Employment Equality Act , 1977

1 Interpretation.

1.—(1) In this Act—

“the Act of 1946” means the Industrial Relations Act, 1946;

“the Act of 1974” means the Anti-Discrimination (Pay) Act, 1974;

“act” includes a deliberate omission;

“advertisement” includes every form of advertisement, whether to the public or not and whether in a newspaper or other publication, on television or radio or by display of a notice or by any other means, and references to the publishing of advertisements shall be construed accordingly;

“the Agency” means the Employment Equality Agency established by section 34;

“close relative” means a wife, husband, parent, child, grandparent, grandchild, brother or sister;

“the Court” means the Labour Court;

“dismissal” shall be taken to include the termination by an employee of his contract of employment with his employer (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for him to do so, and “dismissed” shall be construed accordingly;

“employee” means a person who has entered into or works under (or, in the case of a contract which has been terminated, worked under) a contract of employment with an employer, whether the contract is (or was) for manual labour, clerical work or otherwise, is (or was) expressed or implied, oral or in writing, and whether it is (or was) a contract of service or apprenticeship or otherwise, and includes a civil servant of the State or of the Government and an officer or servant of a local authority within the meaning of the Local Government Act, 1941, an officer or servant of a harbour authority, health board, vocational education committee or committee of agriculture, and cognate words or expressions shall be construed accordingly;

“employer”, in relation to an employee, means the person by whom the employee is (or, in a case where the employment has ceased, was) employed under a contract of employment, and for the purposes of this definition a civil servant of the State or of the Government shall be deemed to be employed by the State or the Government (as the case may be) and an officer or servant of a local authority within the meaning of the Local Government Act, 1941, or of a harbour authority, health board, vocational educational committee or committee of agriculture shall be deemed to be employed by the local authority, harbour authority, health board, vocational educational committee or committee of agriculture (as the case may be);

“employment agency” means a person who, whether for profit or otherwise, provides services related to the finding of employment for prospective employees or the supplying of employees to employers;

“functions” includes powers and duties;

“investigation” means an investigation under section 39;

“the Minister” means the Minister for Labour;

“non-discrimination notice” means a notice under section 44;

“profession” includes any vocation or occupation;

“trade union” has the same meaning as it has in the Trade Union Acts, 1871 to 1975.

(2) In this Act a reference to a section is to a section of this Act unless it is indicated that reference to some other enactment is intended.

(3) In this Act a reference to a subsection is to the subsection of the section in which the reference occurs unless it is indicated that reference to some other section is intended.

2 Discrimination for the purposes of this Act.

2.—For the purposes of this Act, discrimination shall be taken to occur in any of the following cases—

(a) where by reason of his sex a person is treated less favourably than a person of the other sex,

(b) where because of his marital status a person is treated less favourably than another person of the same sex,

(c) where because of his sex or marital status a person is obliged to comply with a requirement, relating to employment or membership of a body referred to in section 5, which is not an essential requirement for such employment or membership and in respect of which the proportion of persons of the other sex or (as the case may be) of a different marital status but of the same sex able to comply is substantially higher,

(d) where a person is penalised for having in good faith—

(i) made a reference under section 19 or under section 7 of the Act of 1974,

(ii) opposed by lawful means an act which is unlawful under this Act or the Act of 1974,

(iii) given evidence in any proceedings under this Act or the Act of 1974, or

(iv) given notice of an intention to do anything referred to in subparagraphs (i) to (iii),

and cognate words shall be construed accordingly.

3 Discrimination by employers prohibited.

3.—(1) A person who is an employer or who obtains under a contract with another person the services of employees of that other person shall not discriminate against an employee or a prospective employee or an employee of that other person in relation to access to employment, conditions of employment (other than remuneration or any condition relating to an occupational pension scheme), training or experience for or in relation to employment, promotion or re-grading in employment or classification of posts in employment.

(2) An employer shall not, in relation to his employees or to employment by him, have rules or instructions which would discriminate against an employee or class of employee, and shall not otherwise apply or operate a practice which results or would be likely to result in an act which is a contravention of any provision of this Act when taken in conjunction with section 2 (c).

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

(a) in any arrangements he makes for the purpose of deciding to whom he should offer employment, 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,

he contravenes subsection (1).

(4) Without prejudice to the generality of subsection (1), a person shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if he does not offer or afford to a person or class of persons the same terms of employment (other than remuneration or any term relating to an occupational pension scheme), the same working conditions and the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals (other than a dismissal referred to in section 25) and disciplinary measures as he 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.

(5) Without prejudice to the generality of subsection (1), a person shall be taken to discriminate against an employee in relation to training or experience for or in relation to employment if he 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 he offers or affords to other employees where the circumstances in which that employee and those other employees are employed are not materially different.

(6) Without prejudice to the generality of subsection (1), a person shall be taken to contravene that subsection if he discriminates against an employee in the way he offers or affords that employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access or if in those circumstances he refuses or deliberately omits to offer or afford that employee access to opportunities for promotion.

(7) Without prejudice to the generality of subsection (1), a person shall be taken to discriminate against an employee or prospective employee where he classifies posts by reference to sex and the classification is not a case referred to in section 17 (2).

4 Equality clause.

4.—(1) If the terms of a contract under which a person is employed do not include (whether directly or by reference to a collective agreement within the meaning of the Act of 1974 or otherwise) an equality clause, they shall be deemed to include one.

(2) An equality clause is a provision which relates to terms of a contract (other than a term relating to remuneration or an occupational pension scheme) under which a person is employed and has the effect that where the person is employed in circumstances where the work done by that person is not materially different from that being done by a person of the other sex (in this section referred to as “the other person”) in the same employment—

(a) if (apart from the equality clause) any term of the contract is or becomes less favourable to the person than a term of a similar kind in the contract under which the other person is employed, that term of the person's contract shall be treated as so modified as not to be less favourable, and

(b) if (apart from the equality clause) at any time the person's contract does not include a term corresponding to a term benefiting the other person included in the contract under which the other person is employed, the person's contract shall be treated as including such a term.

(3) An equality clause shall not operate in relation to a variation between a person's contract of employment and the contract of employment of the other person if the employer proves that the variation is genuinely a consequence of a material difference (other than the difference of sex) between the two cases.

(4) Where a person offers a person employment on certain terms, and if on his acceptance of the offer any of those terms would fall to be modified or any additional term would fall to be included by virtue of this section, the offer shall be taken to contravene sections 3 (1) and 3 (4).

5 Discrimination in relation to membership of certain bodies prohibited.

5.—A body which is an organisation of workers, an organisation of employers or a professional or trade organisation or which controls entry to a profession or the carrying on of a profession shall not discriminate against a person in relation to membership of such body (or any benefits provided by it) or in relation to entry or the carrying on of the profession.

6 Discrimination in relation to vocational training prohibited.

6.—(1) Any person or educational or training body offering a course of vocational training shall not, in respect of any such course offered to persons over the 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 activity.

7 Discrimination by employment agencies prohibited.

7.—(1) An employment agency shall not discriminate—

(a) in the terms on which it offers to provide any of its services,

(b) by refusing or omitting to provide any of its services,

(c) in the manner in which it provides any of its services.

(2) References in subsection (1) to a service of an employment agency include guidance on careers and any service related to employment.

(3) Subsection (1) does not apply where the service concerns only employment which an employer could lawfully refuse to offer to the person concerned.

(4) 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 (3), its action would not be unlawful, and

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

(5) An employer who, with a view to obtaining the services of an employment agency, knowingly makes a statement such as is referred to in subsection (4) (a) and which in a material respect is false or misleading shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £200.

8 Discriminatory advertising prohibited.

8.—(1) A person shall not publish or display, or cause to be published or displayed, an advertisement which relates to employment and indicates an intention to discriminate, or might reasonably be understood as indicating such an intention.

(2) For the purpose 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 connotes a particular sex, or which, although not necessarily connoting a particular sex, is descriptive of or refers to a post or occupation of a kind previously held or carried on by members of one sex only, the advertisement shall be taken to indicate an intention to discriminate unless the advertisement contains a contrary indication.

(3) A person who makes a statement which he knows to be false with a view to securing publication or display in contravention of subsection (1) shall upon such publication or display being made be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £200.

9 Procuring or attempting to procure discrimination prohibited.

9.—A person shall not procure or attempt to procure another person to do in relation to employment anything which constitutes discrimination.

10 Discrimination in collective agreements, etc.

10.—(1) (a) Where an agreement or order to which this subsection applies contains a provision constituting discrimination, the provision shall be null and void.

(b) This subsection applies to—

(i) a collective agreement,

(ii) an employment regulation order within the meaning of Part IV of the Act of 1946, and

(iii) a registered employment agreement within the meaning of Part III of the Act of 1946 registered in the Register of Employment Agreements.

(2) Where a contract of employment contains a term (whether expressed or implied) constituting discrimination, that term shall be null and void.

11 Provisions relating to midwives and public health nurses.

11.—(1) The Midwives Act, 1944 (No. 10 of 1944), is hereby amended by the substitution for the definition of “midwife” in section 2 of the following:

“the word ‘midwife’ means a woman or man registered in the roll of midwives and, accordingly, every word importing the feminine gender shall be construed as if it also imported the masculine gender;”.

(2) Notwithstanding any other provision of this Act, it shall not be a contravention of this Act for a person to give access to training or employment as a midwife or as a public health nurse to persons of a particular sex.

12 Employments excluded from application of Act.

12.—(1) This Act does not apply to employment—

(a) in the Defence Forces,

(b) in the Gárda Síochána,

(c) in the prison service, or

(d) in a private residence or by a close relative.

(2) (a) Notwithstanding subsection (1), the Minister may by order declare that this Act shall apply to such class or classes of employment referred to in that subsection as may be specified in the order, and from the commencement of the order this Act shall apply to that class or those classes.

(b) Where the Minister proposes to make an order under this subsection, a draft of the proposed order shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each House.

(3) Sections 19, 20 (b), 21 and 28 shall not apply to the selection, by the Local Appointments Commissioners or the Civil Service Commissioners, of a person for appointment to an office or position.

13 Saver for certain cases relating to non-performance of duties, etc.

13.—Nothing in this Act shall require an employer—

(a) to employ in a position a person who will not undertake the duties attached to that position or who will not accept the conditions under which those duties are performed, or

(b) to retain in his employment a person not undertaking the duties attached to the position held by that person.

14 Saver for, and repeal or amendment of, certain statutory provisions.

14.—(1) Notwithstanding any provision of this Act, nothing done by an employer in compliance with any requirement of or under an Act to which this section applies shall constitute discrimination in contravention of this Act.

(2) (a) The Minister may by order repeal or amend any Act to which this section applies or any provision of such an Act.

(b) Before making an order under this subsection the Minister shall consult such trade unions, employers' organisations and organisations of trade unions or of employers' organisations as he considers appropriate.

(c) Where the Minister proposes to make an order under this subsection, a draft of the proposed order shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each House.

(3) This section applies to—

(a) the Conditions of Employment Act, 1936,

(b) the Shops (Conditions of Employment) Act, 1938,

(c) the Factories Act, 1955,

(d) the Mines and Quarries Act, 1965.

15 Saver for certain training courses, etc.

15.—Nothing in this Act shall make it unlawful for any person to arrange for or provide training for persons of a particular sex in a type, form or category of work in which either no, or an insignificant number of, persons of that sex had been engaged in the period of twelve months ending at the commencement of the training, or to encourage persons of that sex to take advantage of opportunities for doing such work.

16 Saver for special treatment in connection with pregnancy, etc.

16.—Nothing in this Act shall make it unlawful for an employer to arrange for or provide special treatment to women in connection with pregnancy or childbirth.

17 Exclusion of posts where sex is occupational qualification.