Introduction

The Employment Equality Act, 1998 (the "EEA") affects every employer in the State. It also applies to employment agencies and providers of vocational training.

Prohibited Discrimination

The EEA prohibits direct or indirect discrimination (including victimisation) by employers on the following nine grounds:

• Gender: male, female, transsexual
• Marital status: single, married, separated, divorced or widowed
• Family status: pregnant, parent to child under 18; primary resident carer
• Age: persons aged between 18 and 65
• Disability: includes physical, intellectual and emotional disabilities
• Religion: different religious belief, background, outlook or none
• Sexual orientation: heterosexual, homosexual or bi-sexual
• Race: includes ethnic, national or racial origins
• Membership of the traveller community

Victimisation is taken to occur where a person is penalised for having, in good faith, opposed by lawful means an act of discrimination.

Harassment

Harassment on any of the nine grounds is also prohibited under the EEA. Employers in certain circumstances will be held vicariously liable where other employees or certain third parties harass an employee, including clients, customers or independent contractors. In a recent determination, the Labour Court upheld an Equality Officer's decision that the management of a school should be held liable for the sexual harassment of teachers by pupils.

Very importantly, a claim for sexual harassment may be brought in the Circuit Court which, in the circumstances, will have unlimited jurisdiction. It is clearly important that employers have policies in place, circulated to all employees, outlining prohibited conduct and methods of redress.

Disability

The EEA imposes an obligation on employers to reasonably accommodate persons with disabilities provided such accommodation results in no more than a nominal cost. Failure to do so constitutes discrimination.

Accordingly, in certain circumstances, where an applicant/employee is under a disability, the employer may need to review procedures/practices to determine whether, for example, the individual requires special equipment or training.

Positive Action

Employers may engage in positive action programmes in certain circumstances, namely, on the grounds of gender, for those over 50, persons with disabilities and members of the traveller community.

What is covered by the EEA?

Discrimination is prohibited throughout the entire relationship particularly in relation to access to employment, terms and conditions of employment, training or experience, promotion or re-grading or classifications of posts. This includes the following:

• Advertising;
• Access to employment;
• Selection procedures, including short-listing of candidates for interview
• Interview procedures, including note taking and the retention of notes;
• Provision of training opportunities;
• Equal pay;
• Dress codes;
• Opportunities for Promotion;
• Terms and conditions of employment, including, access to shift-work, over-time, part-time/flexi-time or job-sharing opportunities; sick-pay, pay, annual leave entitlements;
• Medical examinations;
• Risk assessments;
• Occupational health assessments;
• Reasonable accommodation of persons with disabilities;
• Disciplinary procedures;
• Selection for redundancy;
• Selection for dismissal.

Persons are entitled to equal pay for equal work without regard to any of the nine discriminatory grounds. In addition to the above, it is clear that employers must ensure that all benefits and treatment accorded to employees are in compliance with the EEA. This might include invitations to company sponsored events, sponsorship of membership of clubs, attendance at golf-outings, attendance at conferences or workshops etc.

Remedies

Complaints may be brought in the first instance to the Office of Director of Equality Investigation ('ODEI') except in the case of discriminatory dismissals, which must be brought to the Labour Court. The ODEI may provide one or more of the following remedies as may be appropriate:

• In an equal pay claim, compensation in the form of arrears of pay for up to 3 years before the date of the referral of the claim;
• An order for equal pay from the date of the referral of the claim;
• Compensation in an amount of up to two years' remuneration or €12,679;
• An equal treatment order;
• An order that a specified person takes a specified course of action. (Importantly, this might be an order to employ, promote etc. a particular candidate.)

The ODEI in its decisions to date has specified various courses of actions to employers, including:

• Formulation or revision of equal opportunities' policy;
• Circulation to all employees of equal opportunities' policy;
• Transfer of supervisor found to have sexually harassed an employee;
• Establishment of sexual harassment complaints procedure;
• Audit of all policies to ensure equal opportunities for men and women;
• Establishment of transparent procedures for employment compensation, to include, inter alia, drafting of clear job specifications;
• Provide effective means of access to building.

Any gender claim (including gender-related dismissal) may be brought to the Circuit Court in which cases its jurisdiction is unlimited.

Recent Decisions

Decisions of the ODEI have been wide-ranging since the commencement of the EEA. In its first decision on discriminatory advertising, an Equality Officer held that Ryanair had placed an age- discriminatory newspaper advertisement. The Company sought a 'young and dynamic' candidate for the position of 'Director of Regulatory Affairs'. A fine of £8,000.00 (€10,158) was imposed. In addition, a range of other measures were ordered including review of interview practices and revision of the Company's equal opportunities policy.

The interview process itself has also been the subject of scrutiny by the ODEI. This has included review of the composition of interview boards. Indeed, prior to the introduction of the EEA, the Labour Court awarded a candidate who was not appointed to the post of Consultant Obstetrician/Gynaecologist and was found to have been asked discriminatory gender and family related questions, compensation in an amount of £50,000.00 €63,487.00.

In another case, an Equality Officer held that asking a separated female candidate about her childcare arrangements, constituted discriminatory questioning where similar questions would not have been asked of male candidates.

Compensation in an amount of £40,000 (€50,790) was ordered by an Equality Officer following findings that an employee had been victimised in that she was ostracised/isolated in the work-place for having taken previous proceedings under the Employment Equality Act, 1977. In addition, the employer was ordered to assist the complainant in any transfer request she might have and to update its equal opportunities policy. Furthermore, it was ordered not to act on foot of any internal investigation, which was not conducted in a fair manner.

Claimants have also successfully challenged dress codes in a number of cases over recent years. In a case where an Equality Officer found that a uniform policy operated by an employer was discriminatory on the grounds of gender, compensation in an amount of £3,000 (€3,809) was awarded.

The majority of complaints received by the ODEI relate to the gender and marital status grounds. However, there are a growing number of complaints on the grounds of age, disability and nationality. Employers are obliged to reasonably accommodate persons with disabilities provided; such accommodation does not incur more than a nominal cost. The Labour Court recently found that an employee with epilepsy was dismissed on the grounds of disability and awarded her £15,000 (€19,046).

An Equality Officer awarded compensation in an amount of £8,000.00 (€ 10,158) where it found that an employer, aware of an employee's disability (cerebral palsy), discriminated against the employee by failing to examine the options available to accommodate the needs of his disability.

A health board was required to pay compensation in an amount of €1,230.00 for failing to provide access to a wheelchair bound interviewee. This failure to provide reasonable accommodation was held to amount to discrimination in breach of the EEA. In addition, it was ordered to provide and maintain an effective means of access to the building by means of a functioning stair lift or otherwise.

What Should An Employer Do to Limit Liability?

Breach of the EEA may lead to industrial relations problems for employers in addition to other financial implications. Furthermore, it may result in adverse publicity and lead to difficulties in recruitment.

Employers should carry out an equality audit of practices and procedures to ensure compliance with the EEA. These include the following:

• Interview guidelines;
• Training of interviewers;
• Application forms;
• Selection criteria (including short-listing of candidates);
• Job specification;
• Advertising of positions;
• Medical documentation;
• Risk assessments;
• Reasonable accommodation of persons with disabilities;
• Promotion;
• Terms and conditions of employment, including access to part-time opportunities, annual leave etc.
• Provision of training;
• Training supervisors/managers
• Dress codes;
• Harassment policies;
• Dignity at work policies;
• E-Mail policies;
• Grievance procedures;
• Disciplinary procedures;
• Selection for redundancy;
• Dismissal procedures.

For further information or general enquiries contact: -

Anthony Layng
E-mail: alayng@kilroys.ie or
Kevin O'Gara
E-mail: kogara@kilroys.ie
Telephone: +353-1-4395600
Fax: +353-1-4395601/4395602

© Kilroys Solicitors 2002