Protected Grounds

The employment equality legislation is very similar to that in the United Kingdom. Each has been very heavily influenced by European Union Directives. The nine grounds of unlawful discrimination are

• gender
• civil status
• family status
• sexual orientation
• religious belief
• age
• disability
• race collar nationality or ethnicity or national origins
• membership of the traveller community

The legislation also applies to discrimination in the terms of occupational pension schemes collective agreements and registered employment agreements.

The equal status legislation outlaws discrimination in relation to the above grounds in the context of providing services that are generally available to the public. It also covers discrimination in the disposal of premises, the provision of accommodation and admission or access to educational courses or establishments.

Equal Pay & Gender

There is a right to equal pay including direct and indirect employment benefits, for men and women. This right does not apply to the other grounds. A comparator is necessary.

The equal pay and equal treatment requirements for men and women are implied into the contract of employment as well as being subject to protection by way of complaint to the Workplace Relations Commission.

Instances of Discrimination

Discrimination may arise at any point from the recruitment process to dismissal. Awards may be made to persons who have been subject to discrimination in the recruitment process even though they did not and could not have obtained the position.

Discrimination may apply to the terms and conditions of employment, pay, access to training promotion, regrading and dismissal.

Direct discrimination is where an employee is treated less favourably than another because of his membership of a particular protected category.

Indirect discrimination is where a person is treated less favourably than another because there are requirements which are more difficult for a person in that category to fulfil.

A person may be the subject of discrimination by association where he is treated less well because of persons he knows or is connected to. He may be subject to unlawful discrimination by imputation where he ss treated less well than others because he is labelled as being part of a group on one of the grounds.

In many instances, a comparator or hypothetical comparator is required with reference to a person who is not in the protected category. In some cases, of necessity or for practical reasons, a comparator is not required

Defences

There are a number of specific and general defences against direct and indirect discrimination. The defences in respect of direct discrimination are significantly more limited than those in respect of indirect discrimination.

There are specific defences in respect of some claims of direct discrimination some of which are specific to the relevant grounds. There are more general defences where there are cogent objective and legitimate justifications.

In broad terms, there is a defence in respect of indirect discrimination where there is a legitimate reason of sufficient weight. The discrimination must be necessary for the purpose of a legitimate objective. Market forces are not generally sufficient.

Harassment

Equality legislation also covers sexual and other harassment and victimisation where a person is treated unfavourably by reason of having asserted rights.

Employees have duties to protect against bullying and harassment in the workplace. An employer may be liable under the legislation or on common law grounds where fellow workers have subjected employees to harassment and/ or bullying

Disabilities

Employers must make reasonable accommodation for persons with disabilities. They should take appropriate measures to secure that persons with a disability have equal opportunities in applying for work, in the course of work and in promotion and training opportunities.

It is not required that an employer recruit, promote or retain a person who does not have the capacity to do the job. However, it must consider appropriate measures of support and accommodation.

Enforcement

Complaints about a breach of equality legislation may be made to the Workplace Relations Commission there are caps on compensation based on whether the applicant was an employee or not. In broad terms, it is the greater of €40,000 or two years remuneration.