Development of the Equality Legislation in Ireland

1
Development of theEquality Legislation
inIreland
2
EU Directives on EqualityHistorical Overview
Irelands Legislative response
3

• Equal Pay Directive 75 / 117 / EEC
• This was the first directive establishing equal
  pay for men and women.
• Following the Directive Ireland Enacted the
• Anti (Discrimination) Pay Act, 1973

4
Anti (Discrimination) Pay Act, 1973

• Where men and women were doing like work
• employed by the same employer, or associated
  employer
• employed in the same place - confusion on its
  interpretation
• You had to have a male /female comparator in
  order to take a case
• Each were entitled to the same rate of pay
• (This Act was repealed by the Employment Equality
  Act, 1998)

5
Equal Treatment Directive 76/207/EEC

• This Directive established equal treatment for
  men and women in relation to access to
  employment, vocational training, promotion and
  working conditions.
• (The directive was amended by Council Directive
  2002/73/EC)
• Following this Directive Ireland enacted the
  Employment Equality Act, 1977. (This Act was
  also repealed by the Employment Equality Act,
  1998)

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Employment Equality Act, 1977

• Provided for equality between men / women or
  persons of a different marital status in the
  workforce in relation to
• Advertising for employment
• Access to employment
• Recruitment
• Conditions of work
• Promotion
• (This Act was also repealed by the Employment
  Equality Act, 1998)

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In 1999 Ireland enacted the Employment Equality
Act, 1998and later the Equal Status Act 2000.
These were enacted prior to any EU
Directives(Details of both amended acts are
attached)
8
Code of Practice in relation to harassment and
sexual harassment was made law by a statutory
Instrument No 78 of 2002.The code outlines good
practice in the workplace in dealing with both
types of harassment.
9
Because of the following council directives these
Acts have had to be amended by the Employment
Equality Act, 2004
10
Equal Treatment Racial /Ethnic Origin 2000 /43
/EC
This Directive laid down a framework for
combating discrimination on the grounds of racial
and ethnic origin. It provided that there be no
discrimination, direct or indirect or harassment
based on racial or ethnic origin in Access to
employment, conditions of employment, promotion
including dismissals and pay Vocational training
/ guidance Membership of organisations of workers
/ professional bodies Social protection, social
security and healthcare Social advantage
Education Access to goods and services
11
General Framework for Equal Treatment 2000 /
78/EC

• The directive provides that there be no direct or
  indirect discrimination on the grounds of
  religion or belief, disability, age or sexual
  orientation in relation to
• Access to employment, including promotion
• Vocational guidance, training, work experience
• Employment and working conditions including pay
  and dismissals
• Membership of professional bodies organisation
  of workers or employers.

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General Framework for Equal Treatment 2000 /
78/EC

• Reasonable accommodation must be provided for
  persons with a disability.
• It will be for the respondent (employer) to prove
  that there has been no breach of the principal of
  equal treatment i.e. the burden of proof will
  be on the employer rather than the employee.

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Equal Treatment Directive 2002 / 73 / EC

• The directive provides that there shall be no
  discrimination on the grounds of sex either
  directly or indirectly, in particular to marital
  and family status in relation to
• Access to employment, including promotion
• Vocational guidance, training, work experience
• Employment and working conditions including pay
  and dismissals
• Membership of professional bodies organisation
  of workers or employers.
• Harassment and Sexual Harassment are also defined
• Provisions in relation to the protection of women
  particularly as regards to pregnancy and
  Maternity.

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DefinitionsWorkplace BullyingSexual
HarassmentHarassment
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Introduction

• Large increase in bullying/harassment/stress
  claims against employers in recent years.
• However, dearth of case law from superior courts
  as a source of guidance to employers.

16
Statistics

• 1999 CIPD/Staffordshire University survey showed
  1 in 8 employees in the UK claimed to have been
  bullied at work.
• 25 by a superior
• 39 by departmental head
• 16 managing director/CEO
• In 2002 survey 30 of employees admitted having
  sent an inappropriate email at work.

17
Bullying/Harassment - a reality

• Accepted by the courts/third party institutions
  that an employer cannot prevent the occurrence of
  workplace bullying/harassment.
• However, an employer is required to do what is
  reasonable to prevent such behaviour.

18
Dignity at Work Charter

• A first step which should be taken by any
  organisation adoption display of a Dignity at
  Work Charter.
• Indicates commitment of management workforce to
  develop an environment in which the dignity of
  each individual is respected.

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Relevant Legislation

• Safety, Health Welfare at Work Act 1989
• Safety, Health Welfare at Work (General
  Application Regulations) 1993
• Unfair Dismissals Acts 1977-2001
• Employment Equality Act 1998
• Industrial Relations Acts 1946-2004
• Codes of Practice

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Codes of Practice

• Three Codes of Practice
• LRC Code of Practice Detailing Procedures for
  Addressing Bullying in the Workplace
• HSA Code of Practice on the Prevention of
  Workplace Bullying
• Equality Authority Code of Practice on Sexual
  Harassment and Harassment at Work
• Codes require employers to develop
• policies to prevent workplace bullying, and/or
  harassment arising
• procedures for dealing with resolving
  allegations.

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What is bullying?

• No statutory definition
• Defined in Codes of Practice

22
Bullying Definition

• Workplace Bullying is
• repeated inappropriate behaviour, direct or
  indirect, whether verbal, physical or otherwise,
• conducted by one or more persons against another
  or others,
• at the place of work and/or in the course of
  employment,
• which could reasonably be regarded as undermining
  the individual's right to dignity at work

23
Sexual Harassment Definition

• Defined in Section 23(3) of
• Emp. Equality Act 1998
• (3) For the purposes of this Act-
• (a) any act of physical intimacy by B towards
  A,
• (b) any request by B for sexual favours from A,
  or
• (c) any other act or conduct of B (including,
  without
• prejudice to the generality, spoken words,
  gestures or the production, display or
  circulation of written words, picture or other
  material)
• shall constitute sexual harassment of A by B if
  the act, request or
• conduct is unwelcome to A and could
  reasonably be regarded as sexually, or otherwise
  on the gender ground, offensive, humiliating or
  intimidating to A.

24
Harassment on Non-gender Grounds

• Defined in Section 32(5) EEA 98
• Any act or conduct including spoken words,
  gestures or the production, display or
  circulation of written words, pictures or other
  material if the action or other conduct is
  unwelcome and could reasonably be regarded in
  relation to the relevant characteristics of the
  person claiming harassment as offensive,
  humiliating or intimidating.

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Vicarious LiabilityS. 15 Employment Equality Act
1998

• Section 15(1) provides that
• Anything done by a person in the course of his
  or her employment shall, in any proceedings
  brought under this Act, be treated for the
  purposes of this Act as done also by that
  persons employer, whether or not it was done
  with the employers knowledge or approval. 

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Equality Bill 2004

• Repeals s.23 and s.32 EEA 98.
• Replaces them with a single section which
  includes definitions of harassment and sexual
  harassment which are weighted more in favour of
  the subjective element.
• See proposed section 14A.

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Equality Bill 2004 (contd)

• Section 14A(7)(a)
• (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 persons dignity
  and creating an intimidating, hostile, degrading,
  humiliating or offensive environment for the
  person.