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21 1998

EMPLOYMENT EQUALITY ACT, 1998

PART II

Discrimination: General Provisions

Introductory

Discrimination for the purposes of this Act.

6. —(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different marital status (in this Act referred to as “the marital status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the traveller community and the other is not (in this Act referred to as “the traveller community ground”).

(3) Where—

(a) a person has attained the age of 65 years, or

(b) a person has not attained the age of 18 years,

then, subject to section 12 (3), treating that person more favourably or less favourably than another (whatever that other person's age) shall not be regarded as discrimination on the age ground.

(4) The Minister shall review the operation of this Act, within 2 years of the date of the coming into operation of this section, with a view to assessing whether there is a need to add to the discriminatory grounds set out in this section.

Like work.

7. —(1) Subject to subsection (2), for the purposes of this Act, in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if—

(a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work,

(b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or

(c) the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

(2) In relation to the work which an agency worker is employed to do, no person except another agency worker may be regarded under subsection (1) as employed to do like work (and, accordingly, in relation to the work which a non-agency worker is employed to do, an agency worker may not be regarded as employed to do like work).

(3) In any case where—

(a) the remuneration received by one person (“the primary worker”) is less than the remuneration received by another (“the comparator”), and

(b) the work performed by the primary worker is greater in value than the work performed by the comparator, having regard to the matters mentioned in subsection (1)(c),

then, for the purposes of subsection (1)(c), the work performed by the primary worker shall be regarded as equal in value to the work performed by the comparator.

Discrimination in Specific Areas

Discrimination by employers etc.

8. —(1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

(2) For the purposes of this Act, neither an employer nor a provider of agency work shall be taken to discriminate against an agency worker unless (on one of the discriminatory grounds) that agency worker is treated less favourably than another agency worker is, has been or would be treated.

(3) In subsections (4) to (8), references to an employee include references to an agency worker and, in relation to such a worker, references to the employer include references to the provider of agency work.

(4) A person who is an employer shall not, in relation to employees or employment—

(a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or

(b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.

(5) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—

(a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered, or

(b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different.

(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.

(7) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to training or experience for, or in relation to, employment if, on any of the discriminatory grounds, the employer refuses to offer or afford to that employee the same opportunities or facilities for employment counselling, training (whether on or off the job) and work experience as the employer offers or affords to other employees, where the circumstances in which that employee and those other employees are employed are not materially different.

(8) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds—

(a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or

(b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.

Provisions in certain agreements and orders.

9. —(1) In a case where—

(a) an agreement or order to which this section applies contains a provision in which differences in rates of remuneration are based on any of the discriminatory grounds, and

(b) in relation to a person to whom the agreement or order relates, that provision conflicts with an equal remuneration term in that person's contract of employment,

then, subject to subsection (4), that provision shall be null and void.

(2) If an agreement or order to which this section applies contains a provision which does not fall within subsection (1) but which gives rise to discrimination in relation to any of the matters in paragraphs (a) to (e) of section 8 (1) then, subject to subsection (4), that provision shall be null and void.

(3) This section applies to the following agreements and orders, whether made before or after the coming into operation of this section:

(a) collective agreements;

(b) employment regulation orders, within the meaning of Part IV of the Industrial Relations Act, 1946 ; and

(c) registered employment agreements, within the meaning of Part III of that Act.

(4) In the case of a provision which—

(a) is contained in an agreement or order made before the coming into operation of this section, and

(b) is discriminatory on a ground other than the gender ground,

subsection (1) or, as the case may be, subsection (2) shall not apply until the first anniversary of the date on which this section comes into operation; and, accordingly, until that date, the equal remuneration term or equality clause in a person's contract of employment shall not override any such provision of an agreement or order which relates to that person.

Advertising.

10. —(1) A person shall not publish or display, or cause to be published or displayed, an advertisement which relates to employment and which—

(a) indicates an intention to discriminate, or

(b) might reasonably be understood as indicating such an intention.

(2) For the purposes of subsection (1), where in an advertisement a word or phrase is used defining or describing a post and the word or phrase is one which—

(a) connotes an individual of a particular sex or an individual having (in terms of any of the discriminatory grounds) a particular relevant characteristic, or

(b) is descriptive of, or refers to, a post or occupation of a kind previously held or carried on only by members of one sex or only by individuals having such a particular relevant characteristic,

then, unless the advertisement indicates a contrary intention, the advertisement shall be taken to indicate an intention to discriminate on whichever discriminatory ground is relevant in the circumstances.

(3) Nothing in this section relates to an advertisement which, or to the extent to which it, specifies a requirement, restriction or other matter which relates to employment and which it would not be unlawful for the employer in question to impose, having regard to any other provision of this Part or of Part III or Part IV .

(4) A person who, with a view to securing publication or display of an advertisement in contravention of subsection (1), makes a statement knowing it to be false shall, upon such publication or display, be guilty of an offence.

(5) Without prejudice to subsection (4), if an advertisement is published or displayed and it appears to the High Court or the Circuit Court, on the motion of the Authority, that there are grounds for believing that publication or display of the advertisement may be in contravention of subsection (1), the court may grant an injunction preventing the appointment of any person to any post to which the advertisement relates until—

(a) the decision of the Director on a contemporaneous reference under section 85 of the publication or display of the advertisement, or

(b) the court otherwise orders,

and, for the purpose of this subsection, a reference under section 85 shall be regarded as contemporaneous with a motion if it is made on the same day as the motion or not more than 14 days earlier or later.

(6) The jurisdiction conferred on the Circuit Court by subsection (5) shall be exercised by the judge for the time being assigned to the circuit where the person by whom the advertisement was published or displayed (or caused to be published or displayed) ordinarily resides or carries on any profession, business or occupation.

Employment agencies.

11. —(1) Without prejudice to its obligations as an employer, an employment agency shall not discriminate against any person—

(a) who seeks the services of the agency to obtain employment with another person, or

(b) who seeks from the agency guidance as to a career or any other service (including training) related to the employment of that person.

(2) Subsection (1) does not apply to the extent that the employment in question is such that an employer could lawfully refuse to offer it to the person concerned.

(3) An employment agency shall not be under any liability under this section if it proves—

(a) that it acted in reliance on a statement made to it by the employer concerned to the effect that, by reason of the operation of subsection (2), its action would not be unlawful, and

(b) that it was reasonable for it to rely on the statement.

(4) An employer who, with a view to obtaining the services of an employment agency, knowingly makes such a statement as is referred to in subsection (3) (a) which is false or misleading in a material respect shall be guilty of an offence.

(5) Nothing in this Act shall make it unlawful for an employment agency to provide services exclusively for persons with disabilities or any class or description of such persons.

Vocational training.

12. —(1) Subject to subsection (7) any person, including an educational or training body, who offers a course of vocational training shall not, in respect of any such course offered to persons over the maximum age at which those persons are statutorily obliged to attend school, discriminate against a person (whether at the request of an employer, a trade union or a group of employers or trade unions or otherwise)—

(a) in the terms on which any such course or related facility is offered,

(b) by refusing or omitting to afford access to any such course or facility, or

(c) in the manner in which any such course or facility is provided.

(2) In this section “vocational training” means any system of instruction which enables a person being instructed to acquire, maintain, bring up to date or perfect the knowledge or technical capacity required for the carrying on of an occupational activity and which may be considered as exclusively concerned with training for such an activity.

(3) For the purposes of this section, section 6 (3)(b) shall have effect as if the reference to the age of 18 years were a reference to the age referred to in subsection (1).

(4) For the purposes of ensuring the availability of nurses to hospitals and teachers to primary schools which are under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values, and in order to maintain the religious ethos of the hospitals or primary schools, the prohibition of discrimination in subsection (1), in so far as it relates to discrimination on the religion ground, shall not apply in respect of—

(a) the nomination of persons for admission to the School of Nursing pursuant to clause 24(4)(a) or (c) of the Adelaide Hospital Charter as substituted by paragraph 5(s) of the Health Act, 1970 (Section 76) (Adelaide and Meath Hospital, Dublin, incorporating the National Children's Hospital) Order, 1996, or

(b) places in a vocational training course specified in an order made under subsection (5).

(5) Where an educational or training body applies to the Minister for Health and Children, in the case of hospitals, or to the Minister for Education and Science, in the case of primary schools, for an order permitting the body concerned to reserve places in a vocational training course offered by the body, the Minister for Health and Children or the Minister for Education and Science, as the case may be, may, with the consent of the Minister, by order allow the body to reserve places in such numbers as seem reasonably necessary to the Minister for Health and Children or the Minister for Education and Science, as the case may be, to meet the purposes set out in subsection (4).

(6) Without prejudice to section 3 (1), an order under subsection (5) may be revoked by a further order made by the Minister for Health and Children or the Minister for Education and Science, as the case may be, with the like consent; but any such revocation order shall contain transitional provisions safeguarding any person who took advantage of the effect of the order when it was in force.

(7) Nothing in subsection (1) shall make unlawful discrimination on the age ground or the ground of race in respect of any course of vocational training offered by a vocational or training body where—

(a) it provides different treatment in relation to—

(i) the fees for admission or attendance at any such course by persons who are citizens of Ireland or nationals of another Member State of the European Union, or

(ii) the allocation of places on any such course to those citizens or nationals, or

(b) it offers assistance to particular categories of persons by way of sponsorships, scholarships, bursaries or other awards, which assistance is reasonably justifiable, having regard to traditional or historical considerations.

Membership of certain bodies.

13. —A body which—

(a) is an organisation of workers or of employers,

(b) is a professional or trade organisation, or

(c) controls entry to, or the carrying on of, a profession, vocation or occupation,

shall not discriminate against a person in relation to membership of that body or any benefits, other than pension rights, provided by it or in relation to entry to, or the carrying on of, that profession, vocation or occupation.

Procuring etc. discrimination or victimisation.

14. —A person who procures or attempts to procure another person to do anything which—

(a) constitutes discrimination which is unlawful under this Act, or

(b) constitutes victimisation for the purposes of Part VII ,

shall be guilty of an offence.

Vicarious Liability etc.

Liability of employers and principals.

15. —(1) 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 person's employer, whether or not it was done with the employer's knowledge or approval.

(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—

(a) from doing that act, or

(b) from doing in the course of his or her employment acts of that description.

Obligations of Employers etc.

Nature and extent of employer's obligations in certain cases.

16. —(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

(2) In relation to—

(a) the provision by an employment agency of services or guidance to an individual in relation to employment in a position,

(b) the offer to an individual of a course of vocational training or any related facility directed towards employment in a position, and

(c) the admission of an individual to membership of a regulatory body or into a profession, vocation or occupation controlled by a regulatory body,

subsection (1) shall apply, with any necessary modification, as it applies to the recruitment of an individual to a position.

(3) (a) For the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.

(b) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.

(c) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.

(4) In subsection (3)

employer” includes an employment agency, a person offering a course of vocational training as mentioned in section 12 (1) and a regulatory body; and accordingly references to a person who has a disability include—

(a) such a person who is seeking or using any service provided by the employment agency,

(b) such a person who is participating in any such course or facility as is referred to in paragraphs (a) to (c) of section 12 (1), and

(c) such a person who is a member of or is seeking membership of the regulatory body;

providing”, in relation to the special treatment or facilities to which paragraph (a) relates, includes making provision for, allowing or availing of such treatment or facilities, and “provide” shall be construed accordingly.

(5) Nothing in this Act shall be construed as requiring an employer to recruit, retain in employment or promote an individual if the employer is aware, on the basis of a criminal conviction of the individual or other reliable information, that the individual engages, or has a propensity to engage, in any form of sexual behaviour which is unlawful.

(6) Without prejudice to the generality of subsection (5), that subsection applies in particular where the employment concerned involves access to minors or to other persons who are vulnerable.

Compliance with statutory requirements etc.

17. —(1) In relation to discrimination on the marital status ground, nothing in this Act shall render unlawful any act done in compliance with any provision of the Maternity Protection Act, 1994, or the Adoptive Leave Act, 1995 .

(2) In relation to discrimination on the ground of race, nothing in this Act shall render unlawful any act done in compliance with any provision made by or under—

(a) section 40 (3) of the Solicitors Act, 1954 , or

(b) section 35 of the Finance Act, 1987 .

(3) In relation to discrimination on the age ground or the disability ground, nothing in this Act shall render unlawful any act done in compliance with any provision made by or under—

(a) sections 5 , 9 , 11 and 16 of the Air Navigation and Transport Act, 1946 ,

(b) section 12 of the Merchant Shipping Act, 1947 ,

(c) section 29 of the Transport (Miscellaneous Provisions) Act, 1971 ,

(d) sections 3 and 8 of the Merchant Shipping (Certification of Seamen) Act, 1979 , or

(e) sections 5 , 14 , 58 and 60 of the Irish Aviation Authority Act, 1993 .

(4) In relation to discrimination on the age ground, nothing in this Act shall render unlawful any act done in compliance with paragraph 1 of Schedule 3 to the Redundancy Payments Act, 1967 .