At Tully Rinckey, our solicitors are committed to eliminating unlawful discrimination and promoting fairness and equality. Our legal team is dedicated to providing high-quality, affordable equality law services. We protect your job or your business with experienced counsel and representation.
Challenging discrimination has been a key part of Tully Rinckey’s work since our establishment and we devote a separate practice area to this complex and evolving area of the law. At Tully Rinckey, our solicitors are committed to eliminating unlawful discrimination and promoting fairness and equality. Our legal team is dedicated to providing high-quality, affordable equality law services. We protect your job or your business with experienced counsel and representation.
Discrimination is defined as less favourable treatment. A person is said to be directly discriminated against if they are treated less favourably than another is, has been or would be treated in a comparable situation on the protected grounds of gender, marital status, family status, age, disability, race, sexual orientation, religious belief or membership of the travelling community. A person is said to be indirectly discriminated against if an action or policy does not overtly discriminate but has the effect of creating a disadvantage to persons with a particular characteristic under one of the nine protected grounds. Unless the action or policy can be objectively justified, it will amount to indirect discrimination.
The Employment Equality Acts 1998-2015 prohibit discrimination in the workplace. The protection from discrimination under the Employment Equality Acts extends to not only employees, but job applicants, independent contractors and to a certain extent and agency workers. Discrimination may occur in the context of access to employment, advertising, equal pay, vocational training and work experience in relation to employment, terms and conditions of employment, promotion or re-grading, classification of posts, dismissal, and collective agreements. The Employment Equality Acts also provide for equal pay for like work. Like work is defined as work that is the same, similar or work of equal value. Equal pay claims can be taken on any of the nine discriminatory grounds.
Equal Status Acts 2000-2015, prohibit discrimination in the provision of goods and services, the provision of accommodation and access to education. In addition, the Equal Status Acts prohibit discrimination in the provision of accommodation services against people who are in receipt of rent supplement, housing assistance, or social welfare payments.
Tully Rinckey has a wealth of experience advising and representing both companies and private clients in the pursuit and defense of equality law claims. Our experience involves filing and responding to discrimination claims, bringing and defending equality law claims in the Workplace Relations Commission and the Labour Court, negotiating settlement agreements and using mediation to avoid litigation. We also review and develop workplace policies covering anti-discrimination, harassment, sexual harassment and workplace bullying.
The Employment Equality Acts govern equality within the workplace. Although the Employment Equality Acts afford protection to an employee who works under a contract of employment, the legislation defines a contract of employment as any contract where an individual agrees to personally provide services for another person. Consequently, the Employment Equality Acts not only apply to employees but also to job applicants, independent contractors and to a certain extent, agency workers.
The Employment Equality Acts define discrimination as treating one person less favorably than another is, has been or would be treated in a comparable situation on any of the following nine protected grounds:
Discrimination includes discrimination by perception, indirect discrimination and harassment and victimisation.
The Employment Equality Acts applies to various aspects of the employment including:
An individual is afforded protection under the Employment Equality Acts from the first day of employment as there is no service requirement to bring a claim for discrimination under the Employment Equality Acts.
Complaints under the Employment Equality Acts are made to the Workplace Relations Commission. For a claimant to succeed in a claim under the Employment Equality Acts, he or she must establish facts from which a presumption of discrimination can be made. Once this is established, the burden of proof shifts to the respondent to rebut the presumption on the balance of probability.
The Equal Status Acts, prohibit discrimination in the provision of goods and services, the provision of accommodation and access to education, on any of the following ten protected grounds:
The Equal Status Acts also prohibit discrimination against a person in respect of his or her association with another person, acting as a witness on behalf of that other person, giving evidence on their behalf, legally opposing an act which is unlawful under the Equal Status Acts, giving notice of an intention to take any such actions.
Complaints under the Equal Status Acts are made to the Workplace Relations Commission (“WRC”). Prior to making a complaint to the WRC, you are required to use the Equal Status Form ES1 to notify the service provider directly of the alleged discrimination against you. The notification must contain specific details of the alleged discrimination and it must be received by the service provider within two months of the occurrence. The service provider has one month to respond but is not obliged to do so.
Under the Employment Equality Acts, direct discrimination occurs where a person is treated less favorably than another person in a similar situation under any of the following nine protected grounds:
The Employment Equality Acts also protect an individual who does not fall under any one of the abovementioned nine protected grounds but who has suffered discrimination by association. This occurs where that person does not possess a characteristic under any one of the nine protected grounds, but rather they are associated with another person who is covered by one of those grounds.
Examples of direct discrimination include terminating a person’s employment, refusing to employ them, providing them with less favorable conditions of employment or denying them a promotion as a direct result of them possessing a characteristic under any one of the nine protected grounds.
With the exception of retirement ages, direct discrimination cannot be justified.
The Employment Equality Acts define indirect discrimination as occurring where an apparently neutral provision puts a person who possesses a characteristic under the one of the abovementioned nine protected grounds at a particular disadvantage when compared to other employees.
An example of indirect discrimination may include a rule whereby all employees must work on Saturdays. As Saturday is a religious day in Judaism, this rule may potentially constitute indirect discrimination against Jewish employees on the grounds of religious belief.
Indirect discrimination can be justified if there is a legitimate aim and the means of achieving that aim are appropriate and necessary.
Discrimination on the grounds of gender is prohibited under the Employment Equality Acts. Examples of discrimination on the grounds of gender include terminating a person’s employment, refusing to employ them, providing them with less favorable conditions of employment or denying them a promotion as a direct result of their gender.
Pregnancy and matters relating to maternity leave are also protected under the Employment Equality Acts. Pregnancy related discrimination means discrimination on the grounds of gender and includes recruitment, promotion and general conditions of employment.
The Employment Equality Acts, define indirect discrimination of the ground of gender as occurring where an apparently neutral provision puts persons of a particular gender (being As or Bs) at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.
Importantly, the legislation provides what where there is a bona fide occupational requirement for differences in treatment on the ground of gender, such treatment will not constitute discrimination.
A claim for discrimination on the grounds of gender can be brought to either the Workplace Relations Commission or the Circuit Court. In the event of proceedings being issued in the Circuit Court, the monetary jurisdiction of the Circuit Court does not apply. Consequently, there is no cap on the amount of compensation that may be awarded in a gender discrimination claim.
In relation to pay, In April 2019, the Government presented the Gender Pay Gap Information Bill 2019 to the Dáil. The Bill proposes to amend the Employment Equality Acts, by introducing regulations that will require certain employers to publish information relating to remuneration of their employees by reference to the employees’ gender. The Gender Pay Gap Bill is currently at the third stage.
Direct and indirect discrimination on the grounds of civil status is prohibited under the Employment Equality Acts. Civil status includes being single, married, separated, divorced, widowed, in a civil partnership within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 or being a former civil partner in a civil partnership that has ended by death or been dissolved.
Examples of discrimination on the grounds of civil status include terminating a person’s employment, refusing to employ them, providing them with less favorable conditions of employment or denying them a promotion as a direct result of their civil status.
Indirect discrimination on the ground of gender may, for example include a practice of not hiring anyone who has children as this would likely put those who are married or in a civil partnership at a disadvantage.
Direct and indirect discrimination on the grounds of family status is prohibited under the Employment Equality Acts. The Employment Equality Acts provide protection to any person who has responsibility:
Examples of discrimination on the grounds of family status include terminating a person’s employment, refusing to employ them, providing them with less favorable conditions of employment or denying them a promotion as a direct result of their family status.
Only main carers or parents who are living with a person for whom they are caring are covered by the Employment Equality Acts. However, if the main carer is being discriminated against in the workplace because he or she is known to be the main carer, or parent, of a person with a disability, but he or she does not live with them, this may be considered discrimination by association.
Protection against discrimination on the grounds of religion is provided for under the Irish Constitution which provides that the State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status. Furthermore, protection is provided under the Employment Equality Acts which prohibit discrimination on the grounds of religious belief within the workplace.
The Employment Equality Acts provides that direct discrimination on the grounds of religious belief occurs where, as a result of a person’s religious belief or absence of religious belief, that person is treated less favourably than another is, had been or would be treated.
Examples of discrimination on the grounds of religious belief include terminating a person’s employment, refusing to employ them, providing them with less favorable conditions of employment or denying them a promotion as a direct result of their religious belief.
Importantly, The Employment Equality Acts state that religious belief includes religious background or outlook, therefore, religious belief includes having no religious belief. Consequently, discrimination on the grounds of religious belief also includes a situation where two people of different religions are treated differently because one person has a religious belief and the other has not.
Under the Employment Equality Acts, there are exceptions to discrimination on the grounds of religious belief whereby certain religious, education and medical institutions may discriminate on the grounds of religion. Moreover, particular job applicants or employees may be treated more favorably if it is necessary to maintain the religious ethos of the institution. Such institutions may take action against an employee without discriminating if they behave in such a way that in is contravention of the established standards and traditions of the institution.
Direct and indirect discrimination on the grounds of race is prohibited under the Employment Equality Acts. Individuals who are of difference race, colour, nationality, or ethnic or national origins are all protected by the Employment Equality Acts.
The Employment Equality Acts contain exceptions to discrimination on the grounds of race in the context of employment where certain State employers may have requirements in relation to residency and citizenship, for example, the Gardai and Defence Forces. The Employment Equality Acts also permit the imposition of a requirement on teachers to have a proficiency in the Irish language. Furthermore, in respect of a particular post, employers are allowed to require a specified education in the State for that particular post. Employers are not permitted by law to hire a non-EEA citizen unless he or she is in possession of a valid employment permit that allows him or her to take up employment in the State.
The prohibition of direct and indirect discrimination on the ground of age is protected at a European Union which establishes a general framework directive for equal treatment in employment and combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.
EU law provides for a derogation from the general prohibition against age discrimination if there is a genuine and determining occupational requirement. Importantly under EU law, an exception to indirect discrimination on the ground of age is permitted provided it can be objectively and reasonably justified by a legitimate aim and that the means of achieving that aim appropriate and necessary.
At national level, direct and indirect discrimination on the grounds of age is prohibited under the Employment Equality Acts. The protection of the Employment Equality Acts only applies to persons who are above the maximum age at which they must attend school (which is currently 16) and do not apply to Members of the Defence Forces and volunteers.
The Employment Equality Acts are in compliance with the general framework of EU law as it allows for indirect discrimination on the ground of age, provided that it can be justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. Moreover, an employer is permitted to set a minimum age requirement (not more than 18 years) for potential applicants for a job. Furthermore, an employer may offer a fixed-term contract to a person over the compulsory retirement age provided it is objectively justified.
In recent times, discrimination on the grounds of age has given rise to a significant amount of litigation in respect of mandatory retirement ages. The Acts provide that “it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees”, however, an employer must be able to demonstrate that it is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. Common justifications for setting different retirement ages for the retirement of different employees include health and safety concerns, creating opportunities in the labour market, enabling a balanced age structure in the workforce, and encouraging motivation and dynamism through the prospects of career enhancement and promotion.
The Code of Practice on Longer Working provides guidance for employers in respect of the retirement process and sets out best practice in regards to managing a request received from an employee to work beyond their contracted retirement age. Although the Code is not legally binding, if challenged, an employer will have to justify not complying with it. An employer will be in a stronger position to defend a claim if it can show that the Code has been implemented.
The issue of discrimination in the context of mandatory retirement ages remains a topical area of equality law. The State pension age is set to 67 in 2021 and 68 in 2028.
Direct and indirect discrimination on the grounds of disability is prohibited under the Employment Equality Acts. The Employment Equality Acts provide that ‘disability’ means:
Protection under the Employment Equality Acts cover short-term disabilities imputed disabilities, past and future disabilities.
The Employment Equality Acts state in relevant part that “a person who has a disability is fully competent to undertake . . . any duties, if the person would be so fully competent and capable on reasonable accommodation.” Consequently, there is a positive obligation on an employer to provide reasonable accommodation to an employee who suffers from a disability, to enable them to access employment, participle or advance employment or undergo training. Under the Employment Equality Acts, an employer is obliged to consider all appropriate measures to provide reasonable accommodation provided a disproportionate burden is not placed on the employer. Whether a disproportionate burden would be placed on the employer involves considering financial costs, financial resources and the possibility of public funding. Where the employee cannot fulfil the role, there is an obligation on the employer to look not only at a redistribution of the tasks of the role but must look at a redistribution of the core duties of the employee’s job.
The prohibition of direct and indirect discrimination on the ground of sexual orientation is protected at a European Union level through the Framework Directive which prohibits discrimination on grounds of sexual orientation.
At national level, direct and indirect discrimination on the grounds of sexual orientation is prohibited under the Employment Equality Acts. The Employment Equality Acts define sexual orientation as heterosexual, homosexual or bisexual. In order to show discrimination, the employee must demonstrate that a person of a different sexual orientation to theirs has been treated more favorably than they were.
Victimisation within the workplace is prohibited under the Employment Equality Acts. The Employment Equality Acts describes victimisation as occurring where the dismissal or other penalisation of the employee was solely or mainly as a result of the employee having made a complaint of discrimination, been involved in a case of discrimination, represented or helped a claimant with a discrimination complaint or having acted as a witness in a discrimination case.
Protection from victimisation under the Employment Equality Acts extends to not only employees, but former employees, job applicants and prospective employees.
The Code of Practice on Victimisation provides guidance for employees, employers and trade unions in relation to the types of conduct which would be regarded as constituting victimisation as a result of membership of/activity on behalf of a trade union by an employee. It applies to situations where there are no negotiating arrangements and where collective bargaining has not taken place.
Harassment and sexual harassment is prohibited under the Employment Equality Acts. The protection under the Employment Equality Acts against harassment and sexual harassment extend to employees, agency workers and trainees and includes harassment and sexual harassment by the employer, co-workers and clients, customers or other business contacts of the employer, including anyone the employer could reasonably expect the worker to come into contact with.
The Employment Equality Acts define harassment as any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
The Employment Equality Acts define sexual harassment as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature. In both cases it is defined as conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person and it is prohibited under the Employment Equality Acts.
Harassment must be distinguished from bullying which constitutes repeated inappropriate behavior. In contrast, harassment does not have to be repetitive and therefore can be an isolated incident. Harassment must also be based on one of the nine protected grounds under the Employment Equality Acts. Harassment and sexual harassment are subjective in nature and therefore, the intention of the harasser is irrelevant.
The Code of Practice Harassment Order provides guidance to employers and employees on how to prevent sexual harassment and harassment at work and how to put procedures in place to deal with it. Although the Code is not legally binding, if challenged, an employer will have to justify not complying with it. An employer will be in a stronger position to defend a claim if it can show that the Code has been implemented.
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