Summary
In Ireland, the Employment Equality Acts aim to protect individuals from certain kinds of discrimination, harassment and sexual harassment that can happen in the workplace.
The Employment Equality Acts:
- promote equality;
- prohibit discrimination on nine specified grounds;
- prohibit sexual harassment and harassment on specified grounds;
- prohibit victimisation;
- require reasonable accommodation to be made for people with disabilities in relation to access, participation, and training in employment.
Extent of Protection
The Employment Equality Acts apply to employees (full-time, part-time, temporary). They also extend to agency workers, self-employed people, partners in partnerships and State and local authority office-holders.
The Employment Equality Acts prohibit an employer from discriminating against an employee or prospective employee in relation to access to employment (i.e. the recruitment process), conditions of employment, training, promotion, classification of jobs and dismissal.
Discrimination is broadly defined under the Employment Equality Acts 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 nine grounds specified below.
Under the Employment Equality Acts, discrimination in relation to any of the following nine protected grounds is prohibited:
- gender;
- civil status;
- family status;
- sexual orientation;
- religious belief;
- age;
- disability;
- race (includes colour, nationality or ethnic or national origins); and
- Membership of the Traveller community.
Discrimination may be direct or indirect. Indirect discrimination typically occurs where a provision or condition would appear on the face of it to be harmless but a person having one of the nine protected grounds would be at a disadvantage because of it e.g. having a minimum height for a role which would negatively impact on the number of women who may meet the criteria.
Indirect discrimination may be permissible if it can be objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary e.g. if the minimum height requirement was central to the physical performance of the role. Direct discrimination cannot however be objectively justified.
Victimisation may arise if an employer penalises an employee through dismissal or through some other adverse treatment because, for example, he/she has:
- made a complaint / brought a claim under the Employment Equality Acts;
- supported a complainant who has been allegedly harassed or discriminated against;
- given evidence in legal proceedings as a witness; or
- informed the employer that they intend to do any of the things mentioned in the previous points.
Victimisation that occurs as a result of an employee asking about his/her legal rights or where an employee makes a complaint may also be protected under other pieces of legislation in Ireland, including the Protected Disclosures Acts (which legislation protects whistle-blowers who raise concerns about potential wrongdoings in their workplace from dismissal, penalisation or other sanction by their employer).
Protections Against Harassment
Harassment is defined by the Employment Equality Acts as any form of unwanted conduct related to any of the nine protected 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 protect employees from employment-related harassment by the employer, co-workers, clients, customers or other business contacts of the employer (including anyone the employer could reasonably expect the worker to come into contact with).
The protection of the Employment Equality Acts extends to situations where the employee does not have the relevant characteristic related to the discriminatory ground, but the perpetrator believes that he/she has that characteristic and harasses on that basis.
Many forms of behaviour, including spoken words, gestures or the display/circulation of words, pictures or other material, may constitute harassment.
The following list of examples is illustrative rather than exhaustive:
- Verbal harassment – jokes, comments, ridicule or songs;
- Written harassment – including faxes, text messages, emails or notices;
- Physical harassment – jostling, shoving or any form of assault;
- Intimidatory harassment – gestures, posturing or threatening poses;
- Visual displays such as posters, emblems or badges;
- Excessive monitoring of work;
- Isolation or exclusion from social activities;
- Unreasonably changing a person’s job content or targets;
- Pressure to behave in a manner that the employee thinks is inappropriate, for example being required to dress in a manner unsuited to a person’s ethnic or religious background.
A single incident may constitute harassment. The intention of the perpetrator is irrelevant. It is a subjective test as to how the victim felt.
Sexual harassment is defined by the Employment Equality Acts as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature 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 protect employees from employment-related sexual harassment by the employer, co-workers, clients, customers or other business contacts of the employer (including anyone the employer could reasonably expect the worker to come into contact with).
Many forms of behaviour can constitute sexual harassment. The following list of examples is illustrative rather than exhaustive:
- Physical conduct of a sexual nature — This may include unwanted physical contact such as unnecessary touching, patting or pinching or brushing against another employee’s body, assault and coercive sexual intercourse.
- Verbal conduct of a sexual nature — This includes 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.
- Non-verbal conduct of a sexual nature — This may include 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.
- Gender-based conduct — This includes conduct that denigrates or ridicules or is intimidatory or physically abusive of an employee because of his or her sex such as derogatory or degrading abuse or insults which are gender-related.
A single incident may constitute sexual harassment. The Employment Equality Acts do not prohibit all relations of a sexual or social nature at work.
To constitute sexual harassment or harassment the behaviour complained of must:
- be unwanted; and
- have the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
It is up to each employee to decide (a) what behaviour is unwelcome, irrespective of the attitude of others to the matter and (b) from whom, if anybody, such behaviour is welcome or unwelcome, irrespective of the attitudes of others to the matter. The fact that an individual has previously agreed to the behaviour does not stop him/her from deciding that it has become unwelcome. It is the unwanted nature of the conduct which distinguishes sexual harassment and harassment from behaviour which is welcome and mutual.
The intention of the perpetrator of the sexual harassment or harassment is irrelevant. The fact that the perpetrator has no intention of sexually harassing or harassing the employee is no defence. The effect of the behaviour on the employee is what is relevant.
An employer may be vicariously liable for harassment or sexual harassment suffered by its employee in the course of his/her employment perpetrated by co-employees, clients, customers or other person with whom the employer might reasonably expect the employee to come into contact with, in the course of his/her employment regardless of whether that act was done with the employer’s knowledge or approval. An employer’s liability may also extend to work-related social events. However, an employer may not be directly liable for any acts of harassment that take place between employees outside the course of employment.
It is a defence for the employer to prove that it took reasonably practicable steps to prevent:
- the employee from being harassed.
- the employee from being treated differently in the workplace or in the course of employment and, if and so far as any such treatment has occurred, to reverse the effects of it.
In order to rely on this defence, employers must show that they have comprehensive, accessible, effective policies that focus on prevention, best practice and remedial action, and also accessible effective complaints procedures. The measures taken to put the policies and procedures into practice will also be taken into account by courts and tribunals: employers will not be able to rely on a policy if it has not been effectively implemented.
Employer’s Obligation to Provide Reasonable Accommodations
Employers in Ireland are obliged by the Employment Equality Acts to provide ‘reasonable accommodation’ for persons with disabilities, subject to that accommodation not imposing a disproportionate burden on the employer and taking into account financial and other costs, the scale and financial resources of the employer’s business and the possibility of obtaining public funding or other assistance. What constitutes ‘reasonable accommodation’ will depend on the circumstances and is assessed on a case-by-case basis.
Remedies
Claims for discriminatory treatment (on any of the nine protected grounds), discriminatory dismissal (on any of the nine protected grounds), victimisation, harassment and sexual harassment are heard by the WRC or the Labour Court (on appeal). Depending on the claim, the WRC or the Labour Court (on appeal) can award redress in the form of compensation (subject to a maximum of 2 years’ gross remuneration), reinstatement, re-engagement or order the employer to take a specified course of action. There is no minimum service required for an employee to bring any of these claims. In gender discrimination cases, a claim may be made directly to the Circuit Court which can, in theory, award unlimited compensation in such cases.
Other Requirements
In general, there are no recruitment or diversity quotas that require employers to recruit from any particular groups. In terms of ‘positive action”, an employer is not prohibited by the Employment Equality Acts from maintaining or adopting measures that are not required under the legislation with a view to ensuring full equality in practice between men and women in the workplace.
