Church of England Junior School [2007] IRLR 484. Sahin v Turkey Application No 44774/98 ECtHR 10 November 05, paras 115 and 116.

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[15.48]

in that such a ban has no effect on Muslim men yet bears a direct effect on Muslim women, and this is further complicated by the argument that the wearing of a headscarf is illustrative of the subjection of women. However, whether it is the role of the courts to interpret a woman’s actions is another matter. [15.46] There is a wide divergence of how the practice of wearing headscarves is treated throughout the EU. In the UK, the wearing of headscarves is widely accepted in the public sector, and uniforms are often adapted to cater for same. However, France imposes a legal obligation of laïcité61 and bans headscarves and other religious symbols in schools.62 [15.47] In van Beroep te Antwerpen,63 a Belgian ban on the wearing of headscarves in a school was challenged as a breach of freedom of religion. The ECtHR in determining whether the ban complied with Art 9(2) ECHR, noted that the ban was precise and accessible and pursued the legitimate aim of preserving order in the teaching institution and of protecting the rights of others, in particular against unwanted proselytism, and that the restriction to the freedom of religion of the applicants was narrowly tailored to achieve that objective, so that it met the requirement of necessity. [15.48] As mentioned, Irish case law is relatively sparse on this topic. However, the matter was given some consideration in the case of Singh Oberoi v Commissioner of An Garda Síochána.64 Here the complainant was a member of the Irish Sikh community and, in accordance with the requirements of his Sikh faith, he did not shave his beard and wore a turban. The complainant’s issue arose in circumstances where he had applied to join the garda reserve and, at the fourth stage of interview, was informed that he was required to wear a full garda uniform, including a garda hat, during training and would not be permitted to wear a turban. As a result, the complainant contended that he was unable, due to his religious beliefs and ethnicity, to continue his training and thereby become a member of the garda reserve. At the equality hearing, the Garda Commissioner raised a preliminary issue in relation to the jurisdiction of the Equality Tribunal to hear and determine the complainant’s complaint, as the Equality Acts do not apply to members of the garda reserve, considering they are not ‘employees’ within the meaning of the Equality Acts. The Equality Officer concluded that the complainant was not an employee for the purpose of the Equality Acts. 61. 62.

63. 64.

Laïcité is the absence of religious involvement in government affairs as well as the absence of government involvement in religious affair. Conseil d’Etat 3 Mai 2000 Mlle Marteaux No 217017, Conseil d’État 15/10/2003 No 244428. The prohibition of headscarves only applies to primary and secondary public schools. It does not apply to private schools, whether or not they are financed by the state, and does not apply to universities and other post-secondary education institutions, whether public or private, or to any centre offering post-secondary training. Van Beroep te Antwerpen AR/2004/2811. Singh Oberoi v Commissioner of An Garda Síochána [2013] IEHC 267.

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[15.49]

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The Equality Officer further determined that the complainant was correct in his submission where he had placed reliance on s 12 of the Equality Acts and that the induction process into the ranks of An Garda Síochána constituted vocational training within the meaning of s 12(2) of the Equality Acts. The preliminary decision therefore resulted in a decision in favour of the complainant and another in favour of the respondent. Both appealed. [15.49] Feeney J in the High Court also found that the complainant was not an employee within the meaning of the Acts. In respect of the second issue to be decided, he concluded: ‘I am satisfied that being a member of the Garda Reserve or training to be a member of that Reserve is not training or experience for or in relation to employment within the meaning of Section 8(1)(c) of the Equality Acts or a course of vocational training within the meaning of section 12 of the Equality Act, 1998. I am therefore satisfied that the Equality Officer did not have jurisdiction to proceed on the basis that a Garda Reserve was in vocational training.’

While this case is currently under appeal, it is interesting that an apparently neutral provision has the effect of excluding persons of a certain race or ethnic background. [15.50] As it stands, therefore, manifesting one’s religious beliefs by either promoting them through conversation or otherwise is covered by the Employment Equality Acts.65 The question of whether or not this extends to the wearing of religious symbols, such as crosses and headscarves, has yet to be determined in this jurisdiction; but case law from the UK and the EU points to the fact that it is deemed to be. [15.51] However, this is not an unqualified right, and complainants are required to demonstrate a sufficient number of persons who share their beliefs in order to cross the hurdle of indirect discrimination. Even if this is crossed, it is still open to the employer to raise the defence of objective justification; however, in so doing, any ban of religious symbols, including headscarves, will need to be objectively justified by a legitimate aim of the business, and the means of achieving that aim will have to be appropriate and necessary.66 This right to indirectly discriminate must also be read in conjunction with Art 9(2) of the ECHR.67 65. 66.

67.

McAteer v South Tipperary County Council DEC–E2014–045. Azmi v Headfield Church of England Junior School [2007] IRLR 484. This means that a real need for any ban will have to be justified. This may not be that difficult in light of the competing interests that may be at stake, such as the need to keep a workplace free from religion, the equality concerns of other employees and customers, etc. ECHR, Art 9(2) provides: ‘the freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.’

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[15.55]

Conscientious objectors [15.52] This issue arises where an employee objects to undertaking certain duties on the basis that to do so would be an affront to his/her conscience. Unfortunately there are no Irish cases that deal with this issue. [15.53] The first UK case to be considered in this regard was McClintock v Department of Constitutional Affairs.68 Mr McClintock was a magistrate who had served for 15 years on the family panel. He resigned from his post because he refused to hear cases that might raise the issue of placing children in foster care with same-sex couples At first, Mr McClintock raised objections to sitting on such cases, saying that there was evidence to show that children placed with same-sex couples would be disadvantaged when compared with children placed with a heterosexual family. He then admitted that it was due to his religious convictions that he could not sit on such cases. The tribunal dismissed his case, because Mr McClintock’s objection was primarily based on the assumption that children were being used as guinea pigs in some sort of social experiment rather than on his religious beliefs. The tribunal held that even if there was evidence that he was discriminated against, the actions of the employer in insisting that he deal with such cases was objectively justified, as to allow the complainant to opt out of his duties in this regard would have been an abdication of the responsibilities of those whose task it is to uphold the administration of justice. While Mr McClintock sought to rely on Art 9 of the ECHR, the tribunal held: ‘Where a party voluntarily places himself or herself in a position where conflict might arise between his or her religious or philosophical beliefs and the duty imposed by an employment or office, then it is not in general an infringement of article 9(1) to insist that the duties are complied with.’

[15.54] Another case to be considered in this regard is Ladele v London Borough of Islington.69 Here Ms Ladele claimed Islington Council had discriminated against her on religious grounds. A change in the local authority’s rules governing their registrars’ working conditions had meant that Ms Ladele went from effectively working on a freelance basis, which allowed her to swap civil-partnership ceremonies with colleagues, to a system that granted her far less flexibility. Ms Ladele argued she was being forced by the council to choose between her religious beliefs and her job. She claimed she was shunned and accused of being homophobic for refusing to carry out the ceremonies. In July 2008, an Employment Tribunal ruled in Ms Ladele’s favour, agreeing that she had been harassed. However, in December that year the EAT reversed the ruling, and so did the Court of Appeal in 2009. The Supreme Court in the UK refused to allow Ms Ladele to appeal again, prompting her decision to take her case to the ECtHR. [15.55] The case was joined with that of other applicants with similar claims. In Eweida v United Kingdom,70 the ECtHR dismissed her appeal again in January 2013. In her 68. 69. 70.

McClintock v Department of Constitutional Affairs [2008] IRLR 29. Ladele v London Borough of Islington [2009] EWCA Civ 1357. Eweida v United Kingdom [2013] ECHR 37.

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[15.56]

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complaint to the ECtHR, Ms Ladele relied on Art 14 taken in conjunction with Art 9 to claim that she had been discriminated against on the grounds of religion, that her employer could have accommodated her religious beliefs, and that using dismissal as a means to meet the legitimate aim of non-discrimination was disproportionate. In reaching its decision, the ECtHR applied its four established ‘tests’ in respect of Art 14 complaints: 1.

In considering whether Art 14 was applicable, the ECtHR decided that the applicant’s objection to participating in same-sex civil partnership registrations was directly motivated by her religious beliefs and, because this fell within the ambit of Art 9, Art 14 was applicable.

2.

The court considered whether Ms Ladele was in an analogous situation with another group of persons receiving more favourable treatment, and concluded that a relevant comparator was registrars with no religious objection to samesex partnerships.

3.

The ECtHR examined whether the applicant’s treatment pursued a legitimate aim, and concluded that the aim of ensuring equality based on sexual orientation was legitimate.

4.

The ECtHR then approached the crucial question of proportionality: ‘The Court takes into account that the consequences for the applicant were serious: given the strength of her religious conviction, she considered that she had no choice but to face disciplinary action rather than be designated a civil partnership registrar and, ultimately, she lost her job. Furthermore, it cannot be said that, when she entered into her contract of employment, the applicant specifically waived her right to manifest her religious belief by objecting to participating in the creation of civil partnerships, since this requirement was introduced by her employer at a later date. On the other hand, however, the local authority’s policy aimed to secure the rights of others which are also protected under the Convention.’

[15.56] Having set out the issues, the ECtHR then provided no analysis of proportionality; instead, relying on the doctrine of ‘margin of appreciation,’71 it stated: ‘The Court generally allows the national authorities a wide margin of appreciation when it comes to striking a balance between competing Convention rights … In all the circumstances, the Court does not consider that the national authorities, that is the local authority employer which brought the disciplinary 71.

The margin of appreciation is a concept that the ECtHR has developed when considering whether a Member State has breached the ECHR. This allows the court to take into account that the Convention will be interpreted differently in separate Member States. The doctrine was used first in the case of Handyside v United Kingdom [1976] ECHR 5, which concerned the publication of a book aimed at school children, part of which discussed sexual behaviour in explicit terms.

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[15.58]

proceedings and also the domestic courts which rejected the applicant’s discrimination claim, exceeded the margin of appreciation available to them.’72

Consequently, the ECtHR held, by five votes to two, that Ms Ladele had suffered no violation of her rights under Art 14, taken in conjunction with Art 9. [15.57] A similar issue arose in the case of McFarlane v Relate Avon.73 Here, the claimant was employed by Relate (a sex therapy and counselling service) as a counsellor from 2003 until 2008. During his time at Relate, Mr McFarlane had expressed concerns that his Christian view of homosexuality as inherently sinful was at odds with his duty to provide counselling services to same-sex couples. After a protracted series of formal communications, Mr McFarlane was dismissed by Relate for gross misconduct on the basis that he would not comply with the organisation’s non-discrimination policy. [15.58] In his application to the ECtHR, again heard under Eweida v United Kingdom,74 Mr McFarlane complained under Art 9 of the ECHR taken alone and in conjunction with Art 14. He claimed that his adherence to Judeo-Christian sexual morality should be protected by Art 9, that his employers could have used less restrictive means to achieve their aim of non-discrimination by referring homosexual clients to other counsellors, and that his dismissal from employment and damage to professional reputation was therefore disproportionate. The ECtHR stated that it accepted that Mr McFarlane’s objection to providing services to same-sex couples was directly motivated by his Christian beliefs and that a contracting state has a positive obligation under Art 9 to secure those beliefs. The question, therefore, was whether a fair balance had been struck between the applicant’s and the organisation’s competing interests. In approaching the issue of proportionality, the ECtHR stated: ‘… the most important factor to be taken into account is that the employer’s action was intended to secure the implementation of its policy of providing a service without discrimination. The State authorities therefore benefitted from a wide margin of appreciation in deciding where to strike the balance between Mr 72.

73. 74.

This decision has been widely criticised. See Hill, ‘Lillian Ladele is the real loser in Christina discrimination rulings’ theguardian.com, 17 January 2013, where he quotes the two dissenting judges, who said in their minority opinion: ‘It is ... pertinent to observe that when [Ladele] joined … and when she became a registrar of births, deaths and marriages in 2002, her job did not include officiating at same-sex partnership ceremonies. There is nothing to suggest … that it was to expected … that marriage registrars would have to officiate at these ceremonies in the future. If anything, both the law [the Civil Partnership Act 2004] and the practice of other local authorities allowed for the possibility of compromises which would not force registrars to act against their consciences. In [Ladele’s] case, however a combination of backstabbing by her colleagues and blinkered political correctness of the borough of Islington (which clearly favoured “gay rights” over fundamental human rights) eventually led to her dismissal.’ McFarlane v Relate Avon [2009] UKEAT 010 609 3011. Eweida v United Kingdom [2013] ECHR 37.

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[15.59]

Equality Law in the Workplace McFarlane’s right to manifest his religious belief and the employer’s interest in securing the rights of others.’

Because of this, the ECtHR held unanimously that the State had not exceeded its margin of appreciation and Mr McFarlane’s complaint did not give rise to a violation of Art 9, taken alone or in conjunction with Art 14. [15.59] In all the circumstances, it appears that it will be difficult for conscientious objectors to sustain cases of discrimination based on religious grounds, particularly where the objection gives rise to discrimination on one of the other grounds, such as sexual orientation as in the case of McFarlane or Ladele.

EXEMPTIONS Ethos of an institution [15.60] Section 37 of the Employment Equality Act 1998 provides a general exemption to religious, educational or medical institutions to lawfully discriminate in order to maintain the ethos of the institution. This section before its amendment by s 25 of the Equality Act 2004 proved very controversial during its passage through the Oireachtas. In particular, Senator O’Toole75 trenchantly criticised it and it was opposed by all three teachers’ unions. [15.61] It is widely accepted that this section was one of the main reasons that President Robinson referred the Bill to the Supreme Court under Art 26.76 The Supreme Court ultimately described the section as being a reasonable balance between the right of free profession and practice of religion on the one hand and the right to equality before the law and the right to earn one’s livelihood on the other. In considering the words ‘reasonable’ and ‘reasonably necessary’ in s 1(a) and (b) respectively, the Supreme Court held that the test was an objective one and that the matter was to be resolved on a case-by-case basis. [15.62] Section 37(1) of the Employment Equality Acts provides that: ‘A religious, educational or medical institution which is under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values shall not be taken to discriminate if:

75. 76.

(a)

it gives more favourable treatment, on the religion ground to an employee or prospective employee over that person where it is reasonable to do so in order to maintain the religious ethos of the institution, or

(b)

it takes action which is reasonable necessary to prevent an employee or prospective employee from undermining the religious ethos of the institution.’

See 150 Seanad Debates Cols 610–613 and 154 and Seanad Debates Cols 631 and 838–842. Re Article 26 of the Constitution and the Employment Equality Bill, 1996 [1997] 2 IR 321.

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[15.66]

[15.63] There are two important factors to consider regarding the section: •

it does not apply to all institutions: it must be a religious, educational or medical institution;

•

it applies only to those who come under the direction and control of a body established for such purposes or whose objectives include the provision of services in an environment which promotes certain religious values.

It may well be the case, therefore, that an institution that was previously run by a religious order but which has now passed into lay hands does not fall within the ambit of the section unless it has as an objective the provision of services in an environment which promotes certain religious values. Section 37(1)(a) [15.64] On a plain reading, the section allows two exemptions. The first exemption permits as lawful a situation where one person is given more favourable treatment by a religious, educational or medical institution such that the institution can positively discriminate in favour of an employee or applicant in order to maintain the ethos of the institution. This allows institutions to treat less favourably those persons who do not share the same religion or religious beliefs. It may well be the case, therefore, that even if employees or prospective employees shared the same religion but did not practise it, or did so to a standard not accepted by the institution, they could find themselves treated less favourably. That said, as the test is an objective test,77 the employer would have to be able to justify this. [15.65] It is particularly important when considering this ‘first’ exemption to also consider Art 4(2) of the Framework Directive. The first paragraph of Art 4(2) is slightly different to s 37(1), in that it does not cover all forms of religious organisation, but only those: ‘where by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement.’

This necessitates an examination of the post to demonstrate that a particular religious belief is relevant for the particular post. [15.66] Section 37(1) is much broader than the Framework Directive and allows more favourable treatment where it is ‘reasonable to do so to maintain the religious ethos of the institution’. It may therefore be difficult, for example, for a school with a religious ethos to justify not hiring a member of the ground staff who did not share the ethos of the school, if the Directive is applied; but using the test under the Act, the school only has to prove that it was reasonable for it to do so. 77.

Directive 2000/78/EC, Art 2(2).

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Section 37(1)(b) [15.67] The second exemption set out in s 37(1)(b) allows action to be taken by a religious, educational or medical institution against an employee in order to prevent that employee from undermining the religious ethos of the institution. Again, an objective test is applied. This means in practice that the reasons for the employee’s behaviour are to be discounted and the test is only whether the behaviour can reasonably be seen to be capable of undermining the religious ethos of the institution. [15.68] Again, when reading s 37(1)(b) it is important to have regard to Art 4 of the Framework Directive. Art 4 allows more favourable treatment only on the basis that the treatment does not ‘justify discrimination on another ground’. It is rather unfortunate that s 37 does not contain a similar provision. This issue arose in the case of Flynn v Power,78 where an unmarried teacher working in a convent school was dismissed after becoming pregnant by her married partner. It was held to be reasonable to dismiss a teacher who was openly having a relationship with a married person in order to prevent the undermining of the religious ethos of the school. Applying the Directive, such an action would clearly be discriminatory on the gender and familystatus grounds, whereas s 37 could operate to allow such discrimination. Definition of ‘ethos’ [15.69] The definition of ‘ethos’ is critical to the exemptions granted under s 37. Similar to the section as a whole, this was also heavily criticised during the debates on the Bill by Senator O’Toole, who questioned the meaning of ‘ethos’ and how an employee was to be satisfied that he or she was conforming to the ethos of their employer.79 Senator Ryan provided an example of the difficulty with the concept: ‘Who undermines the ethos of an institution? Is it the eminent secondary school teacher who owns 15 slum dwellings in a small town and rips off the poor, or is it the person living with someone who is not their spouse?’ 80

[15.70] As yet, the concept has not been tested under the Acts. The Supreme Court in Re Article 26 and the Employment Equality Bill81 indicated that what is part of an ethos will have to be decided both by having regard to a religious institution’s own perception of its ethos as well as by an objective consideration thereof by the courts. This sets out a twopart test: the institution should give evidence of what its own religious ethos actually is; and its having done so, this should be given some objective scrutiny by the court. 78. 79. 80. 81.

Flynn v Power [1985] IR 648. (It should be noted that the Employment Equality Act 1998 was enacted over ten years after this case) 154 Seanad Debates Col 841. See Dáil Reports, 20 February 1997, 5 June 1997, 11 June 1998. Re Article 26 and the Employment Equality Bill, 1996 [1997] 2 IR 321.

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[15.74]

Reasonable accommodation [15.71] While the United States and Canada recognise a right to reasonable accommodation beyond disability, there is no such requirement for an application to make an accommodation for religion in Irish equality law or in European law. In Coleman v Attridge Law,82 the ECJ expressly found that reasonable accommodation applies only to disabled individuals, thereby preventing development into other protected grounds. [15.72] Equally, Art 5 of the Framework Directive83 states: ‘In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided ...’

Thus, the decision in Coleman is entirely consistent with Art 5 of the Directive. [15.73] Notwithstanding the decision in Coleman and the provisions of Art 5, there seems to be some scope to argue for reasonable accommodation on grounds of religion in Ireland given the interpretation of the Supreme Court in McGee v Attorney General.84 Here, the court stated that the meaning of Art 44.2.1° of the Constitution means that: ‘… no person shall directly or indirectly be coerced to be compelled to act contrary to his conscience insofar as the practice of religion is concerned and, subject to public order and morality, is free to profess and practice the religion of his choice in accordance with his conscience. Correlatively, he is free to have no religious beliefs or to abstain from the profession or practice of any religion.’

[15.74] Thus, there appears to be some scope for the consideration of reasonable accommodation on the religious grounds. This has also been tested in the EAT decision (which was appealed to the Circuit Court) in Merriman v St James’s Hospital.85 This was a case where the employee was dismissed on the basis of her religious beliefs contrary to the Unfair Dismissals Act when she refused to carry religious objects to the bedside of a dying patient for the purpose of a religious ceremony. Following her appeal to the Circuit Court, she was reinstated on an undertaking from the employee to carry out her duties in accordance with her contract of employment, including assisting patients in relation to religious rights, with the proviso that she did not have to take part in religious ceremonies and that her ‘particular scruple’ regarding crucifixes and candles should be respected by her employer. This case appears to extend – for the purpose of unfair dismissal cases, at least – the concept of reasonable accommodation where an employee may take particular offence to particular religious practice and where it is practical to do so. 82. 83. 84. 85.

Coleman v Attridge Law (Case C–303/06) [2008] ECR I–5603. Directive 2000/78/EC. McGee v Attorney General [1974] IR 284. Merriman v St James’s Hospital UD 365/1986.

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[15.75]

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[15.75] The case of Eweida v United Kingdom86 originated in four applications against the United Kingdom lodged with the ECtHR under Art 34 ECHR. The applicants complained that domestic law had failed adequately to protect their right to manifest their religion. Ms Eweida and the second applicant, Ms Chaplin, complained specifically about restrictions imposed by their employers on the wearing of a cross visibly around their necks. Ms Eweida was a practising Coptic Christian. From 1989 onwards she worked as a member of the check-in staff at British Airways, and as such she was required to wear a uniform in public. The uniform for women included a high-necked blouse. In 2004 British Airways introduced a new uniform, which included an open-necked blouse for women to be worn with a cravat that could be tucked in or tied loosely at the neck. A wearer guide was produced, which set out detailed rules about every aspect of the uniform, including the following ‘[a]ny accessory or clothing item that the employee is required to have for mandatory religious reasons should at all times be covered up by the uniform’. Until May 2006, Ms Eweida wore a cross at work, concealed under her clothing. However, from that date onwards, she chose to wear the cross openly as a sign of her commitment to her faith. It was subsequently decided on 19 January 2007 to adopt a new policy, which allowed the display of religious symbols. However, in the interim period she was sent home without pay and British Airways refused to compensate her. Ultimately, the ECtHR held that while the UK court had correctly considered Ms Eweida’s right to manifest her religious belief and had also considered the company’s interest in preserving its corporate image as factors to weigh in the balance, the national court had failed to strike the right balance, as it had accorded too much weight to the company’s image. Ms Eweida’s discreet cross would not have detracted much from her corporate appearance and there was no evidence proving that allowing the wearing of a religious dress on previous occasions had detracted from BA’s brand or corporate image. In the circumstances, the court determined that the state had failed to adequately protect Ms Eweida’s Art 9 right. [15.76] It is notable that in the absence of an onus on employers to afford reasonable accommodation in religious matters, employees such as Ms Eweida are left to rely on the protection afforded by indirect discrimination, which, of course, is subject to the objective justification defence on which employers can rely. General occupational requirement [15.77] Section 37(2) of the Employment Equality Acts 1998–2011 provides a general exemption across all the backgrounds, including religion, where there is a genuine and determining occupational requirement and the objective is legitimate and the requirement proportionate. This section applies to all employers, with no necessity for the employer to have any connection with a religion. 86.

Eweida v United Kingdom [2013] ECHR 37.

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[15.82]

[15.78] An examination of the legislative history of the ‘genuine occupational requirement’ concept shows that there is an increasing emphasis on its being an extremely rare and unusual phenomenon, only to be relied on infrequently. Article 4(2) of the Framework Directive provides the conditions for the application of the exception on occupational grounds as applying to ‘churches and other public or private organisations, the ethos of which is based on religion or belief ’. [15.79] In its proposal for the Directive, the Commission opined: ‘It is evident that in organisations which promote certain religious values, certain jobs or occupations need to be performed by employees who share the relevant religious opinion. Article 4(2) allows these organisations to require occupational qualifications which are necessary for the fulfilment of the duties attached to the relevant post.’87

This suggests that the kinds of organisations covered by the exception should be construed fairly narrowly, in that the promotion of the religious value should be in some sense a purpose of such an organisation. [15.80] In Glasgow City Council v McNabb,88 the EAT in the UK considered the issue of genuine occupational requirement on the grounds of religion. This case concerned an atheist teacher who was rejected for the post of principal teacher of pastoral care in a Roman Catholic school. Because the school was publicly funded, his actual employer was Glasgow City Council, which the EAT held could not be regarded as an employer with a religious ethos. The EAT observed that the exemptions in respect of genuine occupational requirements were to be interpreted in a limited way and held that there was no error in the approach that had been taken by the industrial tribunal in the first instance, namely that he had suffered direct discrimination when he was refused an interview for the post of principal of pastoral care and that the tribunal was entitled to conclude that the post was not on the list of posts for which the Roman Catholic Church required a teacher to be Catholic (as set out in a 1991 agreement between the Council and the Church) and therefore the Council should not have assumed that the Church would not have approved the appointment. [15.81] In the case of R (Amicus) v Secretary of State for Trade and Industry,89 Richards J considered that the exception would apply only to a very small number of posts, such as ministers of religion and the equivalent. The judge remarked that it would not apply to posts such as teachers in faith schools or a nurse in a care home run by a religious foundation, and that these would not be organisations with a religious ethos. [15.82] Notwithstanding the above, the proviso in Art 4(2) permits organisations with a religious ethos to ‘require individuals working for them to act in good faith and with 87. 88. 89.

COM (99) 565 p 10. Glasgow City Council v McNabb [2007] IRLR 476. R (Amicus) v Secretary of State for Trade and Industry [2004] IRLR 430.

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[15.83]

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loyalty to the organisation’s ethos’. This permits wide-ranging powers for religious ethos organisations. [15.83] In the case of Rommelfanger v Germany,90 the European Commission on Human Rights rejected a claim by a doctor who had been dismissed from his post in a Roman Catholic hospital for publicly criticising the Church’s teaching on abortion. While this claim was mainly under Art 10 ECHR (freedom of speech) rather than Art 9 (freedom of thought, conscience and religion), it failed because he had accepted the duty to be loyal to the ethos of the organisation when he had entered his contract of employment. [15.84] In all the circumstances, therefore, it is clear that the exemption of genuine occupational requirement permitted both under the Framework Directive and the Acts is intended to be limited in scope and will be interpreted strictly.

90.

Rommelfanger v Germany [1989] 62 DR 151.

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Chapter 16 AGE EU LAW [16.01] Discrimination on the grounds of age is prohibited in EU law by Art 13 of the Treaty on the functioning of the European Union (TFEU) and by the Framework Directive,1 which requires Member States of the EU to ban direct discrimination, indirect discrimination and harassment in employment on the grounds of age. The central principle of the prohibition of discrimination is set out in Art 2 of the Framework Directive, which provides that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Art 1 (which includes age). [16.02] In addition to prohibiting age-based discriminatory treatment, the Framework Directive upholds the universal right supported by the United Nations, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the International Labour Organization that prohibits inequality of treatment.2 The rights of the elderly and the aged are also protected and recognised by other aspects of EU law and policy: •

the Community Charter of the Fundamental Social Rights of Workers recognises the importance of combating every form of discrimination, including the need to take appropriate action for the social and economic inclusion of elderly people.3

•

the Employment Guidelines for 2000 agreed by the European Council at Helsinki in 1999 recognise and stress the need to foster a labour market favourable to social integration by formulating a coherent set of policies aimed at combating discrimination against certain categories of people, with the need to pay particular attention to supporting older workers in order to increase their participation in the labour force.4

[16.03] The Framework Directive is all-encompassing in that it applies to employment, self-employment and occupation, from selection criteria in recruitment through to promotion, the employment relationship itself, including working conditions and pay, dismissals and the basis for termination, access and participation in vocational guidance, training and work experience, membership and involvement in a staff or employer’s 1. 2. 3. 4.

Council Directive 2000/78/EC ([2000] OJ L303/16) establishing a general framework for equal treatment in employment and education. Council Directive 2000/78/EC, Recitals 4 and 6. See the Community Charter of the Fundamental Social Rights of Workers, paras 24 and 25. Council Directive 2000/78/EC, Recital 8.

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[16.04]

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association or organisation or a professional or trade association, including the benefits provided by any such organisation.5 [16.04] Notwithstanding the significant protection afforded by the Directive against age-based discriminatory treatment, the Directive treats age-based discrimination radically differently to other types of discrimination, in that it is the only ground within any of the Employment Equality Directives where direct discrimination can be justified: •

each Member State has an opportunity to justify direct discrimination on the age ground if the State is pursuing a legitimate aim in its social or employment policy and if the means of achieving that aim are appropriate and necessary.6

•

the Directive provides that the ban on age discrimination is without prejudice to Member States’ fixing retirement ages.7

IRISH LEGISLATION [16.05] Prior to the passing of the Framework Directive, Ireland had passed the Employment Equality Act 1998, which prohibited discrimination on the age ground.8 The Act, akin to the Directive, is all encompassing, prohibiting discriminatory treatment against prospective employees, employees and agency workers in relation to access to employment, conditions of employment, training, promotion and classification of posts.9 It applies therefore to the whole gamut of the employment process, from selection through to termination. Comparators [16.06] Similar to the other various protected grounds, the prohibition on age-based discriminatory treatment is based on prohibiting the treatment of a person less favourably than another is, has or would be treated. Article 2(2)(a) of the Directive provides: ‘Direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1.’

Therefore, as with the other grounds of discrimination, age-based discrimination is defined in terms of less favourable treatment than a comparator. The wording ‘is, has been or would be treated’ allows the comparator to be an actual person or a hypothetical comparator. 5. 6. 7. 8. 9.

Council Directive 2000/78/EC, Art 3. Council Directive 2000/78/EC, Art 6(1). Council Directive 2000/78/EC, Recital 14. Employment Equality Act 1998, s 6(2)(f). Employment Equality Act 1998, s 8(1)(a)–(e).

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[16.11]

[16.07] Equally, s 6(1) of the Employment Equality Act 199810 has similar wording: ‘For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where— (a)

a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which— (i)

exists,

(ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned.’

In keeping with the Directive, the fact that the discrimination may exist in the future allows the use of a hypothetical comparator. Minimum age difference [16.08] To successfully ground a claim for age-based discriminatory treatment, a complainant must point to a comparator (actual or hypothetical). This proves to be not without its difficulties, particularly when one comes to consider difference in ages. The definition of who is (or who is not) an older worker remains elusive. [16.09] The Age Discrimination in Employment Act 1967 in the US protects those who are 40 years or over from discrimination based on age. Arguably, this is now well out of date. Advances in medical science over the last 50 years mean that many older people are much healthier and fitter than before. This, coupled with the decrease in the number of physically challenging jobs, means that the public perception of what is old has changed and will continue to do so. [16.10] The question arises therefore: how much should the difference in age be in order to successfully ground a claim? This is complicated by other factors, such as health, which in itself could give rise to other issues such as disability claims. Similar to the issues which arise in other discrimination claims, there is arguably a need for some sort of de minimis standard.11 [16.11] This issue of age difference and what constitutes a valid gap has been examined in a number of cases. In Perry v Garda Commissioner,12 the case concerned whether the voluntary retirement scheme benefited those under 60 and therefore discriminated on the basis of age. The complainant was 64 and her comparator was 59. The respondent 10. 11. 12.

As inserted by Equal Status Act 2004, s 4(a). See para 17.28 De Minimus Rule on disability. See also Government Department v Worker EDA 094. Perry v Garda Commissioner DEC–E2001–029.

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contended that the differences were designed to compensate the comparator for missing more years’ paid employment. With the use of a hypothetical comparator, one being 60 and a day, and the other being 59 years and 364 days old (implying a difference of two days), the difference financially was that the person who was two days’ younger would gain almost IR£6,000 more. Therefore, in this instance a difference in age of two days was sufficient difference for a comparator, and discrimination on the grounds of age was found. [16.12] In Johnson v Louth VEC,13 an argument was made in favour of age brackets. Here, the respondent argued that the complainant could not put forward a cogent argument for discriminatory treatment where the complainant was in the same age bracket as the successful candidate (who was promoted). This argument was rejected by both the Equality Tribunal and the Labour Court. On appeal, the Court described it as ‘an entirely arbitrary construct, adopted usually for convenience’. [16.13] The matter was again examined in Freeman v Superquinn,14 where the Labour Court rejected the argument that a difference in age of three years (the complainant was 31 and the successful candidate was 28) was sufficient to establish a presumption of discrimination in the absence of any other facts indicating less favourable treatment on grounds of age. [16.14] Lastly, in the case of Reynolds v Limerick City Council,15 the Labour Court accepted that an age difference of eight years was sufficient to ground a claim and that it was ‘significant’ in the context of promotion in the fire service. [16.15] From all of the above, we can determine only that all cases have to be examined on their own merits and that this will continue to be the modus operandi.

DIRECT DISCRIMINATION [16.16] As stated above, the Directive treats age-based discrimination radically differently to other types of discrimination, in that it is the only ground within any of the Employment Equality Directives where direct discrimination can be justified. Article 6 deals with this and provides: ‘1. Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and 13. 14. 15.

Johnson v Louth VEC DEC–E2006–52. Freeman v Superquinn DEE0211 November 2002. Reynolds v Limerick City Council DEC–E2006–052.

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[16.17]

vocational training objectives, and if the means of achieving that aim are appropriate and necessary. Such differences of treatment may include, among others: (a)

The setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;

(b)

The fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment.

(c)

The fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.

2. Notwithstanding Article 2(2), Member States may provide that the fixing for occupational social security schemes of ages for admission or entitlement to retirement or invalidity benefits, including the fixing under those schemes of different ages for employees or groups or categories of employees, and the use, in the context of such schemes, of age criteria in actuarial calculations, does not constitute discrimination on the grounds of age, provided this does not result in discrimination on the grounds of sex.’

Although age-based direct discriminatory treatment can be objectively justified, this must be with reference to a legitimate aim of the business, and the means of achieving that aim must be appropriate and necessary.16

INDIRECT DISCRIMINATION [16.17] Indirect discrimination is defined in Art 2(2)(b) of the Directive: ‘Indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless: (i)

That provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.’

Given the fact that, unlike other forms of discrimination, age-based discriminatory treatment can be objectively justified for both direct and indirect discrimination, questions arose early on as to whether the test was the same for both. 16.

Council Directive 2000/78/EC, Art 6(1).

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[16.18]

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[16.18] Similar to the Framework Directive,17 the Employment Equality Acts 1998– 2012, s 31 prohibits indirect discrimination as follows: 22(1)(a): ‘where an apparently neutral provision puts persons of a particular gender ... at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.’18

Thus indirect discrimination occurs when a seemingly neutral provision, criterion or practice puts persons of a certain age at a particular disadvantage compared with persons of a different age, unless that provision, criterion or practice is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary.19

OBJECTIVE JUSTIFICATION [16.19] The question of objective justification for direct and indirect discrimination on grounds of age was considered by the ECJ in the Heyday case.20 This case arose out of a challenge by the British charity Age Concern against statutory regulations adopted in the UK providing for a fall-back compulsory retirement age, to the effect that if an employer did not set a retirement age, then there was to be a fall-back age of 65 implied into the contract. In this regard, three technical issues were referred to the ECJ for consideration: 1.

whether the Framework Directive applied to the fall-back retirement age;

2.

whether the objective justification defence for direct discrimination in the UK regulations was permitted by the Directive; and

3.

whether there was any practical difference between the general objective justification tests in Art 2(2)(b)(i) of the Directive and that applicable to the age-based discrimination exceptions in Art 6.

[16.20] In dealing with the third question in Heyday, the Advocate General held that that the tests were the same. However, the ECJ drew a distinction, and noted that Art 6 was addressed to Member States. The court’s findings included the following: •

17. 18. 19. 20.

if a provision, a criterion or a practice does not constitute discrimination within the meaning of the Directive, by reason of an objective justification within the meaning of Art 2(2)(b) thereof, it is as a consequence not necessary to have recourse to Art 6(1) of the Directive; Council Directive 2000/78/EC. This section by virtue of s 31 applies not only to gender but to all other grounds of discrimination. See also para 4.30. R, on the application of the Incorporated Trustees of the National Council on Aging (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform (Case C–388/07) [2009] ECR I–1569.

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Age •

[16.24]

Art 6 gives Member States the option of providing for different treatment on the grounds of age if they are objectively justified by a legitimate aim. However, it imposes on Member States the burden of establishing to a high standard of proof the legitimacy of the aim relied on as a justification.

[16.21] All told, therefore, while Art 6 gives a broad discretion to Member States, it imposes a high standard of proof upon them. If the test is met under Art 2(2)(i), there is no need to consider it under Art 6.

SCOPE OF THE PROHIBITION ON AGE DISCRIMINATION [16.22] The Employment Equality Acts are broad and cover access to employment, conditions of employment, training or experience for or in relation to employment, promotion or re-grading and classification of posts.21 As such, the protection covers the whole employment relationship, including, but not limited to, those issues addressed in the following paragraphs. Promotion [16.23] The interesting case of O’Mahony v Revenue Commissioners22 involved various complainants who worked as civil servants on Custom and Excise in the Office of the Revenue Commissioners, all of whom were over 50 years of age. They applied for appointment to certain enforcement duties carrying an allowance, but were unsuccessful. The complainants argued that the success rate of candidates over 50 years of age was significantly lower than that of younger candidates, and contended that they were discriminated against on the basis of their age. It was found by the Equality Officer that the candidates who were over 50 had been treated less favourably than younger candidates, based on statistical analysis and inconsistencies in marking. For example, one candidate was asked a discriminatory question as to why he would be interested in seeking a promotion at this stage of his career. The Equality Officer made various orders in this case in relation to each of the complainants, some requiring the Revenue Commissioners either to re-interview the complainants for the position or to appoint various complainants to the enforcement duties in accordance with the terms of the disputed competition. [16.24] In O’Neill v Board of Management St Gabriel’s National School,23 the complainant claimed that she was discriminated against with regard to promotion to the position of deputy principal on the grounds of her marital status, family status and age in the conduct of the competition. Her complaints were with regard to questions asked of her at interview and to the decision to appoint another candidate to the post. The Equality Officer held that the complainant had failed to adduce prima facie evidence that the reason she was not successful in the competition was connected with 21. 22. 23.

Employment Equality Act 1998, s 8. O’Mahony v Revenue Commissioners EE2002–018. O’Neill v Board of Management St Gabriel’s National School DEC–E2005–07.

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[16.25]

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her age, marital status or family status, as she alleged. However, the Equality Officer did find that the complainant was discriminated against on the grounds of age when she was asked the following during the interview ‘[c]onsidering that you have been teaching for 27 years, why would you now be bothered with the hassle of the job of deputy principal?’. She was awarded €5,000 in compensation for the distress suffered. [16.25] The case of Meehan v Leitrim County Council24 also addresses the issue of discrimination on the grounds of age in a promotion process. Here the complainant was a retained fire-fighter. In May 2003, he was interviewed for the post of sub fire officer. He was unsuccessful and claimed that he was discriminated against on the grounds of his age. At the time that the interview took place, he was 48 and the successful candidate was 32. He submitted the following arguments: •

he had 17 years’ experience as a retained fire-fighter, whereas the successful candidate had only four years’ experience; • he had been acting up as sub fire officer for over six months at the time of interview, with no negative feedback, but the successful candidate did not have any such experience; • he had completed Module 1 of the sub fire officer’s course, which was an essential requirement for appointment as sub fire officer, but the successful candidate completed the course only after the interview; • he was discriminated against regarding the format of the interview, in that he was asked technical questions whereas he claimed the successful candidate informed him that he was asked about his ordinary work and football. The Equality Tribunal found that the employer failed to rebut the prima facie presumption of discrimination on the grounds of age. She then went on to cite the case of Government Department v Employee,25 where the Labour Court stated: ‘In cases involving promotion, a lack of transparency in the selection process combined with an absence of any discernible connection between the assessment of qualifications of candidates and the result of the process can in themselves give rise to such an inference.’

In arriving at her decision, the Equality Officer assessed the interview and the marking mechanism and concluded as follows: • •

•

24. 25.

the criteria with regard to qualifications were clear and were adhered to by the panel; under the suitability criteria, the only evidence for the marks was a statement by the chair of the interview board, with no supporting evidence that explained the mark; both candidates received the same marks for experience and knowledge, even though the complainant had more experience, but no evidence was available to explain the marks. Meehan v Leitrim County Council DEC–E2006–014. Government Department v Employee ADE/05/19 Det No 062.

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Age

[16.28]

The Equality Officer held that there was no evidence of systematic discrimination on the grounds of age. However, she held that the employer failed to rebut the presumption of discrimination and directed that the respondent pay €5,000 compensation for the effects of the discrimination and also directed that the respondent review its equality policy to ensure that all aspects of the interview processes are transparent and free from discrimination and that all interview notes are retained. [16.26] In Fagan v Revenue Commissioners,26 the complainant alleged that he had been discriminated against by the respondent when it failed to promote him. The Equality Officer noted: •

no minutes or other formal record of the promotion conference meeting had been maintained;

•

the basis on which candidates were deemed suitable/unsuitable had not been reduced to writing;

•

the respondent was unable to furnish a single document to demonstrate that the complainant’s failure to be appointed to the acting up post in February 2003 and his exclusion from the promotion panel in September 2003 was connected to factors unconnected with the complainant’s age.

The Equality Officer determined that the complainant had established a prima facie case of age discrimination and that the respondent had failed to rebut the inference of discrimination raised and the complainant’s claim succeeded. He was awarded €60,000. Summary: promotion [16.27] What we can deduce from all of the above is that to successfully defend a claim for discrimination when promoting someone, it is always best practice to advertise the job internally in order to rebut any presumption of favouritism on any ground in the first instance. Furthermore, the promotion process itself has to be transparent. There have to be clear procedures. There should be notes kept at all stages, and professional people with experience should be involved.27 Pay scales and length of service [16.28] Section 34(7) and (7A) of the Employment Equality Acts 1998–2011 permit different rates of pay or different terms and conditions of service on the basis of seniority or length of service: ‘(7) It shall not constitute discrimination on the age ground for an employer to provide for different persons–

26. 27.

(a)

different rates of remuneration, or

(b)

different terms and conditions of employment,

Fagan v Revenue Commissioners DEC–E2008–004. For a contrasting case where the employer was successful, see Johnson v Louth VEC EDA 0712/2007. Also, for a fuller discussion on interviews, see para 5.18 et seq.

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[16.29]

Equality Law in the Workplace if the difference is based on their relative seniority (of length of service) in a particular post or employment. (7A) Nothing in this Act invalidates any term in a collective agreement, whenever made, to the effect that in particular circumstances, where length of service would otherwise be regarded as equal, seniority in a particular post or employment may be determined by reference to the relative ages of employees on their entry to that post or employment.’

[16.29] The ECJ in Danfoss28 held that length of service went hand-in-hand with experience. and since experience generally enables employees to perform their duties better, employers could reward it without having to establish the importance it has in the performance of specific tasks entrusted to the employee. However, the court went on to say that the general rule was subject to an exception if the complainant could produce evidence, ‘capable of raising serious doubts’, as to the connection between length of service and performance in their particular employment. Section 34(7) and (7A) does not permit such an exception, and as such seems to run contrary to the decision in Danfoss. [16.30] In this jurisdiction, the matter was given consideration in the case of Dun Laoghaire/Rathdown Council v Morrissey,29 where the complainant challenged the decision to re-grade and re-scale his post on the basis that his service had in effect been reduced to the equivalent of seven years for salary purposes, which prevented him reaching a second long-service increment before his retirement, despite the fact that he had been in the post for 23 years. His argument that this discriminated against persons in their ‘old’ grade, seems to have been the rock that he perished upon, as the Labour Court held that the fact that he was unable to fulfil the necessary service before his retirement was not age-based discriminatory treatment. Termination of employment [16.31] There are very few cases where complainants have argued that they were dismissed simply because of their age. Most discriminatory dismissal on age grounds is based around retirement or the failure to renew a fixed-term contract. However, there are two cases to consider in this respect, each on a slightly different footing. [16.32] In Woods v St Luke’s Hospital,30 the claimant was a medical scientist who was employed initially as a locum and then retained on a temporary whole-time capacity with no written contract of employment. In February 2008, his employment was terminated summarily. The respondent argued that the claimant was to retire on his 67th birthday at his own request and adduced evidence about preparing documentation for his retirement benefits. 28. 29. 30.

Handels-og Kontorfunktionaerernes Forbund i Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss (Case C–109/88), [1989] ECR I–3199. Dun Laoghaire/Rathdown Council v Morrissey EDA 0410. Woods v St Luke’s Hospital DEC–E2012–002.

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Age

[16.33]

The Equality Officer noted that although the claimant was recruited initially for eight weeks, his employment had become indefinite through the use of rolling contracts, which had continued for over eight years. The claimant also pointed out that the termination of his employment coincided with a decision to recruit two younger persons to permanent positions doing the same work and that this was prima facie evidence of age discrimination. This was denied by the respondent, which argued that it was up to the claimant to apply for one of the two posts. The Equality Officer found that it was equally open to the respondent to offer the claimant a contract of indefinite duration, and held that he had suffered age-based discrimination when his employment was terminated. [16.33] In Sister Loye,31 the complainant argued that she was discriminated against on the basis of an assumption that she had an old-fashioned approach to teaching and was believed to have an older teaching ethos. The Labour Court ultimately found that she had been discriminated against and went on to say: ‘Since the complainant’s approach to teaching and her ethos were inextricably linked to her age and the era in which she grew up, the respondents did discriminate against the complainant on the grounds of her age in breach of section (2) & 8(1) of the Act.’

The case is interesting in that it crosses over between discrimination on age grounds and on the ground of religion. The decision by the Labour Court that because the college regarded the complainant as a person from another era who was ‘out of her time’ (she was 59 at the time), and who would not fit into the idea of the modern 21st-century institution which the college wished to establish, certainly pushes out the grounds of what constitutes age-based discriminatory treatment. It is respectfully suggested that such a situation as the college found itself in was precisely the situation that s 16 of the Act was intended to cover: ‘(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position or to provide training or experience to an individual in relation to a position, if the individual (a)

will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed.

(b)

is not (or as the case may be, is no longer) fully competent and available to undertake and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.’

Thus, while there is clearly an onus on the employer not to discriminate or to treat someone as ‘being out of her time’, there is an equal onus on employees to keep up with new developments. 31.

Mary Immaculate College v Sister Loye EDA 082/2008.

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[16.34]

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Retirement [16.34] The ECJ considered the issue of whether mandatory retirement ages are contrary to European employment equality laws and in particular Directive 2000/78 in the Palacios case.32 Here Mr Palacios de la Villa worked for Cortefiel Servicios from 1981 until 2005, when he was notified about the termination of his employment as he had reached the compulsory retirement age of 65. He challenged the termination in the national courts, which then referred the matter to the ECJ for a preliminary ruling on the compatibility of the mandatory retirement age with Directive 2000/78. The ECJ studied Art 6(1) of the Directive, which allows discrimination on the basis of objective justification, and held that the Spanish mandatory retirement age of 65 was not discriminatory, as it was objectively and reasonably justified as achieving a legitimate aim of national employment policy, ie the reduction of unemployment among persons under the age of 65. [16.35] In the subsequent Heyday case,33 the court held that a fall-back retirement age of 65 in UK law was not discriminatory so long as it was objectively and reasonably justified by a legitimate social policy aim and if the means of achieving that aim were appropriate and necessary. [16.36] Until the matter was considered at length in a number of cases in Ireland, there was no such obligation here to objectively justify the setting of a mandatory retirement age. Section 34(4) of the Employment Equality Act 1998 states: ‘It shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsory) of employees or any class of description of employees.’

[16.37] This section was challenged in a number of cases in this jurisdiction. Ireland, unlike many other EU countries,34 has no fixed single mandatory retirement age for workers. In some instances, employees’ contracts set out a retirement age, and the usual retirement age in this regard is 65. It is an entirely separate issue from the age at which workers are entitled to draw down the state pension.35 [16.38] The most recent case at the time of writing on this topic was O’Mahony v Southwest Doctors on Call Ltd.36 Here the complainant was employed as a part-time driver/attendant with the respondent. He commenced his position in 2005 at the age of 32. 33.

34. 35.

36.

Palacios de la Villa v Cortefiel Servicios SA (Case C–411/05) [2007] ECR I–8531. R, on the application of the Incorporated Trustees of the National Council on Aging (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform (Case C–388/07) [2009] ECR I–1569. Spain, Belgium and France, to mention a few, have a mandatory retirement age. The Social Welfare and Pensions Act 2011 make certain amendments to impact on the existing state pension provisions. There is a standard state pension age of 66 for everyone from 1 January 2014, and this increases to 67 years in 2021 and to 68 years in 2028. O’Mahony v Southwest Doctors on Call Ltd DEC–E2014–031.

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[16.39]

61. His employment contract did not include a mandatory retirement age. As part of a cost-saving measure at the beginning of the recession, employees of the respondent were asked to sign a new contract, which contained the retirement age of 65. The complainant did not sign the new contract, as he had already signed the original contract and he was advised by HR that the terms and conditions contained in the original contract were maintained. However, on his 65th birthday the complainant was retired, despite the fact that he remained in good physical health and had a good work record. He also provided the tribunal with witness statements from three people who remained in employment with the respondent after the age of 65, who retired in 2008 while the complainant retired in 2009. The respondent submitted that it had reached an agreement with SIPTU that people over the age of 65 would retire, that the complainant was therefore on notice that he would be required to retire and that since 2008 all employees had to retire at 65. The respondent also submitted that the claimant had no legitimate expectation that he would remain an employee beyond the age of 65. The respondent also raised the issue of objective justification. It stated that cost reductions were one factor, but that there were also health and safety concerns, included ones related to carrying equipment, assisting patients and loading/unloading the car. In this regard, the respondent relied on the UK Supreme Court decision in Seldon v Clarkson Wright & Jakes37 to argue that costs may be a legitimate factor in insisting on a compulsory retirement. [16.39] The tribunal in O’Mahony v Southwest Doctors on Call Ltd examined Art 6(1) of the Framework Directive and referred to the High Court decision in Donnellan v Minister for Justice, Equality and Law Reform,38 where McKechnie J held: ‘Any discrimination with regard to age must, as put by that Directive serve a legitimate aim or purpose and the means taken to achieve that purpose must be appropriate and should go no further than is necessary, ie they should be proportionate.’

Having considered the Donnellan decision, the tribunal reached the following decision:

37. 38. 39.

•

The complainant had established a prima facie case of discriminatory dismissal.

•

The respondent was required to provide objective and reasonable justification, which it had failed to do. The respondent was trying to reduce its headcount in the most cost-effective manner and this included retiring people instead of making the positions redundant. In Köhler v Land Hessen,39 the ECJ held that cost considerations cannot in themselves constitute a legitimate aim within the meaning of Art 6(1) of the Framework Directive. The respondent offered no legitimate health and safety reasons for compulsory retirement. Seldon v Clarkson Wright and Jakes [2012] IRLR 591. Donnellan v Minister for Justice, Equality and Law Reform [2008] IEHC 467. Köhler v Land Hessen (Case–159/10 and Case C–160/10) OJ 2000 L 303, p.16

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[16.40] •

Equality Law in the Workplace The agreement between SIPTU and the respondent could not be used as effective agreement as justification, as there was no reference to retirement age in the agreement.

The tribunal, in finding in favour of the complainant, determined that he was discriminatorily dismissed on the grounds of age and awarded him €12,000 (equivalent to six months’ salary in redundancy). [16.40] The issue of mandatory retirement was also considered in Roche v Complete Bar Solutions.40 Following a number of meetings in relation to his employment, the complainant received a letter from the managing director shortly before his 65th birthday stating that the company’s retirement age was 65 and that no redundancy payment would be paid. He was, however, offered a fixed-term contract following his 65th birthday, but he refused to accept it. The respondent stated that while there was no retirement age within the complainant’s contract, this was established by way of custom and practice within the company and also provided within the pension documentation. Insofar as the argument of custom and practice is concerned, the employer argued that the retirement of employees at age 65 was custom and practice in order to create certainty in business planning and to encourage staff morale by using the consequential vacancy as an internal promotional opportunity.41 The Equality Officer accepted that due to the technical nature of the work involved, an ordinary person off the street could not be employed, as it took years of experience to build up technical expertise in the pub industry. The Equality Officer accepted the reasons of the respondent to be a legitimate aim of the business. The fact that the complainant was provided with a pension which he was entitled to draw down at age 65 was also of influence in the Equality Officer’s decision that the termination of employment to Mr Roche at age 65 was objectively justified. [16.41] The decision in the Roche case is in line with the earlier decision of Doyle v ESB International Ltd,42 where an employment policy with a legitimate aim was accepted by the Equality Tribunal on the basis of the need for cohesion in employment matters. [16.42] Roche is important due to the acceptance by the Equality Officer that the improvement of promotion prospects is a legitimate employment policy with a legitimate aim in the private sector.43 It is also important insofar as the definedcontribution pension scheme which can be drawn down at 65 was taken into account in 40. 41.

42. 43.

Roche v Complete Bar Solutions DEC–E2013–197. These arguments were previously accepted by the High Court in the Donnellan case as a legitimate aim to justify a retirement through the motivation and dynamism to increase prospects of promotion. Doyle v ESB International Ltd DEC–E2012–086, [2013] ELR34. For a somewhat contrasting decision, see Furlong v Applus Car Testing Service Ltd DEC– E2013–084, where the Equality Officer appears to infer that at para 4.16 of his decision that the need to recruit and retain young people does not apply in the private sector.

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[16.45]

considering whether the retirement age is legally permissible within the Employment Equality Acts 1998–2011. [16.43] In all the circumstances, the blanket defence under s 34(4) of the Act has been rendered null and void by the decision in Donnellan and backed up in the further decisions of Doyle v ESB and Roche v Complete Bar Solutions. It is now clear that employers have to provide objective and reasonable justification, in the absence of which the complainant is likely to succeed.44 Agreement to retire and taking an occupational pension [16.44] This matter was examined in Ryanair Ltd v Gallagher,45 which concerned a complaint of age discrimination in respect of a pilot because of the requirement that he retire on his 60th birthday. It was a requirement of his contract that he had to hold a commercial pilot’s licence, possession of which was previously not available to persons over 60 years’ of age. However, by the time the complainant’s contract was terminated, the upper age limit to hold a commercial licence had changed to 65, and he argued that the requirement for him to retire at 60 constituted age-based discriminatory treatment. The Labour Court, on hearing direct evidence, concluded that while the complainant’s contract did not in fact stipulate an actual retirement age of 60, at all material times he knew and accepted that, in common with all pilots, he would retire at that age. In this regard, the complainant actively engaged with the respondent in arranging to draw his occupational pension. Other pilots at that time who had retired at age 60 were employed by the respondent in a separate legal entity, used by the employer to hire pilots on contract; but the respondent refused to hire the complainant due to his record of litigation and complaints to the various statutory bodies concerning his employment with them. [16.45] While the court in Ryanair Ltd v Gallagher found, relying on Donnellan v Minister for Justice, Equality and Law Reform,46 that forcing an employee to retire constitutes prima facie evidence of age-based discrimination within the meaning of Art 2 of the Framework Directive,47 the law does not prevent parties entering into an agreement on retirement and for the payment of a pension in consideration of a retirement at a mutually agreed age. The court was satisfied on the evidence that the complainant freely entered into an agreement with the employer to retire at age 60 and 44.

45. 46. 47.

At the time of writing, the Employment Equality (Abolition of Mandatory Retirement Age) Bill 2014 is being considered. It is a private members’ Bill amending the Equality Act 1998 ‘to abolish mandatory retirement ages for persons able and willing to continue the job for which they are employed.’ This would amend the Employment Equality Act 1998, s 34 to state that it will not be lawful to set a compulsory retirement age for a person who is capable of doing the job for which he or she is employed, save in relation to some security-related exceptions. Ryanair Ltd v Gallagher EDA 1320. Donnellan v Minister for Justice, Equality and Law Reform [2008] IEHC 467. Council Directive 2000/78/EC.

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[16.46]

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that the agreement was supported by the payment to him of an occupational pension at that age. The complainant never sought to resile from that agreement, and in those circumstances the court held that the employment came to an end by agreement and not by unilateral termination at the instigation of the employer. The refusal on the part of the employer to allow the complainant to return following his retirement in like manner to other pilots who had retired was wholly unrelated to his age. The appeal was dismissed. Pre-retirement changes to contract [16.46] In Mangold,48 the ECJ considered a case where a German law which permitted a worker to be forced to be employed on a fixed-term contract rather than on a permanent contract, and held that the consequent loss of protection constituted discrimination on grounds of age which was not objectively justified. [16.47] Lufthansa v Kumpan,49 concerned a collective agreement in Germany, which provided that fixed-term contracts could be concluded without objective justification for those over 58 years of age, the ECJ held that the law had the effect of: ‘lowering the level of social protection for all older workers by depriving them of all the protective measures set out in Clause 5(1) of the Framework Agreement intended to prevent the abusive use of successive fixed term contracts.’

[16.48] In Lett v Earagail Eisc Teoranta,50 the Equality Tribunal awarded €24,000 for age discrimination to the complainant, who was a previous director of the company, when he had his working hours reduced from five to three days a week 28 weeks before he was forced to retire at 66. [16.49] The above cases are useful in that they demonstrate that both the Equality Tribunal and the ECJ are prepared to accept that loss of protection from employment rights constitutes age-based discrimination and that any implementation of a fixed-term contract has to be objectively justified. Post-retirement contracts [16.50] Notwithstanding the fact that imposing a mandatory retirement age imposes a great burden on employers that they have to objectively justify, once done, the need to move outside that policy raises its own issues. [16.51] In Keane v NUI Maynooth,51 the complainant claimed that she was discriminated against on the age ground because she was not allowed work past age 65. She had requested to do so due to a shortfall in her pension and financial obligations. 48. 49. 50. 51.

Mangold v Rüdiger Helm (Case C–144/04) [2005] ECR I–9981. Deutsche Lufthansa AG v Kumpan (Case C–109/09) [2011] ECR 1309. Lett v Earagail Eisc Teoranta DEC–E2014–076. Keane v NUI Maynooth DEC–E2014–071.

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[16.54]

Evidence was raised regarding four other employees who were allowed to work past their normal retirement age. The Equality Officer examined the circumstances around those four. From the decision it appears that there were exceptional circumstances in place to justify their retention. The respondent argued that their implementation of the retirement age was objectively justified because of the requirement for them to comply with the Employment Control Framework Agreement. (The respondent was, as a public-service employer, subject to a requirement to reduce staff numbers by 6 per cent over a two-year period.) They argued that the Framework Agreement was designed to promote employment and job retention and therefore fell within the category of ‘legitimate employment policy’. The Equality Officer went on to conclude: ‘I am satisfied that the respondent has established that they have a retirement policy with a legitimate aim and the means used in this case are appropriate and reasonable in achieving that aim and in helping them to comply with the Employment Control Framework Agreement.’

The decision is important in that it provides a thorough examination of how an employer will have to justify keeping employees after retirement. It appears that only in exceptional circumstances will employing anyone after the normal retirement age be permissible in the context of age-based discrimination claims. [16.52] It can also be seen from the decisions in Mangold,52 Kumpan53 and Lett54 that any alteration to an employee’s terms and conditions of employment based on age, if not objectively justified, will be deemed discriminatory. [16.53] Notwithstanding this, in coming to the conclusion in Roche v Complete Bar Solutions55 that the respondent had objectively justified retirement at age 65, the Equality Officer took account of the fact that a further fixed-term contract was offered to the complainant for a period of six months. This appears to suggest that this is a reasonable approach and one that should be adopted by all employers. It is also arguably lawful in light of the fact that s 6(3)(c) of the Employment Equality Act provides: ‘(c)

Offering a fixed term contract to a person over the compulsory retirement age for that employment or to a particular class or description of employees in that employment shall not be taken as constituting discrimination on the age ground.’

[16.54] While the Mangold decision was raised in the case, the case was distinguished by the Equality Officer in this instance by her reliance on the decision of Georgiev v 52. 53. 54. 55.

Mangold v Rüdiger Helm (Case C–144/04) [2005] ECR I–9981. Deutsche Lufthansa AG v Kumpan (Case C–109/09) [2011] ECR 1309. Lett v Earagail Eisc Teoranta DEC–E2014–076. Roche v Complete Bar Solutions DEC–E2013–197.

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[16.55]

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Tehnicheski Universitet – Sofia.56 Here a lecturer challenged a provision in Bulgarian law that allowed a post-retirement-age extension but limited it to a maximum of two fixed-term contracts. The ECJ held that the law was not in contravention of the Framework Directive,57 provided that the legislation pursues a legitimate aim linked, among other things, to employment and labour-market policy. This aim could, for example, be the ‘delivery of quality teaching and the best possible allocation of posts for professors between the generations’ where the legislation makes it possible to achieve that aim by appropriate and necessary means. In addition, the ECJ confirmed that it was for the Bulgarian court to determine whether these conditions were satisfied. The court also noted that, in a dispute between an individual and a public institution such as the university, the principle of direct effect meant that if the national legislation did not meet the conditions of the Directive, the national court must decline to apply that legislation. [16.55] While the Georgiev decision is authority for the fact that offering a postretirement fixed-term contract and/or contracts is not necessarily discriminatory, it is important that any such policy is transparent and applied equally. This was examined in Fitzgerald v Health Service Executive,58 where the complainant was refused a fixed-term post-retirement contract while two male colleagues were not. The Equality Officer examined the basis on which the two males were offered fixedterm contracts and found that one was retained because of the need to utilise him for an audit. The other, it was found, was retained for personal circumstances. The Equality Officer, having regard to the failure of the respondent to demonstrate that there were exceptional circumstances that required the retention of both the comparators who were male, found that the complainant had been discriminated against on grounds of gender, as the respondent had failed to implement its stated policy in relation to the granting of extensions beyond retirement age. Summary: retirement ages and discrimination [16.56] What one can glean from all of the above cases is the following: •

Employers should carefully consider their position when setting a normal retirement age and consider beforehand how they might objectively justify it. They should consider some of the aims that have been established as legitimate: –

56. 57. 58. 59.

the physical demands of the job,59 but only where there is a significant physical element to the job and where it can be demonstrated that a person’s capacity to carry out the task diminishes with age;

Georgiev v Tehnicheski Universitet – Sofia (Cases C–250/09 and C–268/09). Council Directive 2000/78/EC. Fitzgerald v Health Service Executive DEC/E2010/120. Saunders v CHC Ireland Ltd DEC–2011–142.

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[16.57]

–

promoting access to employment for younger people60 and the concept of intergenerational fairness;61

–

protecting the health and safety of employees or customers;62 and

–

cohesion among employees and the benefit of having one retirement age;63

•

it is unadvisable to alter a person’s employment conditions in the run-up to retirement, as this may be seen to be discriminatory;64

•

if employers have determined that they can objectively justify a fixed retirement age, they should consider offering a fixed-term contract if this is appropriate;65

•

employees should be retained past the normal retirement age only in very exceptional circumstances;66

•

it is advisable that if employees are to be retained past the normal retirement age, this is done by way of a fixed-term contract, that the purpose and duration are made absolutely clear and that any such policy must be transparent and implemented evenly across the company.67

It seems that employers will be thoroughly scrutinised if seeking to objectively justify the imposition of a normal retirement age. Even if successful in so doing, it is important to ensure, in so far as is reasonably possible, that there are no deviations from that policy.

REDUNDANCY [16.57] Statutory redundancy under the Redundancy Payments Acts 1967–2011 was initially limited to employees between the ages of 16 and 66, but this cap was removed by virtue of s 3 of the 2003 Redundancy Payments Act to take account of the Framework 60.

61. 62. 63. 64. 65. 66. 67.

Note the decision in Complainant v Applus Car Testing Service Ltd DEC–E2013–084, where the Equality Officer noted that the respondent was a private company and seemed to infer that the need to recruit and promote young people, is an argument which could only be the preserve of a state organisation. de la Villa v Cortefiel Servicios SA (Case C–411/05) [2007] ECR I–8531. Saunders v CHC Ireland Ltd DEC–2011–142 and O’Neill v Fairview Motors [2012] 23 ELR 340. Doyle v ESB International Ltd DEC–E2012–086, [2013] ELR34. O’Neill v Fairview Motors [2012] 23 ELR 340; Lett v Earagail Eisc Teoranta DEC–E2014– 076. Roche v Complete Bar Solutions DEC–E2013–197. Keane v NUI Maynooth DEC–E2014–071. Fitzgerald v HSE DEC/E2010/120.

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Directive.68 Thus anyone over the age of 16 with continuous service of more than 104 weeks is entitled to a statutory redundancy payment. [16.58] All employers face challenges when implementing severance schemes. The first of these is selection for redundancy. How is this to be achieved? Can length of service or ‘last in, first out’ (LIFO) be a valid method of selection in light of the fact that it may be indirectly discriminatory on the age ground? [16.59] When it comes to offering an ex-gratia package, such schemes generally follow the guidance of the Redundancy Payments Acts and provide for payments based on a number of weeks’ pay per year of service. Yet again this, on the surface, appears to be indirectly discriminatory on the age ground. [16.60] Lastly in this regard, many severance schemes are specifically tailored at various groups within companies, and it is common to find that many schemes provide reduced benefits to those nearing retirement. All of the above have given rise to questions from an equality perspective. Selection for redundancy [16.61] Selection for redundancy on the basis of LIFO is a common feature of many collective agreements between employers and trade unions in this jurisdiction. It is highly debateable and yet to be decided whether the sole use of age as a selection methodology is valid under EU law. [16.62] The ECJ was tasked with dealing with this issue as there was a reference for a preliminary ruling in the case of Balaban v Zelter GmbH,69 where the court was asked to determine the legality of national legislation which, in the selection of workers to be dismissed for redundancy, allowed age groups to be formed to ensure a balanced structure and a proportionate selection of employees from various age groups, unfortunately this reference was removed from the register on 23 May 2011. [16.63] However, the matter has already been dealt with in the UK in the case of Rolls Royce plc v Unite the Union.70 In October 2008, the High Court in the UK ruled ‘Rolls Royce is wrong in its contention that the length of service criterion in the collective agreements is unlawful as a result of the age regulations’. The case involved two redundancy procedures (for staff and non-staff). There were five measured criteria in a matrix: achievement of objectives; self-motivation; expertise/knowledge; versatility/ application of knowledge; and wider personal contribution to team. 

An individual 68. 69. 70.

Council Directive 2000/78/EC. Balaban v Zelter GmbH (Case C–86/10) Rolls Royce plc v Unite [2010] ICR 1.

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[16.64]

could score between four and 24 points under each heading. As part of the process, each employee was to receive one point per year of continuous service. 
 The questions before the High Court were: ‘(i)

Is the retention of length of service as a criterion within a selection matrix for redundancy, as contained within the collective agreements relating to the claimant’s Derby and Hucknall sites, a proportionate means of achieving a legitimate aim within Regulation 3(1) of the Employment Equality (Age) Regulations, 2006?

(ii)

Can the service related selection criterion properly be classified as a ‘benefit’ within Regulation 32(1) of those Regulations? If so, does the service related selection criterion ‘fulfil a business need of (the Claimant’s) undertaking’ within Regulation 32(2) of the Regulations?’

The High Court found in favour of the union in determining that ‘benefit’ could not be restricted to financial payments or discounts. The length-of-service ‘benefit’ was legitimate in that it encouraged retention. The ‘benefit’ is manifestly not made by virtue of the worker ceasing to work for his or her employer; it is awarded in the context of a scheme to determine who retains their employment. [16.64] Rolls Royce plc v Unite the Union was appealed by the company to the Court of Appeal, which also supported the union’s position: ‘It is clear that the collective agreements were negotiated between the union and the employer and that they represented a compromise of the parties’ respective negotiating positions for mutual benefit. The collective agreements did not seek to take advantage of any particular group of employees. Moreover, the length of service criterion is only one of the criteria to be used, and thus younger employees could score on equal terms on the other criteria. The length of service criterion was included for the principled reason that it was employees who had served longest who were likely to find it most difficult to find new employment. All employees, including those who now are disadvantaged by the length of service criterion, stand to benefit at some time from this criterion. All employees also stand to benefit from there being a basis of selection for redundancy which was agreed between union and employer and which could therefore be implemented more quickly and easily and at less cost to the employer. The situation where there is a collective agreement is different from the situation where the employer has a redundancy scheme that has not been negotiated on behalf of employees (as in MacCulloch v ICI plc).[71] There is moreover no suggestion that the union would have given its consent to redundancy selection terms that did not include a length of service criterion. Finally, as the judge pointed out, the methodology agreed in the selection matrices differed from that of LIFO, which in his judgment might have been objectionable.’

This helpful decision makes it clear that employers should be able to objectively justify the use of a length-of-service selection criterion, provided that it forms part of a wider set of criteria and is not the decisive factor in making the redundancy. The important 71.

MacCulloch v ICI plc [2008] ICR 1334.

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point to note here is that length of service can be used when it forms part of a wider set of criteria; it does not extend so far as to say that it can be the sole criterion. Severance payments [16.65] Section 34(3)(d) of the Employment Equality Acts permits different treatment in occupational benefit schemes. The wording here is interesting: ‘benefit schemes’. This is so because Art 6(2) of the Framework Directive provides that: ‘Notwithstanding Article 2(2),[72] Member States may provide that the fixing for occupational social security schemes of ages for admission or entitlement to retirement or invalidity benefits, including the fixing under those schemes of different ages for employees or groups or categories of employees, and the use, in the context of such schemes, of age criteria in actuarial calculations, does not constitute discrimination on the grounds of age, provided this does not result in discrimination on the grounds of sex.’

Section 34(3)(d) provides as follows: ‘(3) In an occupational benefit scheme it shall not constitute discrimination on the age ground for an employer – … (d)

To apply different rates of severance payment for different employees or groups or categories of employees, being rates based on or taking into account the period between the age of an employee on leaving the employment and his or her compulsory retirement age, provided that that does not discriminate on the gender ground.’

[16.66] The definitions of ‘occupational benefit scheme’ and ‘severance payments’ are set out in s 34(3A) of the Employment Equality Acts: ‘“occupational benefit scheme” includes any scheme (whether statutory or nonstatutory) providing for benefits to its employees or any category of employees on their becoming ill, incapacitated or redundant but does not include any occupational pension scheme providing for pensions, gratuities or other allowances payable on retirement or death; “severance payments” means a sum paid voluntarily by an employer to an employee otherwise than as pay when an employee leaves employment.’ [16.67] Accordingly, from s 34(3)(d) it is clear that severance packages that directly discriminate on the grounds of age are permitted where they are based on or take into account the period between the age of an employee leaving employment and their mandatory retirement age. [16.68] However, Art 6 of the Directive permits different treatment for ‘occupational social security schemes’. There are a number of distinct differences between the 72.

Prohibition on direct and indirect discrimination.

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[16.70]

Directive and the Act. The Directive, for a start, allows only Member States to provide for different treatment. It does not appear to extend this to the level of the individual employer, which seems to be the case in the Act. It is respectfully suggested that there is a significant difference between an occupational social security scheme, which is provided for in the Directive, which on a plain reading connotes a scheme run by the state for welfare purposes, and an occupational benefit scheme, which is provided for in the Act, which clearly extends further than state welfare and can encompass private sick-pay schemes, death-in-service benefit schemes, occupational injury schemes, etc. It is also arguable that ‘a scheme’ in the Directive connotes something greater and of longer duration than a once-off ex-gratia redundancy payment. [16.69] In any event, given the terminology as set out in s 34(3)(d), it has been determined that ex-gratia redundancy payments by employers are encompassed within the definition of an occupational benefit scheme. [16.70] The Labour Court in Hospira v Roper & Ors73 considered this matter of severance payments in the context of the permission for different treatment under s 34(4)(d). The court overturned a decision of the Equality Tribunal to the effect that caps on redundancy payments constituted indirect discrimination on grounds of age (and would be lawful only if objectively justifiable). The background to this case is that the complainants had been employed by Hospira for periods ranging from 16 to 25 years. Their employment contracts were terminated following Hospira’s decision to close its plant. Hospira agreed redundancy terms with the Services Industrial Professional and Technical Union (SIPTU), which provided for a payment of five weeks’ pay per year of service in addition to statutory redundancy entitlements. However, it was agreed that employees who were close to retirement age would receive either the terms of the agreed package or the amount of salary that they would have earned had they remained in employment until the normal retirement age of 65, whichever was the lesser. Each of the complainants was in an age category in which their proximity to retirement age meant that they would receive an amount equal to their potential earnings up to age 65 which, in their case, was less than the amount paid to younger workers. They complained to the Equality Tribunal, claiming that they had been discriminated against on the age ground. The Equality Officer was satisfied that the method used by Hospira to calculate the redundancy package, which resulted in a ‘cap’ on the complainants’ payment, constituted age discrimination. The Equality Officer rejected the employer’s argument to the effect that s 34(3)(d) of the Employment Equality Acts expressly permitted Hospira to calculate severance payments with regard to the employee’s proximity to retirement. The Equality Officer also found that as the employer was unable to objectively justify the discrimination, the complaint should be upheld. This decision was then appealed to the Labour Court. 73.

Hospira v Roper & Ors [2013] 24 ELR 263.

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[16.71] The Labour Court noted that the Framework Directive provides that Member States, rather than individual employers, can provide for differences in treatment on the grounds of age where those differences can be objectively justified by a legitimate aim. The court found that the Oireachtas had made express provision for differences in treatment based on age in respect of severance payments through s 34(3)(d).74 The court stated: ‘the underlying rationale for this provision is that workers close to retirement are in a substantially different position than those who have longer periods in which they could have expected to remain in the active labour force and that, as a matter of social and labour market policy, this difference can be legitimately reflected in constructing redundancy packages.’ The Court then went on to say: ‘Against that background, it appears that the Oireachtas considered it reasonably and objectively justifiable, within the meaning of Art 6(1) of the Directive, to provide for the differences in treatment allowed for by s 34(3)(d) of the Act. The Court cannot see any basis upon which it could be held that the Oireachtas was precluded from reaching that conclusion by a provision of Directive 2000/78/EC as interpreted in the jurisprudence of the CJEU.’ The Labour Court found that the method of calculating the redundancy packages in Hospira was permitted by s 34(3)(d) and overturned the decision of the Equality Tribunal. In reaching this decision, the court expressed the view that age discrimination in the context of severance payments did not have to be objectively justified. It is, however, well established jurisprudence of the CJEU that fixed retirement ages have to be objectively justified, and in this regard the Labour Court’s decision in its application of the provision contained in the Employment Equality Acts arguably does not conform with European law.

74.

While the Oireachtas may have done this, it is not clear whether the Directive even applies to severance schemes.

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Chapter 17 DISABILITY MODELS OF DISABILITY [17.01] Before considering disability itself, it is important to understand the prevailing models of disability. Medical model of disability [17.02] From the definition of disability outlined in the Employment Equality Acts 1998–2011, it is evident that the definition is based on various medical ailments and, as such, the Acts adopt a medical definition of disability. While this is very broad and can encompass a vast range of disabilities – both physical and mental – it is limited to a definition of disability that falls within medical grounds. Social model of disability [17.03] The social model, by contrast to the medical model of disability, seeks to identify systematic barriers, negative attitudes and exclusion by society (directly, indirectly or inadvertently) and deems society to be the main contributory factor in disabling people. The social model of disability recognises that while physical, sensory, intellectual, or psychological variations may cause individual functional limitation, or impairments, these do not have to lead to disability unless society fails to take account of and include people regardless of their individual differences. [17.04] Notwithstanding that we in this jurisdiction rely on the medical definition of disability, not all of the definition is medical in nature: the last paragraph of the definition of disability1 includes past, future and imputed disability, and this has been hailed by some as encompassing a truly social model of disability.2

DEFINITION AND SCOPE OF DISABILITY European Union [17.05] The Framework Directive on Equality3 does not contain any definition of disability. However, an initial ruling by the ECJ in Chacón Navas v Eurest 1. 2.

3.

Employment Equality Act 1998, s 2(1). See The Human Rights of Persons with Intellectual Disabilities (Oxford University Press, 2003) Ch 6, Degener, ‘Disability as a subject of International Human Rights Law and Comparative Discrimination Law’. Council Directive 2000/78/EC ([2000] OJ L303/16) establishing a general framework for equal treatment in employment and occupation.

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Colectividades SA4 adopted a narrow approach to the definition. Here the court took the view that disability must be understood to refer to a limitation which results, in particular, from mental or physical impairments and which hinders the participation of the person in professional life. In saying this, the court differentiated between disability and sickness. The decision has come in for significant criticism,5 mostly because it limits the definition of disability to a narrow, medically defined one of a long-term nature. [17.06] The more recent referral in the HK Danmark cases6 sought to determine whether a condition caused by a medically diagnosed temporary illness could be covered by the Directive. This case held, inter alia: ‘If a curable or incurable illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one, such an illness can be covered by the concept of “disability” within the meaning of Directive 2000/78. On the other hand, an illness not entailing such a limitation is not covered by the concept of “discrimination” within the meaning of Directive 2000/78. Illness as such cannot be regarded as a ground in addition to those in relation to which Directive 2000/ 78 prohibits discrimination. The circumstance that the person concerned can work only to a limited extent is not an obstacle to that person’s state of health being covered by the concept of “disability”.’

The court went on to opine that ‘a disability does not necessarily imply complete exclusion from work or professional life’ and that the concept of disability above must be understood as referring to ‘a hindrance to the exercise of a professional activity’ and not ‘to the impossibility of exercising such an activity’. The state of health of a person with a disability who is fit to work, albeit only part-time, is thus capable of being covered by the concept of ‘disability’. Finally, the court affirmed: ‘An interpretation such as that suggested by [the respondents] would, moreover, be incompatible with the objective of Directive 2000/78, which aims in particular to enable a person with a disability to have access to or participate in employment.’

[17.07] Importantly, the ECJ held that the Framework Directive must be interpreted consistently with the UN Convention on the Rights of Persons with Disabilities. It also applies that the equality legislation has to be interpreted so far as possible as to be consistent with the EU Framework Directive. This in turn means that the Equality Act 4. 5. 6.

Chacón Navas v Eurest Colectividades SA (Case C–13/05) [2006] ECR I–0667. See Hoskins, ‘A High Bar for EU Disability Rights’ (2002) 36(2) ILJ 228. HK Danmark, acting on behalf of Ring v Dansk almennyttigt Boligselskab and HK Danmark, acting on behalf of Skouboe Werge v Dansk Arbejdsgiverforening acting on behalf of Pro Display A/S (Joined Cases C–335/11 and C–337/11) [2013] IRLR 571.

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[17.10]

has to be interpreted, in so far as is possible, to be consistent with the Convention on the Rights of Persons with Disabilities. [17.08] In Kaltoft,7 a case that dealt with obesity, it was held that there is no general principle of EU law prohibiting discrimination in the labour market that would encapsulate discrimination on the grounds of obesity as a self-standing ground of unlawful discrimination. However, obesity of a certain severity might amount to a disability under the Framework Directive.8 In his judgment the Advocate General noted: ‘Directive 2000/78 must be interpreted as meaning that the obesity of a worker constitutes a ‘disability’ within the meaning of that directive where it entails a limitation resulting in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers.

The Advocate General had previously in his opinion referred to the fact that the representative of the employer had raised concerns that admitting obesity in any form as a disability would lead to intolerable results because alcoholism and drug addiction could then as serious illnesses be covered by that notion. He went on to state that he was of the opinion that that concern was misplaced and that employers should not be required to tolerate an employee’s breach of his contractual obligations by reasons of these diseases. Rather, the Directive requires that the employee be reasonably accommodated but that the employer is entitled to expect that an employee seek the necessary medical treatment to enable him to perform his contractual obligations. What is interesting from this decision is that the concept of disability is still being defined as long-term, and notably in Ireland alcoholism is treated as a disability.9 [17.09] As it stands therefore, in the EU the concept of disability is as follows: •

it prohibits a person’s full and effective participation in professional life on an equal basis with other workers, and the illness is a long-term one; a disability does not imply a complete exclusion from professional life and can include the ability to work part-time; the Equality Act and national legislation in general has to be interpreted, as far as possible, to be consistent with the Convention on the Rights of Persons with Disabilities.

• •

Ireland [17.10] Disability is defined in the Employment Equality Act 1998, s 2(1) as follows: ‘(a)

7. 8. 9.

the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

FOA, acting on behalf of Kaltoft v Kommunernes Landsforening, acting on behalf of Billund Kommune (Case C–354/13). Council Directive 2000/78/EC. See Employer v Worker EDA145.

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[17.11]

Equality Law in the Workplace (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’.

[17.11] The scope of the Act is very broad. It covers all aspects of the working relationship, from hiring and access to employment, through to dismissal and to postemployment covenants. It also applies to full-time, part-time, casual and temporary employees, in both the public and private sectors. Unlike the Unfair Dismissals Acts 1977–2011, there is no minimum service requirement, nor does it have to be work related.10 [17.12] To ground a claim for discrimination on the grounds of disability, a complainant has to be able to compare himself or herself to a person without a disability or to a person with a different disability. In O v Named Company,11 the employee had been admitted to a psychiatric hospital suffering from anxiety and depression and was then certified as fit to return to work on a phased basis. The employer argued that given that the work was project-based, and given the size of the organisation, it was not feasible to offer the complainant a phased return to work. The Equality Officer found that the respondent discriminated against the complainant by treating him less favourably than a former colleague with a different disability, as the arguments for not allowing the complainant to return to work on a phased basis also applied when his former colleague was allowed time off on a daily basis to attend treatment for his condition, which was alcoholism. [17.13] Given the wide definition of disability in the Act, it is no wonder that a large range of ailments have been deemed to be disabilities under the Act. These include the use of wheelchairs,12 astrocytoma,13 cerebral palsy,14 epilepsy,15 visual impairment,16 10. 11. 12. 13. 14. 15. 16.

O v A Named Company DEC–E2003–052. O v A Named Company DEC–E2003–052. Doherty v Bus Éireann DEC–S2011–052. Employee v Local Authority [2002] ELR 236. Astrocytoma is a type of cancer of the brain. Kehoe v Convertec [2002] ELR 236. Computer Component Company v Worker [2002] ELR 124 and Coffey v Shannon Regional Fisheries Board DEC–E2012–177. Gorry v Manpower [2001] ELR 275.

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[17.15]

anorexia,17 dyslexia,18 narcolepsy,19 low BMI,20 multiple sclerosis,21 depression,22 diabetes,23 alcoholism,24 hypertension25 and irritable bowel syndrome.26 [17.14] There seems to be somewhat of a limit being placed on the definition by the EU. An example of this is in the decision of the CJEU in Kaltoft27 (see para 17.08 above) that obesity can constitute a disability for the purposes of EU discrimination law, albeit only where the requirements for a person to establish that he or she is disabled are satisfied. Obesity in and of itself is not a disability for the purposes of the legislation. Here the CJEU was asked to consider the case of an overweight child-minder in Denmark who brought a discrimination claim against his employers after he was dismissed. The employer said his dismissal was due to a fall in the number of children requiring care, but Mr Kaltoft alleged that he was dismissed because he was overweight. The CJEU held that discrimination on the grounds of obesity is not itself unlawful. However, the court held that the worker’s obesity could fall within the concept of ‘disability’ within the meaning of the relevant EU Directive in certain circumstances: ‘where it entails a limitation resulting in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers.’

The origin of the disability, or the factors contributing to it, is irrelevant to the issue of whether a person qualifies as disabled. [17.15] What all this signifies is that if an individual’s obesity hinders the individual’s participation in professional life by way of reduced mobility, preventing that person from carrying out work or causing discomfort when exercising a professional activity, 17. 18. 19. 20. 21. 22. 23. 24.

25. 26. 27.

Humphries v Westwood Fitness Club [2004] ELR 296. Office of The Civil Service v Gorry EDA 14/2006. Quirke v Sepam Specialists Ltd DEC–E2012–116. N v Charity DEC–E2011–246. Worker v Employer [2001] ELR 159. Ratigan v Connaught Gold Co-Operative Society [2008] ELR 298. Cascella and Cascella t/a Donatellos Restaurant v Worker [2005] 16 ELR 28. Worker v Government Department [2006] ELR 25: Note that alcoholism along with drug addiction, voyeurism, hay fever (except where it aggravates an existing condition) and the tendency to set fires were specifically excluded from the definition of disability in the UK. Also, the Americans with Disabilities Act 1990 in the US specifically excludes illegal drug users and current alcoholics. As our definition of disability is based on the Australian one, it has led the Labour Court to reject some US authorities, as it is accepted that the Irish and US definitions are entirely different. See Customer Perception Ltd v Leydon [2004] ELR 101. Government Employee v Government Department DEC–E2010–055. Civil Servant v Office of the Civil Service DEC–E2004–029. FOA, acting on behalf of Kaltoft v Kommunernes Landsforening, acting on behalf of Billund Kommune (Case C–354/13).

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then the individual will be considered as a disabled person for the purposes of EU law. The issue is the impact upon the individual of his or her obesity rather than the obesity itself. The matter is one for the national court to decide, so in Kaltoft the court in Denmark subsequently had to assess the specific situation to determine whether the complainant should be classed as disabled. [17.16] Kaltoft is an interesting decision all the more because in reaching its decision, the CJEU did not adopt the approach that had been recommended to it by the Advocate General earlier in the proceedings. The Advocate General had taken the view that most probably only Class III obesity under the World Health Organisation categorisation (ie, severe, extreme or morbid obesity) will create limitations, such as problems in mobility, endurance and mood, that amount to a disability for the purposes of the Directive. Whether an individual is disabled for the purposes of the legislation is therefore to be determined by the specifics of the particular case and it is not limited by the medical categorisation adopted by the World Health Organisation. [17.17] Despite the above, there is still a very wide definition of disability in this jurisdiction, and complainants have not faced much resistance in convincing the tribunal that they are suffering from a disability. That said, the onus of proof rests solely with the complainant to establish that his or her alleged impairment meets the definition of disability under the Act. [17.18] As discussed above, the definition of disability in the EU based on the Chacón Navas28 decision demands that the condition lasts for a long time. This has been accepted by the Equality Tribunal in this jurisdiction despite the wider definition of disability as set out in the Act. A case in point is Colgan v Boots Ireland,29 where an employee injured his ankle when a cage fell on it. He was treated by first aid, attended a nurse practitioner without follow-up and did not take sick leave. The Equality Officer found that he had sustained a minor malfunction of the body, but this was not sufficient to meet the definition of disability. [17.19] The fact that the court generally wants to see some form of long-term disability is well exemplified in Stobart Ireland Ltd v Beashel.30 Here the employer argued that the claimant was suffering from an illness as distinct from a disability. The respondent argued that the claimant did not attend a medical practitioner regarding his ‘disability’ other than on one occasion and was not prescribed further medication, and that he had therefore recovered from his ‘disability’ in a very short time. The fact that the complainant stated that he continued to suffer seems to have swayed the court, albeit that this was for a limited time: ‘The obligation on the respondent was to establish whether the complainant’s condition was likely to be long or short term either by engaging with the 28. 29. 30.

Chacón Navas v Eurest Colectividades SA (Case C–13/05) [2006] ECR I–6467. Colgan v Boots Ireland DEC–E2010–088. Stobart Ireland Ltd v Beashel EDA 1411.

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[17.23]

complainant directly or through his or the company’s own medical advisors. It was not sufficient that it made no enquiries and sought to rely on subsequent events to justify its decisions. Moreover it is clear from evidence before the Court that the complainant continues to suffer to some extent from the illness particularly around the time of the anniversary of his father’s death. In that context the Court finds that the complainant was suffering from a disability within the meaning of the Act.’

Importance of medical evidence [17.20] Where the matter of disability is in dispute, the court generally relies on medical evidence. In Maloney v MJ Clarke & Sons Ltd,31 the complainant, who was profoundly deaf, had sustained injuries and what were described as ‘psychological scarring’ as a result of a fall from a roof. The Equality Officer found that in the absence of the GP being available to give evidence, there was no explanation as to how ‘psychological scarring’ could be deemed as a disability. [17.21] In Worker v Food Manufacturer,32 the Equality Officer said, in rejecting a claim for disability: ‘No evidence whatsoever, either in the form of meaningful medical reports from relevant specialists, or the complainant’s GP, was adduced to prove that the complainant is disabled within the meaning of the Acts.’

As can be seen from Kaltoft33 above, however, a court is not always bound by medical opinion and is free to determine each case on its own merits. Temporary disabilities [17.22] The definition of disability in Employment Equality Act 1998, s 2(1) contains an express provision: ‘Disability 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’.

This means that disabilities that are temporary in nature can come within the protection of the legislation. [17.23] The Labour Court dealt with this in Customer Perception Ltd v Leydon,34 holding that a temporary injury constituted a disability within the meaning of the Employment Equality Act 1998. The injury in question resulted from a road traffic accident and the complainant sustained injuries that resulted in pain and reduced 31. 32. 33. 34.

Maloney v MJ Clarke & Sons Ltd DEC–E2010–140. Worker v Food Manufacturer DEC–E2010–187. FOA, acting on behalf of Kaltoft v Kommunernes Landsforening, acting on behalf of Billund Kommune (Case C–54/13). Customer Perception Ltd v Leydon ED/02/1.

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[17.24]

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movement in her shoulder, back and neck. The court held that this came under the definition of a disability: ‘Taking the ordinary and natural meaning of the term malfunction (connoting a failure to function in a normal manner), the condition from which the complainant suffered in consequences of her accident amounted to a malfunction of parts of her body. It thus constituted a disability within the meaning of the Act. Moreover, in providing that the term comprehends a disability which existed but no longer exists, it is clear that a temporary malfunction comes within the statutory definition.’

[17.24] The case of Graham v Atolvo Enterprises Ltd35 is also informative in this regard. It concerned the dismissal of a part-time worker while she was in hospital recovering from a serious operation. The tribunal was satisfied that the complainant was disabled, having had both a tumour and her kidney removed during the operation and that her dismissal was on the grounds of her disability. The tribunal took into account the distressing and traumatic manner in which she had been dismissed, two days after her diagnosis of illness and an emergency operation, in addition to her loss of opportunity to be promoted and to move from part-time to full-time work, in awarding her €17,500. [17.25] A less serious injury/illness was deemed to constitute a disability in the case of Fernandez v Cable & Wireless.36 Here the complainant had been hospitalised for one week to deal with a kidney infection. She requested time off from work for a check-up on her return and was informed that if she attended the check-up, she would be subject to disciplinary action. The Equality Officer held that even though the illness was temporary in nature, it amounted to a disability. [17.26] In B v Newsagents and Deli,37 a complainant who suffered from work-related stress and had difficulty sleeping and was suffering panic attacks was held to have a disability. The respondent argued that work-related stress was not a disability. However, the Equality Officer asserted: ‘Disability must be looked at “in the round”. It cannot be a game of bingo where a complainant’s doctor labels a condition on the medical certificate in a certain way and the disability provisions automatically apply and s(he) calls it something else and the disability provisions do not apply.’

[17.27] All the above Irish cases stand in contrast to the decision of the CJEU in Chacón Navas,38 which does not allow an illness of a temporary nature to constitute a disability under the relevant EU legislation. 35. 36. 37. 38.

Graham v Atolvo Enterprises Ltd DEC–E2012–053. Fernandez v Cable & Wireless DEC–E2002–052. B v Newsagents and Deli DEC–E2013–149. Chacón Navas v Eurest Colectividades SA (Case C–13/05) [2006] ECR I–6467.

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Disability

[17.31]

The de minimis rule [17.28] Given that temporary illness can be deemed to constitute a disability under the Act, the question then arises as to where this ceases to be the case: is there a minimum level of illness that cannot possibly constitute a disability, and where does this begin and end? In Government Department v Worker,39 the Labour Court noted that while the definition in the Acts did not refer to a minimum level of disability, a de minimis rule must be applied such that ‘effects or symptoms, which are present to an insignificant extent, would have to be disregarded’. While establishing that there must be a minimum level of symptoms present for any ailment to constitute a disability, this ultimately has to be determined on a case-by-case basis and in all likelihood a medical opinion would be necessary.40 Past and imputed disabilities [17.29] In so far as the definition of disability in the Act includes temporary ailments, it also provides protection for employees who had a previous disability or where the disability may exist in the future or is imputed to the employee. [17.30] Discrimination by imputation has arisen in a number of cases on the disability ground. In Care Attendant v HSE,41 a care attendant who applied for the position of staff nurse and could not satisfy the standards necessary relative to the functional requirements for the job was imputed with a disability because she had a serious weight problem. The Equality Officer made no finding on whether her weight problem itself was a disability, but rather determined that a disability had been imputed to her by the HSE: ‘The precise nature of the complainant’s imputed disability, the degree of impairment and the likely duration were not defined or communicated to the complainant or discussed with her. The complainant was therefore, not allowed a full opportunity to participate in the process.’

She was awarded €3,000 and her appointment was backdated to the initial date when the health clearance was deferred. [17.31] In Employee v Retailer,42 the complainant had been out on sick leave with a stress-related illness from January to March 2008. He was deemed fit by his doctor to resume work. When he contacted his manager, the respondent told him not to return, and that he would hear from their solicitor. The complainant heard nothing, and despite phone calls and several letters from his solicitor, the respondent’s solicitor made no formal communication for over three months. The respondent then wrote to arrange for 39. 40. 41. 42.

Government Department v Worker EDA 094. For further reading see Morgan, ‘Disability Discrimination – How Far Does it Extend?’ (2009) IEL J 70. Care Attendant v HSE DEC–E2006–013. Employee v Retailer DEC–E2011–229.

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[17.32]

Equality Law in the Workplace

the complainant to be medically examined. The complainant attended and was medically examined, but was never informed of the outcome of the examination, and no other communication took place despite three more letters from his solicitor. Eventually, he resigned his position. The Equality Officer concluded that the respondent imputed a disability to the complainant as the respondent considered he was not fit to return to work due to a stress-related illness. The Equality Officer considered it reasonable for the complainant to resign and awarded him €17,524. Knowledge of disability [17.32] It may not be immediately obvious that an employee has a disability, especially a mental health disability. Employers regularly seek to defend discrimination claims on the basis that they were unaware of an employee’s disability. However, employers must be able to establish that they had no actual, constructive or implied knowledge of the employee’s disability in order to defend a discrimination claim. Employers may not necessarily be able to defend a claim on the basis that they were unaware of the disability, even if the employee has not explicitly informed the employer that he or she has a disability, in circumstances where there were clear signs or indications that an employee did have a disability. [17.33] In Connacht Gold Co-operative Society v Worker,43 the employer sought to defend a disability discriminatory dismissal claim on the grounds that it had no knowledge that the claimant was suffering from depression, as it had received certificates stating that the employee was unfit for work due to ‘illness/medical illness’ and ‘stomach trouble’. (Here the claimant’s doctor had advised against putting ‘depression’ on the certificate on the basis that he would only be out of work for a short time and colleagues should not be made aware that he suffered from a mental illness.) The Labour Court overturned the finding of the Equality Tribunal that the employer was aware of the depression and held that the employer was not aware of the claimant being diagnosed with depression: ‘The Court is supported in this conclusion by the lack of any symptoms or indications that he was suffering from depression. It was agreed by one and all that his work was very satisfactory. On balance the Court believes that the respondent was not aware of the complainant’s disability and furthermore, there were no indications/signs to alert it to enquire about his need for reasonable accommodation.’

[17.34] In Flynn v Emerald Facility Service,44 the employer denied being informed that the employee had an alcohol problem, even though it had asked the claimant to stay away from work and issued disciplinary proceedings because the complainant had the smell of alcohol on his breath on several occasions. The Equality Officer concluded that the complainant had never stated to his employer that he was an alcoholic or asked for reasonable accommodation to be granted. 43. 44.

Connacht Gold Co-operative Society v A Worker EDA 0822. Flynn v Emerald Facility Service DEC–E2009–065.

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Disability

[17.39]

[17.35] In Cleaning Operative v Contract Cleaning Company,45 the Equality Officer was satisfied that the employer was well aware that the complainant had a health problem, and rejected the employer’s argument that it was not aware of the complainant’s disability, because the medical certificates she submitted did not specify the illness from which she suffered (high blood pressure). The Equality Officer noted: ‘The respondent did not ask the complainant about her health, nor did they request further certification. Likewise I note that the complainant’s request for a change from night to day shift was facilitated.’

[17.36] In a recent UK EAT case, Jennings v Barts and the London NHS Trust,46 the UK EAT considered that it was enough to know that the claimant suffered from a mental impairment. The subsequent change of the particular label attached to the symptoms (from PTSD and panic attacks to major depression and paranoid personality disorder) did not affect the question of whether the employer ought reasonably to have been aware that he was disabled. [17.37] Another UK case, Wilcox v Birmingham Citizen Advice Bureau47 the EAT held: ‘It is important not to lose sight of the fact that, while the statute does not require that the employer should know (actually or constructively) the precise diagnosis of a putative disability, it does require that he should know (actually or constructively) that the employee is suffering from a mental impairment whose adverse effects are both substantial and long-term.’

[17.38] In Donaldson v Marks & Spencer (Ireland) Ltd,48 the Equality Officer held that the employee’s original complaint (which was benign intracranial hypertension) was mentioned to the respondent during a meeting and even though the respondent stated that it did not realise that it was a disability, it was held that it was on notice of the complainant’s condition, at least from the date of the meeting. [17.39] In B v Newsagents and Deli,49 there was evidence that the respondent knew that the complainant had informed one of the owners that she was not sleeping and was suffering panic attacks, thereby putting the respondent on notice. However, at the time of dismissal, there was no indication that the respondent was aware that the complainant was suffering from anorexia nervosa. The Equality Officer stated that the information at his disposal in relation to the complainant’s lack of sleep and panic attacks would have prompted a prudent employer to seek a second opinion. The Equality Officer accepted that the complainant’s condition was a disability within the meaning of s 2(e) of the Acts. Arguably, in this instance, the Equality Officer is providing a message that medical information should be treated and interpreted carefully and that employers are required to look behind the medical certificates to assess whether the disability provisions apply. 45. 46. 47. 48. 49.

Cleaning Operative v Contract Cleaning Company DEC–E2010–089. Jennings v Barts and the London NHS Trust UK EAT/0056/12. Wilcox v Birmingham Citizen Advice Bureau UK EAT/0293/10. Donaldson v Marks & Spencer (Ireland) Ltd DEC–E2013–032. B v Newsagents and Deli DEC–E2013–149.

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[17.40]

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Summary: scope and definition of disability [17.40] From the cases discussed above we can summarise the following findings regarding the scope and definition of disability: •

in determining what constitutes a disability, the court will have regard to medical evidence;50

•

the court generally follows the definition of disability in Chacón Navas,51 ie it must not be a temporary illness and must last for a long period of time;

•

however, the definition of disability in the Employment Equality Acts is broad, and given that there is no definition of disability in the Framework Directive,52 the court has found that temporary ailments can constitute a disability;53

•

the court has determined on a de minimis level of disability; however, each case should stand on its own merit and will generally require medical input to determine whether the person is disabled;54

•

to successfully defend a claim for lack of knowledge, there has to be no actual, constructive or implied knowledge;55

•

employers should treat all absences due to illness carefully and, if there is any doubt, treat them as a disability.56

DIRECT DISABLITY DISCRIMINATION [17.41] Section 6(1)(a) of the Employment Equality Acts 1998–2011 provides that in order for individuals with a disability to establish that they were subjected to direct discrimination by their employers, they must demonstrate that they were treated less favourably than another person is, has been or would be treated in a comparable situation on the grounds of their disability and that the person in the comparable situation has no disability or has a different disability to them. This requires a two-stage test:

50. 51. 52. 53. 54. 55. 56. 57.

1.

there is a comparator, who may be someone with no disability or someone with a different disability; and

2.

there is a causal link or connection between the disability and the alleged discrimination.57 Maloney v MJ Clarke & Sons Ltd DEC–E2010–140. Chacón Navas v Eurest Colectividades SA (Case C–13/05) [2006] ECR I–6467. Council Directive 2000/78/EC. Customer Perception Ltd v Leydon ED/02/1. Government Department v A Worker EDA 094. Connacht Gold Co-operative Society v Worker EDA 0822. B v Newsagents and Deli DEC–E2013–149. Note that this is the same definition as in the Framework Directive, Council Directive 2000/ 78/EC.

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Disability

[17.45]

Comparators [17.42] The issue of comparators has proved to be a difficult one for complainants. This is due to the fact that the definition specifically demands that the person to whom complainants are comparing themselves (either able-bodied or with a different disability) must be in a comparable situation. However, it is debatable as to whether this can ever be the case. [17.43] The starkness of this definition can be seen in the case of Burke v Boston Scientific Clonmel Ltd.58 Here Mr Burke complained that following heart surgery in 2005 he was discriminated against by his employers when they refused to give him a salary increase or merit award because of his disability-related absence from work. He also complained that his annual leave entitlement had been reduced in that year because of the absence associated with his heart surgery and further that the company did not put appropriate measures in place to facilitate his attendance at ongoing medical appointments for his heart condition. The Equality Officer found that Mr Burke was not entitled to paid time off for medical appointments under his contract and that therefore he was not discriminated against in relation to the loss of pay. [17.44] A similar issue arose in Minister for Education and Science v Worker.59 Here a teacher complained that she was subjected to less favourable treatment because of her disability, as she was not paid a lump-sum payment for voluntary supervision and substitution which other teachers received, as she was absent from her employment because of transplant surgery. She argued that the correct comparator was a teacher who was not able to attend work because of illness but who was willing to do the work (as the complainant was) but was paid the allowance. The respondent argued that the correct comparator was an able-bodied employee who did not carry out the work. The Labour Court criticised the choice of comparator: ‘The complainant has picked as her comparator an able-bodied teacher who was in a position to perform the work[60] and who got paid for it. However the requirement is quite clear. To receive payment not alone must the able-bodied teacher be willing to perform the duty, they must be certified as having performed the duty. In the Court’s view therefore the only appropriate comparator having the same relevant characteristic as the complainant is an ablebodied teacher who was willing to do the work but for one reason or another did not do so. Such a person would equally not have been paid, because they did not perform the work in question.’

[17.45] The requirement for a person to be in a similar situation makes it very difficult for employees to ground claims for direct discrimination. This matter was dealt with in the UK in the case of London Borough of Lewisham v Malcom.61 While this case was not 58. 59. 60. 61.

Burke v Boston Scientific Clonmel Ltd DEC–E2010–001. Minister for Education and Science v Worker ED087. This, it is submitted, was clearly not a comparable situation as required under the Act. London Borough of Lewisham v Malcom [2008] UKHL 43, [2008] IRLR 700.

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[17.46]

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an employment case, the House of Lords held that if the employer would have treated a non-disabled person in the same way as the disabled person had been, there could be no disability-related discrimination. Disability-related discrimination could be established only if a non-disabled person would have been more favourably treated. If a nondisabled person would be treated differently and more favourably, that then constituted direct disability discrimination. The effect of the Malcom decision is to virtually eliminate the concept of direct disability-related discrimination as a self-standing ground of discrimination.62 That indeed is the position in Ireland and is why disability discrimination is generally litigated as a failure to provide reasonable accommodation.63 Causal link and connection [17.46] Regardless of the need for a comparator, there also has to be a connection or a causal link between the disability and the alleged discriminatory act. In Technology Company v Worker,64 the complainant, who was visually impaired, informed the company that he was unable to undertake a paper-based technical assessment and requested that he be facilitated in taking the test electronically but was refused. He subsequently was not appointed, as his technical knowledge was inadequate. The court, needless to say, found that there was a direct link between his not being appointed and his disability: ‘A person with a disability may suffer discrimination no because they are disabled per se, but because they are perceived, because of their disability to be less capable or less dependable than a person without a disability. The Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.’

Summary: direct discrimination [17.47] In summary, the following points can be stated: • to establish direct discrimination, employees have to show that they were treated less favourably than another person is, has been or would be treated in a comparable situation on grounds of their disability and that the person in the comparable situation has no disability or has a different disability to the claimant; 62.

63. 64.

Note that in the UK under the Disability Discrimination Act 1995 there is a distinction between ‘direct disability discrimination’ (s 3A(5)) and ‘disability-related discrimination’ (s 3A(1)), the latter which provides that it is discriminatory to treat a disabled person unfairly not because of the person’s disability itself but because of something that arises from the disability or in consequence of his or her disability. However, any such treatment is capable of being justified by the employer as a proportionate means of achieving a legitimate aim and the employer must have known or reasonably be expected to know of the disability in order for a claim under this section to be sustained. See also JP Morgan Europe Ltd v Chweidan [2011] EWCA Civ 648. Technology Company v Worker EDA 0714.

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[17.51]

•

there must be a comparator who is in a ‘comparable’ situation;

•

there must be a connection between the disability and the alleged act of discrimination.

INDIRECT DISABILITY DISCRIMINATION [17.48] Similar to direct discrimination, indirect discrimination does not tend to arise very much in disability discrimination claims and, again, claimants tend to rely more on the requirements in relation to reasonable accommodation. [17.49] Indirect discrimination occurs where there is less favourable treatment by effect or impact. It happens where there is a practice, requirement or provision that someone with a particular disability would find hard to satisfy. If this arises and it puts someone who is protected under one of the nine grounds at a disadvantage, then he or she will have been discriminated against unless the employer can objectively justify the practice, requirement or provision by a legitimate aim and the means of achieving that aim are proportionate and necessary. [17.50] In Gorry v Office of the Civil Service Commission,65 the Labour Court was prepared to assume (without so holding) that the requirement to have a Leaving Certificate could be complied with by a substantially smaller number of persons with the same disability as the claimant (dyslexia) compared with persons without a disability.66

DISABILITY DISCRIMINATION BY ASSOCIATION [17.51] Discrimination by association is defined in s 6(1)(b) of the Employment Equality Acts 1998–2011 as occurring when: ‘a person who is associated with another person– (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and (ii) similar treatment of that other person on any of the discriminatory grounds would by virtue of paragraph (a), constitute discrimination.’67 65. 66.

67.

Gorry v Office of the Civil Service Commission EDA 0521. It was stated in the report of the Equality Authority in 2006: ‘It is a matter of some concern that the Labour Court held that section 36(4) of the Employment Equality Act 1998 (which allows employers to require specified educational requirements) operates as a complete defence to a claim of indirect discrimination. The Court itself noted that in the case of an educational requirement it is easy to identify a number of groups or categories of person on whom a requirement to hold a qualification such as the Leaving Certificate could bear more heavily than in the case of others.’ Employment Equality Act 1998, s 6(1)(b) as inserted by the Equality Act 2004, s 4. There is no reference to discrimination by association in the Framework Directive.

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[17.52]

Equality Law in the Workplace

As the definition of discrimination is included as a sub-paragraph of that dealing with direct discrimination, this makes discrimination by association a form of direct discrimination. [17.52] In Coleman v Attridge Law,68 the ECJ held that discrimination law is there to combat all forms of discrimination, including those connected to protected groups of people. [17.53] To date, there have been very few cases under the Employment Equality Acts. One of the first cases held under the Equal Status Act 2000 was Feighery v MacMathunas Pub, Nenagh.69 A woman who was not a member of the Traveller community was asked to leave a pub when she protested that Travellers whom she knew had earlier been asked to leave the premises having been refused a second round of drinks. She was successful in her complaint of discrimination arising from her association with members of the Traveller community. Here the complainant did not attend the pub with the members of the Traveller community. Rather, she was asked to leave the pub because she got involved in a situation that did not directly concern her. The case clearly demonstrates that the relationship with another person does not have to be close for the complainant to meet the test of ‘associated with’ in the context of equal status legislation. [17.54] In O’Rourke v JJ Red Holdings Ltd t/a Dublin City Hotel,70 the complainant claimed, inter alia, that he was discriminated by association by virtue of the aggressive texts and phone calls that his wife received from his employer. While the claim ultimately failed, the Equality Officer nonetheless held ‘[i]t would appear that there is no requirement in the section for the person the complainant is associated with to be in the employment of the respondent’. [17.55] The acknowledgement that there does not have to be a close association to meet the test of discrimination by association under the Equal Status Act has been extended to the Employment Equality Acts to the effect that there is no requirement for the person who is associated with the person protected under the Equality Acts to be within the employment of the employer.

REASONABLE ACCOMMODATION [17.56] It has been long recognised that disability is different from the other nine grounds in that the non-discrimination model, while important, is simply not enough.71 It is sufficient to break down doors to the mainstream and to equip people with the wherewithal to enter the mainstream through education and social support. However, 68. 69. 70. 71.

Coleman v Attridge Law (Case C–303/06) 17 July 2008. Feighery v MacMathunas Pub, Nenagh DEC–S2003–051. O’Rourke v JJ Red Holdings Ltd t/a Dublin City Hotel DEC–E2010–045. See Quinn and Quinlivan, ‘Disability Discrimination: the need to amend the Employment Equality Act in light of the EU Framework on Employment’ in Costello and Barry (eds), Equality in Diversity: The New Equality Directives (Irish Centre for European Law, 2003).

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Disability

[17.60]

genuine equality goes beyond the simple prohibition of direct and indirect discrimination: it requires the would-be discriminator to reflect on the tangible and intangible barriers that inhibit equality of opportunity and seek to reduce or eliminate those barriers in order to ‘reasonably accommodate’ the person with the disability. [17.57] While Ireland introduced the concept of ‘reasonable accommodation’ in the 1998 Act, the definition was limited to one where employers were obliged to reasonably accommodate persons only where the cost was nominal.72 The Framework Directive required a number of amendments to the 1998 Act. More particularly, it necessitated the introduction of s 16(3) to provide that an employee or prospective employee is deemed fully capable of undertaking the duties of employment if he or she can do so by being reasonably accommodated but the introduction of ‘appropriate measures’ to allow the person access to employment, to participate or advance in employment and to undergo training,73 is expected once this does not impose a disproportionate burden on the employer. [17.58] This definition provides a positive obligation on employers to take appropriate measures, and it requires them to remove barriers, make adjustments etc in order to allow disabled persons to be placed in a similar situation to able-bodied persons. Each individual must be treated in a way particular to his or her own particular disability or needs. This in itself allows for disabled persons to be treated in a more favourable way to those without disabilities. Scope of reasonable accommodation [17.59] Given the requirement in the Acts on employers to act positively regarding accommodating people, the question arises as to how far this extends. In other words, how far do employers have to go in taking appropriate measures to ensure compliance with the section? Does it extend to offering a new or alternative position to a person with a disability? [17.60] This question was definitively answered in this jurisdiction in Department of Justice, Equality and Law Reform v Kavanagh.74 In this case, which related to a prison officer, the Labour Court ultimately rejected the complainant’s suggestion that the respondent should provide him with alternative employment outside any contact with prisoners and that this fell within the definition of appropriate measures. The court determined that the purpose of the section was to render a person fully capable of undertaking the full range of duties associated with his or her post. 72. 73. 74.

Employment Equality Act 1998, s 16(1). Employment Equality Act 1998, s 16(3)(b)(i), (ii) and (iii) respectively. Department of Justice, Equality and Law Reform v Kavanagh [2012] ELR 34.

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[17.61]

Equality Law in the Workplace

[17.61] A similar decision was arrived at in Caroll v HJ Heinz Frozen and Chilled Foods.75 Here the employee submitted that she could work only in temperatures of 18 to 20 degrees, could not lift weights and could not carry out shift work and that the only areas in the company where she could work were in an administrative capacity. The respondent stated that it had no option but to terminate her contract of employment due to the restrictions as regards temperature, weights and shift work and that as a result of her medical condition she could no longer fulfil her contract of employment. The Equality Officer stated that she was satisfied that there were no appropriate measures that the employer could put in place which could accommodate the employee’s disability and allow her to return to work to perform the duties which she was employed to do. [17.62] On the basis of the above, there is no right to alternative employment as a form of reasonable accommodation. Once the procedural aspects of dismissal are satisfied, any such termination will be held be fair on the basis of the employee being incapable. [17.63] Equally, it must be the case that an employee must be not fully competent and capable of undertaking the duties before an obligation to provide appropriate measures/ reasonable accommodation arises. In Lynch v Centre of Deaf Studies, Trinity College Dublin,76 the complainant, who was profoundly deaf and was employed as a part-time lecturer, claimed that he was not given access to teach on a restructured course and that this constituted discrimination on the disability ground. He further asserted that he was not reasonably accommodated in the interview process. The Equality Officer, in finding against him on the latter ground, concluded: ‘The requirement upon an employer to provide appropriate measures/reasonable accommodation only arises where an employee or prospective employee is not fully competent and capable of undertaking the duties of the position.’

In this case, the Equality Tribunal also noted that the respondent did have measures in place, of which the complainant chose not to avail. He concluded: ‘I do not consider that it would be appropriate for an employer to impose the use of appropriate measures upon a person who did not want or need those measures.’

[17.64] However, with the United Nations Convention of the Rights of Persons with Disabilities being applicable and binding by virtue of Art 216(2) TFEU,77 we have seen the introduction of a proportionality test.78 In HK Danmark,79 the CJEU stated: ‘In accordance with the second paragraph of Article 2 of the UN Convention, “reasonable accommodation” is necessary and appropriate modification and 75. 76. 77. 78. 79.

Caroll v HJ Heinz Frozen and Chilled Foods DEC–E2011–114. Lynch v Centre of Deaf Studies, Trinity College Dublin DEC–E2013–029. Approved by the EU in Decision 2010/48. There is already a proportionality test in Art 2(2) of the Directive for the purpose of justifying indirect discrimination. HK Danmark, acting on behalf of Ring v Dansk almennyttigt Boligselskab and HK Danmark, acting on behalf of Skouboe Werge v Dansk Arbejdsgiverforening acting on behalf of Pro Display A/S (Joined Cases C–335/11 and C–337/11) [2013] IRLR 571.

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[17.68]

adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure person with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms. It follows that that provision prescribes a broad definition of the concept of “reasonable accommodation”.’

[17.65] This has broadened the requirement of reasonable accommodation and all employers would be well advised to ask themselves when dealing with employees with disabilities what could be done in the ‘broadest’ sense to accommodate them. The ‘broadness’ of this was supported by the Labour Court in School v Worker.80 Here the complainant was a special-needs assistant who, after a very serious accident, was rendered a paraplegic. The court undertook a significant analysis of s 16 of the Act and, in particular, recital 17 of the Directive: ‘This Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligation to provide reasonable accommodation.’

Having examined the recital, the court went on to hold: ‘The Law does not require an employer to employ a person in a position, the essential functions of which they are unable to perform. But that principle is without prejudice to the obligation to provide reasonable accommodation.’

[17.66] Therefore the duty imposed on employers to provide reasonable accommodation means that employers have to consider what is or what is not possible and whether it is reasonable and proportionate. If all of the options that may be available are not considered, the employer cannot form a bona fide view as to whether they are impossible, unreasonable or disproportionate. [17.67] Ultimately, in School v Worker the Labour Court was satisfied that the employer took steps to understand the disability and went on to consider to a reasonable extent how to facilitate it. However the employer failed in the following respects: •

it was an error to assume that the duty of reasonable accommodation required a worker to carry out the full complement of his or her pre-disability job;

•

secretarial work could have made up a part of the accommodated role;

•

the respondent had failed to allow the complainant to try and see what duties she could perform – rather, the decision was made on the basis of non-trial assessments.

A cause of action in its own right [17.68] The question in this regard is whether a failure on the part of an employer to offer ‘reasonable accommodation’ amounts to a form of discrimination in its own right. 80.

School v Worker EDA 30/2014.

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[17.69]

Equality Law in the Workplace

Whereas Art 5 of the Directive81 creates an obligation on employers to make reasonable accommodation for persons with disabilities unless this would create a disproportionate burden, there is no mention in the Directive as to whether a failure to provide reasonable accommodation constitutes a form of discrimination in its own right. [17.69] Prior to the amendment of the 1998 Act, the view taken in this jurisdiction was that the failure on the part of an employer to fulfil its duty of reasonable accommodation did not amount to an independent cause of action but rather negated any reliance on s 16(1) of the Act.82 However, in Government Department v Worker83 the Labour Court held: ‘Since the occurrence giving rise to this claim, Section 16 has been amended by the Equality Act, 2004, which repealed subsection 3 in its entirety and replaced it with a new subsection modelled on Article 5 of the Directive 2000/78 of the 28th November 2000, established a general framework for equal treatment in employment and occupations. This Article imposes a positive duty on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in or advance in employment. A similar requirement is now incorporated in Section 16(3) of the Act, as amended. Thus it would appear that the law now provides for the type of free standing cause of action contended for by the claimants in the instant case.’

[17.70] Ultimately, in the case of Complainant v Employer,84 the Equality Officer ruled that the complainant was directly discriminated against on the grounds of disability when a rescheduling of an interview was refused. She held that the company failed to provide reasonable accommodation to the complainant, as the requirement to facilitate him through rescheduling of the interview (as he was deaf) to allow for an interpreter or to provide a computer interview was not disproportionate. The Equality Officer also went on to hold that the changes introduced by Art 5 of the Framework Directive85 allowed her to determine as follows: ‘This Article creates an independent requirement to provide reasonable accommodation where it is needed in a particular case in order to give unfettered effect to Article 5 of the Directive, subsection 16(3) and (b) of the Acts must be considered to create an independent cause of action without the need for a respondent to rely on the defence in subsection 16(1.)’

[17.71] The fact that reasonable accommodation is now deemed to be an independent cause of action is reflected in the form EE1,86 which specifically asks if a claim for reasonable accommodation is being made. 81. 82. 83. 84. 85. 86.

Council Directive 2000/78/EC. Worker (O) v Employer (No 1) [2005] ELR 113. Government Department v Worker EDA 0612. Complainant v Employer DEC–E2008–068 see also Z v Chain Store DEC–E2009–111. Council Directive 2000/78/EC. See Appendix 1. (Since replaced by the Workplace Relations Complaint Form.)

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Importance of procedures [17.72] The wording of s 16(3)(b) is important when considering the procedural aspects of reasonable accommodation as it states: ‘[t]he employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability …’. The wording of this section – in particular, the use of the word ‘shall’ – imposes a positive duty on employers to take appropriate measures. This was set out clearly in A v Government Department,87 where the Labour Court held: ‘The duty to provide special treatment or facilities is proactive in nature. It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person’s disability.’

[17.73] The fact that it is a proactive duty means that employers must make every effort to reasonably accommodate employees and to be proactive about it. They must carefully consider the issues before them and come to a considered decision with input from the employee. [17.74] It is clear from the decision in A v Government Department88 that the onus to suggest a reasonable accommodation or appropriate measure does not rest solely with the employee. The most relied upon case in this area is Humphries v Westwood Fitness Club,89 which was heard before the Labour Court under s 77 of the 1998 Act. The case concerned a complainant who was employed by the respondent as a childcare assistant in a health and fitness club, which ran a crèche. The complainant suffered from anorexia, which later developed into bulimia. The court accepted that anorexia/bulimia was a disability within the definition of the Act. The respondent in this particular case had granted the complainant various periods of sick leave that were necessary in order for her to be treated for the illness. The complainant was not paid during her absence on sick leave. In May 2002, the complainant had become depressed and had developed suicidal tendencies. The complainant took a further period of sick leave. However, at this stage the respondent had decided that she was not fit to continue working as a childcare assistant and had decided to dismiss her. As a result, she was advised in late May 2002 that she was being dismissed. The respondent did not carry out any form of risk assessment prior to dismissing the complainant, nor did it obtain any independent medical advice in order to determine whether the complainant was fit to carry out her duties and whether, in fact, her illness had any effect or impact on her performance. The Labour Court, in considering the case, examined s 16 of the 1998 Act and clarified how employers should reasonably accommodate the needs of employees with a history of a disability: ‘The nature and extent of the enquiries which the employer should make will depend on the circumstances of each case. At a minimum however, an employer 87. 88. 89.

A v Government Department [2008] ELR 354. A v Government Department DEC–E2008–023. Humphries v Westwood Fitness Club [2004] ELR 296.

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[17.75]

Equality Law in the Workplace should ensure that he/she is in full possession of all the material facts concerning the employee’s condition, and that the employee is given fair notice that the question of his/her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer’s decision.’

The Labour Court found in favour of the claimant, in that she had been discriminated against on the grounds of disability and that the employer had failed to reasonably accommodate her needs in respect of her disability. In finding in her favour, the court awarded the complainant €13,000 in compensation. [17.75] In practical terms, the enquiries required of an employer by Humphries will normally necessitate a two-stage enquiry: 1.

It must look at the factual position concerning the employee’s capability, including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer, either from the employee’s doctor or obtained independently.

2.

If it is apparent that the employee is not fully capable, s 16(3) of the Act requires the employer to consider what, if any, special treatment or facilities may be available by which the employee can become fully capable. The section requires that the cost of such special treatment or facilities must also be considered.

Such an enquiry could be regarded as adequate only if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions. [17.76] The Humphries case was appealed to the Circuit Court and a full re-hearing of the case was held in February 2004. The Circuit Court again found in favour of the complainant and upheld the determination of the Labour Court. The Circuit Court particularly emphasised the failure of the employer to undertake any form of investigation or obtain independent medical evidence in relation to the effects of the complainant’s illness and how that would affect her performance. It was stated by the Circuit Court that if such investigation or medical evidence had been obtained, that the complainant may well still have been in her job. The Circuit Court upheld both the decision and the award of €13,000 compensation. [17.77] This case has been followed by the Labour Court. In the case of Medical Secretary v HSE West,90 an employee was awarded €70,000 for the effects of discriminatory treatment which was just short of the maximum two years’ salary (in this case €71,656). [17.78] The decision in Humphries was extended to post-dismissal cases by the Labour Court in the case of Worker (O) v Employer (No 1).91 Here the complainant was absent 90. 91.

Medical Secretary v HSE West DEC–E2013–083. Worker (O) v Employer (No 1) [2005] ELR 113.

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from work with a stress-related psychiatric illness. His medical adviser recommended his phased return to work, but the respondent refused to facilitate this recommendation. He took a case claiming that the refusal was a breach by the employer of the duty to provide reasonable accommodation to an employee with a disability to enable, if possible, the return to work of such an employee. The Equality Officer found that the respondent discriminated against the complainant by treating him less favourably than a former colleague with a different disability, as the argument for not allowing the complainant to return to work on a phased basis also applied when his former colleague was allowed time on a daily basis to attend treatment for his condition (alcoholism). [17.79] This logic was also extended to pre-employment cases in Complainant v Employer,92 where the complainant had applied for a position by text message and was invited to interview the following day but confirmed that he would require an interpreter, as he was deaf. As the interpreter was not available, the respondent suggested that he should not attend. The complainant suggested that the interview take place with the aid of a computer, but the respondent declined this suggestion and accordingly the interview never occurred. The Equality Officer found, inter alia, that the respondent had failed to provide reasonable accommodation. [17.80] The importance of taking into consideration all the facts and, in particular, the medical evidence was stressed by the Equality Officer in Nurse v Health Service Executive,93 where the officer, in relying on Humphries, went on to postulate: ‘There was no joined up thinking between the occupational health division and employee relations division and in fact the opinions of the respondent’s own occupational health consultant and the complainant’s oncologist were disregarded.’

The Equality Officer in this instance found the testimony of the employee relations manager to be contemptuous, disdainful and very defensive, including this response ‘I don’t want to know anything about a person’s medical condition. It is not my business. It is for occupational health to decide’. The complainant was awarded €85,000, equating to approximately two years’ salary. [17.81] The requirements on employers were also stressed in Employee v Telecommunications Company,94 where the Equality Officer cited with approval the case of Gannon v Milford Care Centre:95 ‘I am of the view that all possible alternatives must be explored, on a case by case basis to see if an employer can facilitate a reasonable accommodation for a person with a disability.’ 92. 93. 94. 95.

Complainant v Employer DEC–E2008–068. Nurse v Health Service Executive DEC–E2013–111. Employee v Telecommunications Company DEC–E2009–073. Gannon v Milford Care Centre DEC–E2004–048.

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The Equality Officer also expressed dissatisfaction at the fact that the respondent chose to interpret its own company doctor’s opinion that the person should be facilitated with light duties to mean that the complainant was unfit for work. The Equality Officer also found that there was no evidence of any consideration to any possible alternatives or forms of reasonable accommodation, such as alternative attendance patterns or the redistribution of tasks within various roles. [17.82] In Keogh v Convertec Ltd,96 the Equality Officer was equally critical of the respondent in failing to consider any alternatives, and even went on to suggest an alternative that the respondent could have continued the complainant’s employment at a reduced rate because of the complainant’s reduced productivity. [17.83] However, where employers do take into consideration the medical evidence and secure up-to-date medical information, it will be difficult for employees to argue that they were not afforded reasonable accommodation. In S v Food Preparation Company,97 the Equality Officer noted that the complainant was afforded appropriate measures in accordance with medical advice and that when the advice changed, the respondent changed its practices. The Officer also looked favourably on the employer’s attempts to secure up-to-date medical information. Summary: importance of procedures [17.84] From a procedural perspective, the case law demands the following: • • •

•

• •

employers must take a proactive approach;98 employers must make themselves fully aware of the medical condition of the employee;99 in having made themselves aware of the medical aspects of the employee’s condition, employers must actually take them into account, including any medical evidence that the employee may proffer;100 once all the medical evidence has been taken into consideration, the onus is placed on the employer to consider the appropriate measures, special treatment or facilities in order to allow the employee to be capable of performing the tasks of the position; to be fully in possession of all the facts will generally involve some form of assessment, be it medical, occupational or ergonomic; employers must fully engage in and make adequate enquires so as to be in possession of all the material information and facts before taking any decision

96. 97. 98.

Keogh v Convertec Ltd DEC–E2001–034. S v Food Preparation Company DEC–E2013–122. Employment Equality Acts 1998–2011, s 16(3)(b). A v Government Department [2008] ELR 354. 99. Humphries v Westwood Fitness Club [2004] ELR 296. 100. Employee v Telecommunications Company DEC–E2009–073.

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which is to the employee’s detriment.101 This needs to be an enquiry in the broadest sense;102 •

employers must take into consideration any proposals that an employee may make regarding appropriate measures;103

•

employers should have records of contacts made or reasoned decisions recorded.104

Examples of appropriate measures [17.85] As previously discussed, there is no obligation on an employer to actually manufacture a job for, or offer an alternative position to, an employee in order to reasonably accommodate them.105 Equally, the Acts do not provide any examples of what might constitute reasonable accommodation. However, the Employment Equality Acts 1998–2011, s 16(4) does define what ‘appropriate measures’ in relation to a person with a disability actually means: ‘“appropriate measures”, in relation to a person with a disability– (a)

means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b)

without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c)

does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself.’

[17.86] The meaning of ‘reasonable’ in reasonable accommodation and appropriate measures means that the person must be placed in a similar position to their nondisabled counterparts, and this involves the employer initiating (per s 16(4)) effective and practical measures. Such effective and practical measures have been held to apply in a wide range of circumstances, not least the following. Remaining on the books [17.87] Allowing an employee to remain on the books of the employer was held to be an appropriate measure in Kennedy v Stresslite Tanks Ltd,106 where the Equality Officer held the respondent could have ceased payment of sick pay and left the complainant on the books of the company rather than dismiss him. 101. 102. 103. 104. 105. 106.

Humphries v Westwood Fitness Club [2004] ELR 296. School v Worker EDA 30/2014. Sea and Shore Safety Services Ltd v Byrne EDA 143. Employee v Telecommunications Company DEC–E2009–073. See more generally, scope of reasonable accommodation. See paras 17.59–17.67. Kennedy v Stresslite Tanks Ltd DEC–E2009–078.

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[17.88]

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Alternative attendance patterns and redistribution of tasks [17.88] In Employee v Telecommunications Company,107 the Equality Officer found that there was no evidence that consideration was given to alternative attendance patterns or the redistribution of tasks. Providing special facilities at the interview stage [17.89] In Harrington v East Coast Area Health Board,108 the complainant had notified the respondent beforehand that she was a wheelchair user and had been assured that the building and the interview room would be accessible to her. However, when she arrived for the interview, she found that she was not able to gain access to the correct part of the building and another entrance did not give her access to the correct floor in respect of the interview room. The Equality Officer found that the respondent had discriminated against the complainant on the disability ground by its failure to do all that is reasonable to accommodate the needs of a person with a disability by providing special facilities at the interview stage. Phased return to work [17.90] In the case of Feore v Alzheimer Society of Ireland,109 the complainant’s GP certified that she was fit to return to work, but the complainant chose instead to request a phased return to work. The Equality Officer hearing the case determined that the respondent discriminated against the complainant by both failing to communicate to her a return to work date and also failing to provide her with reasonable accommodation regarding a phased return to work. Working from home [17.91] The Labour Court in Employer v Worker110 specifically held that ‘adjusting the person’s attendance hour or … allow[ing] them to work partially from home’ were part of the provisions of reasonable accommodation. Reorganisation of the working environment [17.92] In A Medical Secretary v HSE West,111 the complainant, who suffered from a debilitating bowel disorder and had also been diagnosed with diverticular disease, submitted medical evidence to the respondent which stated that she would be fit to 107. 108. 109. 110. 111.

Employee v Telecommunications Company DEC–E2009–073. Harrington v East Coast Area Health Board DEC–2002–001. Feore v Alzheimer Society of Ireland DEC–E2006–010. Employer v Worker ADE048. A Medical Secretary v HSE West DEC–E2103–083.

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[17.96]

return to work if she was provided with a single office close to toilet facilities. The Equality Officer stated: ‘I am of the view that the HR manager did not take the complainant’s medical problem seriously and did not make any attempt to resolve the matter … There was no adequate investigation carried out to find out what could be put in place to accommodate the complainant in her position as medical secretary. The Act requires that appropriate measures should be put in place for a person with a disability and this means effective and practical measures ... to adapt the employer’s place of business. In this case the effective and practical measures required for the complainant at the time was a single office near a toilet and this would have allowed her to continue to work in her position as a medical secretary.’

[17.93] However, in Department of Justice v Kavanagh,112 the Labour Court determined that a prison officer could not expect a redesign of his job to ensure that he had no contact with prisoners. (This seems to be correct in that a prison officer’s primary role is to deal with prisoners.) Relieving the person of certain tasks [17.94] Also in Employer v Worker,113 the Labour Court held that, in addition to allowing the person to work partially from home, ‘relieving the disabled person of certain tasks which others doing similar work are expected to perform’ may be part of reasonably accommodating a person. Transfer from night work to day work [17.95] In Noonan Services Ltd v Worker,114 this was held as being an appropriate measure. Notably, it was also held that this does not require that previous levels of earnings are preserved. Reduction in working hours [17.96] In HK Danmark,115 the CJEU ruled that the necessarily broad definition of ‘reasonable accommodation’ may include the reduction of a worker’s working hours. In short, a part-time job may have to be created to accommodate the disabled worker. Importantly, the court stated: ‘the circumstance that the person concerned can work only to a limited extent is not an obstacle to that person’s state of health being covered by the concept of disability.’ 112. 113. 114. 115.

Department of Justice v Kavanagh [2012] ELR 34. Employer v Worker ADE048. Noonan Services Ltd v Worker EDA1126. HK Danmark, acting on behalf of Ring v Dansk almennyttigt Boligselskab and HK Danmark, acting on behalf of Skouboe Werge v Dansk Arbejdsgiverforening acting on behalf of Pro Display A/S (Joined Cases C–335/11 and C–337/11) [2013] IRLR 571.

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[17.97]

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Countervailing measures to ameliorate disadvantage [17.97] Once an employer has taken the opportunity to accommodate an employee, and where the person has been relieved of certain tasks that may be beyond their capacity, if this results in a diminution of the person’s prospects of advancement in employment, the Equality Tribunal has held: ‘It would seem reasonable to conclude on a purposive construction of the Section, that the employer should then consider if any countervailing measures could be taken to ameliorate that disadvantage.’116

In the above instance, the Equality Officer referred to a number of cases and noted as follows: ‘The scope of an employer’s duty is determined by what is necessary and reasonable in the circumstances. It may, as in the instant case, involve relieving the person with a disability from the requirement to undertake certain work, which is beyond his or her capacity. However if this results in a diminution of the person’s prospects of advancement in employment it would seem reasonable to conclude, on a purposive construction of the Section, that the employer should then consider if any countervailing measures could be taken to ameliorate that disadvantage’.117

Disproportionate burden on employer [17.98] When the Employment Equality Bill 1996 was first introduced, it provided that an employer was required to reasonably accommodate a disabled person’s needs unless the cost of the provision would give rise to ‘undue hardship’. The Supreme Court intervened,118 however, and considered that this constituted an unjust attack on employers’ property rights. Consequently, the Bill was re-introduced in 1997 and the obligation to make reasonable accommodation was subject only to a ‘nominal cost’ requirement. [17.99] Section 9 of the Equality Act 2004 substituted a new sub-s (3) to require employers to take ‘appropriate measures’ to accommodate persons with a disability, ‘unless the measures would impose a disproportionate burden’. In determining whether the measures would impose such a disproportionate burden, account has to be taken of the financial and other costs involved, the scale of the financial resources of the employer’s business and the possibility of obtaining public funding or other assistance. [17.100] Unfortunately, in this jurisdiction there have been very few decisions on what constitutes a disproportionate burden. It is, however, clear from the cases on physical disability that an Equality Officer will have particular regard to the size of an organisation and its resources. 116. Government Department v Employee DEC S2002–024. 117. See also Medical Secretary v HSE West DEC–E2103–083. 118. In re Article 26 and the Employment Equality Bill, 1996 [1997] 2 IR 321.

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[17.101] As previously discussed, the Equality Officer in O’Sullivan v Siemens Business Services Ltd119 held that the provision of an assessment test in an electronic format could not in any sense be considered as posing a disproportionate burden. [17.102] Equally, in Kennedy v Stresslite Tanks Ltd,120 which involved sick leave, the Equality Officer found the standard laid down by the Labour Court had not been met. The Equality Officer reached the conclusion on the basis that the respondent could have ceased the payment of sick pay and left the complainant on the books of the company, and considered therefore that this would not have placed a disproportionate burden on the respondent. [17.103] In the case of O v Industrial Waste Management Company,121 the complainant worked as a service operator for the respondent on a client site. While lifting a 25-litre drum to shoulder height, he suffered a neck injury; the following year, he was dismissed. The Equality Officer, in finding that the respondent was not proactive in exploring appropriate measures, also found that suggestions made by the complainant would not have placed a disproportionate financial burden on the respondent, being a multinational enterprise with significant resources. [17.104] It remains to be seen how the jurisprudence will develop in this jurisdiction. In particular, it will be interesting to see whether there will be a marked divide between the public and private sectors. It has certainly been the case that the scale of financial outlay expected in terms of the provision of reasonable accommodation appears to be higher in the public sector than it currently does in the private sector.122 [17.105] It should not be forgotten that in determining whether the measures would impose a disproportionate burden, there is a duty on employers to take into account the possibility of obtaining public funding and other assistance. In this regard, the Employment Retention Grant scheme aims to assist employers to retain employees who acquire an illness or impairment that affects their ability to carry out their job. There is also a grant available to employers for adapting equipment in the workplace for staff with disabilities who, in particular, need to make adaptations to their workplace or purchase specialised equipment. The matter of public funding has not been addressed in any decisions by the Equality Tribunal or Labour Court, but employers should be mindful of the fact and not discount alterations or proposals as a disproportionate burden until this has been considered. 119. 120. 121. 122.

O’Sullivan v Siemens Business Services Ltd DEC–E2006–058. Kennedy v Stresslite Tanks Ltd DEC–E2009–078. O v Industrial Waste Management Company DEC–E2013–142. See Employee v Local Authority [2002] ELR 159, where the fact that an employer was a large public sector employer was taken into account in determining whether accommodation sought amounted to more than a nominal cost.

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[17.106]

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Summary: reasonable accommodation [17.106] ·The person must not be fully competent. If the person is competent to do the job, then the issue of appropriate measures and reasonable accommodation does not arise: • • •

• •

•

an employer cannot impose measures on an employee where that employee does not want or need those measures; there is no obligation on employers to provide a new or alternative position to a person with a disability; procedures are critically important. All the facts must be established. Dialogue must occur with the employee – who should be involved as much as possible and allowed input and comment – before any decision is taken which could be to his or her detriment; all appropriate measures must be examined and taken seriously; even where reasonable accommodation is afforded to an employee, if this causes the person to suffer a detriment, there is an onus on the employer to ameliorate that detriment; any defence will be entertained only after all of the above matters are considered.

EXEMPTIONS [17.107] Most exemptions under the Employment Equality Acts have their origin in the Framework Directive. In general, these exemptions make otherwise unlawful discrimination lawful and, as such, they must be interpreted in a very restrictive manner and apply only in very limited circumstances. Genuine occupational requirement [17.108] Section 37(2) of the Acts provides for a genuine occupational requirement, as it does for the other grounds (except the gender ground). In addition, specific employments are included at s 37(3), such as the Garda Síochána, prison service or any emergency service. It is hard to see the circumstances in which the exemption of a genuine occupational requirement could be extended beyond these specific occupations. Educational, technical or professional qualifications [17.109] Section 36(4) of the Act states: ‘Nothing in this part … shall make it unlawful, to require in relation to a particular post: (a)

the holding of a specified educational, technical or professional qualification which is a generally accepted qualification in the State proposed for that description, or

(b)

the production and evaluation of information about any qualification other than such as specified qualification.’

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[17.114]

[17.110] This section was amended by s 25 of the Equality Act 2004. It was widely criticised123 and was ultimately described by the Supreme Court as being a reasonable balance between the right of free profession and practice of religion on the one hand and the right to equality before the law and the right to earn a livelihood on the other.124 [17.111] In Office of the Civil Service and Local Appointments Commission v Gorry,125 the Labour Court held that s 34(4) removed from the purview of s 31 criteria in the nature of such qualifications which are generally regarded as necessary for the posts of a particular category. Although this subsection refers to a particular post ‘in the singular’, the Labour Court was satisfied, having regard to the provisions of the Interpretation Act 2005, that it applied to the filling of posts of a grade or level, in this instance concerning the executive officer in the civil service, in respect of which the qualification would normally be required. Here Mr Gorry argued that the educational recruitment was indirectly discriminatory on the disability grounds, as he had suffered from dyslexia and contended that his failure to pass the English exam was due to that condition. The Labour Court held that even assuming that the disability of dyslexia would mean that fewer persons could meet the educational requirement, s 36(4) provided a complete defence to a claim of indirect discrimination grounded on the imposition of the educational requirement, provided that the educational requirement was one which was generally accepted as a post of that description within the State. Exemptions relating to various professions, vocations or occupations [17.112] Section 36(5) of the 1998 Act goes on to state that: ‘nothing in this Part or Part II shall make it unlawful for a body controlling the entry to, or carrying on of, a profession, vocation or occupation to require a person carrying on or wishing to enter that profession, vacation or occupation to hold a specified educational, technical or other qualification which is appropriate in the circumstances.’

This section has not been litigated. Alternative and lower rates of pay [17.113] Section 35(1) of the 1998 Act allows employers to provide for employees with disabilities a different rate of remuneration for work of a particular description if, by reason of the disability, the amount of work done by the employee during a particular period is less than the amount of similar work done or which would reasonably be expected to be done during that period by an employee without a disability. [17.114] The only reference to this section is the case of Kehoe v Convertec,126 where the Equality Officer noted that it was possible under s 35(1) of the Act to pay the 123. 124. 125. 126.

See 150 Seanad Debates Cols 610–613 and 154 Seanad Debates Cols 838–842. See [1997] 2 IR 321 at 359. Office of the Civil Service and Local Appointments Commission v Gorry EDA 14/2006. Kehoe v Convertec [2002] ELR 236. See para 5.78 above.

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complainant less than other workers received due to the lower rate of his performance. While s 35(1) allows an employer to pay a disabled employee less on the basis that he or she is not doing the same amount of work, s 35(3) provides that where, by virtue of s 35(1) or 35(2) a person with a disability receives a particular rate for remuneration or special treatment, a person with a different disability or without a disability should not be entitled to that special rate or facility, thus allowing employers to effectively ‘redcircle’ disabled employees. Prison service, gardaí or emergency services [17.115] Section 37(3) of the Employment Equality Acts 1998–2011, provides that: ‘It is an occupational requirement for employment in the Garda Síochána, prison service or any emergency service that persons employed therein are fully competent and available to undertake, and fully capable of undertaking, the range of functions that they may be called upon to perform so that the operational capacity of the Garda Síochána or the service concerned may be preserved.’

[17.116] This, in essence, provides that if a person with a disability is not fully competent to carry out the full range of duties attaching to their position, there is no requirement for the gardaí to recruit or retain such persons in employment. In Department of Justice, Equality and Law Reform v Kavanagh,127 a prison officer claimed (on medical advice) that he was unable to return to his duties of employment as it would risk a reoccurrence of his disability. As a consequence, he sought that he be reasonably accommodated by a transfer to less stressful duties. The Labour Court found that the purpose of s 16(3) of the Acts is to provide a person with a disability with appropriate measures to enable that person to be fully capable of undertaking the full range of duties associated with their position. While Mr Kavanagh was not able to do so even with reasonable accommodation, which was provided, the respondent was entitled to terminate his employment relying on s 37(3) of the Acts. [17.117] In the case of McDonald v Road Safety Operations Ireland Ltd t/a GoSafe,128 the complainant began working with the respondent on 12 January 2011 as a speedmonitoring/surveying operator. Just two months later, on 13 March, he suffered a severe psychological injury as a result of a petrol tank of a speed survey van being set alight while he was inside it. He was dismissed after his second visit to occupational health, when, according to the respondent, the complainant was adamant that he would never go back to working as a speed-monitoring operator. The Equality Officer found that the respondent company in this case did not fall within the definition of ‘employment within the Garda Síochána, prison service or any emergency service’. 127. Department of Justice, Equality and Law Reform v Kavanagh EDA 1120. 128. McDonald v Road Safety Operations Ireland Ltd t/a GoSafe DEC–E2014–069.

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Disability

[17.120]

DEFENCES [17.118] Section 16(1) of the Employment Equality Act re-enacts with amendments s 13 of the 1977 Equality Act and provides that an employer is not required to recruit, retain, train or promote a person who will not, or is not available to carry out the duties of a position or will not accept the conditions under which the duties attached to a post are to be performed or who is not fully competent to carry out the duties concerned. This section can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed a bona fide belief that the complainant was not fully capable of performing the duties for which he or she was employed. However, any reliance on s 16(1) is contingent on the employer adhering to the obligations of reasonable accommodation prior to the termination of employment, including the procedural steps required pursuant to s 16(3). This applies to prospective employees.129 [17.119] Once again, Humphries v Westwood Fitness Club requires that all employers review medical evidence to ascertain the level of impairment caused by the disability, and thereafter employers must consider suitable forms of reasonable accommodation. Any failure to do so will not allow employers to claim that the employee was incapable of undertaking the duties of employment and render a dismissal discriminatory. [17.120] The case of Cascella t/a Donatellos Restaurant v Worker130 deals with the issue of discriminatory dismissal on the grounds of disability. The complainant commenced employment with the respondent on 24 March 2002. He claimed that at the time of his recruitment he was informed that there was a one-week trial period, but that his employer informed him two days later that has was to be made full-time. The employer, in contrast, claimed that the employee was on a two-week trial basis and that the employee was not offered permanent employment, as there were issues with his timekeeping and that his work was not up to the standard required by the restaurant. On 5 April 2002, the employee became disorientated in work due to low sugar levels associated with his diabetes. He was assisted by a fellow employee and ate some food to restore his sugar levels. He explained that he was a diabetic. The manager told him to go home and to return the following day. When he returned to work the next day, he was dismissed. The complainant claimed that he was dismissed when he disclosed his disability to his employer. 129. See Harrington v East Coast Area Health Board DEC–E2002–001 which was upheld by the Labour Court in Health Board v Worker EDA 1/2002 where the Equality Officer concluded that a literal interpretation will produce the ‘absurd result in that an obligation only to provide reasonable accommodation for people with disabilities in employment and not at the selection stage would mean that people with disabilities might never in fact be successful in getting into the workforce if their special needs were not reasonably accommodated at the selection stage.’ 130. Cascella and Cascella t/a Donatellos Restaurant v Worker [2005] 16 ELR 28.

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During evidence, it was stated that the employer intended to inform the employee at the end of his shift on 5 April 2002 that he was being let go, but that this did not occur due to the employee’s illness at that time. The employer stated that the employee had been given a number of verbal warnings. This was denied by the complainant. The respondent also disputed that there had been a dismissal at all, but rather that the employee was not retained at the end of a trial period. The Labour Court accepted the employee’s evidence that he did not receive any warnings and was not made aware that his job was at risk. It held as follows: •

there was a dismissal for the purposes of the Employment Equality Act 1998;

•

the facts established a prima facie presumption of discrimination and that the respondent failed to prove that the dismissal was for a reason other than the disability of the employee;

•

an employer should ensure that an employee is given fair notice that the question of his or her dismissal for incompetence/incapacity to being considered;

•

the employee must also be allowed an opportunity to influence the employer’s decision.

Similar to Humphries, this decision ensures that before the defences under s 16(1) are invoked, the court will consider all the facts, including the complainant being given fair notice that dismissal is being considered and being allowed an opportunity to influence any decision. Health and safety [17.121] There is no explicit exception in relation to health and safety in the Employment Equality Acts131 and while the Equality Tribunal and the Labour Court take health and safety matters very seriously, it is common case that generalised concerns about the health and safety of individuals will not relieve employers from their obligations to provide reasonable accommodation. Equally, while s 16 does include an inference that the job has to be done in a safe manner, this exemption does not take precedence over or defeat an employer’s obligations to reasonably accommodate an employee. [17.122] In McRory Scaffolding (NI) Ltd v Worker,132 the employer unsuccessfully claimed an entitlement on health and safety grounds to dismiss a scaffolding labourer following a number of seizures. The employer in this instance had not obtained an assessment of the employee’s health from an occupational physician or performed a safety assessment, and therefore could not demonstrate that the employee was not fully competent or capable of performing his duties. 131. Health and safety measures to protect the health and safety at work of persons with a disability are included in the ‘positive action’ section (s 33). 132. McRory Scaffolding (NI) Ltd v Worker EED 2005.

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[17.123] In Bus Éireann v C,133 the respondent refused to continue employing the claimant because his hearing fell below the levels set out in international standards on driving public transport vehicles. While the Labour Court accepted the importance of complying with these standards, it remarked that little if any effort was made to consider alternative working arrangements for the claimant, and this failure meant that the employer could not rely on the capacity and competence exemption in s 16(1)(b). [17.124] Thus, even when there are accepted health and safety concerns, the duty to provide reasonable accommodation may require employers to consider possible alternative positions.134 [17.125] In Employee v Company,135 an employer successfully invoked health and safety considerations. Even though the tribunal held that the complainant was dismissed because of his disability (anxiety and depression), it found that the respondent had completed a ‘process oriented’ approach when considering the employee’s return to work and had carried out appropriate enquiries in accordance with the obligation to carry out reasonable accommodation. The tribunal went on to clarify: ‘It is clear that an employer is entitled to take account of possible dangers occasioned by a disability from which an employee suffers. It is equality clear that in some circumstances an employer has an obligation to do so.’

133. Bus Éireann v C EDA 0811. 134. The case of Chief Constable of South Yorkshire Police v Jelic [2010] UKEAT/0491/09/CEA is authority for the proposition that in certain disciplines an employee may be expected to be re-assigned. 135. Employee v Company DEC–E2010–062.

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Chapter 18 RACE INTRODUCTION [18.01] Race was a new ground introduced under the Employment Equality Act 1998. Given the huge influx of foreign nationals into the country during the years of significant economic growth in the early 2000s,1 it is not surprising that discrimination on the grounds of race tended to be the most litigated of all the grounds. In more recent years, the number of cases has begun to taper off.2 However, this was as a direct consequence of the culmination of years of work at the level of the EU. [18.02] The EU has been involved in combating racism since the mid-1980s. The European Parliament first raised the issue through a committee of inquiry in 1985. During the 1990s, the commitment of the EU to the fight against racism was significantly strengthened, culminating in 1997, the European Year against Racism. During the course of that year, the Council agreed to establish a permanent monitoring centre on racism and xenophobia, and the Treaty of Amsterdam inserted a new Art 6a, which provided the EU with the option of adopting binding legislation against racial discrimination. The revision of the Treaty paved the way for the passing of the Race Directive,3 which was the first piece of legislation to be adopted under Art 19 of the TFEU, less than a year after the Treaty of Amsterdam entered into force.

RACE DISCRIMINATION IN EU LAW [18.03] The Race Directive was adopted in 2000 and was given effect in Ireland by the passing of the Equality Act on 18 July 2004.4 The purpose of the Directive is to lay down a framework for combating discrimination on the grounds of racial or ethnic origin, with a view to putting into effect in the Member States the principle of equal 1.

2. 3. 4.

The number of Irish residents who were born outside Ireland stood at 766,770 in 2011, an increase of 25% on 2006, and accounting for 17% of the population. The groups that showed the largest increase were those already well established in Ireland. The fastest growing groups were Romanians (up 110%), Indians (up 91%), Polish (up 83%), Lithuanians (up 40%) and Latvians (up 43%). See Census 2011: This is Ireland, Pt 1 (Central Statistics Office, 2011). In 2013, there were 102 referrals; in 2012, 103; in 2011, 137; in 2010, 259; and in 2009, 289. Figures from the Annual Reports of the Equality Tribunal for the various years. Council Directive 2000/43/EC ([2000] OJ L180/22) implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. Albeit that the Directive was to be implemented by 19 July 2003.

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treatment.5 The Directive prohibits discrimination (both direct and indirect), harassment and victimisation in the workplace on the grounds of racial or ethnic origin. [18.04] There are number of unusual features about the Race Directive. The first of these is that the Directive does not define what is meant by ‘racial or ethnic origin’ – this is left up to each of the Member States. The second is that it provides a broad framework and very basic minimum entitlements6 rather than a complete body of rights. This has been explained by the framers of the Directive as a deliberate strategy to allow the prime responsibility for combating racism to rest with Member States.7 While this is admirable, reflecting as it does cultural sensitivity, it has given rise to legal uncertainty.8 The third unusual feature of the Directive is that the rights are intended to be a floor of rights. Member States are free to introduce better protection into national law as they see fit. As a consequence of this, the Employment Equality Act 1998 and the Equal Status Act 2000, which had already prohibited discrimination on the grounds of race, only had to be amended to the extent that they did not meet the minimum standards set out in the Directive.

DEFINITION OF RACE DISCRIMINATION IN THE EMPLOYMENT EQUALITY ACTS [18.05] The Employment Equality Acts 1998–2011 define race discrimination as occurring where, as between two persons, the discriminatory grounds are ‘that they are of different race, colour, nationality or ethnic or national origins’.9 The inclusion of nationality is a significant departure from the Race Directive. The Directive makes it clear that it does not cover: ‘difference of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of thirdcountry nationals and stateless persons on the territory of Member States.’10

[18.06] Thus, the definition of what constitutes race is significantly wider in the Employment Equality Acts than what is provided for in EU law, given the inclusion of nationality in the Irish legislation.11 Albeit that the concept of nationality is self5. 6. 7. 8. 9. 10. 11.

Council Directive 2000/43/EC, Art 1. Council Directive 2000/43/EC, Art 6. McInerney, ‘Equal Treatment Between Persons Irrespective of Racial or Ethnic Origin: A Comment’ (2000) ELR 317–353. See comments from House of Lords Select Committee on the European Union, Ninth Report, 16 May 2002, 61–69. Employment Equality Act 1998, s 6(2)(h). Council Directive 2000/43/EC, Art 3(2). This is allowed by virtue of Council Directive 2000/43/EC, Art 6, which allows Member States to maintain provisions that are more favourable.

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[18.10]

explanatory, in keeping with the Directive the Acts make no effort to define what is meant by race, colour or ethnic origins. [18.07] The inclusion of nationality in the Employment Equality Acts has led to a significant number of claims coming before the Equality Tribunal in this jurisdiction. It is clear that if the wording of the Directive had been adopted in this jurisdiction, it would be very difficult for most people of EU extraction to argue discrimination on the grounds of race. Ethnic origin [18.08] The inclusion of nationality, while allowing a broader swathe of people to rely on the Acts, has had the consequence of ensuring that there has been very little consideration of what constitutes ‘ethnic origin’. The only case where this was considered was Fitzgerald v Minister for Community, Equality and Gaeltacht Affairs,12 where it was determined that membership of the farming community did not constitute an ‘ethnic group’. [18.09] In Mandla (Sewa Singh) v Dowell Lee,13 the headmaster of a private school in the UK refused to admit as a pupil a Sikh boy unless he removed his turban and cut his hair. The boy claimed that the ‘no turban’ rule amounted to unlawful indirect racial discrimination under s 1(1)(b) of the UK Race Relations Act 1976 against a member of a ‘racial group’ as defined in s 3(1) of that Act. His claim was rejected in the County Court and Court of Appeal. The Court of Appeal held that Sikhs were defined by religion, not birth; and while discrimination against wearers of the turban might be religious discrimination, it was not racial discrimination and that ‘ethnic origins’ were synonymous with ‘racial origins’. [18.10] The House of Lords, on appeal in the Mandla case, held that in modern day usage the term ‘ethnic’ was to be construed in a broad cultural and historical context and wider than ‘racial’, which has a biological sense. An ‘ethnic group’ has a long shared history and a cultural tradition of its own, including family and social customs and manners – often but not necessarily – associated with religious observance. In addition, the following characteristics could also be relevant: (a) either a common geographical origin or descent from a small number of common ancestors; (b) a common language, which did not necessarily have to be peculiar to the group; (c) a common literature peculiar to the group; (d) a common religion different from that of neighbouring groups or from the general community surrounding it; and 12. 13.

Fitzgerald v Minister for Community, Equality and Gaeltacht Affairs [2011] IEHC 180. Mandla v Lee [1983] 2 AC 548.

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[18.11]

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(e) the characteristic of being a minority or being an oppressed or a dominant group within a larger community. [18.11] The appellant’s appeal to the House of Lords was allowed. The court was satisfied that Sikhs constituted an identifiable ethnic group and there was a finding of unlawful indirect racial discrimination. The Mandla case has been widely relied upon in subsequent decisions in the UK in order to determine whether a particular group of persons constitutes a racial or ethnic group for the purposes of the Race Relations Act in the UK. [18.12] In the Commission for Racial Equality v Dutton,14 the Mandla case was relied upon to find that Gypsies constituted a racial group by virtue of their shared history, geographical origin, distinct customs, language derived from Romany and common culture.15 [18.13] In Ireland, the Equality Officer in Curran v Department of Education and Science,16 in relying on two of the main elements of Madla – namely, a long shared history and cultural traditions – found nonetheless that residents of the Gaeltacht did not constitute an ethnic group.

DIRECT DISCRIMINATION [18.14] The Race Directive17 prohibits direct or indirect discrimination based on racial or ethnic origin. Article 2(1) provides: ‘(a)

Direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin.’

[18.15] As stated previously, the Directive does not define racial or ethnic origin. The Employment Equality Acts define direct discrimination in s 6(1)(a) as occurring where: ‘A person is treated less favourably than another person, is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which –

14. 15. 16. 17.

(i)

exists,

(ii)

existed but no longer exists,

(iii)

may exist in the future, or

(iv)

is imputed to the person concerned.’

Commission for Racial Equality v Dutton [1989] 1 All ER 306. In contrast, the case was relied on to find that Rastafarians were not a separate ethnic group: Crown Suppliers (PSA) Ltd v Dawkins [1993] ICR 517. Curran v Department of Education and Science DEC–E2009–075. Council Directive 2000/43/EC.

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[18.17]

[18.16] The Equality Tribunal and the Labour Court have taken a broad approach in determining what constitutes direct discrimination on the race ground. This has extended to circumstances where the inconsistent treatment has seemingly little or nothing to do with race but merely because the employer did not take steps to account for the different cultures and languages of migrant workers. An example of this line of thought arose in Campbell Catering Ltd v Rasaq.18 Here the claimant alleged that she was discriminatorily dismissed arising out of an incident where she had taken three bananas to her locker room. She was allowed to take the food and she gave evidence that many other employees ate food in the locker room. She was seen with the bananas and was asked to report to her manager by a more senior manager, who did not work on the premises but who happened to be there at the time. Ultimately, she put the bananas back; but on evidence from the external manager, who stated that she saw her putting them into a bag (the inference being to take them home), was dismissed for theft. There were a number of issues that impinged on the case, not the least that the claimant was summarily dismissed with no regard to fair procedures; further, she was refused a letter setting out the reasons for her dismissal and the company retained her P45. The Labour Court on appeal held that she was unfairly dismissed. However what is important about the case is that the court in essence held that there is an need for employers to reasonably accommodate the needs of migrant workers in terms of culture and linguistic diverstity in relation to disciplinary proceedings. [18.17] The general approach that should be adopted in considering cases of racial discrimination was laid down by the House of Lords in Glasgow City Council v Zafar,19 subsequently adopted in this jurisdiction by Quirke J in Davis v Dublin Institute of Technology.20 In Zafar, Browne-Wilkinson LJ pointed out that where there is a difference in treatment and a difference in race, there is prima facie evidence of discrimination and it is for the respondent to provide a non-discriminatory explanation. This approach was adopted in Ntoko v Citibank,21 where the Labour Court explained its underlying rationale as follows: ‘This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the claimant’s power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging claimants to prove something which is beyond their reach and which may only be in the respondents’ capacity of proof.’ 18. 19. 20. 21.

Campbell Catering Ltd v Rasaq [2004] ELR 310. Glasgow City Council v Zafar [1998] 2 All ER 953. Davis v Dublin Institute of Technology (23 June 2000) HC. Ntoko v Citibank [2004] ELR 116.

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[18.18] This approach is entirely consistent with the procedural rule formulated by the Labour Court in Mitchell v Southern Health Board,22 and is normally applied by the courts here in all cases of discrimination. Under this rule, a claimant bears the onus of proving facts from which discrimination may be inferred. If that onus is discharged, the respondent bears the burden of proving, on the balance of probabilities, that there has been no infringement of the principle of equal treatment. [18.19] In so far as the difference between the non-national worker and an Irish worker is concerned, the Labour Court in Ntoko had particular regard to the difficulties that non-nationals encounter and went on to advocate: ‘Special measures may be necessary in the case of non-national workers to ensure that this obligation is fulfilled and that the accused worker fully appreciates the gravity of the situation and is given appropriate facilities and guidance in making a defence. In such cases, applying the same procedural standards to a non-national worker as would be applied to an Irish national could amount to the application of the same rules to different situations and could in itself amount to discrimination.’

[18.20] Thus Rasaq endorsed the premise that where there is a difference in treatment and a difference in race, there is prima facie evidence of discrimination and it is for the respondent to provide a non-discriminatory explanation. This was, however, clarified in other cases to the effect that evidence is required to demonstrate that the non-national was denied something that an Irish worker had or could be assumed to have received.23

INDIRECT DISCRIMINATION [18.21] Article 2(2)(b) of the Race Directive24 defines indirect discrimination as occurring where: ‘an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.’

Thus, indirect discrimination is prohibited unless it can be objectively justified by a legitimate business aim – and the means of achieving that aim are appropriate and necessary. Irish language requirements [18.22] The issue of Irish language requirements for a position was first considered in Groener v Minister for Education (Ireland).25 This case concerned a Dutch woman who 22. 23. 24. 25.

Mitchell v Southern Health Board [2001] ELR 2001. See Wojciechowski v Tesco Ireland Ltd DEC–2011–148. Council Directive 2000/43/EC. Groener v Minister for Education (Ireland) (Case C–379/87) [1989] ECR 3967.

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[18.24]

was refused a permanent teaching position as an art teacher after she had failed tests intended to assess her knowledge of the Irish language. In 1982, Mrs Groener was engaged on a temporary basis as a part-time teacher in the College of Marketing and Design in Dublin. The college fell under the authority of the education committee. Two years later, she applied for a permanent full-time lecturer’s position in art, but she did not have the Ceard Teastas Gaeilge examination and, despite asking for an exemption, was refused. The reason for the refusal was that there were other fully qualified candidates who could adequately fulfil the post. Notwithstanding the fact that a proficiency in the Irish language was not an occupational requirement, the ECJ upheld that the requirement for teachers to have an adequate knowledge of the Irish language formed part of government policy to promote the use of the language as a means of expressing national culture and identity and that, in so doing, it was not deemed to be indirect discrimination contrary to the Regulation on the free movement of workers.26 The court went on to hold that the requirement could not be disproportionate in relation to the objective pursued and that the policy did not encroach upon fundamental freedoms such as the free movement of workers. [18.23] More recently in Commission v Belgium27 the CJEU held that by requiring candidates for posts in the local services (in Belgium) which are establishing in the French-speaking or German-speaking regions, whose diplomas or certificates do not show that they were educated in the language concerned, to provide evidence of their linguistic knowledge by means of one particular type of certificate, issued only by one particular Belgian body following an examination conducted by that body in Belgium, that the Kingdom of Belgium had failed to fulfil its obligations under TFEU, Art 45 and Regulation 492/2011/EU on the freedom of movement for workers within the EU. The decision highlights the need for employers to be careful to ensure that language requirements for certain positions are not discriminatory. [18.24] This issue also addressed by the Labour Court in McBrearty v NUI Galway,28 where the court had to determine whether a university’s requirement for employees to have a proficiency in the Irish language constituted discrimination on the grounds of race. The complainant in this instance was a Welsh national who had applied for work in the secretarial and clerical areas. The university had a policy of filling such posts from two panels, the first of which was for full-time positions and carried the potential for a permanent position. Access to this first panel required a proficiency in the Irish language. The second panel was for short-term or casual positions, and there was no requirement for proficiency in the Irish language. The complainant applied for and was placed on this panel, and subsequently filled a number of different positions in the university. After a period of some months, she applied to be transferred to the first 26.

27. 28.

Regulation 1612/68 ([1968] OJ L257/2) on freedom of movement for workers within the Community. Regulation 492/2011/EU now goverms the Freedom of Movement for workers within the Union. Commission v Belgium (Case C–317/14) CJEU 5 February 2015. McBrearty v NUI Galway EDA 091.

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[18.25]

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panel, but was informed that this was not permissible, as she could not meet the requirement of having Leaving Certificate Irish or an equivalent qualification. She argued that this constituted indirect discrimination on the grounds of her race, citing the ECJ decision in Groener v Minister for Education (Ireland).29 The Labour Court noted that the ECJ had promoted indigenous languages as a worthy policy aim and that provided that such a policy was reasonable and proportionate, it was not discriminatory. [18.25] Notably, the Labour Court permitted the employer to avail of the defence pursuant to s 31(1)(d) of the 1998 Employment Equality Act, which had actually been repealed by the 2004 Equality Act.30 While the decision in McBrearty appears to be sound in light of the Groener case, the decision by the Labour Court seems somewhat suspect in that the Race Directive31 requires a much more onerous and precise justification of indirect discrimination, such that any provision is ‘objectively justified by a legitimate aim and a means of achieving that aim are appropriate and necessary’.32 References [18.26] The matter of references was dealt with in ICE Group Business Services Ltd v Czerski.33 Here the complainant was a Polish national who applied to the appellant, an employment agency. She claimed discrimination on the grounds of race arising from the appellant’s requirement that she furnish two employment references. The Equality Tribunal upheld her complaint that she was indirectly discriminated against on the grounds of her race in that the requirement for two employment references operated to the disadvantage of a non-Irish national compared with an Irish national. The Labour Court upheld the employment agency’s appeal and accepted the evidence from the agency that it informed the complainant that a character reference would be acceptable as one of the references. The court went on to declare: ‘While the Court accepts that there are inherent difficulties in applying any policy without regard to individual circumstances, the Court is of the view that the requirement to provide two references one of which might be a character reference, does not constitute indirect discrimination on the race ground and furthermore, the Court accepts that in the circumstances of a respondent’s business as an employment agency, where it is dependent on its reputation for clients, the requirement to seek two named referees in order to recommend a person for employment with its clients, is a reasonable requirement in the circumstances.’

[18.27] The matter of references therefore still remains a vexed one, insofar as the Labour Court decided the appeal on a different factual basis than the Equality Tribunal 29. 30. 31. 32. 33.

Groener v Minister for Education (Ireland) (Case C–379/87) [1989] ECR 3967. Equality Act 2004, s 20. Council Directive 2000/43/EC. Employment Equality Acts 1998–2004, ss 22(1) and 31(1). ICE Group Business Services Ltd v Czerski [2010] ELR 8.

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[18.30]

had relied upon. Arguably, therefore, the principles developed by the tribunal in relation to the requirement not to furnish two employment references remains. Access to educational/vocational courses [18.28] In Nowak v Law Society of Ireland,34 the complainant, a Polish national, challenged the Law Society’s requirement to hold a recognised degree to apply for an exemption for a preliminary entrance examination to the Law Society. He specifically argued that this constituted indirect discrimination on the grounds of race, as nonnationals were less likely to hold a ‘recognised degree’. The Equality Tribunal concluded that the requirement by the Law Society was indirectly discriminatory, as a Polish person was less likely to have a degree from an Irish university and therefore was at a particular disadvantage as compared with an Irish person in such circumstances. However, the Labour Court held that the requirement was objectively justified, as it ensured that those who were entering the solicitors’ profession had a minimum standard of relevant education and that it was consistent with the ECJ decision in Morgenbesser v Consiglio dell’Ordine degli avvocati di Genova,35 to the effect that qualifications and professional experience are legitimate factors to be taken into account in the recognition of qualifications obtained in other Member States. English language requirement [18.29] The Labour Court has consistently held that the requirement from employers that employees be competent in a particular language is prima facie indirectly discriminatory on the grounds of race, unless it is objectively justified, as it is likely to place any such person at a disadvantage.36 It is only objectively justifiable if it is in pursuance of a particular aim and where the means chosen are appropriate and necessary to that end. [18.30] This matter was examined in the case of Noonan Services Ltd v Worker,37 where the court held that although it constituted indirect discrimination on the grounds of race to insist on an English language requirement, it was objectively justified in the circumstances and particularly in light of the fact that the client of the respondent, a pharmaceutical company, required that detailed documentation be kept. The case is indicative of the onus on employers to objectively justify such a requirement, and this will be entertained by the court only if it can be proven that it is a specific requirement for the job and not a preference or desire of the specific employer. 34. 35. 36.

37.

Nowak v Law Society of Ireland DEC–E2010–051. Morgenbesser v Consiglio dell’Ordine degli avvocati di Genova (Case C–313/01) [2003] ECR I–13467. For additional reading on this subject, see the UK case of Dziedziak v Future Electronics (2012) UKEAT 0270/11/2802, where the requirement to speak English in the workplace was held to be directly discriminatory. Noonan Services Ltd v Worker EDA 1126.

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[18.31]

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Employment documentation in English [18.31] The issue of non-Irish workers and the provision of employment contracts and other relevant documents in more than one language was addressed in the case of 58 Named Complainants v Goode Concrete Ltd.38 Here the Equality Officer held: ‘I find that each of the complainants in these claims were subjected to discriminatory treatment on the grounds of race in terms of Section 6(1) and 6(2)(h) of the Employment Equality Acts, 1998–2007 and contrary to the provisions of Section 8 of those Acts when their terms and conditions of employment and safety documentation were not set out in a language which was understandable to each of them or where there is no evidence that these terms and conditions of employment were explained to each of them by a person speaking a language they understood who was appointed by Goode Concrete Ltd for this specific purpose.’

Each complainant was awarded compensation in the sum of €5,000 for the effects of the discriminatory treatment. Further, the company was also ordered: •

to put in place clear procedures for ensuring that non-national employees are clear as to their terms and conditions of employment and also understand all safety documentation; and

•

to provide training to management on the provisions of the Employment Equality Acts.

[18.32] The difficulties for non-Irish workers with regard to employment contracts, health and safety documents, work permits and tax documents were again highlighted in the cases of Golovan v Porturlin Shellfish Ltd39 and Panuta v Watters Garden World and Watters Garden Sheds.40 [18.33] In the Golovan case, the Equality Tribunal held that the retention of the complainant’s passport and the non-issue of taxation documents (annual P60s and P45) to the complainant in a timely manner, as would have been the case for an Irish worker who would have been aware of his or her rights, was discrimination on the race ground and awarded the complainant €10,000 compensation for the discrimination. [18.34] Employment contracts and failure by the employer to apply for a work permit were at issue in the Panuta case. The Equality Tribunal found that the failure by the employer to apply for a work permit, to provide the complainant with a P60 and to provide or explain to the complainant information on health and safety and his terms and conditions of employment was discrimination on the grounds of race and awarded 38. 39. 40.

58 Named Complainants v Goode Concrete Ltd DEC–E2008–020. Golovan v Porturlin Shellfish Ltd DEC–E2008–032. Panuta v Watters Garden World and Watters Garden Sheds DEC–E2008–059.

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[18.37]

the complainant €10,000 for the discrimination. The quantum was upheld on appeal by the Labour Court. [18.35] There is, however, an obligation on employees to prove their case, and a mere allegation that they were either not given the documentation in its totality or were not given it in a language they could understand must be substantiated. In Czyzyxki v Fegan Apple Orchard & Joinery,41 the claimant, who was from Poland, alleged discrimination on the race ground on the basis that he was not provided with a written statement of the terms of his employment and that when he printed a sample and gave it to his employer he was derided for doing so in front of the foreman. His representative subsequently contacted the company to request a written statement of annual leave, proper rates for overtime, travel time and other information, but did not receive a response. The claimant also contended that he was denied his holiday entitlements, unlike Irish workers, and neither did he receive regular payslips of the same type provided to Irish workers. The respondent did not engage with the Tribunal or attend the hearing. [18.36] The tribunal in Czyzyxki referred to the decision in Melbury Developments v Valpeters,42 where the Labour Court outlined the probative burden on a person claiming discrimination. In Melbury, the court held that in order to raise a presumption of discrimination for the employer to rebut, a claimant must establish facts from which discrimination can be inferred, mere speculation or assertions, unsupported by evidence, could not be elevated to the level of fact. Here the tribunal held that, given the level of oral testimony, supported by a large amount of documentation provided by the claimant, and that fact that this testimony was given ‘without embellishment and in a concise manner’, the claimant’s case could be distinguished from Melbury. The case does demonstrate, however, that a case needs to be supported by more than mere allegations; actual proof is required to ground a case properly.

DISCRIMINATION BY ASSOCIATION [18.37] The Race Directive43 defines discrimination as occurring where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin.44 The decision on Coleman v Attridge Law45 set the grounds for discrimination by association throughout the EU. Here the ECJ held that the purpose of discrimination law is to protect against all forms of discrimination, including those connected to protected groups of people. 41. 42. 43. 44. 45.

Czyzyxki v Fegan Apple Orchard & Joinery DEC–E2011–260. Melbury Developments v Valpeters ADE/09/16. Council Directive 2000/43/EC. Council Directive 2000/43/EC, Art 2(2)(a). Coleman v Attridge Law (Case C–303/06) [2008] ECR I–5603.

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[18.38]

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Ireland had already prior to the Coleman decision provided for discrimination by association by virtue of s 6(1)(b) of the Employment Equality Acts, which provides that discrimination shall occur where a person who is associated with another person: ‘(i)

is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii)

similar treatment of that person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.’

[18.38] There have been very few decisions in this jurisdiction on racial discrimination by association, with the exception of O’Rourke v JJ Red Holdings Ltd t/a Dublin City Hotel,46 where the complainant alleged discrimination by association by virtue of discriminatory text messages and conversations aimed at his Slovakian wife. His claim was rejected by the Equality Officer as misconceived. The Equality Officer did, however, acknowledge that s 6(1)(b) of the Acts did not require the person with whom the complaint is associated to be an employee of the respondent. [18.39] One of the first and most important decisions in this area is the UK case of Showboat Entertainment Centre Ltd v Owens.47 Here the complainant, who was white, had been employed as the manager of an amusement centre operated by the respondents. He was dismissed because of his refusal to carry out a racially discriminatory instruction to exclude young black people from the centre. Browne-Wilkinson LJ, presiding over the EAT, opined that discrimination on racial grounds required only one question to be answered: whether the unfavourable treatment afforded to the claimant was caused by racial considerations. It was held that even though the claimant was not racially abused himself, his treatment was prompted by racial considerations, and he thus succeeded in his claim. [18.40] The Showboat case has been widely endorsed in a number of subsequent cases where circumstances of discrimination by association have arisen, including by the Court of Appeal in Weathersfield Ltd v Sargent.48 In this case, Mrs Sargent got a job with a car-hire company. She was told that they had a policy about hiring cars to Asians and coloured people. She was told that if she got a call from either of these groups (assuming she could usually tell by their voices), that she had to tell them that there were no cars available. She was appalled and resigned citing constructive dismissal. It was held: ‘A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act49 if (a) on racial grounds he treats that other less favourably than he treats or would treat other persons.’ 46. 47. 48. 49.

O’Rourke v JJ Red Holdings Ltd t/a Dublin City Hotel DEC–E2010–045. Showboat Entertainment Centre Ltd v Owens [1984] 1 All ER 836. Weathersfield Ltd v Sargent [1999] IRLR 94. UK Race Relations Act 1976.

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Race

[18.44]

Although Mrs Sargent was not herself coloured or Asian, the foul conduct of the employer was still perceived to have been ‘on racial grounds’.50 [18.41] Undoubtedly, as time progresses, there will be more cases in this domain; but to date we are compelled to rely on the jurisprudence of our neighbours and the definition as set out in the Acts.

COMPARATORS [18.42] In order to claim discriminatory treatment on the race ground (or indeed any ground), a person needs a comparator. This is so because both the Race Directive and the Employment Equality Acts provide that discrimination can only occur where a person is ‘treated less favourably than another is, has been or would be treated in a comparable situation’.51 Hypothetical comparators [18.43] The case of Ntoko v Citibank52 is the only case to date in this jurisdiction to accept the use of a hypothetical comparator. Here the claimant was assigned to work for the respondent on 17 August 2000 by an employment agency. His employment was terminated on 27 November 2000 for making a personal phone call. The court was satisfied that while it was the stated policy of the respondent to prohibit staff from using its telephone system for private purposes, this policy was not routinely or regularly enforced at the material time. The court was also satisfied that the complainant was dismissed without being given the slightest opportunity to defend himself. The court found that the claimant could rely on a hypothetical agency worker of a different racial origin. The court referred to the judgment of the UK Court of Appeal in Anya v University of Oxford,53 which made it clear that in comparing the claimant’s treatment to that of a hypothetical comparator, reliance could not be placed on the theoretical possibility that the respondent would behave equally badly towards an agency worker of a different racial origin, but on evidence that it did. No such convincing evidence was adduced in this case. [18.44] In practice, the use of hypothetical comparators is permitted only in rare circumstances and where there is some evidence that such a comparator would have been treated more favourably, and a complainant cannot ignore other employees of a different racial origin or nationality and refer to a hypothetical one.54 50. 51. 52. 53. 54.

See also Wilson v TB Steelwork Co Ltd (ET Case no 23662/770), where a white woman won her case after being refused a job because her husband was black. Council Directive 2000/43/EC, Art 2 and Employment Equality Acts 1998–2011, s 6(1)(a). Ntoko v Citibank [2004] ELR 116. Anya v University of Oxford [2001] EWCA Civ 405. Darguzis v Lough Corrib Engineering Ltd DEC–E2009–038.

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[18.45]

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More generally, the use of a hypothetical comparator will be tolerated where there is a blatant breach of legislation and where it is apparent that no Irish worker would have been treated similarly.55

DISCRIMINATORY DISMISSAL [18.45] Race-based dismissals are not dissimilar to other dismissals. However, simple adherence to the company handbook or contract of employment may not be enough, and special measures may be necessary in the case of non-nationals to ensure that fair procedures are adhered to and that the person fully understands the gravity of any charge against them. [18.46] The case of Zhang v Towner Trading t/a Spar Drimnagh 56 highlights the importance of this for employers. Here the employee was notified of an allegation of theft and ultimately her dismissal by text message from the respondent. The employer failed to follow fair procedures, there was no investigation and the employee was denied an opportunity to have representation or prepare a defence to the allegations of theft. The Equality Officer, in citing the Labour Court in Campbell Catering Ltd v Rasaq,57 stated: ‘It is clear that many non-national workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture. In the case of disciplinary proceedings, employers have a positive duty to ensure that all workers fully understand what is alleged against them, the gravity of the alleged misconduct and their right to mount a full defence, including the right to representation. Special measures may be necessary in the case of non-national workers to ensure that this obligation is fulfilled and that the accused worker fully appreciates the gravity of the situation and is given appropriate facilities and guidance in making a defence. In such cases, applying the same procedural standards to non-national workers as would be applied to an Irish national could amount to the application of the same rules to different situations and could in itself amount to discrimination.’

The Equality Officer awarded compensation of €15,000 to Ms Zhang and ordered the employer to issue a disciplinary procedure for all staff that complied with the Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000).

WORK PERMITS AND ILLEGAL CONTRACTS [18.47] The question of whether the Equality Tribunal can hear a case when the complainant is working illegally is a vexed one. This was addressed in a more general 55.

56. 57.

See 5 Complainants v Hannon’s Poultry Export Ltd DEC–E–2006–050, where there was a blatant breach of the Organisation of Working Time Act 1997 and unlawful deductions from wages. Zhang v Towner Trading t/a Spar Drimnagh DEC–E2008–01. Campbell Catering Ltd v Rasaq ED/02/52 Labour Court.

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Race

[18.49]

sense in Hussein v Labour Court,58 where Hogan J in the High Court overturned a decision of the Labour Court to award the notice party some €92,000 because of the fact that he was working with no work permit and therefore illegally employed. This, however, has been remedied by the Employment Permits (Amendment) Act 2014, which inserts a new s 2B into the Employment Permits Act 2003 that allows a foreign national to institute civil proceedings to recoup money for work done or services rendered. Whereas the 2014 Act deals with compensation, that is not to say that prohibiting a person from getting a work permit or retaining or interfering with a person’s work permit is valid. In this regard, the Labour Court has always held that there is a specific onus on employers regarding the employment of non-nationals and that the failure of an employer to obtain a valid work permit could in and of itself constitute unlawful discrimination on the race ground.59 [18.48] Neither does the 2014 Act deem that all persons whose contracts are tainted by illegality are able take a civil action. In the case of Samaitas v Nurendale Ltd t/a Panda Waste,60 the complainant was a Lithuanian national who was employed originally as a helper but was then appointed to a driver’s position. He contended before the tribunal that he carried out like work in relation to two other comparators (Czech and Latvian nationals) and argued that he was entitled to the same rate of remuneration as them. He also alleged that he had been victimised for referring his complaint to the tribunal. The respondent raised as a preliminary point that the complaint should not be heard by the tribunal, as the complainant had fraudulently misrepresented his position in terms of holding a valid driving licence necessary to perform his duties, and that this matter, which was the subject of criminal proceedings, invalidated his contract of employment and in such circumstances the tribunal had no basis to investigate the complaints further. The Equality Officer found: ‘From the outset of his appointment to the position of driver with the respondent in February 2009, [the complainant] deliberately deceived his employer by presenting it with a forged driving licence which indicated that he had formerly achieved driving skills required for the position. The complainant continued with the deception until 2012 when he was prosecuted, pleaded guilty and had the Probation Acts applied to him.’

The Equality Officer also noted that the respondent was unaware of the deception at this time and went on to remark ‘[t]he contract of employment between the Complainant and the Respondent is tainted by illegality to such a degree that the contract is unenforceable’. The Equality Officer held against the complainant in the totality of his complaint. [18.49] The Samaitas case is important in that although the matter of working without a permit has been dealt with by the legislature, it is still within the remit of the tribunal to determine some other basis on which the contract may be tainted by illegality. 58. 59. 60.

Hussein v Labour Court [2012] IEHC 364. See Domestic Worker v Employer DEC–E2011–117. Samaitas v Nurendale Ltd t/a Panda Waste DEC–E2013–022.

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[18.50]

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BULLYING AND HARASSMENT [18.50] It has been recognised that race-based discrimination often occurs in conjunction with the other discriminatory grounds and that this is also often combined with bullying and harassment.61 In such cases, similar to ensuring that employees subject to disciplinary proceedings who are non-nationals are afforded equal if not better treatment than Irish employees, employers are also required to ensure that extra measures are taken to ensure that every effort is made in bullying and harassment cases to prevent such issues occurring. [18.51] A case in point is Odion v Techniform (Waterford) Ltd,62 where the employee complained that he was being bullied and harassed on the grounds of race in his place of employment. An independent consultant was appointed by the employer to carry out an investigation into the allegations. The investigator found no case of bullying or harassment, but stated that cultural differences had arisen which required tolerance and acceptance by all concerned. The employer had a comprehensive written policy on bullying and harassment that dealt with racism. It was prominently displayed in the workplace and all employees had attended a seminar on bullying and harassment. However, the Equality Officer held that she was not satisfied that the investigation adequately described the circumstances in the workplace, that appointing an independent investigator did not absolve the employer of responsibility and that the employer’s failure to deal with the complainant’s isolation at work after the investigation did amount to discrimination on the grounds of race. This case demonstrates the lengths that employers have to go to ensure that there is no actual discrimination or inference of discrimination. [18.52] Harassment, which is distinguishable from bullying in that it can be once-off and must relate to one of the nine grounds of discrimination as outlined in the Employment Equality Acts, has been dealt with in a number of decisions. The following have all been deemed to constitute harassment on the race ground: where a person has been called a ‘refugee’,63 a ‘stupid Russian’64 and a ‘fiery Latin’;65 comments that the person in question, because she was Indian, might be subjected to a forced marriage;66 and being subjected to constant remarks about one’s nationality.67 61.

62. 63. 64. 65. 66. 67.

The UK Equality Act 2010 specifically recognises this and provides at s 14 that individuals who consider that they have been subjected to less favourable treatment can maintain claims of dual discrimination. There is no such provision here, although see the case of Nyamhovsa v Boss World Promotions DEC–E2007–072, where this was specifically recognised. Odion v Techniform (Waterford) Ltd DEC–E2007–018. A v Hotel DEC– E2009–003. Ganusauskas v All Purpose Stone Ltd DEC–E2009–063. Manager of an English Language School v Institute of Technology DEC–E2007–019. Richmond Pharmacology v Dhaliwal (2009) IRLR 226. Worker v Engineering Company DEC–E2008–038.

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Race

[18.55]

EXEMPTIONS [18.53] There are very few exceptions to discrimination on the race ground. However, the Employment Equality Act 1998 contained a provision which allowed for race to be a relevant characteristic if the nature of the post so required ‘on grounds of physiology or on grounds of authenticity for the purpose of entertainment’.68 This was removed by the Equality Act 200469 because of the inconsistency between that provision and the requirements of the Race Directive.70 Vocational training [18.54] There is an exception in respect of race and vocational training. Section 12(7) of the Employment Equality Act 1998 provides: ‘Without prejudice to Section 3 of the Refugee Act, 1996 nothing in subsection (1) shall make unlawful discrimination on the age ground or the ground of race in respect of any course or vocational training offered by (an educational) or training body where – (a)

it provides different treatment in relation to: (i)

the fees for admission or attendance at any such course by persons who are citizens of Ireland or nationals of another Member State of the European Union, or

(ii) the allocation of places on any such course to those citizens or nationals, or (b)

it offers assistance to particular categories of persons by way of sponsorships, scholarships, bursaries or other awards, which assistance is reasonably justifiable, having regard to a traditional or historical considerations (or),

(c)

in the case of a University or other third level institution, it provides different treatment in the allocation of cases on any such course to mature students within the meaning of the Local Authorities (Higher Education Grants) Acts 1968–1992.’

[18.55] Thus this section permits different treatment on the basis of race in relation to fees for admission or attendance at any vocational training course and permits preferential treatment for citizens of Ireland or nationals of EU Member States. The section also provides that it is not discriminatory to provide assistance to particular categories of persons by way of sponsorships, scholarships, bursaries or other awards when such assistance is justified, having regard to traditional or historical considerations. 68. 69. 70.

Employment Equality Act 1998, s 37(3). Equality Act 2004, s 25. Council Directive 2000/43/EC.

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[18.56]

Equality Law in the Workplace

Residency/citizenship [18.56] Section 36(2) of the 1998 Act insists on requirements of residency and/or citizenship in relation to employees who are to hold office in the service of the State, including gardaí and the defence forces. [18.57] In Office of the Civil Service and Local Appointments Commission v Gorry,71 the Labour Court held that sub-s (4) removed from the purview of s 31 criteria and the nature of such qualifications that were generally regarded as necessary for posts of a particular category. Although this subsection refers to a ‘particular post’ in the singular, the Labour Court was satisfied – having regard to the provisions of the Interpretation Act 2005 – that it applied to the filling of posts at a grade or level (in this instance executive officer in the Civil Service) in respect of which the qualification would normally be required. Genuine occupational requirement [18.58] Section 37(2) of the Employment Equality Acts provides for a genuine occupational requirement and this applies to race equally as it does to other grounds, subject to its being a legitimate objective and the requirement being proportionate.72

71. 72.

Office of the Civil Service and Local Appointments Commission v Gorry EDA 14/2006. Section 37(2)(b).

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Chapter 19 MEMBERSHIP OF THE TRAVELLER COMMUNITY INTRODUCTION [19.01] The Employment Equality Act 1998 provides for specific protection for members of the Traveller community.1 It is notable that the 1998 Act did not contain a definition of what a member of the ‘Traveller community’ constituted, but this was rectified by the Equal Status Act 2000, which inserted a definition into s 2 of the 1998 Act, and the term is now defined as follows: ‘The community of people commonly so called who are identified (both by themselves and others) as people with a shared history, culture and traditions including, historically, a nomadic way of life on the island of Ireland.’2

[19.02] Travellers constitute a very small amount (0.6 per cent) of the population of Ireland; most (86.65 per cent) are unemployed.3 Such numbers, among other factors, have pointed to the need to provide protection to the Traveller community, and the 1998 Act went a long way to assist in this regard. Despite this, there remains a real question as to whether the protection afforded in the 1998 Act extends to the Race Directive.4 There is a distinct lack of comment or direction in the legislation as to whether the protection for the Traveller community is actually covered by the Directive. This might not seem important at first glance, but it does actually give any form of discrimination on the Traveller ground lesser status than if it were covered in the Directive.

CASE LAW [19.03] Notwithstanding the identification of the ground in the 1998 Act, there have been fairly few cases from an employment perspective – not surprising, one might say, given the relatively low numbers of Travellers actually in employment. This has led the Equality Authority to argue that reasonable accommodation should be introduced as a 1. 2. 3.

4.

Employment Equality Act 1998, s 6(2)(i). Employment Equality Act 1998, s 2 as inserted by Equal Status Act 2000, s 39. Census 2011; see http://www.cso.ie. While this is a very large proportion of unemployed, research has shown that while there is high interest in entering the labour market in the Traveller community, many Travellers have had to hide their Traveller identity to access employment. A national social-survey commissioned by the ESRI from 2007 to 2008 found that 40% of respondents would be unwilling to employ a Traveller and one in ten people in Ireland would both deny citizenship and ‘deport or debar’ Irish Travellers from Ireland (MacGréil, Emancipation of the Travelling People 2010). Directive 2000/43/EC.

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[19.04]

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requirement to allow members of the community to participate adequately in the labour market.5 [19.04] The first case decided on the Traveller ground was Nevin v Plaza Hotel.6 Here the complainant was offered a job and commenced employment (there was some disagreement about whether it was an actual trial day). The complainant was not offered any further hours after the day in question. A representative of a local employment service who made enquiries about the complainant was told that the complainant did not have the same concept of cleaning as other employees and ridiculed: ‘But how could she be expected to, given the way they lived!’ The Equality Officer placed significant importance on this comment and held that it transformed an otherwise non-discriminatory series of events into actual discriminatory treatment. In addition, the complainant subsequently obtained employment in another hotel, where there were no complaints about her standard of cleaning or duties. She was awarded €6,348.69, and the respondent was ordered to draw up a code of practice on equality of opportunity for all its employees and prospective employees. [19.05] In Sweeney v Saehan Media,7 a case under the Equal Status Acts 2000–2012, the claimant argued that there are certain features, behaviour and characteristics associated with members of the Traveller community by which they could be identified. The Equality Officer declined to comment on this stereotyping and considered that the employer would not know that the claimant was a Traveller. Here a job was advertised as requiring a Leaving Certificate and the claimant had challenged that as being unnecessary and indirectly discriminatory to members of the Traveller community, who were less likely to have that standard of education. The Equality Officer agreed and held that the company should take steps to ensure that job advertisements: ‘do not contain references to educational requirements that a category of individuals covered by the Act are substantially less likely to have attained, unless that level of education can be objectively justified, or reasonable in the circumstances as the case requires.’

[19.06] In Sweeney v McHale Ltd,8 the complainant sent his curriculum vitae to a recruitment company which was recruiting on behalf of the respondent. When he followed up on his application, he was told that a representative of the employer had stated that as he was ‘one of the Sweeneys from Sligo’, he was not suitable for the position. The respondent (somewhat peculiarly) argued that the reason for the rejection was that it had in fact wished to employ non-Irish employees. Needless to say, the Equality Officer rejected this, as it would amount to discrimination on the grounds of race. Therefore, in the absence of any other reason for rejecting the applicant, the 5. 6. 7. 8.

See Equality Authority Report 2003. Nevin v Plaza Hotel [2002] ELR 177. Sweeney v Saehan Media DEC–E2003–017. Sweeney v McHale Ltd DEC–E2003–033.

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Membership of the Traveller Community

[19.09]

Equality Officer awarded the complainant €3,000 on the basis of the discriminatory statement made. [19.07] Maguire v North Eastern Health Board9 concerned a member of the Traveller community who was employed on probation by a public health authority. The facts were that the complainant had attended the office Christmas party where a co-worker invited other members of staff back to her house for an after-party, but added within the complainant’s hearing that ‘The knacker is not coming’. The complainant objected immediately to the comment, but the co-worker refused to withdraw it. The complainant reported the comment to his supervisor the following day, asking that his employer take steps to prevent a reoccurrence. His supervisor declined to take any action. The Equality Officer held that the comment amounted to harassment under the 1998 Act and that the employer’s failure to act made it vicariously liable for the comment. The Equality Officer also found that the employer had discriminated against the complainant when it subsequently reduced his working hours and victimised him for complaining about the derogatory comment. The Equality Officer awarded compensation in the sum of €5,000 and ordered the employer to take specified measures to prevent future harassment of its employees on the Traveller community ground. [19.08] In McCorry v Southside Partnership,10 discrimination by association was held to have occurred. The employee argued that he was subjected to less favourable treatment in the form of disciplinary action as a result of his association with members of the Traveller community. His claim was unsuccessful and the Equality Officer noted that the purpose of the organisation was to assist Travellers so that all employees would be in a similar situation to the complainant and as such there could be no less favourable treatment on the Traveller ground.

HARASSMENT ON THE TRAVELLER GROUND [19.09] In Whitehouse v C&M Construction Ltd,11 the complainant was a member of the Traveller community employed as a labourer on various sites operated by the respondent. It was agreed that when some scrap metal was stolen, a supervisor called the complainant and left a message asking him to ‘Tell his cousins not to come back to the site again.’ Despite the Equality Officer finding that the respondent’s policies were found to be entirely in compliance with SI 208/201212 and despite the fact that the employer was considered to have attempted to reverse the effects of the harassment in accordance with s 14(2)(b) of the Act, it was held that the respondent manifestly did not prevent the incident in the first place, in accordance with s 14(2)(a) of the Act. 9. 10. 11. 12.

Maguire v North Eastern Health Board DEC–E2002–039. McCorry v Southside Partnership DEC–E2009–055. Whitehouse v C&M Construction Ltd DEC–E2013–099. Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 (SI 208/2012).

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Part D Enforcing Equality Rights

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Chapter 20 TAKING A CLAIM INTRODUCTION [20.01] The Equality Tribunal was established under the 1998 Act to investigate claims of discrimination brought under the legislation. The Equality Act 2004 introduced procedural changes with regard to the forum for making a complaint. Gender discrimination claims may be made to the Equality Tribunal or the Circuit Court at the option of the employee. Complaints on all other grounds are made to the Equality Tribunal.

TIME LIMITS [20.02] Section 77(5)(a) of the Employment Equality Act 1998 (as amended) provides that a claim for redress must be filed with the Equality Tribunal (or Circuit Court) within six months from the date of occurrence or, as the case may be, the most recent occurrence of the act of discrimination or victimisation. There are thus strict time limits for the referral of complaints for those seeking redress under the Act. There is no basis to argue that the time limit should run from the date on which the person became aware of the discriminatory treatment as there is in other litigation matters, such as personalinjury claims.1 [20.03] The time limit runs from the date on which the complaint form is received by the Equality Tribunal, not the date on which it is posted or issued or served in the Circuit Court.2 There is an important distinction between equality claims and claims for unfair dismissal. In unfair dismissals claims, the date of dismissal is the date that the notice, if given, would have expired (with the exception of where the contract provides for pay in lieu of notice and that this acted upon). In equality claims, the date of dismissal is the actual date of termination as this is the last date of discrimination. [20.04] Time runs from the most recent discriminatory act and this is included in the six-month time limit. Thus, if a person experienced many acts of discrimination and the last of those occurred, say, on 1 January, then that person has until 30 July to submit a claim. Equal pay claims are dealt with differently. Section 77(5)(a), as previously stated, limits claims to six months. However, s 77(5)(c) provides that this subsection does not apply to ‘a claim not to be receiving remuneration in accordance with an equal remuneration term.’ 1. 2.

HSE v Whelehan EDA 0923. Named Female Employee v Named Respondent DEC–E2003–001.

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[20.05]

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Based on an opinion by Mary Finlay SC appended to the decision in Brady v TSB ESOP Trustees Ltd,3 the time limit for equal pay claims is accepted as being six years. This does not necessarily extend to claims of equal treatment, where it is probably the case that the ordinary time limits apply.4 Extension of time limits [20.05] The time limitation of six months may be extended to 12 months if there is ‘reasonable cause’5 to justify the extension. The test for extension of the time limit prior to the passing of the Employment Equality Act 2004 was ‘exceptional circumstances’.6 This was a considerably higher threshold than ‘reasonable cause’. In HSE v Rauf7 – a case brought under the Protection of Employees (Fixed-Term Work) Act 2003 – the Labour Court described the test as ‘modest’ and not ‘unduly onerous’. In Byrne v PJ Quigley Ltd,8 a case dealt with by the EAT, exceptional circumstances were described as something out of the ordinary.9 [20.06] In Claimant v Government Department,10 the claimant referred a complaint of alleged discrimination on the gender and age grounds against the Minister in relation to promotion/re-grading, conditions of employment and harassment. The complaint was referred outside the statutory six months’ time limit. In October 2006, the Equality Authority made an application for an extension of time on behalf of the claimant on the basis that the claimant had been unwell and in hospital and had not been aware of the possibility of making a complaint under the Employment Equality Acts, despite having consulted a solicitor. The claimant had also tried to resolve the matter through internal channels, but had been unsuccessful. The Equality Tribunal issued a direction in the matter on 2 August 2007, extending the time. The Equality Officer stated that ignorance of the law cannot be cited as reasonable cause, nor can any inadequacies in the advice a claimant received from a solicitor. He stated that the claimant had demonstrated that she had made efforts to pursue the issue through internal channels and that she had been unwell and under stress due to the effects of the alleged discrimination. She also had to contend with a period in hospital in September 2005, followed by further periods of illness, and she was on medication. The Equality Officer stated that the respondent did not appear to be at a disadvantage by the complaint being referred outside the six-month time limit. 3. 4. 5. 6. 7. 8. 9. 10.

Brady v TSB ESOP Trustees Ltd DEC–E2004–007. See Power v An Post DEC–E–2007–034. Employment Equality Acts 1998–2011, s 77(5)(b) as amended. Employment Equality Act 1998, s 77(5). HSE v Rauf FTD 0817. Byrne v PJ Quigley Ltd UD/762 1994. Note that the test of ‘exceptional circumstances’ has been removed for all employment rights claims by virtue of the Workplace Relations Act 2015. Claimant v Government Department DEC–E2007–009.

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Taking a Claim

[20.09]

[20.07] Therefore, in providing an excuse as to why there was a delay in submitting a claim, a complainant must adduce evidence as to the reasons for the delay and that this actually provides an actual excuse.11 In Cementation Skanska v Worker,12 it was held that a short delay might only require ‘slight explanation’, whereas a longer delay might require more ‘cogent’ reasons. [20.08] The seminal case on the extension of time limits is that of the Department of Finance v IMPACT.13 Here the Labour Court declared: ‘The Court must also be satisfied that the explanation offered is reasonable; that is to say it must be agreeable to reason and not be irrational or absurd. This is essentially a question of fact and degree to be decided by applying common sense and normally accepted standards or reasonableness. The standard is an objective one but it must be applied to the facts known to the applicants at the material time. Whilst it is not expressly provided in the Act, it seems explicit that even where reasonable cause is shown, the Court should go on to consider if there are any countervailing factors, which would make it unjust to enlarge the time limit. These factors would include … the degree of prejudice which may have been suffered by the respondent (or third parties) in consequence of the delay, whether the applicant has been guilty of culpable delay and whether the applicant has a good arguable case on its merits.’

[20.09] The Labour Court has generally adopted the above in determining whether an extension of time will be given. In general, the approach of the court to an extension of time is as follows:

11. 12. 13. 14. 15.

•

the court will consider every case on its merits;

•

the court will consider the length of the delay;

•

the court will then consider whether any prejudice will be suffered by the respondent or third parties;

•

the court will consider whether on the merits of the case there is a likelihood of success. The stronger the likelihood of success the more likely it is that time will be extended;14

•

was the claimant in receipt of independent legal advice prior to the expiration of the six-month time limit? In Cementation Skansa,15 the court, in allowing the extension, relied on the fact that the claimant did not have the benefit of independent professional advice; See Minister for Finance v Civil and Public Sector Union [2007] ELR 36. Cementation Skanska v Worker DWT0425. Department of Finance v IMPACT [2005] ELR 6. Elephant Haulage Ltd v Juska EET002. Here the court stated that a good arguable case should not be defeated on a technicality. Cementation Skanska v Worker DWT0425.

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[20.10]

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•

the reason for the extension must be agreeable to reason;16

•

if there is an attempt to resolve matters internally, this may give rise to an extension of time.17

[20.10] The practice is that where an extension of time is required, it is dealt with by written submission only. Once the decision is made, this can be appealed to the Labour Court within 42 days. Notably, an extension of time before the Circuit Court is dealt with on an ex parte basis.18 Continuing discrimination and time limits [20.11] It is well recognised that discrimination is rarely a one-off issue and that more often than not it occurs over a period of time. The law is cognisant of this and accordingly the Employment Equality Acts cover such situations. In this regard, the Acts envisage two different methods of continuing discrimination. [20.12] The first is covered by s 77(5)(a), which deals with discrimination that amounts to a series of acts or omissions by employers that, while not constituting part of a regime, rule or practice, are sufficiently connected to so as to constitute a continuum of discrimination.19 [20.13] Section 77(6A), which was inserted into the 1998 Act, envisages a very different type of continuing discrimination: ‘(6A) For the purposes of this section: (a)

discrimination or victimisation occurs: (i)

if the act constituting it extends over a period, at the end of the period

(ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and (iii) if it arises by virtue of a provision which operated over a period throughout the period’.

The language is all in the singular: it refers to ‘the act’, ‘if it arises by virtue of a term in a contract’, and ‘if it arises by virtue of a provision’. The section therefore has been taken to pertain to a single act that continues over a period of time and so is treated as being done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle that has had a clear and adverse effect on the complainant.20 16.

17. 18. 19. 20.

Department of Finance v IMPACT [2005] ELR 6. For a case that did not conform to reason, see Reynolds v Limerick City Council DEC–E2003–032, where an attempt to obtain further information was rejected as a valid ground for an extension of time. Kelly v HSE Western Area DEC–E2008–027. See Rules of the Superior Courts, Ord 57 r 6(6)(g). County Cork VEC v Hurley EDA1124. County Cork VEC v Hurley EDA1124.

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[20.17]

[20.14] This issue of continuing discrimination has been examined in detail by the Equality Tribunal and the Labour Court in several cases. In Jones v Norwich Union International Ltd,21 the claimant alleged that the respondent directly discriminated against her on grounds of gender. The respondent argued that her claim relating to her application for a post of Sales Support Manager in April/May 2004 was out of time. The facts are that the claimant was interviewed for the position on 20 April 2004. She did a psychometric test on 29 April 2004 and gave a presentation on 12 May 2004. The claim was referred on 16 December 2004 citing the first incident of discrimination as 20 April 2004 and the last incident on 17 September 2004. There was also a claim in respect of a further competition in August 2004. As the claim in respect of the second competition was referred within the six-month time period, the Equality Officer held that it was valid before the tribunal. [20.15] The Equality Officer considered a similar issue on time limits in Department of Health and Children v Gillen,22 where the claimant complained that after he had reached the age of 50, he was no longer considered as being suitable for promotion purely on age grounds. He claimed that on two occasions when he competed, he was rejected on the grounds that he was over 50 years of age. In that case the Labour Court held: ‘… in the view of the Court, these two acts can be considered as separate manifestations of the same disposition to discriminate. If the last alleged act of discrimination is within the time specified in the Act, the Court may take into consideration previous occasions in which the complainant was allegedly discriminated against on the same ground. The Court, therefore, takes the view that both complaints are validly before the Court.’

Summary [20.16] Claims should be submitted to the tribunal within six months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.23 The time limit may be extended to 12 months for ‘reasonable cause’.24 [20.17] If a complaint is not submitted to the tribunal within six months of the alleged discriminatory act, the claimant must show ‘reasonable cause’. This is a less onerous test than the previous test of ‘exceptional circumstances’, which was provided for in the 1998 Act, in that the court will take a pragmatic view of this; generally, where the claimant has a stateable case and where the delay is not prolonged, it will allow the extension. 21. 22. 23. 24.

Jones v Norwich Union International Ltd DEC–E2006–062. Department of Health and Children v Gillen ADE/03/15 Determination no 0412 27 July 2004. Employment Equality Acts 1998–2011, s 77(5)(a) as amended. Employment Equality Acts 1998–2011, s 77(5)(b) as amended.

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[20.18]

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[20.18] If the last alleged act of discrimination is within the time specified in the Act and the original complaint is not, the court may take into consideration previous occasions in which the complainant was allegedly discriminated against on the same ground, as long as the general nature of the complaint remains the same and the respondent is not prejudiced by the change.25 However, this will only be allowed if there is a causal link between the ‘in time’ allegations and the allegations that are outside the six-month period.26 [20.19] While any matters not comprehended in the original complaint and with no link to the original complaint cannot be regarded as part of the complaint, they may have probative value.27

FRIVOLOUS OR VEXATIOUS CLAIMS [20.20] Section 77A of the Employment Equality Act 1998 was inserted by s 33 of the Equality Act 2004 and empowers the Director of the Equality Tribunal to dismiss a claim which is made in bad faith, is frivolous, vexatious, misconceived or relates to a trivial matter. This has been replicated in the Workplace Relations Act 2015, s 42(1).There is a similar provision in the Equal Status Act 2000, s 22. This was utilised by the Director to dismiss a claim pursuant to that Act that farmers constituted an ‘ethnic group’. This was upheld by Hogan J in the High Court, who averred that the Director of the Tribunal was ‘amply justified in invoking the powers conferred by section 22 of the 2000 Act to strike out this claim in “limine”’.28 This section is not invoked very often, and there is a very high onus on respondents in making a request to the Director to dismiss a claim, as they must demonstrate that the claimant has ‘no reasonable chance of succeeding’.29

STRIKING OUT CLAIMS NOT PURSUED [20.21] Section 102 of the 1998 Act empowers the Director of the Equality Tribunal or the Labour Court to strike out claims for want of prosecution. There is a peculiarity in the Act in that a decision by the Director to strike out a claim in this manner cannot be appealed to the Labour Court. This is so because the Labour Court’s appellate functions 25.

26. 27. 28. 29.

Department of Health and Children v Gillen ADE/03/15, Jones v Norwich Union International Ltd DEC–E2006–062 and County Louth VEC v Equality Tribunal [2009] IEHC 370. Jankowski v Tesco Ireland DEC–E2014–070. Hurley v County Cork VEC EDA 1124 and School and Worker EDA122. Fitzgerald v Minister for Community, Equality and Gaeltacht Affairs [2011] IEHC 180. Giblin v Bank of Ireland Asset Management Ltd DEC–E2011–161 cites Farley v Ireland (1 May 1997) SC. The claim in Giblin was dismissed, as it was referred to the Tribunal some three and half years after the act of discrimination and accordingly had no chance of succeeding. (‘Limine’ is a pretrial request that certain inadmissible evidence not be referred to or offered at trial.)

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[20.24]

are confined to decisions of the Director under ss 77(6) and 79. In a similar vein, the appellant functions of the Circuit Court are confined to determinations of the Labour Court under s 79. The Director or the Labour Court can only strike out cases where ‘at any time after the expiry of 1 year from the date of the reference, it appears to the Director that the complainant has not pursued or has ceased to pursue the reference’. [20.22] There have been no decisions to date on this section under the Act. However, Hedigan J in the High Court considered in some detail a similar provision in s 38 of the Equal Status Act 2000 in the case of Eagle Star Assurance Company of Ireland Ltd v Director of the Equality Tribunal.30 Here Hedigan J interpreted the section narrowly to situations where ‘the complainant fell out of contact with the Tribunal or where he or she failed to provide important information to the Tribunal.’

FORMS [20.23] Complaints before the Tribunal are initiated by completing the Workplace Relations Complaint Form,31 which has to be completed online. This form, introduced in 2013, replaced form EE1.32 Form EE1 was a non-statutory form and, as such, significant leeway was given to claimants when they completed it or indeed chose to use it at all. In Clare County Council v Director of Equality Investigations,33 it was held that applicants can ‘submit complaints in any format they sit fit’.34 The Workplace Relations Act 2015 did not correct this; as such, the Workplace Relations Complaint Form is not a statutory form. Form EE2 and the drawing of inferences [20.24] The Employment Equality Act 1998, (Section 76 – Right to Information) Regulations (SI 1999/321) came into operation on 18 October 1999 and they prescribe at Sch 1: ‘The form to be used for the purposes of section 76(1) of the Act by a person (the Complainant) to obtain material information in order to decide whether to refer a matter under any provision of section 77 of the Act and in the event of such a reference, to formulate and present his or her case in the most effective manner.’35 30. 31. 32. 33. 34. 35.

Eagle Star Assurance Company of Ireland Ltd v Director of the Equality Tribunal [2009] IEHC 124, [2009] ELR 295. See APPENDIX 1. See APPENDIX 2. Clare County Council v Director of Equality Investigations [2011] IEHC 303. This was consistent with an earlier decision in Female Employee v Building Products Company DEC–E2007–036. Employment Equality Act 1998, (s 76 – Right to Information) Regulations (SI 1999/321), reg 3. See APPENDIX 3.

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[20.25]

Equality Law in the Workplace

There are a number of issues to consider about form EE2. First, unlike form EE1, it is a statutory form and therefore has a legal basis. It is the only method of obtaining information.36 Second, it can only be used to obtain ‘material information’. Material information is defined in s 76(2) of the Employment Equality Acts 1998–2011 as: ‘(a)

Information as to Y’s reasons for doing or omitting to do any relevant act and as to any practices or procedures material to any such act,

(b)

Information other than confidential information, about the remuneration or treatment of other persons who stand in relation to Y in the same or similar position as X, or

(c)

Other information which is not confidential information or information about the scale or financial resources of the employer’s business and which in the circumstances of the case in question it is reasonable for X to require’

[20.25] ‘Confidential information,’ is defined as ‘any information which relates to a particular individual, which can be identified as so relating and to the disclosure of which that individual does not agree’.37 Hence, employers need only supply material information within the meaning of s 76 that is relevant to the proceedings at hand. [20.26] Section 81 of the 1998 Act provides that the Director of the Equality Tribunal or the Circuit Court may draw such inferences as are appropriate from a failure to supply the information sought under this section. In Irish Ale Breweries Ltd v O’Sullivan,38 the respondent failed to provide any reason at the hearing as to why it failed to provide the information. The Labour Court inferred that the information, if furnished, would have provided evidence of ‘like work’ between the complainant and her comparator. This section was modelled on s 74 of the British Sex Discrimination Act 1975.39 [20.27] However, in Kelly v National University of Ireland,40 the CJEU ruled that in the Employment Equality Directives there is no right for persons to information from which they can establish facts, from which discrimination may be inferred or presumed. This rather harsh interpretation of the Directives has been ameliorated by the decision of the CJEU in Meister v Speech Design Carrier Systems GmbH:41 ‘In the light of the foregoing, the answer to the first question is that Article 8(1) of Directive 2000/43, Article 10(1) of Directive 2000/78 and Article 19(1) of Directive 2006/54 must be interpreted as not entitling a worker who claims plausibly that he meets the requirements listed in a job advertisement and whose 36. 37. 38. 39. 40. 41.

Notwithstanding an individual’s right to make a Data Protection Act request. Employment Equality Acts 1998–2011, s 76(3). Irish Ale Breweries Ltd v O’Sullivan (2007) ELR 150. See Igen Ltd v Wong [2005] IRLR 258. Kelly v National University of Ireland (Case C–104/10) [2012] 1 WLR 789, [2012] ICR 322, [2011] ECR I–06813. Meister v Speech Design Carrier Systems GmbH (Case C–415/10) at paras 46–47.

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[20.31]

application was rejected to have access to information indicating whether the employer engaged another applicant at the end of the recruitment process.’ Nevertheless, it cannot be ruled out that a defendant’s refusal to grant any access to information may be one of the factors to take into account in the context of establishing facts from which it may be presumed that there has been direct or indirect discrimination. It is for the referring court to determine whether that is the case in the main proceedings, taking into account all the circumstances of the case before it.’

[20.28] Given the above, employers would be unwise not to respond to a request for information, as the consequences can be grave. This can be seen in Cahill v OSG Chartered Loss Adjustors,42 where the Equality Officer found that as the respondent failed to provide details to the complainant of interviews for another position for which he was not considered (of which he was unaware), this was a factor to be taken into account in rejecting the argument of the respondent that the complaint could not be investigated by the Equality Officer when it was not referred to on the EE1 form. Amending complaints or complaint forms [20.29] Notwithstanding the need to issue a complaint to the Equality Tribunal within six months from the alleged date of discriminatory treatment, the nature of discrimination often gives rises to multiple and ongoing acts of adverse treatment. The law has recognised this in a variety of decisions which assist complainants in formulating their complaints before the Tribunal. [20.30] In Kelly v University of Dublin Trinity College,43 the respondent’s representative raised a preliminary issue at the hearing regarding the fact that the complaint form indicated that the complainant was bringing a claim on the ground of family status and that she had not identified any comparator in relation to whom she was less favourably treated on this ground. The claim should have been made on the gender ground. The representative for the claimant then sought to amend the ground. The Equality Officer held that it was permissible to amend a form, providing that the general nature of the complaint remains the same and that there is no prejudice to the respondent. In addition to this, the representative for the complainant sought to introduce a new complaint regarding a failure to provide the complainant with an opportunity to apply for a job as a research assistant. The Equality Officer held that while it was permissible to amend a complaint form, the introduction of a new component on a new ground was not permissible. [20.31] A more recent examination of this issue arose in Jankowski v Tesco Ireland.44 Here the complainant lodged his complaint with the tribunal on 1 March 2012. He made multiple allegations relating to his conditions of employment, broadly split into three 42. 43. 44.

Cahill v OSG Chartered Loss Adjustors DEC–E2011–030. Kelly v University of Dublin Trinity College DEC–E2013–106. Jankowski v Tesco Ireland DEC–E2014–070.

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[20.32]

Equality Law in the Workplace

groups: those relating to 2010; those relating to 2011 and 2012 until the date of his complaint; and those that occurred after the date of his complaint, which were included in his submission to the tribunal. The allegations related to issues such as the treatment of his various applications for leave, including Christmas leave and not being permitted to wear runners or to go home when sick. [20.32] In respect of the first group of allegations, the Equality Officer found that the complainant had not established a link between the 2010 allegations and those that occurred later. Therefore, the first group of allegations were out of time. When considering the allegations in the third group, those that occurred after the lodgement of the complaint but included in the submission of 2013, the Equality Officer was satisfied that they all related to the race ground ‘[i]t is not envisaged that a complainant should have to submit an additional claim form for each and every alleged incident of discrimination’. She was satisfied that the respondent was on notice of the allegations, having received the submission and therefore found she had jurisdiction to investigate them. [20.33] However, in Hurley v County Cork VEC45 and in School and Worker,46 the Labour Court stated that matters arising after the date of the lodgment of the complaint that were not comprehended by the complaint and could not be regarded as part of the complaint, but may have probative value in respect of those incidents that could. [20.34] The Equality Officer’s conclusion in Jankowski that she had jurisdiction is important, as only three of the complainant’s allegations were upheld and two of them, occurring in December 2012 and January 2013, occurred after the date of the lodgment of the complaint. The third matter upheld related to incidents that occurred in October 2011 and June 2012: the complainant made a complaint of discrimination, along with other colleagues, to a manager in October 2011 and raised it a second time in his performance review in June 2012. The respondent could not offer an explanation as to why neither complaint was acted upon. The Equality Officer found that as no action was taken, this established a prima facie case of discrimination on the race ground, which the respondent failed to rebut. Having considered some ten allegations, the Equality Officer concluded that the remainder did not amount to discrimination on the race ground. She referred to Carr v EBS Building Society,47 where the judge stated that it was not necessary ‘to deal on a point by point basis with every argument made by the complainant.’ The complainant was awarded €12,000 for the discrimination in the three matters upheld. [20.35] The case of Geidrikaite v Falls Hotel48 is also informative in this regard. Here the complainant alleged that she was discriminated against once she informed her 45. 46. 47. 48.

Hurley v County Cork VEC EDA 1124. School v Worker EDA 122. Carr v EBS Building Society [2013] IEHC 182. Geidrikaite v Falls Hotel DEC–E2013–004.

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[20.37]

supervisor that she was pregnant. The complainant worked as a receptionist in the hotel and later in the spa area from May 2009. In April 2010, she informed her supervisor that she was pregnant. Her supervisor told her that at seven weeks pregnant it was too early to inform the general manager. However, two days later the complainant was informed that no hours were available to her and she did not work in the hotel again. After this, 20 hours were given to a part-time worker in July/August of the same year, which would have been offered to the complainant had she not ‘proceeded down another route’. The respondent argued that the hotel was very quiet at that time and that the hours of other workers were also affected. The Equality Officer found that while the hours of other workers were indeed reduced, the complainant was the only person who lost the entirety of her hours and that this difference in treatment was not explained by the respondent, who was effectively dismissed. The Equality Officer, having so determined, went on to address the victimisation of the complainant. This was not raised by the complainant at the outset of her complaint, and the Equality Officer referred to the High Court’s judicial review judgment in Power Supermarkets.49 In this case, the Equality Officer was found to have erred in law in failing to address the concept of indirect discrimination in a situation where direct discrimination was found not to have occurred. Having considered this, the Equality Officer held: ‘This establishes the right of an Equality Officer to consider cases before him or her under provisions of the relevant legislation that the complainant or the complainant’s representative have not sought to invoke, if it appears from the evidence that those provisions should be applied to the case at hand.’

Ultimately, the Equality Officer did not find that the complainant was victimised. [20.36] The use of the Power Supermarkets case to include a consideration of victimisation not previously raised appears to be a considerable extension of that case from the need to consider both direct and indirect discrimination to a consideration of any additional discriminatory treatment under the Acts. By so extending the interpretation of the Power Supermarkets case, this appears to suggest that a complainant can extend the claim against a respondent prior to or at the hearing regardless as to what is pleaded. [20.37] This decision is not in keeping with the High Court decision in County Louth VEC v Equality Tribunal,50 where McGovern J confirmed by way of judicial review that form EE151 was intended only to set out in broad outline the nature of the complaint and that it was permissible to amend a claim set out therein ‘so long as the general nature of the complaint (in this case discrimination on the basis of sexual orientation) remains the same’. This indeed is consistent with the Powers Supermarket decision. 49. 50. 51.

Long v Labour Court 1990 No 58 JR 25 May 1990. County Louth VEC v Equality Tribunal [2009] IEHC 370. Now replaced by the Workplace Relations Complaint Form.

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[20.38]

Equality Law in the Workplace

[20.38] As it stands, therefore, the position regarding amending complaint forms is as follows: •

it is permissible to amend the form if the general nature of the complaint remains the same and there is no prejudice to the respondent;

•

it is not permissible to introduce completely new grounds at any hearing.

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Chapter 21 THE BURDEN OF PROOF INTRODUCTION [21.01] To be successful in any claim for discrimination, a complainant must prove that he or she has been treated less favourably on one of the discriminatory grounds. In many cases, there will be little or no evidence of discriminatory treatment, and real evidential difficulties often arise for complainants. This generally arises out of the nature of the discriminatory treatment itself, which may often be covert. The High Court recognised this in the case of Iarnród Éireann v Mannion:1 ‘In determining cases of alleged discrimination, it is well recognised that special evidential difficulties may arise from the very nature of discrimination itself. This is often hidden or unrecognised by the party alleged to discriminate.’

In an attempt to address this, the law has been set so that the burden of proof in discrimination cases partially shifts to the respondent.

EU AND IRISH CONTEXT ON THE BURDEN OF PROOF [21.02] The evidential difficulties suffered by complainants was first recognised in Danfoss,2 where the ECJ recognised that while, in principle, it is for the complainant to prove the existence of discrimination, national rules on the burden of proof may need to be adapted so as not to deprive the principle of equality of its effectiveness. Following this, Directive 97/80/EC was adopted by the Council.3 This has since been repealed and is now incorporated into Directive 2006/54/EC,4 and it is also replicated in the Race Directive.5 [21.03] In Ireland, the rules were implemented initially by the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001.6 However, s 36 of 1. 2.

3. 4.

5. 6.

Iarnród Éireann v Mannion [2010] IEHC 326. Handels-og Kontorfunktionærernes Forbund i Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss (Case C–109/88) [1989] ECR I–3199. See also Enderby v Frenchay Health Authority (Case C–127/92) [1993] ECR I–5535. Council Directive 97/80/EC ([1998] OJ L14/6) on the burden of proof in cases of discrimination based on sex. Council Directive 2006/54/EC ([2006] OJ L204/23) on the implementation of the principle of equal opportunities and equal treatment of men and women in matter of employment and occupation (recast), Art 19. Council Directive 2000/43EC OJ L 180, 19/07/2000 P 0022–0026 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001(SI 337/2001).

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[21.04]

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the Equality Act 2004 inserted a new s 85A into the 1998 Act to give effect to Council Directive 97/80/EC, Art 8 of Directive 2000/43/EC and Art 10 of Directive 2000/78/EC, and s 85A now applies to all cases of discrimination.

THE TEST IN PRACTICE [21.04] The seminal case on the burden of proof, and one that continues to be referred to, is Southern Health Board v Mitchell.7 At the time this case was heard, the Burden of Proof Directive had yet to be transposed into Irish law, but the Labour Court took it as being formalised. In referring to the Directive, the court went on to consider the extent of the evidential burden a claimant must discharge before a prima facie case of discrimination can be made out: ‘The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicated that a claimant must prove, on the balance of probabilities the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.’

[21.05] This test demands that a claimant must establish, first, the primary facts upon which he or she is going to rely upon and, second, that those facts are of sufficient significance to raise an inference of discrimination. More recently, the test in Mitchell has been explained as incorporating three tests. In the HSE North Eastern Region v Sheridan,8 the Labour Court declared: ‘1.

First, the complainant must prove the primary facts upon which he or she relies in alleging discrimination.

2.

Second, the Court or Tribunal must evaluate those facts and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination.

3.

Third, if the complainant fails at stage 1 or 2, he or she cannot succeed. However, if the complainant succeeds at stages 1 and 2, the presumption of discrimination comes into play and the onus shifts to the respondent to prove, on the balance of probabilities, that there is no discrimination.’

[21.06] Primary facts upon which a complainant can rely are a prerequisite. Thus, in Melbury Developments v Valpeters,9 the Labour Court stated ‘[m]ere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn’. 7. 8. 9.

Southern Health Board v Mitchell [2001] ELR 201. HSE North Eastern Region v Sheridan EDA 0820. Melbury Developments v Valpeters EDA 17/2009.

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[21.10]

[21.07] In addition to the reliance on Mitchell, the Labour Court has also drawn on the decisions of the courts in England and Wales and, in particular, has referred to the judgment of the Court of Appeal in Wong v Igen Ltd.10 Here the Court of Appeal in the UK set out guidance for courts and tribunals in assessing the burden of proof in an appendix to the judgment, which adapted that set out in Barton v Investec Securities Ltd.11 Notably, in the Igen case the Court of Appeal stressed the fact that ultimately the test is that laid down in the legislation. [21.08] Notwithstanding the reliance on Mitchell, there are circumstances where the test will not be appropriate. Thus, in ICTS (UK) Ltd v Ahmed,12 the court indicated that where the alleged discrimination consists of discriminatory questions or comments made in the course of a one-to-one interview, the only evidence that the complainant will be able to adduce will be his or her own uncorroborated testimony. What is in dispute is whether the alleged discriminatory remarks were actually uttered: the fact in issue. Where the primary facts upon which the claim of discrimination is based are also the fact in issue, the application of the Mitchell test places the entire probative burden on the complainant. In the court’s view, this might impose a higher standard of proof than was envisaged by the legislation.

ESTABLISHING A PRIMA FACIE CASE OF DISCRIMINATION [21.09] In this regard, the tribunal and the court typically employ a three-stage test: 1.

the complainant must establish that he or she is covered by the relevant discriminatory ground;

2.

he or she must establish that the specific treatment alleged has actually occurred;

3.

it must be shown that the treatment was less favourable than the treatment, which was or would have been afforded to another person, in similar circumstances not covered by the relevant discriminatory ground.13

[21.10] More often than not, it is the third test that proves the most problematic for complainants. It is generally reasonably straightforward enough for complainants to prove that they are covered by the relevant discriminatory ground and that the treatment actually occurred. However, linking the treatment to the discriminatory ground complained of may prove difficult. 10. 11. 12. 13.

Igen Ltd v Wong [2005] IRLR 258. Barton v Investec Securities Ltd [2003] ICR 1205. ICTS (UK) Ltd v Ahmed EDA 3/2004. See F v A Financial Institution DEC–S2008–003; Kelly v Panorama Holiday Group Ltd DEC–S2008–007, Hallinan v Moy Valley Resources IRD North Mayo-West Sligo Ltd DEC– S2008–025.

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[21.11]

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In Dyflin Publications Ltd v Spasic,14 the Labour Court referred to its decision in Cork City Council v McCarthy15 and pointed out that the complainant must not only establish the primary facts upon which he or she relies, but must also satisfy the court that they are of sufficient significance to raise an inference of discrimination. The Labour Court also noted ‘[t]ype or range of facts which may be relied upon by a complainant can vary significantly from case to case’. Where the primary facts alleged are proved, it remains for the court or tribunal to ‘decide if the inference or presumption contended for can properly be drawn from those facts.’

REBUTTING A PRIMA FACIE CASE OF DISCRIMINATION [21.11] Once a complainant has established a prima facie case of discrimination, the burden shifts to the respondent to prove that the conduct complained of was not discriminatory. There are no set determinants for what rebuts a prima facie case of discrimination, as it is clear that all cases are treated on their own merits. It is also difficult to ascertain any theme running through the judgments. [21.12] A number of things go without saying. First, it is important for a respondent to actually turn up at the hearing. There are many occasions when this does not occur, and in such instances it is almost impossible to rebut any presumption of discriminatory treatment.16 Second, it is important to produce rebuttal evidence. Third, once that evidence is produced, it must be substantial. As the UK Court of Appeal said in the Igen17 case, if there is any discrimination whatsoever (or, in other words, it is clear that discrimination is more than a trivial influence on the respondent’s conduct), this will be fatal to the respondent’s rebuttal of a prima facie claim of discrimination.

BURDEN OF PROOF ON THE GENDER GROUND [21.13] There is a relatively high success rate by claimants in pregnancy-related claims.18 This may be the case because the burden of proof in such cases is readily satisfied by the mere fact that the woman is pregnant. [21.14] Case law suggests that once a pregnant employee is treated less favourably or dismissed, then the burden of proof is satisfied and that the onus immediately shifts to 14. 15. 16. 17. 18.

Dyflin Publications Ltd v Spasic EDA 0823. Cork City Council v McCarthy EDA 0821. See Joyce v Superquinn (in Receivership) DEC–S2011–062. Igen Ltd v Wong [2005] IRLR 258. See Banks and Russell, Pregnancy Discrimination in the Workplace: Legal Framework and Review of Legal Decisions 1999 to 2008 (HSE Crisis Pregnancy Programme/Equality Authority, 2011).

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[21.17]

the respondent to rebut the presumption. This approach was confirmed by the Labour Court in Intrum Justitia v McGarvey,19 where the Labour Court observed: ‘It is settled law that special protection against dismissal exists during pregnancy. Only the most exceptional circumstances not connected with the condition of pregnancy allow for any deviation from this. It is equally settled law that the dismissal of a pregnant woman (which can, obviously, only apply to women) raises a prima facie case of discrimination on the gender ground. Once such a case has been raised the burden of proof shifts and it is for the respondent employer to prove that discriminatory treatment on the stated grounds did not take place.’

[21.15] From the above, it can be gleaned that only in the most exceptional circumstance will employers be able to rebut the inference of discrimination. This most often occurs in times of restructuring. Thus, in Cilinska-Snepste v Rye Valley Foods,20 the Tribunal was satisfied that the reason for the termination of the complainant’s employment was the loss of a number of significant contracts where the employer had to make a number of employees – including the complainant – redundant but did so in a transparent way by the use of ‘last in, first out’.21

BURDEN OF PROOF ON THE RACE GROUND [21.16] Perhaps as simple and straightforward as it is to shift the burden of proof in pregnancy-related cases, the opposite applies in cases that arise on the race ground. An analysis of this area is complicated by the fact that many cases on the race ground arose after the crash in the construction sector, when a lot of employers simply did not attend the hearing. Arising out of this, the Tribunal adopted a particular approach to determine what evidence is required for a complainant to satisfy the Tribunal that a prima facie case of discrimination has been established. [21.17] The seminal case on this is that of Valpeters v Melbury Developments Ltd.22 Here Mr Valpeters was a Latvian national who alleged discrimination on the grounds of race, as he had been treated less favourably due to the fact that he was contracted as a self-employed sub-contractor rather than as an employee. He claimed that he was not given a contract of employment, nor was he provided with payslips, nor with health and safety training in a language that he could understand. In addition, he said that he was not paid in accordance with the rate of pay that he was entitled to under the Registered Employment Agreement for the Construction Industry and that he was dismissed without recourse to fair procedures. 19. 20. 21. 22.

Intrum Justitia v McGarvey EDA 095. Cilinska-Snepste v Rye Valley Foods DEC–E2009–001. See also Koclova v Hanley Clothing Waterford Ltd t/a Tommy Hilfiger DEC–E0211–180. It is not certain that selection on the basis of ‘last in, first out’ is itself non-discriminatory. Valpeters v Melbury Developments Ltd [2010] ELR 64.

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[21.18]

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He alleged that his poor treatment arose because of his nationality and that no Irish employee would have been subjected to similar treatment; but that as he did not know how such other Irish employees were treated, the onus shifted to the employer to demonstrate that other employees of a different race or nationality were treated in a similar manner. He argued that the knowledge of how other workers were treated was within the particular remit of the respondent and that, as such, he should not be required to produce it. The Labour Court in rejecting his arguments went on to state: ‘Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.’

[21.18] Critical to any complainants’ cases therefore is the absolute need for them to demonstrate that their treatment has been different and less favourable than that which would have been given to a person of another race or nationality – invariably, in this jurisdiction, an Irish worker.

BURDEN OF PROOF ON THE AGE GROUND [21.19] Similar to the race ground, it can be difficult to prove an inference of age discrimination. The Labour Court recognised this in Moate Community School v Moriarty,23 where it commented on the type of evidence necessary to satisfy a burden of proof in this area: ‘Evidence of discrimination on the age ground will generally be found in the surrounding circumstances and facts of the particular case. Evidence of it can be found where job applications from candidates of a different age are treated less seriously than those from candidates of a different age. It can also be manifest from a conclusion that candidates in a particular age group are unsuitable or might not fit in, where an adequate appraisal or a fair assessment of their attributes has not been undertaken. Discrimination can also be inferred from questions asked at interview which suggest that age is a relevant question’.

This decision once again demonstrates that every case will be examined on its own facts. The mere fact that a person has greater skills or experience than a comparator will not be enough to raise an inference of discrimination,24 and while statistical evidence can be 23. 24.

Moate Community School v Moriarty EDA 0718. O’Halloran v Galway City Partnership EDA 077.

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[21.20]

relied upon to both justify and rebut, a presumption of discrimination this may also not be enough.25

BURDEN OF PROOF ON THE RELIGION GROUND [21.20] There are few cases regarding the burden of proof on the religion ground. In the Department of Defence v Barrett,26 the Labour Court rejected the claim on the basis that the complainant had failed to show any detriment that arose out of his religious beliefs (which were secular humanist in nature) and failed to show that any discriminatory act had occurred.

25. 26.

Revenue Commissioners v O’Mahony EDA 033. Department of Defence v Barrett EET081.

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Chapter 22 REMEDIES AND COSTS REMEDIES [22.01] Section 82 of the Employment Equality Acts 1998–2011 sets out the redress that can be awarded by the Equality Tribunal, the Labour Court or the Circuit Court: (a) an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period as begins not more than three years before the date of the referral under s 77(1) which led to the decision; (b) an order for equal remuneration from the date referred to in paragraph (a); (c) an order for compensation for the effects of acts of discrimination or victimisation that occurred not earlier than six years before the date of the referral of the case under s 77; (d) an order for equal treatment in whatever respect is relevant to the case; (e) an order that a person or persons specified in the order take a course of action, which is so specified; (f) an order for re-instatement or re-engagement, with or without an order for compensation. In summary, this provides that the tribunal, Labour Court or Circuit Court may award equal pay and arrears not exceeding three years in an equal pay case; €12,697.38 in compensation along with equal treatment where a person is not an employee; and, in a dismissal case, re-instatement or re-engagement with or without compensation subject to a maximum of 104 weeks’ pay or €40,000. [22.02] There is a substantial difference between awards under the equality legislation and those under the Unfair Dismissals Act. Under the Equality Acts, awards are not made in accordance with the loss of wages and there is no obligation on a complainant to mitigate their loss. Also, the tribunal and Labour Court are entitled to award compensation for the effects of the discriminatory treatment. Thus, in Kavanagh v Aviance UK Ltd,1 the tribunal made an award of: •

€65,000 for the loss of earnings due to the discriminatory dismissal; and

•

€60,000 for the stress suffered as a result of discrimination and the failure to provide reasonable accommodation.

The court went on to state that the amount of the award: ‘is to reflect the fact that Mr Kavanagh had every expectation of continuing in this employment and the difficulty he has encountered in obtaining alternative 1.

Kavanagh v Aviance UK Ltd DEC–E2007–039.

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[22.03]

Equality Law in the Workplace employment. It is also in accordance with Article 17 of the Framework Directive, which states: “sanctions must be effective proportionate and dissuasive”’.

[22.03] Similarly, in Ntoko v Citibank,2 the complainant was awarded compensation over and above his actual economic loss, having been deprived of ‘his fundamental right to equal treatment and freedom from racial prejudice.’ [22.04] The practice of the tribunal in determining the level of compensation, as stated in A v Public Sector Organisation,3 is to ‘[p]lace the complainant in the position he/she would have been in had the discriminatory treatment not taken place’. Thus, while there is a cap on awards, and on balance the tribunal and Labour Court merely attempt restitution, employers are well advised to remember that in any case of a discriminatory dismissal, the following causes of action (each giving rise to separate awards) can arise: •

claim for discriminatory dismissal;

•

claim for discrimination in its own right;

•

claim for victimisation, if appropriate in its own right; and

•

claim for failure to provide reasonable accommodation in its own right.

[22.05] Both the Equality Tribunal and the Labour Court on appeal have confirmed that they are not concerned about the financial circumstances of a respondent in assessing the quantum of compensation to which a successful claimant is entitled.4 [22.06] In so far as the taxation of awards is concerned, any compensation made in respect of arrears of remuneration is taxable.5 It is important, therefore, that when the Equality Officer or Labour Court is making an award, they specify exactly how they approached their calculations.6 In gender equality cases, there is a provision for awarding interest on any compensation awarded.7

GENDER DISCRIMINATION: CIRCUIT COURT [22.07] In Marshall II,8 the ECJ made it clear that, notwithstanding the autonomy given to Member States, imposing upper limits on compensation is not permissible, as otherwise it could take away from the remedy being effective. The requirement for 2. 3. 4. 5. 6. 7. 8.

Ntoko v Citibank [2004] ELR 116; see also Fox v Lee DEE6/2003. A v Public Sector Organisation DEC–E2006–026. Watters Garden World Ltd v Panuata EDA4/2009. Taxes Consolidation Act 1997, s 192A (as inserted by the Finance Act 2004, s 7). See Calor Teo v McCarthy [2009] ELR 281. Employment Equality Acts 1998–2011, s 82(5). Marshall v Southampton and South-West Hampshire Area Health Authority (Case C–271/ 91) [1993] ECR I–4367.

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[22.10]

effectiveness was generally established in the Von Colson9 case, where the court held that Art 6 of the Equal Treatment Directive required Member States to adopt measures that were sufficiently effective to achieve the objective of the Directive. The judgment in Marshall was given at a time (1993) when equality law in the EU did not extend beyond gender discrimination. There is no logical reason why it remains the case that notwithstanding this clear prohibition on the fixing of upper limits in EU law, such limits remain in place in this jurisdiction for all other discriminatory grounds, with the exception of gender-based equality claims commenced directly in the Circuit Court. [22.08] Section 82(3) of the 1998 Act goes on to state that: ‘No enactment relating to the jurisdiction of the Circuit Court shall be taken to limit the amount of compensation or remuneration which may be ordered by the Circuit Court by virtue of this subsection.’

This allows the Circuit Court to go beyond its normal jurisdiction (presently €60,000 for personal injury claims and €65,000 for all others). [22.09] One of the first cases to be dealt with directly by the Circuit Court was the case of Atkinson v Carty.10 Here the Circuit Court awarded the claimant €137,000, less 25 per cent for contributory negligence, given that she was aware of the sexual harassment from a legal perspective for some two years previous to the making of the complaint. At the time of her award, the maximum compensation of 104 weeks under the Equality Acts would have amounted to €50,000.

BREACH OF CONTRACT [22.10] Section 101 of the Employment Equality Acts 1998–2011 is interesting, prohibiting as it does (in the main) multiple avenues of redress for claimants. It is worth noting, however, the language used in s 101(1). The first few lines in s 101(1) provide: ‘If an individual has instituted proceedings for damages at common law in respect of a failure, by an employer or any other person to comply with an equal remuneration term or an equality clause …’

This seems to infer that an individual can in fact institute proceedings for damages at common law. Sections 21 and 22 of the Acts imply terms for equal remuneration and gender equality into every individual’s contract of employment. Having done so, there is logic to the argument that those rights should be protected, and s 101 seems to accept that. There is no jurisprudence on this. Yet given the maximum compensation restrictions set out in s 82, it is certainly the case that many would be better served pursuing their claims for damages in the civil courts rather than at the Equality Tribunal. That would 9. 10.

Von Colson v Land Nordrhein Westfalen (Case C–4/83) [1984] ECR 1891. Atkinson v Carty [2005] ELR 1.

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[22.11]

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also allow for discovery of documents, the provision of costs and awards of special damages.

ALTERNATIVE REMEDIES [22.11] Notwithstanding the powers bestowed on the Equality Tribunal and the Labour Court to compensate, reinstate and re-engage claimants, the Acts provide in s 82(1)(e) that the tribunal and court as part of their determination are empowered to make an order that a person or group of persons specified in the order take a course of action so specified. These orders are commonplace and examples include the following: •

to appoint candidates to a disputed position;

•

to provide access to buildings for wheelchair users;

•

to ensure that a complainant is personally notified of all appropriate promotions and vacancies, and offered inclusion in all relevant vocational training;

•

to establish a harassment policy;

•

to draft an equality action plan (s 70 of the Employment Equality Acts 1998– 2011, provides that the Equality Authority may ask a business which has 50 or more employees to supply information for the purpose of an equality review or action plan);

•

to train all staff on equality issues;

•

to train staff involved in recruitment on the specific equality issues in the recruitment process;

•

to raise awareness on equality issues;

•

to have gender balance on interview boards; and

•

to retain short-listing criteria, short-listing notes, interview notes, score sheets, etc for 12 months.11

ALTERNATIVE AVENUES OF REDRESS [22.12] Section 101 of the 1998 Act deals with alternative avenues of redress. This section was significantly amended by the Equality Act 2004. In summary, it provides that where a complainant has a choice to pursue separate claims of redress to the Employment Appeals Tribunal, at common law or under the Act, he or she can receive compensation from only one source. Once an employee has commenced proceedings at common law, that claimant cannot seek redress under the Act; similarly, once an Equality Officer has begun an investigation, the employee cannot receive damages at common law. 11.

See McKeever v Board of Management of Knocktemple National School [2011] ELR 86 and, more generally, Employment Equality Acts 1998–2011, ss 69, (1), (2), (4), 70(1)–(4).

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[22.16]

[22.13] A similar provision applies where an employee takes a claim for unfair dismissal, in that he or she cannot seek redress under the Act if a Rights Commissioner has issued a recommendation12 in respect of the dismissal or the Employment Appeals Tribunal has begun a hearing.13 In keeping with this, relief cannot be granted to an employee under the Protection of Employees (Part-Time Work) Act 2001, the Protection of Employees (Fixed-Term Work) Act 2003 and under the Employment Equality Acts 1998–2011.14 [22.14] The question of when an Equality Officer can be said to have begun his or her investigation was considered in the case of Cullen v Connacht Gold15 by the Employment Appeals Tribunal. Here the EAT determined that once the parties had given submissions to the tribunal, the investigation had commenced. However, this was quashed on appeal in the High Court.16 Decisions from Equality Officers now state that the investigation commenced on the day that the complaint was delegated to an Equality Officer pursuant to s 75 of the Act. [22.15] Notwithstanding the fact that alternative avenues of redress are barred under the Act, an Equality Officer has the power to allow the complainant to proceed to take a claim for unfair dismissal even after an investigation has finished.17 This is not often used, and seems to give the Equality Officer significant leeway to decide what an appropriate case is. It was invoked in the case of Jackson v Top Security Ltd,18 where the complaints of discrimination and victimisation were rejected but where the Equality Officer went on to say that the dismissal seemed ‘somewhat precipitate’ and thus directed that the complainant was entitled to seek redress under the Unfair Dismissals Acts 1977–2007. This provision does seem to fall foul of the doctrine of estoppel, and it remains to be seen whether it is invoked in future and whether it will be challenged on this basis. [22.16] While s 101 of the Act prohibits alternative avenues of redress at common law, under the Unfair Dismissals Act and the part-time and fixed-term workers legislation, it does not preclude separate claims under the Maternity Protections Acts. This matter was considered in Power v Jahan t/a Irema Irl Ltd,19 where the complainant pursued identical claims under the Maternity Protection Acts 1994–2001 and the Employment Equality Acts 1998–2011. Having done so, the respondent objected on the basis that the claim was res judicata. The doctrine of res judicata prohibits a party from seeking to litigate the same issue 12. 13. 14. 15. 16. 17. 18. 19.

Employment Equality Act 1998, s 101(4)(b) as amended. Employment Equality Act 1998, s 101(4)(c) as amended. Employment Equality Act 1998, s 101A as inserted by Equality Act 2004, s 43. Cullen v Connacht Gold UD 787/2006. Cullen v Employment Appeals Tribunal 2008/88/JR. Employment Equality Acts 1998–2011, s 101(2)(b). Jackson v Top Security Ltd DEC–E2007–035. Power v Jahan t/a Irema Irl Ltd DEC–E2013–055.

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[22.17]

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twice. For it to apply, the cause of action in the earlier action must be the same as that raised in the second action. Here, a previous case had been heard by the Rights Commissioner, under the Maternity Protection Acts 1994 and 2004: ‘The Equality Officer found that there was nothing in the Employment Equality Acts to prevent a claim being pursued under both it and the Maternity Protection Acts. The matter was appealed, and the court considered the case before the Rights Commissioner and the Equality Tribunal and found that they were both grounded on the same facts.’

[22.17] The Labour Court quoted a criminal law text20 and also took into consideration Gilroy v McLoughlin21 in addition to Dublin Corporation v Building and Allied Trades Union22 and Cunningham v Intel Ireland Ltd.23 Having done so, the court stated that the only question arising was whether the complainant was returned to the job that she held before the commencement of her maternity leave and that that issue had already been the subject of proceedings before the Rights Commissioner, where the complainant was successful and received redress in the form of compensation. The court went on to profess that the complainant: ‘… cannot use the present proceedings to obtain an additional or better remedy for what is undoubtedly the same wrong for which she already has been compensated.’

The court found that any cause of action that the complainant may have had in these proceedings were merged in, and extinguished by, the decision by the Rights Commissioner in the earlier case heard under the Maternity Protection Act 1994. [22.18] The court also took the opportunity – even though no additional points were being taken in the proceedings before it – to address the matter of abuse of process by fragmenting litigation, and stated that where a point of law or fact should have been raised in the first case and was not, it cannot be raised in the second case.

COSTS [22.19] All legal and other expert costs must be discharged by the complainant. This has been confirmed by the Labour Court in Government Department v Worker.24 Equally, there is no basis for respondents to recover costs where a claim has been successfully defended. 20. 21. 22. 23. 24.

McDermott, Charleton, and Bolger, Criminal Law (Butterworths, 1999), p 57. Gilroy v McLoughlin [1989] ILRM 133. Dublin Corporation v Building and Allied Trades Union [1996] 2 ILRM 547. Cunningham v Intel Ireland Ltd [2013] IEHC 207. Government Department v Worker EDA 094.

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[22.25]

APPEALS [22.20] There is an appeal from the Equality Tribunal to the Labour Court under s 83(1) of the 1998–2011 Acts, which provides that any such appeal must be brought not later than 42 days from the date of the relevant decision of the Director. It is a full de novo hearing and as such, parties are entitled to adduce further or new evidence at the Labour Court. [22.21] There is also an appeal directly to the High Court from the Equality Tribunal, by virtue of s 79(7)25 of the Acts. The relevant order is Ord 106 of the Rules of the Superior Courts, which provides for a time limit of 21 days from the date of the decision. [22.22] There is an appeal to the High Court from the Labour Court on a point of law per s 90(1). The procedure is governed by Ord 84C of the Rules of the Superior Courts. The appeal, which is commenced by way of a notice of motion, must be done no later than 21 days following the deciding body giving notice of its decision to the intending appellant, or within such further period as the court is satisfied that there is good and sufficient reason for extending that period to, where the extension would not result in an injustice being done to any other person concerned in the matter.

SETTLEMENT/COMPROMISE AGREEMENTS [22.23] Employers need to be careful when getting employees to sign compromise/ settlement agreements, as they are not always taken to be legally enforceable by the courts and or Equality Tribunal. Several critical ingredients must be present for such an agreement to be watertight. First, it must list all the Acts; second, the employee must be advised to take independent legal advice and, preferably, any agreement should provide some consideration for the employee to pay for such advice; and lastly, the complete agreement should be founded on some reasonable consideration. [22.24] Such agreements have been the subject of some scrutiny by the tribunal. In Suffin v Tesco Ireland,26 the complainant suffered from lupus and worked in a café in one of the defendant’s stores. In 2011, the café was outsourced, and rather than transferring to the new operator, the complainant accepted voluntary redundancy. Ultimately, the complainant took a number of claims, which were defeated save that the Equality Officer considered one claim valid before the tribunal, which was grounded on a request that the complainant had made regarding a request to transfer to one of the respondent’s petrol stations. [22.25] The Equality Officer was thus faced with determining whether the terms of the voluntary severance agreement precluded the complainant from proceeding with this complaint. The tribunal considered the cases of Sunday Independent Newspapers v 25. 26.

As inserted by the Equality Act 2004, s 35. Suffin v Tesco Ireland DEC–E2015–006.

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[22.26]

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Kinsella27 and PMPA v Keenan,28 where the courts had previously considered this issue. These two cases were somewhat different, in that the former was a dispute over the calculation of the severance payment, whereas the latter concerned alleged less favourable treatment before the signing of the agreement. The tribunal cited the following passage from Smyth J in the Sunday Independent Newspapers case: ‘In Keenan’s case there was no evidence that the defendant’s claim was included in the settlement which covered their claims. In the instant case the very claim made subsequent to the severance agreement was in fact made before the severance agreement was arrived at and signed and its all claims provision clearly states such to be in the context of severally enumerated Acts and all or any employment legislation.’

[22.26] The tribunal in Suffin found that the complainant must have been aware that she had a discrimination complaint from the time of the interview at the petrol station, whereas the respondent would not have known of this complaint until it was filed, several months after the conclusion of the voluntary redundancy agreement. The complainant, therefore, had the opportunity to weigh up the possibility of the success of making such a complaint against her acceptance of the terms of the agreement. The tribunal also noted that the complainant had three days to consider her options or to request legal advice (a right of which she was advised in the terms of the voluntary redundancy agreement). The complainant did not allege that she was in any way pressurised by the respondent into accepting the terms of the agreement, and ultimately the tribunal found that the terms of the voluntary redundancy agreement meant that it did not have jurisdiction to investigate. [22.27] Employment equality law is complex. This complexity extends to deciding what, if any, course of action to take, under which ground and in which forum. Remedies arise both at common law and under statute and practitioners in the field need to carefully consider each potential claim before pursuing a particular course.

27. 28.

Sunday Independent Newspapers v Kinsella [2008] ELR 53. PMPA v Keenan [1985] IRLM 173.

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Appendix 1 WORKPLACE RELATIONS COMPLAINT FORM

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Workplace relations complaint form

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Workplace relations complaint form

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Appendix 2 FORM EE1

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Appendix 3 FORM EE2 EMPLOYMENT EQUALITY ACT, 1998 (SECTION 76 – RIGHT TO INFORMATION) REGULATIONS 1999 SI 321/1999 I, JOHN O'DONOGHUE, T.D., Minister for Justice, Equality and Law Reform, in exercise of the powers conferred on me by sections 3(3) and 76(1) of the Employment Equality Act, 1998 (No. 21 of 1998), hereby make the following Regulations: 1. These Regulations may be cited as the Employment Equality Act, 1998 (Section 76 — Right to Information) Regulations, 1999, and shall come into operation on the 18th day of October, 1999. 2. In these Regulations — “the Act” means the Employment Equality Act, 1998 (No. 21 of 1998); “discriminatory ground” has the meaning given by section 6(2) of the Act; “material information” has the meaning given by section 76(2) of the Act. 3. The form set out at Schedule 1 to these Regulations is hereby prescribed as the form to be used for the purposes of section 76(1) of the Act by a person (“the Complainant”) to obtain material information in order to decide whether to refer a matter under any provision of section 77 of the Act and, in the event of such a reference, to formulate and present his or her case in the most effective manner. 4. The form set out at Schedule 2 to these Regulations is hereby prescribed as the form to be used for the purposes of section 76(1) of the Act by a person (“the Respondent”) when replying to a request by a complainant for material information as prescribed by Regulation 3 of these Regulations. SCHEDULE 1 Employment Equality Act, 1998 — Section 76 Questionnaire of the Complainant Name and address of person to be questioned (the Respondent):

To........................................................................................

of......................................................................................... ............................................................................................ ............................................................................................ 355

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Equality Law in the Workplace Name and address of Complainant:

1. I........................................................................................... of......................................................................................... ............................................................................................ ............................................................................................

Delete the circumstances which do not apply to your complaint.

consider that you may have:

(a) discriminated against me; (b) dismissed or otherwise penalised me in circumstances amounting to victimisation; (c) failed to provide equal remuneration to me as required by an equal remuneration term; (d) failed to provide equal treatment to me as required by an equality clause under my contract of employment; contrary to the provisions of the Employment Equality Act, 1998. Indicate the 2. Gender ( ) Martial Status ( ) Family Status ( ) Sexual discriminatory ground(s) Orientation ( ) Religion ( ) Age ( ) Disability ( ) Race which you consider to ( ) Traveller Community Ground ( ) apply to your complaint. (Tick where appropriate). Outline the circumstances of your complaint including:

3.

(a) in the case of treatment, dates, times and a factual description of the treatment received and of the circumstances leading up to the treatment, or

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Form EE2 (b) in the case of remuneration, the name(s), job title(s), etc. of person(s) with whom you consider you perform like work (i.e. the same work similar work or work of equal value). Complete if you wish to 4. I believe that the treatment/circumstances outlined at paragraph 3 of this Questionnaire may have been unlawful give reasons otherwise because . . . delete the word “because”. This is the first of your questions to the Respondent.

5. Do you agree that the circumstances outlined at paragraph 3 of this Questionnaire are accurate? If not, in what respect do you disagree or what is your version of the situation?

This is the second of your questions to the Respondent.

6. Do you accept that your treatment of me, or the rate of remuneration afforded to me, was unlawful, contrary to the provisions of the Employment Equality Act, 1998 ? If not: (a) Why not? (b) For what reason did I receive the treatment/ remuneration which is the subject of my complaint?

Enter here any other 7. questions you wish to ask including any request for other nonconfidential material information in respect of other persons who are in a comparable position to you or information which it is reasonable for you to require in the context of your case. Address to which reply 8. should be sent if not the same as that at paragraph 1 of this Questionnaire. Signature of Complainant ............................................................................................

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Equality Law in the Workplace Date .................................................................................... Note If there is not sufficient space to request information please use additional page(s) and sign and date each of them. SCHEDULE 2 Employment Equality Act, 1998 — Section 76 Reply by the Respondent Name and address of Complainant:

To......................................................................................... of......................................................................................... ............................................................................................. .............................................................................................

Name and address of Respondent:

1. I........................................................................................... of......................................................................................... ............................................................................................. .......................................... hereby acknowledge receipt of the Questionnaire signed by you and dated .................................................................

Delete sentence at (a) or 2. (a) I agree that the statement/circumstances outlined in (b) as appropriate and, if paragraph 3 of the Questionnaire is/are accurate. (a) is deleted, complete (b). (b) I disagree with the statement/circumstances outlined in paragraph 3 of the Questionnaire in that ............................. Delete sentence at (a) or 3. (a) I accept that my treatment of you, or the rate of (b) as appropriate and, if remuneration afforded to you, was unlawful, contrary to (a) is deleted, complete the provisions of the Employment Equality Act, 1998. one or more of the sentences at (b)(i) or (b)(ii). (b) I dispute that my treatment of you, or the rate of remuneration afforded to you, was unlawful, contrary to the provisions of the Employment Equality Act, 1998: (i) My reasons for disputing are ........

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Form EE2 (ii) The reasons why you received the treatment accorded to you or the rate of remuneration afforded to you are as follows Replies to the questions 4. in paragraph 7 of the Questionnaire should be entered here. Delete this entire sentence if you have answered all of the questions in the Questionnaire.

5. I have deleted (in whole or in part) the paragraph(s) numbered ........... above, because I am unable/unwilling (delete as appropriate) to reply to those questions for the following reasons— Signature of Respondent ............................................................................................. Date ....................................................................................

Notes If there is not sufficient space to enter a reply, please use additional page(s) and sign and date each of them. If a Respondent fails to provide the information sought by the Complainant, or the information provided is false or misleading or is otherwise not such as the Complainant might reasonably require in accordance with the appropriate provisions of the Employment Equality Act, 1998, the Director of Equality Investigations, the Labour Court or the Circuit Court may draw such inferences as seem appropriate in the circumstances. GIVEN under my Official Seal, this 18th day of October, 1999. JOHN O'DONOGHUE, T.D. Minister for Justice, Equality and Law Reform. EXPLANATORY NOTE. (This note is not part of the Instrument and does not purport to be a legal interpretation.) These Regulations prescribe the forms to be used for the purposes of section 76(1) of the Employment Equality Act, 1998 — (a) by a person (the Complainant) who wishes to obtain material information in order to decide whether to refer a matter to the Circuit Court, the Labour Court or the Director of Equality Investigations and, in the event of such a reference, to formulate and present his/her case in the most effective manner (Schedule 1); and (b) by a person (the Respondent) when replying to a request by a Complainant for material information (Schedule 2). 359

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Equality Law in the Workplace The Employment Equality Act, 1998 prohibits discrimination by employers, providers of vocational training, employment agencies and certain vocational bodies on grounds of gender, marital status, family status, sexual orientation, religion, age, disability, race or membership of the traveller community. The Act provides a means of redress (the Director of Equality Investigations, Labour Court and Circuit Court) where a person considers that he/she has been discriminated against contrary to the provisions of the Act. The Act also provides for the establishment of the Equality Authority. The statutory functions of the Authority include the provision of information and assistance to the public in relation to the Act.

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INDEX [all references are to paragraph number] retirement agreement to retire, 16.44–16.45 generally, 16.34–16.43 post-retirement contracts, 16.50– 16.55 pre-retirement changes to contract, 16.46–16.49 retirement ages, 16.56 taking occupational pension, 16.44– 16.45 scope of prohibition generally, 16.22 length of service, 16.28–16.30 pay scales, 16.28–16.30 promotion, 16.23–16.27 redundancy, 16.57–16.71 retirement, 16.34–16.56 termination of employment, 16.31– 16.71 severance payments, 16.65–16.71 termination of employment generally, 16.31–16.33 redundancy, 16.57–16.71 retirement, 16.34–16.56

A Access to educational courses race, and, 18.28 Adoptive leave gender, and, 11.65–11.68 Advertisements recruitment, and, 5.03–5.11 Advisory committees European Parliament, and, 1.16–1.17 Age age difference, 16.08–16.15 burden of proof, and, 21.19 comparators, 16.06–16.07 direct discrimination, 16.16 EU law generally, 16.01–16.04 permitted discrimination, 3.56–3.58 European Convention of Human Rights, and, 16.02 Framework Directive, and, 16.02– 16.04 indirect discrimination, 16.17–16.18 Irish legislation comparators, 16.06–16.07 generally, 16.05 minimum age difference, 16.08– 16.15 justification, 16.19–16.21 length of service, 16.28–16.30 less favourable treatment, 16.06 minimum age difference, 16.08–16.15 objective justification, 16.19–16.21 pay scales, 16.28–16.30 promotion, 16.23–16.27 redundancy generally, 16.57–16.60 payments, 16.65–16.71 selection, 16.61–16.64

Age UK generally, 1.27 Agency workers maternity and pregnancy, and, 11.54– 11.55 scope of Employment Equality Acts, and, 4.11–4.14 Alcohol tests recruitment, and, 5.60–5.72 Alternative working arrangements family status, and, 13.07 maternity and pregnancy, and defences to refusal, 11.26 generally, 11.20–11.25

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Equality Law in the Workplace Annulment actions Court of Justice of the European Union, and, 1.23

Christianity religious belief, and, 15.04 Citizenship race, and, 18.56–18.57

Appeals enforcement of rights, and, 22.20– 22.22

Civil status definition, 12.01 exemptions genuine occupational requirement, 12.11 religious ethos, 12.12 generally, 12.01–12.10 genuine occupational requirement, 12.11 marital status, and, 12.01 religious ethos, 12.12

Application forms recruitment, and, 5.33–5.35 Associated employer equal pay, and, 9.13

B Background checks recruitment, and, 5.53–5.59 Belief see also Religious belief meaning, 15.20–15.23

Claims amendment, 20.29–20.38 appeals, 22.20–22.22 burden of proof age ground, on, 21.19 establishing prima facie case, 21.09– 21.10 EU law, 21.02–21.03 gender ground, on, 21.13–21.15 introduction, 21.01 Irish context, 21.02–21.03 practical test, 21.04–21.08 race ground, on, 21.16–21.18 rebutting prima facie case, 21.11– 21.12 religion ground, on, 21.20 compromise agreements, 22.23–22.27 continuing discrimination, 20.11–20.15 costs, 22.19 extension of time limits, 20.05–20.10 forms amendment, 20.29–20.38 generally, 20.23–20.28 frivolous claims, 20.20 generally, 10.16–10.17 introduction, 20.01 remedies alternative remedies, 22.11 avenues of redress, 22.12–22.18

Breach of contract harassment, and, 8.40–8.45 Bullying harassment, and, 8.41–8.45 race, and, 18.50–18.52 Burden of proof age ground, on, 21.19 establishing prima facie case, 21.09– 21.10 EU law, 21.02–21.03 gender ground, on, 21.13–21.15 introduction, 21.01 Irish context, 21.02–21.03 practical test, 21.04–21.08 race ground, on, 21.16–21.18 rebutting prima facie case, 21.11–21.12 religion ground, on, 21.20

C Capacity permitted inequality, and, 2.14–2.16 Charter of Fundamental Rights of the European Union generally, 3.16

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Index Conditions of employment generally, 6.19–6.20

Claims (contd) remedies (contd) breach of contract, 22.10 gender discrimination, 22.07–22.09 generally, 22.01–22.06 settlement agreements, 22.23–22.27 striking out, 20.21–20.22 time limits continuing discrimination, 20.11– 20.15 extension, 20.05–20.10 generally, 20.02–20.04 summary, 20.16–20.17 vexatious claims, 20.20

Conditions precedent recruitment, and alcohol tests, 5.60–5.72 background checks, 5.53–5.59 criminal record checks, 5.53–5.59 drug testing, 5.60–5.72 introduction, 5.37 pre-employment medicals, 5.38– 5.47 references, 5.48–5.52 Conscientious objectors religious belief, and, 15.52–15.59

Code of Practice on the Protection of the Dignity of Women and Men at Work harassment, and, 8.02

Constitutional law Article 40.1 protection all persons are equal before the law, 2.05–2.11 ‘human persons’, 2.05 introduction, 2.02 onus to prove justification, 2.21– 2.23 permitted inequality, 2.12–2.20 introduction, 2.01–2.04 permitted inequality capacity, 2.14–2.16 introduction, 2.12 justifiable but excessive in nature. 2.17–2.18 justifiable but not inclusive, 2.19– 2.20 requirement of justice, 2.13 social function, 2.14–2.16 Treaty on the Functioning of the European Union, and, 2.03

Collective agreements equal pay, and, 9.57–9.58 generally, 6.04–6.12 scope of Employment Equality Acts, and, 4.15 Collective bargaining generally, 6.13–6.18 Committee of Permanent Representatives generally, 1.04 Comparable situation prohibited conduct, and, 4.25–4.26 Comparators age, and, 16.06–16.07 disability, and, 17.42–17.45 equal pay, and, 9.10–9.21 prohibited conduct, and generally, 4.22–4.23 hypothetical, 4.24 race, and generally, 18.42 hypothetical, 18.43–18.44 religious belief, and, 15.32–15.33

Confederation of Family Organisations (COFACE) generally, 1.2 Contracts of employment definition, 6.01 generally, 6.01–6.03

Compromise agreements enforcement of rights, and, 22.23– 22.27

Cost equal pay, and, 9.55–9.56

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Equality Law in the Workplace Defrenne cases equal pay, and, 9.02–9.03 EU law, and, 3.03–3.04

Costs enforcement of rights, and, 22.19 Council of the European Union committees, 1.03 COREPER, 1.04 generally, 1.02 Forward Studies Unit, 1.05

Direct actions Court of Justice of the European Union, and, 1.25 Direct discrimination age, and, 16.16 disability, and causal link and connection, 17.46 comparators, 17.42–17.45 generally, 17.41 summary, 17.47 EU law, and, 3.24–3.25 race, and, 18.14–18.20 religious belief, and comparators, 15.32–15.33 generally, 15.25–15.27 scope of Employment Equality Acts, and exceptions, 4.29 generally, 4.27–4.28

Countervailing measures disability, and, 17.97 Court of Justice of the European Union annulment actions, 1.23 direct actions, 1.25 failure to act actions, 1.24 failure to fulfil an obligation, 1.22 generally, 1.20 hearings, 1.26 non-governmental agencies, 1.27 oral stage procedure, 1.26 requests for preliminary ruling, 1.21 written stage procedure, 1.26 Criminal offences harassment, and, 8.46–8.47

Directorates-General generally, 1.08

Cross examination of witnesses harassment, and, 8.72–8.75

Disability equal pay, and, 9.69–9.72 Disability alternative attendance patterns at interview, 17.89 alternative rate of pay, 17.113–17.114 appropriate measures alternative attendance patterns at interview, 17.89 introduction, 17.85–17.86 phased return to work, 17.90 reduction in working hours, 17.96 relieving person of tasks, 17.94 remaining on the books, 17.87 reorganisation of working environment, 17.92–17.93 transfer from night work to day work, 17.95 working from home, 17.91 causal link and connection, 17.46

D De minimis rule disability, and, 17.28 Defences disability, and, 17.118–17.120 equal pay, and collective agreements, 9.57–9.58 cost, 9.55–9.56 introduction, 9.53 length of service, 9.63–9.68 market forces, 9.54 red-circling, 9.59–9.62 seniority, 9.63–9.68 harassment, and generally, 8.52–8.55 policy, 8.56–8.62

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Index genuine occupational requirement, 17.108 health and safety, 17.121–17.125 imputed disabilities, 17.29–17.31 indirect discrimination, 17.48–17.50 Irish legislation de minimis rule, 17.28 generally, 17.10–17.19 imputed disabilities, 17.29–17.31 knowledge of employer, 17.32– 17.39 medical evidence, 17.20–17.21 past disabilities, 17.29–17.31 summary, 17.40 temporary disabilities, 17.22–17.27 knowledge of employer, 17.32–17.39 lower rate of pay, 17.113–17.114 medical evidence, 17.20–17.21 medical model, 17.02 models introduction, 17.01 medical model, 17.02 social model, 17.03–17.04 past disabilities, 17.29–17.31 phased return to work, 17.90 prison service, 17.115–17.117 professional qualifications, 17.109– 17.111 reasonable accommodation of persons with disability alternative attendance patterns at interview, 17.89 appropriate measures, 17.85–17.96 cause of action in its own right, 17.68–17.71 countervailing measures to ameliorate disadvantage, 17.97 disproportionate burden, 17.98– 17.105 generally, 17.56–17.58 phased return to work, 17.90 procedures, 17.72–17.84 reduction in working hours, 17.96 relieving person of tasks, 17.94 remaining on the books, 17.87

Disability (contd) comparators, 17.42–17.45 countervailing measures to ameliorate disadvantage, 17.97 de minimis rule, 17.28 defences, 17.118–17.120 definition EU law, 17.05–17.09 Irish legislation, 17.10–17.39 summary, 17.40 direct discrimination causal link and connection, 17.46 comparators, 17.42–17.45 generally, 17.41 summary, 17.47 discrimination by association, 17.51– 17.55 disproportionate burden, 17.98–17.105 educational qualifications, 17.109– 17.111 emergency services, 17.113–17.114 Employment Equality Acts, and, 17.10–17.11 EU law, 17.05–17.09 evidence, 17.20 exemptions alternative rate of pay, 17.113– 17.114 defences, 17.118–17.120 educational qualifications, 17.109– 17.111 emergency services, 17.113–17.114 gardaí, 17.113–17.114 genuine occupational requirement, 17.108 health and safety, 17.121–17.125 introduction, 17.107 lower rate of pay, 17.113–17.114 prison service, 17.115–17.117 professional qualifications, 17.109– 17.111 technical qualifications, 17.109– 17.111 vocations, 17.112 Framework Directive, and, 17.05 gardaí, 17.113–17.114

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Equality Law in the Workplace Disability (contd) reasonable accommodation of persons with disability (contd) reorganisation of working environment, 17.92–17.93 scope, 17.59–17.67 summary, 17.106 transfer from night work to day work, 17.95 working from home, 17.91 reduction in working hours, 17.96 relieving person of tasks, 17.94 remaining on the books, 17.87 reorganisation of working environment, 17.92–17.93 scope, 17.05–17.39 social model, 17.03–17.04 technical qualifications, 17.109–17.111 temporary disabilities, 17.22–17.27 transfer from night work to day work, 17.95 types, 17.13 vocations, 17.112 working from home, 17.91

Discrimination by association disability, and, 17.51–17.55 EU law, and, 3.35–3.41 race, and, 18.37–18.41 scope of Employment Equality Acts, and, 4.30–4.31 Discrimination by imputation scope of Employment Equality Acts, and, 4.33 Dismissal maternity and pregnancy, and agency workers, 11.54–11.55 burden of proof, 11.56–11.57 generally, 11.46–11.53 race, and, 18.45–18.46 Disproportionate burden disability, and, 17.98–17.105 prohibited conduct, and, 4.03 Documentation race, and, 18.31–18.36 Dress gender, and, 11.69–11.73 religious belief, and, 15.41–15.51

Disclosure sexual orientation, and, 14.06

Drug testing recruitment, and, 5.60–5.72

Discrimination categories direct discrimination, 4.27–4.29 discrimination by association, 4.30– 4.31 discrimination by imputation, 4.33 indirect discrimination, 4.32 EU law, and association, by, 3.35–3.41 direct discrimination, 3.24–3.25 harassment, 3.42–3.43 indirect discrimination, 3.26–3.34 introduction, 3.23 permitted discrimination, 3.44–3. prohibited conduct categories, 4.27–4.33 definition, 4.20–4.21

E Educational courses race, and, 18.28 Educational institutions religious belief, and, 15.64–15.68 Educational qualifications disability, and, 17.109–17.111 Emergency services disability, and, 17.113–17.114 Employees scope of Employment Equality Acts, and, 4.07–4.08 Employment agencies scope of Employment Equality Acts, and, 4.11–4.14

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Index employment agencies, 4.11–4.14 illegal contracts, 4.16 independent contractors, 4.09–4.10 introduction, 4.06 vicarious liability, 4.03

Employment Equality Acts 1998–2011 agency workers, 4.11–4.14 background, 4.01–4.05 categories of discrimination direct discrimination, 4.27–4.29 discrimination by association, 4.30– 4.31 discrimination by imputation, 4.33 indirect discrimination, 4.32 collective agreements, 4.15 comparable situation, 4.25–4.26 comparators generally, 4.22–4.23 hypothetical, 4.24 direct discrimination exceptions, 4.29 generally, 4.27–4.28 disability, and, 17.10–17.11 discrimination categories, 4.27–4.33 definition, 4.20–4.21 discrimination by association, 4.30– 4.31 discrimination by imputation, 4.33 disproportionate burden, 4.03 employees, 4.07–4.08 employment agencies, 4.11–4.14 hypothetical comparator, 4.24 illegal contracts, 4.16 independent contractors, 4.09–4.10 indirect discrimination, 4.32 introduction, 4.01–4.05 prohibited conduct comparable situation, 4.25–4.26 comparators, 4.22–4.23 discrimination, 4.20–4.21 hypothetical comparator, 4.24 introduction, 4.17–4.19 race, and ethnic origin, 18.08–18.13 generally, 18.05–18.07 scope agency workers, 4.11–4.14 collective agreements, 4.15 employees, 4.07–4.08

Employment relationship collective agreements, 6.04–6.12 collective bargaining, 6.13–6.18 contracts of employment definition, 6.01 generally, 6.01–6.03 promotion, 6.21–6.29 seniority, 6.21–6.29 terms and conditions of employment, 6.19–6.20 Enforcement of rights appeals, 22.20–22.22 burden of proof age ground, on, 21.19 establishing prima facie case, 21.09– 21.10 EU law, 21.02–21.03 gender ground, on, 21.13–21.15 introduction, 21.01 Irish context, 21.02–21.03 practical test, 21.04–21.08 race ground, on, 21.16–21.18 rebutting prima facie case, 21.11– 21.12 religion ground, on, 21.20 claims amendment, 20.29–20.38 continuing discrimination, 20.11– 20.15 extension of time limits, 20.05– 20.10 forms, 20.23–20.28 frivolous claims, 20.20 introduction, 20.01 striking out, 20.21–20.22 time limits, 20.02–20.04 vexatious claims, 20.20 compromise agreements, 22.23–22.27 costs, 22.19

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Equality Law in the Workplace part-time workers, 9.75 ‘pay’, 9.50 pensions, 9.76–9.78 preliminary requirements ‘associated employer’, 9.13 comparators, 9.10–9.21 introduction, 9.09 like work, 9.29–9.44 same or associated employer, 9.22– 9.28 Race Directive, and, 9.05 Recast Directive, and, 9.04 red-circling, 9.59–9.62 redress, 9.73–9.74 same or associated employer, 9.22– 9.28 seniority, 9.63–9.68 severance packages, 9.79–9.84 similar work, 9.32–9.35 TFEU, and, 9.03 Treaty of Rome, and, 9.02 work equal in value, 9.36–9.44

Enforcement of rights (contd) remedies alternative remedies, 22.11 avenues of redress, 22.12–22.18 breach of contract, 22.10 gender discrimination, 22.07–22.09 generally, 22.01–22.06 settlement agreements, 22.23–22.27 English language requirements race, and, 18.29–18.30 Equal pay ‘associated employer’, 9.13 collective agreements, 9.57–9.58 comparators, 9.10–9.21 conclusion, 9.85 cost, 9.55–9.56 defences collective agreements, 9.57–9.58 cost, 9.55–9.56 introduction, 9.53 length of service, 9.63–9.68 market forces, 9.54 red-circling, 9.59–9.62 seniority, 9.63–9.68 Defrenne cases, 9.02–9.03 disability, 9.69–9.72 entitlement on other discriminatory grounds, 9.52 EU law, 9.02–9.06 exactly the same work, 9.30 Framework Directive, and, 9.05 identical work, 9.31 indirect discrimination, 9.45–9.49 interchangeable work, 9.31 introduction, 9.01 Irish position, 9.07–9.08 length of service, 9.63–9.68 like work exactly the same work, 9.30 identical work, 9.31 interchangeable work, 9.31 introduction, 9.29 similar work, 9.32–9.35 work equal in value, 9.36–9.44 market forces, 9.54

Equality before the law Article 40.1 protection, and, 2.05–2.11 Equality Directives Article 13 Directives, 3.08 introduction, 3.05–3.07 mainstreaming, 3.10–3.15 Recast Directive (2006/54), 3.09 Ethnic origin race, and, 18.08–18.13 Ethnicity religious belief, and, 15.17–15.19 Ethos of an institution ‘ethos’, 15.69–15.70 favourable treatment, 15.64–15.66 generally, 15.60–15.63 positive discrimination, 15.64–15.66 preventing an employee from undermining the ethos, 15.67–15.68 EU institutions Committee of Permanent Representatives, 1.04

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Index disability, and, 17.05–17.09 ‘discrimination’ association, by, 3.35–3.41 direct discrimination, 3.24–3.25 harassment, 3.42–3.43 indirect discrimination, 3.26–3.34 introduction, 3.23 permitted discrimination, 3.44–3.77 discrimination by association, 3.35– 3.41 equal pay, and, 9.02–9.06 Equality Directives Article 13 Directives, 3.08 introduction, 3.05–3.07 mainstreaming, 3.10–3.15 Recast Directive (2006/54), 3.09 European Convention on Human Rights, 3.16–3.22 genuine occupational requirement, 3.51–3.55 harassment, and generally, 8.09 introduction, 3.42–3.43 indirect discrimination generally, 3.26–3.30 justification, 3.31–3.34 interpretation of EU legislation, 3.78– 3.80 introduction, 3.01–3.02 permitted discrimination age-based discriminatory treatment, 3.56–3.58 defence mechanism, as, 3.47 genuine occupational requirement, 3.51–3.55 introduction, 3.44–3.46 positive action, 3.65–3.77 proportionality, 3.48–3.49 protection of women, 3.59–3.64 strict interpretation, 3.50 positive action, 3.65–3.77 proportionality, 3.48–3.49 protection of women, 3.59–3.64 race, and, 18.03–18.04 source of Irish equality law, as, 3.01– 3.02

EU institutions (contd) Council of the European Union committees, 1.03 COREPER, 1.04 generally, 1.02 Forward Studies Unit, 1.05 Court of Justice of the European Union annulment actions, 1.23 direct actions, 1.25 failure to act actions, 1.24 failure to fulfil an obligation, 1.22 generally, 1.20 hearings, 1.26 non-governmental agencies, 1.27 oral stage procedure, 1.26 requests for preliminary ruling, 1.21 written stage procedure, 1.26 Directorates-General, 1.08 Eurofound, 1.18–1.19 European Commission, 1.06–1.11 European Economic and Social Committee (EESC), 1.15 European Foundation for the Improvement of Living and Working Conditions, 1.18–1.19 European Parliament advisory committees, 1.16–1.17 Eurofound, 1.18–1.19 European Economic and Social Committee, 1.15 generally, 1.12–1.14 regulatory committees, 1.16–1.17 scientific committees, 1.16–1.17 Forward Studies Unit, 1.05 introduction, 1.01 EU law age, and generally, 16.01–16.04 permitted discrimination, 3.56–3.58 aim of Art 157 TFEU, 3.03–3.04 burden of proof, and, 21.02–21.03 Charter of Fundamental Rights of the European Union, 3.16 Defrenne cases, 3.03–3.04 direct discrimination, 3.24–3.25

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Equality Law in the Workplace

European Parliament advisory committees, 1.16–1.17 Eurofound, 1.18–1.19 European Economic and Social Committee, 1.15 generally, 1.12–1.14 regulatory committees, 1.16–1.17 scientific committees, 1.16–1.17

Exemptions disability, and alternative rate of pay, 17.113– 17.114 defences, 17.118–17.120 educational qualifications, 17.109– 17.111 emergency services, 17.113–17.114 gardaí, 17.113–17.114 genuine occupational requirement, 17.108 health and safety, 17.121–17.125 introduction, 17.107 lower rate of pay, 17.113–17.114 prison service, 17.115–17.117 professional qualifications, 17.109– 17.111 technical qualifications, 17.109– 17.111 vocations, 17.112 family status, and, 13.08–13.09 gender, and gardaí, 11.89–11.91 genuine occupational requirement, 11.85–11.88 introduction, 11.84 prison service, 11.89–11.91 race, and citizenship, 18.56–18.57 genuine occupational requirement, 18.58 introduction, 18.53 residency, 18.56–18.57 vocational training, 18.54–18.55 religious belief, and ethos of an institution, 15.60–15.70 genuine occupational requirement, 15.77–15.84 reasonable accommodation, 15.71– 15.76 sexual orientation, and, 14.08

Evidence disability, and, 17.20

Experience recruitment, and, 5.16–5.17

Exactly the same work equal pay, and, 9.30

Extension of time limits claims, and, 20.05–20.10

EU law (contd) TFEU Article 157, 3.03–3.04 Treaty of Rome, and, 3.02 Eurofound generally, 1.18–1.19 European Commission generally, 1.06–1.11 European Convention on Human Rights (ECHR) age, and, 16.02 generally, 3.16–3.22 religious belief, and generally, 15.12–15.16 introduction, 15.02 European Economic and Social Committee (EESC) generally, 1.15 European Disability Forum (EDF) generally, 1.27 European Federation for Older People (EURAG) generally, 1.27 European Foundation for the Improvement of Living and Working Conditions generally, 1.18–1.19 European Network Against Racism (ENAR) generally, 1.27

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Index F

Freedom of religion religious belief, and, 15.03

Failure to act Court of Justice of the European Union, and, 1.24

Frivolous claims generally, 20.20

Failure to fulfil an obligation Court of Justice of the European Union, and, 1.22

G Gardaí disability, and, 17.113–17.114 gender, and, 11.89–11.91

Family status alternative working arrangements, 13.07 ‘child’, 13.02 exemptions, 13.08–13.09 ‘family status’, 13.01 generally, 13.01–13.06

Gender adoptive leave, 11.65–11.68 burden of proof, and, 21.13–21.15 dress codes, 11.69–11.73 exemptions gardaí, 11.89–11.91 genuine occupational requirement, 11.85–11.88 introduction, 11.84 prison service, 11.89–11.91 gardaí, 11.89–11.91 genuine occupational requirement, 11.85–11.88 introduction, 11.02 male gender claims, 11.03–11.05 maternity alternative working arrangements, 11.20–11.26 change of duties, 11.09–11.14 contact during leave, 11.36–11.37 dismissal during leave, 11.46–11.57 health and safety leave, 11.09–11.14 introduction, 11.06 less favourable treatment after leave, 11.27–11.35 non-renewal of fixed-term contract, 11.58–11.64 redundancy during leave, 11.38– 11.45 right to return to work, 11.15–11.19 sick pay payments, 11.07–11.08 pregnancy alternative working arrangements, 11.20–11.26 change of duties, 11.09–11.14 contact during leave, 11.36–11.37

Feedback recruitment, and, 5.36 Forward Studies Unit generally, 1.05 Framework Directive age, and, 16.02–16.04 direct discrimination, and, 3.24 disability, and, 17.05 discrimination by association, and, 3.36 Employment Equality Acts, and, 4.01 equal pay, and, 9.05 generally, 3.08 genuine occupational requirements, and, 3.51 harassment, and, 8.12 independent contractors, and, 4.09 indirect discrimination, and, 3.30 Irish constitution, and, 2.07 permitted discrimination, and, 3.45 positive action, and, 3.66 religious belief, and comparators, 15.32–15.33 direct discrimination, 15.25–15.27 harassment, 15.34 introduction, 15.24 indirect discrimination, 15.28–15.31 victimisation, 15.35–15.36 victimisation, and, 7.01

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Equality Law in the Workplace termination of employment, 16.31– 16.71 civil status exemptions, 12.11–12.12 generally, 12.01–12.10 genuine occupational requirement, 12.11 religious ethos, 12.12 disability alternative rate of pay, 17.113– 17.114 causal link and connection, 17.46 comparators, 17.42–17.45 de minimis rule, 17.28 defences, 17.118–17.120 definition, 17.05–17.39 direct discrimination, 17.41–17.47 discrimination by association, 17.51–17.55 educational qualifications, 17.109– 17.111 emergency services, 17.113–17.114 EU law, 17.05–17.09 evidence, 17.20 exemptions, 17.107–17.125 gardaí, 17.113–17.114 genuine occupational requirement, 17.108 health and safety, 17.121–17.125 imputed disabilities, 17.29–17.31 indirect discrimination, 17.48–17.50 Irish legislation, 17.10–17.19 knowledge of employer, 17.32– 17.39 lower rate of pay, 17.113–17.114 medical evidence, 17.20–17.21 medical model, 17.02 models, 17.01–17.04 past disabilities, 17.29–17.31 prison service, 17.115–17.117 professional qualifications, 17.109– 17.111 reasonable accommodation, 17.56– 17.106 scope, 17.05–17.39 social model, 17.03–17.04

Gender (contd) pregnancy (contd) dismissal during leave, 11.46–11.57 health and safety leave, 11.09–11.14 introduction, 11.06 less favourable treatment after leave, 11.27–11.35 non-renewal of fixed-term contract, 11.58–11.64 redundancy during leave, 11.38– 11.45 right to return to work, 11.15–11.19 sick pay payments, 11.07–11.08 prison service, 11.89–11.91 recognition advisory group, 11.82– 11.83 religious belief, and, 15.06 remedies, and, 22.07–22.09 statutory prohibition, 11.02 surrogacy leave, 11.65–11.68 trangender employees, 11.74–11.83 Genuine occupational requirement civil status, and, 12.11 disability, and, 17.108 EU law, and, 3.51–3.55 gender, and, 11.85–11.88 race, and, 18.58 religious belief, and, 15.77–15.84 Grounds of discrimination age comparators, 16.06–16.07 direct discrimination, 16.16 EU law, 16.01–16.04 indirect discrimination, 16.17–16.18 Irish legislation, 16.05–16.15 length of service, 16.28–16.30 minimum age difference, 16.08– 16.15 objective justification, 16.19–16.21 pay scales, 16.28–16.30 promotion, 16.23–16.27 redundancy, 16.57–16.71 retirement, 16.34–16.56 scope of prohibition, 16.22–16.56 severance payments, 16.65–16.71

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Index comparators, 15.32–15.33 conscientious objectors, 15.52–15.59 definitions, 15.07–15.23 direct discrimination, 15.25–15.27 dress and symbols, 15.41–15.51 educational institutions, 15.64–15.68 ethnicity, and, 15.17–15.19 ‘ethos’, 15.69–15.70 ethos of an institution, 15.60–15.63 exemptions, 15.60–15.84 Framework Directive, 15.24–15.36 genuine occupational requirement, 15.77–15.84 harassment, 15.34 human rights, and, 15.12–15.16 indirect discrimination, 15.28–15.31 introduction, 15.01–15.06 manifestation or promotion of religious belief in the workplace, 15.38–15.40 medical institutions, 15.64–15.68 race, and, 15.17–15.19 reasonable accommodation, 15.71– 15.76 ‘religion’, 15.08–15.19 religious dress and symbols, 15.41– 15.51 religious institutions, 15.64–15.68 victimisation, 15.35–15.36 race bullying, 18.50–18.52 citizenship, 18.56–18.57 comparators, 18.42–18.44 definition, 18.05–18.13 direct discrimination, 18.14–18.20 discrimination by association, 18.37–18.41 discrimination in dismissal, 18.45– 18.46 documentation of employment, 18.31–18.36 educational courses, 18.28 English language requirements, 18.29–18.30 ethnic origin, 18.08–18.13 EU law, 18.03–18.04

Grounds of discrimination (contd) disability (contd) technical qualifications, 17.109– 17.111 temporary disabilities, 17.22–17.27 vocations, 17.112 family status alternative working arrangements, 13.07 exemptions, 13.08–13.09 generally, 13.01–13.06 gender adoptive leave, 11.65–11.68 dress codes, 11.69–11.73 exemptions, 11.84–11.91 gardaí, 11.89–11.91 genuine occupational requirement, 11.85–11.88 introduction, 11.02 male gender, 11.03–11.05 maternity, 11.06–11.67 pregnancy, 11.06–11.67 prison service, 11.89–11.91 recognition advisory group, 11.82– 11.83 surrogacy leave, 11.65–11.68 trangender employees, 11.74–11.83 introduction, 11.01 maternity alternative working arrangements, 11.20–11.26 change of duties, 11.09–11.14 contact during leave, 11.36–11.37 dismissal during leave, 11.46–11.57 health and safety leave, 11.09–11.14 introduction, 11.06 less favourable treatment after leave, 11.27–11.35 non-renewal of fixed-term contract, 11.58–11.64 redundancy during leave, 11.38– 11.45 right to return to work, 11.15–11.19 sick pay payments, 11.07–11.08 religious belief ‘belief’, 15.20–15.23

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Equality Law in the Workplace Code of Practice on the Protection of the Dignity of Women and Men at Work, 8.02 conclusion, 8.76 criminal offences, as, 8.46–8.47 defences, 8.52–8.62 definition Code of Practice, 8.02 Employment Equality Acts, 8.14– 8.15 Race Directive, 8.12 Recast Directive, 8.10 equality policies generally, 8.52–8.55 importance, 8.56–8.62 EU law, and generally, 8.09 introduction, 3.42–3.43 ‘hostile environment’ harassment, 8.05–8.08 incitement to racial or religious hatred, 8.47 introduction, 8.01–8.08 investigations cross examination of witnesses, 8.72–8.75 external investigators, 8.65–8.66 generally, 8.63 independence, 8.64 issues arising, 8.67–8.71 Irish legislation generally, 8.14–8.15 scope, 8.16–8.21 test, 8.16–8.21 non-employees, by, 8.22–8.26 occupational stress, 8.42 permitted discrimination, and, 3.42– 3.43 policies generally, 8.52–8.55 importance, 8.56–8.62 ‘quid pro quo’ harassment, 8.05–8.08 race, and, 18.50–18.52 religious belief, and, 15.34

Grounds of discrimination (contd) race (contd) exemptions, 18.53–18.58 genuine occupational requirement, 18.58 harassment, 18.50–18.52 hypothetical comparators, 18.43– 18.44 illegal contracts, 18.47–18.49 indirect discrimination, 18.21–18.36 introduction, 18.01–18.02 Irish language requirements, 18.22– 18.25 references, 18.26–18.27 residency, 18.56–18.57 vocational courses, 18.28 vocational training, 18.54–18.55 work permits, 18.47–18.49 sexual orientation disclosure, 14.06 exemptions, 14.08 harassment, 14.03–14.05 introduction, 14.01–14.02 summary, 14.07 Traveller community generally, 19.01–19.08 harassment, 19.09

H Harassment age-related harassment, 8.36 applicable legislation EU law, 8.09–8.13 Irish legislation, 8.14–8.21 background, 8.01–8.08 breach of contract, 8.40–8.45 bullying, 8.41–8.45 categories age-related harassment, 8.36 non-employees, 8.22–8.26 sexual harassment outside the workplace, 8.27–8.30 sexual orientation, 8.37–8.39 verbal harassment, 8.31–8.35

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Index Indirect discrimination age, and, 16.17–16.18 disability, and, 17.48–17.50 Employment Equality Acts, and introduction, 4.18 scope, 4.32 equal pay, and, 9.45–9.49 EU law, and generally, 3.26–3.30 introduction, 3.07 justification, 3.31–3.34 harassment, and, 8.11 proportionality, and, 3.48 race, and access to educational courses, 18.28 documentation of employment, 18.31–18.36 English language requirements, 18.29–18.30 generally, 18.21 Irish language requirements, 18.22– 18.25 references, 18.26–18.27 references, 5.50—5.51 religious belief, and comparators, 15.32–15.33 generally, 15.28–15.31 scope of Employment Equality Acts, and, 4.32 severance packages, and, 10.06

Harassment (contd) sexual harassment categories, 8.22–8.39 definition, 8.04 EU law, 8.10 outside the workplace, 8.27–8.30 types, 8.05–8.08 sexual orientation, 8.37–8.39, 14.03– 14.05 stress, 8.42 text messages, 8.30 traveller community, and, 19.09 verbal harassment, 8.31–8.35 vicarious liability, 8.48–8.51 workplace stress, 8.42 Health and safety disability, and, 17.121–17.125 maternity and pregnancy, and, 11.09– 11.14 Hostile environment harassment, and, 8.05–8.08 ‘Human persons’ Article 40.1 protection, and, 2.05 Human rights religious belief, and, 15.12–15.16 Hypothetical comparator prohibited conduct, and, 4.24 race, and, 18.43–18.44

I Identical work equal pay, and, 9.31

Interchangeable work equal pay, and, 9.31

Illegal contracts race, and, 18.47–18.49 scope of Employment Equality Acts, and, 4.16

International Lesbian, Gay, Bisexual and Trans and Intersex Association (ILGA) generally, 1.27 Interviews recruitment, and feedback, 5.36 generally, 5.18–5.28 panels, 5.29 selection, 5.12–5.15

Independent contractors scope of Employment Equality Acts, and, 4.09–4.10 Identical work equal pay, and, 9.31

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Equality Law in the Workplace Investigations harassment, and cross examination of witnesses, 8.72–8.75 external investigators, 8.65–8.66 generally, 8.63 independence, 8.64 issues arising, 8.67–8.71

J Job descriptions recruitment, and, 5.30–5.32 Justice permitted inequality, and, 2.13

K Knowledge disability, and, 17.32–17.39

Irish Constitution Article 40.1 protection all persons are equal before the law, 2.05–2.11 ‘human persons’, 2.05 introduction, 2.02 onus to prove justification, 2.21– 2.23 permitted inequality, 2.12–2.20 introduction, 2.01–2.04 permitted inequality capacity, 2.14–2.16 introduction, 2.12 justifiable but excessive in nature. 2.17–2.18 justifiable but not inclusive, 2.19– 2.20 requirement of justice, 2.13 social function, 2.14–2.16 religious belief, and, 15.04 Treaty on the Functioning of the European Union, and, 2.03

L Length of service age, and, 16.28–16.30 equal pay, and, 9.63–9.68 Less favourable treatment age, and, 16.06 maternity and pregnancy, and, 11.27– 11.35 Like work exactly the same work, 9.30 identical work, 9.31 interchangeable work, 9.31 introduction, 9.29 similar work, 9.32–9.35 work equal in value, 9.36–9.44

M Market forces equal pay, and, 9.54 Male gender claims gender discrimination, and, 11.03– 11.05

Irish Human Rights and Equality Commission (IHREC) generally, 1.28

Marital status generally, 12.01

Irish institutions introduction, 1.01 Irish Human Rights and Equality Commission, 1.28 Workplace Relations Commission, 1.29–1.30

Maternity adoptive leave, 11.65–11.68 alternative working arrangements defences to refusal, 11.26 generally, 11.20–11.25 change of duties, 11.09–11.14 contact during leave, 11.36–11.37

Irish language requirements race, and, 18.22–18.25

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Index ‘Pay’ equal pay, and, 9.50

Maternity (contd) dismissal during leave agency workers, 11.54–11.55 burden of proof, 11.56–11.57 generally, 11.46–11.53 health and safety leave, 11.09–11.14 introduction, 11.06 less favourable treatment after leave, 11.27–11.35 non-renewal of fixed-term contract, 11.58–11.64 redundancy during leave, 11.38–11.45 right to return to work, 11.15–11.19 sick pay payments, 11.07–11.08 surrogacy leave, 11.65–11.68

Pay scales age, and, 16.28–16.30 Pensions equal pay, and, 9.76–9.78

Medical checks recruitment, and, 5.38–5.47

Permitted discrimination age-based discriminatory treatment, 3.56–3.58 defence mechanism, as, 3.47 genuine occupational requirement, 3.51–3.55 introduction, 3.44–3.46 positive action, 3.65–3.77 proportionality, 3.48–3.49 protection of women, 3.59–3.64 strict interpretation, 3.50

Medical evidence disability, and, 17.20–17.21

Phased return to work disability, and, 17.90

Medical institutions religious belief, and, 15.64–15.68

Policies harassment, and generally, 8.52–8.55 importance, 8.56–8.62

Minorities religious belief, and, 15.03

Positive action EU law, and, 3.65–3.77

N

Post-employment issues claims, 10.16–10.17 introduction, 10.01–10.02 redundancy selection, 10.03–10.05 references, 10.11–10.15 severance packages, 10.06–10.10

Non-governmental agencies Court of Justice of the European Union, and, 1.27 Non-renewal of fixed-term contract maternity and pregnancy, and, 11.58– 11.64

Pre-employment issues advertisements, 5.03–5.11 alcohol tests, 5.60–5.72 application forms, 5.33–5.35 background checks, 5.53–5.59 conclusions, 5.73 conditions precedent alcohol tests, 5.60–5.72 background checks, 5.53–5.59 criminal record checks, 5.53–5.59 drug testing, 5.60–5.72 introduction, 5.37

O Occupational stress harassment, and, 8.42 Oral stage procedure Court of Justice of the European Union, and, 1.26

P Part-time workers equal pay, and, 9.75

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Equality Law in the Workplace sick pay payments, 11.07–11.08 surrogacy leave, 11.65–11.68

Pre-employment issues (contd) conditions precedent (contd) pre-employment medicals, 5.38– 5.47 references, 5.48–5.52 criminal record checks, 5.53–5.59 drug testing, 5.60–5.72 experience, 5.16–5.17 feedback, 5.36 interviews feedback, 5.36 generally, 5.18–5.28 panels, 5.29 selection, 5.12–5.15 introduction, 5.01–5.02 job descriptions, 5.30–5.32 medical checks, 5.38–5.47 minimum and maximum periods of experience, 5.16–5.17 minimum qualifications, 5.30–5.32 post-interview feedback, 5.36 pre-employment medicals, 5.38–5.47 qualifications, 5.30–5.32 references, 5.48–5.52 selection for interview, 5.12–5.15 shortlisting, 5.12–5.15

Prison service disability, and, 17.115–17.117 gender, and, 11.89–11.91 Professional qualifications disability, and, 17.109–17.111 Prohibited conduct comparable situation, 4.25–4.26 comparators, 4.22–4.23 discrimination, 4.20–4.21 hypothetical comparator, 4.24 Promotion age, and, 16.23–16.27 employment relationship, and, 6.21– 6.29 Proportionality EU law, and, 3.48–3.49 Protection of women EU law, and, 3.59–3.64

Q Qualifications recruitment, and, 5.30–5.32

Pregnancy adoptive leave, 11.65–11.68 alternative working arrangements defences to refusal, 11.26 generally, 11.20–11.25 change of duties, 11.09–11.14 contact during leave, 11.36–11.37 dismissal during leave agency workers, 11.54–11.55 burden of proof, 11.56–11.57 generally, 11.46–11.53 health and safety leave, 11.09–11.14 introduction, 11.06 less favourable treatment after leave, 11.27–11.35 non-renewal of fixed-term contract, 11.58–11.64 redundancy during leave, 11.38–11.45 right to return to work, 11.15–11.19

Quid pro quo harassment, and, 8.05–8.08

R Race access to educational courses, 18.28 bullying, 18.50–18.52 burden of proof, and, 21.16–21.18 citizenship, 18.56–18.57 comparators generally, 18.42 hypothetical, 18.43–18.44 definition, 18.05–18.13 direct discrimination, 18.14–18.20 discrimination by association, 18.37– 18.41 discrimination in dismissal, 18.45– 18.46

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Index Race (contd) documentation of employment, 18.31– 18.36 educational courses, 18.28 Employment Equality Acts, and ethnic origin, 18.08–18.13 generally, 18.05–18.07 English language requirements, 18.29– 18.30 equal pay, and, 9.05 ethnic origin, 18.08–18.13 EU law, 18.03–18.04 exemptions citizenship, 18.56–18.57 genuine occupational requirement, 18.58 introduction, 18.53 residency, 18.56–18.57 vocational training, 18.54–18.55 genuine occupational requirement, 18.58 harassment, 18.50–18.52 hypothetical comparators, 18.43–18.44 illegal contracts, 18.47–18.49 indirect discrimination access to educational courses, 18.28 documentation of employment, 18.31–18.36 English language requirements, 18.29–18.30 generally, 18.21 Irish language requirements, 18.22– 18.25 references, 18.26–18.27 introduction, 18.01–18.02 Irish language requirements, 18.22– 18.25 Race Directive, 18.02 ‘race discrimination’, 18.05–18.13 references, 18.26–18.27 religious belief, and, 15.17–15.19 residency, 18.56–18.57 vocational courses, 18.28 vocational training, 18.54–18.55 work permits, 18.47–18.49

Race Directive equal pay, and, 9.05 generally, 18.02 Traveller community, and, 19.02 Reasonable accommodation disability, and alternative attendance patterns at interview, 17.89 appropriate measures, 17.85–17.96 cause of action in its own right, 17.68–17.71 countervailing measures to ameliorate disadvantage, 17.97 disproportionate burden, 17.98– 17.105 generally, 17.56–17.58 phased return to work, 17.90 procedures, 17.72–17.84 reduction in working hours, 17.96 relieving person of tasks, 17.94 remaining on the books, 17.87 reorganisation of working environment, 17.92–17.93 scope, 17.59–17.67 summary, 17.106 transfer from night work to day work, 17.95 working from home, 17.91 religious belief, and, 15.71–15.76 Recast Directive equal pay, and, 9.04 Recruitment advertisements, 5.03–5.11 alcohol tests, 5.60–5.72 application forms, 5.33–5.35 background checks, 5.53–5.59 conclusions, 5.73 conditions precedent alcohol tests, 5.60–5.72 background checks, 5.53–5.59 criminal record checks, 5.53–5.59 drug testing, 5.60–5.72 introduction, 5.37 pre-employment medicals, 5.38– 5.47

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Equality Law in the Workplace Relieving person of tasks disability, and, 17.94

Recruitment (contd) conditions precedent (contd) references, 5.48–5.52 criminal record checks, 5.53–5.59 drug testing, 5.60–5.72 experience, 5.16–5.17 feedback, 5.36 interviews feedback, 5.36 generally, 5.18–5.28 panels, 5.29 selection, 5.12–5.15 introduction, 5.01–5.02 job descriptions, 5.30–5.32 medical checks, 5.38–5.47 minimum and maximum periods of experience, 5.16–5.17 minimum qualifications, 5.30–5.32 post-interview feedback, 5.36 pre-employment medicals, 5.38–5.47 qualifications, 5.30–5.32 references, 5.48–5.52 selection for interview, 5.12–5.15 shortlisting, 5.12–5.15

Religious belief ‘belief’, 15.20–15.23 burden of proof, and, 21.20 Christianity, and, 15.04 comparators, 15.32–15.33 conscientious objectors, 15.52–15.59 definitions ‘belief’, 15.20–15.23 introduction, 15.07 ‘religion’, 15.08–15.19 direct discrimination comparators, 15.32–15.33 generally, 15.25–15.27 dress and symbols, 15.41–15.51 educational institutions, 15.64–15.68 ethnicity, and, 15.17–15.19 ethos of an institution ‘ethos’, 15.69–15.70 favourable treatment, 15.64–15.66 generally, 15.60–15.63 positive discrimination, 15.64–15.66 preventing an employee from undermining the ethos, 15.67– 15.68 European Convention on Human Rights, and generally, 15.12–15.16 introduction, 15.02 exemptions ethos of an institution, 15.60–15.70 genuine occupational requirement, 15.77–15.84 reasonable accommodation, 15.71– 15.76 Framework Directive comparators, 15.32–15.33 direct discrimination, 15.25–15.27 harassment, 15.34 introduction, 15.24 indirect discrimination, 15.28–15.31 victimisation, 15.35–15.36 freedom of religion, and, 15.03 gender, and, 15.06

Red-circling equal pay, and, 9.59–9.62 Reduction in working hours disability, and, 17.96 Redundancy generally, 16.57–16.60 maternity and pregnancy, and, 11.38– 11.45 payments, 16.65–16.71 post-employment issues, and, 10.03– 10.05 selection, 16.61–16.64 References post-employment issues, and, 10.11– 10.15 race, and, 18.26–18.27 recruitment, and, 5.48–5.52 Regulatory committees European Parliament, and, 1.16–1.17

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Index Residency race, and, 18.56–18.57

Religious belief (contd) genuine occupational requirement, 15.77–15.84 harassment, 15.34 human rights, and, 15.12–15.16 indirect discrimination comparators, 15.32–15.33 generally, 15.28–15.31 introduction, 15.01–15.06 Irish constitution, and, 15.04 manifestation in the workplace, 15.38– 15.40 medical institutions, 15.64–15.68 minorities, and, 15.03 promotion in the workplace, 15.38– 15.40 race, and, 15.17–15.19 reasonable accommodation, 15.71– 15.76 ‘religion’ ethnicity, and, 15.17–15.19 generally, 15.08–15.19 human rights, and, 15.12–15.16 race, and, 15.17–15.19 religious dress and symbols, 15.41– 15.51 religious institutions, 15.64–15.68 sexual orientation, and, 15.06 symbols, 15.41–15.51 victimisation, 15.35–15.36

Retirement agreement to retire, 16.44–16.45 generally, 16.34–16.43 post-retirement contracts, 16.50–16.55 pre-retirement changes to contract, 16.46–16.49 retirement ages, 16.56 taking occupational pension, 16.44– 16.45 Return to work disability, and, 17.90 maternity and pregnancy, and, 11.15– 11.19

S Same or associated employer equal pay, and, 9.22–9.28 Scientific committees European Parliament, and, 1.16–1.17 Seniority employment relationship, and, 6.21– 6.29 equal pay, and, 9.63–9.68 Settlement agreements enforcement of rights, and, 22.23– 22.27 Severance packages age, and, 16.65–16.71 equal pay, and, 9.79–9.84 post-employment issues, and, 10.06– 10.10

Religious ethos civil status discrimination, and, 12.12 Remedies alternative remedies, 22.11 avenues of redress, 22.12–22.18 breach of contract, 22.10 gender discrimination, 22.07–22.09 generally, 22.01–22.06

Sex adoptive leave, 11.65–11.68 dress codes, 11.69–11.73 exemptions gardaí, 11.89–11.91 genuine occupational requirement, 11.85–11.88 introduction, 11.84 prison service, 11.89–11.91 gardaí, 11.89–11.91

Reorganisation of working environment disability, and, 17.92–17.93 Requests for preliminary ruling Court of Justice of the European Union, and, 1.21

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Equality Law in the Workplace definition Code of Practice, 8.02 Employment Equality Acts, 8.14 Recast Directive, 8.10 US approach, 8.04 discrimination, and, 8.11 Employment Equality Acts, 8.14–8.21 EU law, 8.10 ‘hostile environment’ harassment, 8.05–8.08 introduction, 8.01 Irish legislation, 8.14 outside the workplace, 8.27–8.30 ‘quid pro quo’ harassment, 8.05–8.08 types, 8.05–8.08

Sex (contd) genuine occupational requirement, 11.85–11.88 introduction, 11.02 male gender claims, 11.03–11.05 maternity alternative working arrangements, 11.20–11.26 change of duties, 11.09–11.14 contact during leave, 11.36–11.37 dismissal during leave, 11.46–11.57 health and safety leave, 11.09–11.14 introduction, 11.06 less favourable treatment after leave, 11.27–11.35 non-renewal of fixed-term contract, 11.58–11.64 redundancy during leave, 11.38– 11.45 right to return to work, 11.15–11.19 sick pay payments, 11.07–11.08 pregnancy alternative working arrangements, 11.20–11.26 change of duties, 11.09–11.14 contact during leave, 11.36–11.37 dismissal during leave, 11.46–11.57 health and safety leave, 11.09–11.14 introduction, 11.06 less favourable treatment after leave, 11.27–11.35 non-renewal of fixed-term contract, 11.58–11.64 redundancy during leave, 11.38– 11.45 right to return to work, 11.15–11.19 sick pay payments, 11.07–11.08 prison service, 11.89–11.91 recognition advisory group, 11.82– 11.83 statutory prohibition, 11.02 surrogacy leave, 11.65–11.68 trangender employees, 11.74–11.83

Sexual orientation disclosure, 14.06 exemptions, 14.08 harassment, and, 8.37–8.39, 14.03– 14.05 introduction, 14.01–14.02 religious belief, and, 15.06 ‘sexual orientation’, 14.01 summary, 14.07 Shortlisting recruitment, and, 5.12–5.15 Sick pay payments maternity and pregnancy, and, 11.07– 11.08 Similar work equal pay, and, 9.32–9.35 Social function permitted inequality, and, 2.14–2.16 Stress harassment, and, 8.42 Striking out claims, and, 20.21–20.22 Surrogacy leave gender discrimination, and, 11.65– 11.68

Sexual harassment See also Harassment categories, 8.22–8.39

Symbols religious belief, and, 15.41–15.516

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Index T

V

Technical qualifications disability, and, 17.109–17.111

Verbal harassment harassment, and, 8.31–8.35

Termination of employment generally, 16.31–16.33 redundancy generally, 16.57–16.60 payments, 16.65–16.71 selection, 16.61–16.64 retirement agreement to retire, 16.44–16.45 generally, 16.34–16.43 post-retirement contracts, 16.50– 16.55 pre-retirement changes to contract, 16.46–16.49 retirement ages, 16.56 taking occupational pension, 16.44– 16.45 severance payments, 16.65–16.71

Vexatious claims generally, 20.20 Vicarious liability harassment, and, 8.48–8.51 prohibited conduct, and, 4.03 Victimisation cause of action in its own right, as, 7.03–7.05 definition, 7.02 introduction, 7.01–7.02 religious belief, and, 15.35–15.3 scope, 7.06–7.08 significance of claims, 7.09–7.14 summary, 7.15 Vocational courses race, and, 18.28

Terms and conditions of employment generally, 6.19–6.20

Vocational training race, and, 18.54–18.55

Text messages harassment, and, 8.30

Vocations disability, and, 17.112

TFEU equal pay, and, 9.03 generally, 3.03–3.04

W Women, protection of EU law, and, 3.59–3.64

Transfer from night work to day work disability, and, 17.95

Work equal in value equal pay, and, 9.36–9.44

Trangender employees gender, and, 11.74–11.83

Work permits race, and, 18.47–18.49

Traveller community generally, 19.01–19.08 harassment, 19.09 Race Directive, and, 19.02

Working from home disability, and, 17.91 Workplace Relations Commission (WRC) generally, 1.29–1.30

Treaty of Rome equal pay, and, 9.02 EU law, and, 3.02

Workplace stress harassment, and, 8.42

U

Written stage procedure Court of Justice of the European Union, and, 1.26

Unmarried parents family status, and, 13.09

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Equality Law in the Workplace.book Page 384 Thursday, July 9, 2015 2:08 PM