In July 2004, the Equality Act 2004 - which is intended to enhance equality of treatment in the workplace - was passed by the Irish parliament. The new law was enacted to comply with three EU equality Directives and will introduce some significant new employment rights, including the extension of positive action measures.
On 19 July 2004, the Equality Act 2004 was signed into law, after being passed by parliament (the Dail), and came into operation with effect from that date. The Act seeks to transpose three EU Directives (IE0109101F): Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (EU0006256F); Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (EU0102295F); and Directive 2002/73/EC amending the 1976 Directive (76/207/EEC) on equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions.
Ireland was already thought to have one of the most advanced equality law frameworks in the EU. One of the main aims of the EU framework equality Directive and race Directive would appear to be to extend EU equality law beyond the area of gender. In that sense, Ireland, as a result of its legislation on equality in the workplace - the Employment Equality Act 1998 (IE9909144F) - and combating discrimination in relation to the provision of services - the Equal Status Act 2000 - was already some way ahead of most other EU Member States. As such, the new Irish legislation is, in effect, a tidying up exercise, albeit a potentially far-reaching one. There is little doubt that some potentially significant changes are being introduced, which extend existing equality rights beyond the current boundaries.
Positive action extended
The scope for positive action, with the aim of promoting equality in the workplace, has been broadened considerably by the new legislation. Up to now, such action has been confined to four out of the nine main grounds of discrimination set out in the Employment Equality Act 1998. Positive action is now extended to cover all nine grounds.
To date, positive action has been confined to situations involving older workers, people with disabilities and members of the traveller community, as well as various situations covered by the gender ground. Positive action, in this context, with a view to assisting people, can take the form of greater access to training, 'mentoring' or other forms of ongoing support.
The concept of harassment is also being extended to cover imputed characteristics. Employees may suffer harassment as a result of hints about their sexuality, for example. However, if they do not actually have the characteristics imputed to them, they would not have been able to bring a claim of harassment under previous equality legislation. The new law seeks to tackle this anomaly.
Indirect discrimination
Another development deals with indirect discrimination, where a particular measure, while appearing neutral on the face of it, has a disproportionate impact on a particular group or individual in the workplace. For instance, discriminating against job sharers can amount to discrimination against women because most job sharers are women. The task of proving the existence of indirect discrimination will now be made easier, with the removal of certain requirements to produce extensive statistical evidence in support of the claim.
Further, the removal of the upper age limit (65 years) for claims under the Employment Equality Act 1998 and the Equal Status Act 2000 is another notable change. It seemed odd to many to have legislation tackling 'ageism', which itself contained built-in age discrimination. However, certain restrictions on age do remain. For instance, employers can still set compulsory retirement ages. Also, offering a fixed-term contract to a worker over the compulsory retirement age does not constitute discrimination.
New disability rights
As required by the EU framework Directive, the new law also makes it easier to take successful claims on the disability ground. The original Irish equality legislation, in the mid-1990s, imposed a wide-ranging obligation on employers in this area. However, a review by the Supreme Court found that this obligation infringed too heavily on employers’ constitutional rights to property. As a result, the Employment Equality Act 1998 left matters so that employers were able to discriminate against workers with disabilities if the cost of necessary adjustments to the workplace exceeded a 'nominal cost'.
However, the new EU Directive, which takes precedence over the Irish Constitution, has effectively released the government from this Supreme Court ruling. Now employers have to treat those with disabilities equally 'unless the measures would impose a disproportionate burden on the employer'.
Other issues
Another new provision in the Act, in Section 4 (a)(1)(b), is that people who suffer discrimination because they are associated with a person who has been discriminated against can also take a claim, even if they do not fall into one of the nine specific groups which are covered under the legislation.
Finally, claims which the Labour Court or Equality Tribunal believe are frivolous, vexatious or misconceived can now be dismissed by either body. The dismissal of such cases can be appealed to the Circuit Court, however.
Limit on sanctions
While generally welcoming the contents of the new legislation, a number of equality lobby groups - in particular the Equality Authority- suggest that the new provisions do not go far enough, particularly in relation to the upper limits for sanctions. According to the Equality Authority, the new law fails to ensure that the redress provided for is genuinely dissuasive, and that tougher sanctions needed to be built into the legislation as a sufficient deterrent.
At present, upper limits for sanctions under Irish law vary depending on the complaint taken. There is a EUR 10,000 upper limit in the case of complaints of discrimination at the interview/job selection stage. Currently, there is no ceiling on compensation in the case of gender discrimination cases referred to the Circuit Court. However, equal pay awards are subject to a three-year ceiling, while a maximum of two years’ remuneration may be awarded by way of compensation in most other cases.
Commentary
Although Ireland already has one of the most extensive frameworks of equality law in the EU, the new Equality Bill will no doubt extend the equality rights open to workers - for instance, in relation to positive action and indirect discrimination.
While generally welcoming the new legislation, equality lobby groups - the Equality Authority in particular - are unhappy that the law did not go further in some areas; particularly in relation to the upper sanctions ceiling available to penalise transgressions. According to the Equality Authority, the sanctions ceiling needs to be higher to dissuade potential breaches. (Tony Dobbins, IRN)