Employment Equality Act 1998

PART I Preliminary and General

1. Short title and commencement.

1.—(1)This Act may be cited as the Employment Equality Act, 1998.

(2)Except in so far as any provision of this Act provides expressly for the coming into operation of any such provision, this Act shall come into operation on such day as may be fixed by order made by the Minister, and different days may be so fixed for different provisions and for different purposes.

2. Interpretation.

2.—(1)In this Act, unless the context otherwise requires—

“act” includes a deliberate omission;

“advertisement” F1[includes every form of statement to the public and 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;

“agency worker” means an employee whose contract of employment is as mentioned in paragraph (b) of the definition of such a contract in this subsection;

“associated employer” shall be construed in accordance with subsection (2);

“the Authority” means the Equality Authority;

F2["civil status" means being single, married, separated, divorced, widowed, in a civil partnership within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 or being a former civil partner in a civil partnership that has ended by death or been dissolved;]

F3["collective agreement" means an agreement between an employer and a body or bodies representative of the employees to which the agreement relates;]

F4["contract of employment" means, subject to subsection (3)—

(a) a contract of service or apprenticeship, or

(b) any other contract whereby—

(i) an individual agrees with another person personally to execute any work or service for that person, or

(ii) an individual agrees with a person carrying on the business of an employment agency within the meaning ofthe Employment Agency Act 1971to do or perform personally any work or service for another person (whether or not the other person is a party to the contract),

whether the contract is express or implied and, if express, whether oral or written;]

F4["the F5[Director General of the Workplace Relations Commission]" means theF5[Director General of the Workplace Relations Commission];]

“disability” means—

(a)the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b)the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c)the malfunction, malformation or disfigurement of a part of a person’s body,

(d)a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e)a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

F4[F6["discrimination" includes the issue of an instruction to discriminate and, inPart VandVI, includes prohibited conduct within the meaning of theEqual Status Act 2000, and cognate words shall be construed accordingly;]]

“the discriminatory grounds” has the meaning given by section 6(2);

“dismissal” includes the termination of a contract of employment by the employee (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 the employee to do so, and “dismissed” shall be construed accordingly;

F4["employee", subject tosubsection (3), means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and, where the context admits, includes a member or former member of a regulatory body, but, so far as regards access to employment, does not include a person employed in another person’s home for the provision of personal services for persons residing in that home where the services affect the private or family life of those persons;]

“employer”, subject to subsection (3), means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;

“employment agency” (when not defined by reference to the Employment Agency Act, 1971) 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;

“equality clause” means a gender equality clause, as defined in section 21 or a non-discriminatory equality clause, as defined in section 30;

“equal remuneration term” means such a term of a contract as is specified in section 19(1), 20(1) or 29(1);

“family status” means responsibility—

(a)as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

(b)as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,

and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;

“functions”, in relation to the Authority, includes powers and duties;

“like work” shall be construed in accordance with section 7;

F7[…]

“member of the family”, in relation to any person, means—

(a)that person’s spouse F8[or civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010], or

(b)a brother, sister, uncle, aunt, nephew, niece, lineal ancestor or lineal descendant of that person or that person’s spouse F8[or civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010];

“the Minister” means the Minister for Justice, Equality and Law Reform;

“pension rights” means a pension or any other benefits flowing from an occupational pension scheme;

F4["proceedings" means—

(a) proceedings before the person, body or court dealing with a request or reference under this Act by or on behalf of a person, and

(b) any subsequent proceedings, including proceedings on appeal, arising from the request or reference,

but does not include proceedings for an offence under this Act;]

F3["personal services", in relation to such services provided in a person’s home, includes but is not limited to services that are in the nature of servicesin loco parentisor involve caring for those residing in the home;]

F3["persons", insections 19,22,29and31does not import the singular;]

“provider of agency work” shall be construed in accordance with subsection (5);

F3["provision" means a term in a contract of employment or a requirement, criterion, practice, regime, policy or condition relating to employment;]

“regulatory body” means a body which falls within any of paragraphs (a) to (c) of section 13;

F9[…]

“religious belief” includes religious background or outlook;

“remuneration”, in relation to an employee, does not include pension rights but, subject to that, includes any consideration, whether in cash or in kind, which the employee receives, directly or indirectly, from the employer in respect of the employment;

“sexual orientation” means heterosexual, homosexual or bisexual orientation;

“trade union” means a trade union which is the holder of a negotiation licence under Part II of the Trade Union Act, 1941;

F10["Traveller community" means the community of people commonly so called who are identified (both by themselves and others) as people with a shared history, culture and traditions including, historically, a nomadic way of life on the island of Ireland;]

“vocational training” shall be construed in accordance with F4[section 12(2);] F11[and cognate words or expressions shall be construed accordingly.]

(2)For the purposes of this Act, two employers shall be taken to be associated if one is a body corporate of which the other (whether directly or indirectly) has control or if both are bodies corporate of which a third person (whether directly or indirectly) has control.

(3)For the purposes of this Act—

(a)a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956, shall be deemed to be an employee employed by the State or Government, as the case may be, under a contract of service,

(b)an officer or servant of a local authority for the purposes of the Local Government Act, 1941, a harbour authority, a health board or a F12[member of staff of an education and training board] shall be deemed to be an employee employed by the authority F12[or board], as the case may be, under a contract of service, F9[…]

(c)in relation to an agency worker, the person who is liable for the pay of the agency worker shall be deemed to be the employer.

F11[(d) in the case of a contract mentioned in paragraph (b)(i) of the definition of "contract of employment"—

(i) references in this Act to an employee shall be construed as references to theparty to the contract who agrees personally to execute the work or service concerned and references to an employer as references to the person for whom it is to be executed,

(ii) any comparisons to be made for any of those purposes shall be between persons personally executing work or service for the same person or an associated person under such a contract or contracts, and

(iii) in particular, and without prejudice to the generaality of the foregoing, references in sections 19(4)(a) and 22(1)(a) to employees shall be construed as references to those persons.]

(4)In this Act a reference to “conditions of employment” does not include remuneration or pension rights.

(5)A person who, under a contract with an employment agency, within the meaning of the Employment Agency Act, 1971, obtains the services of one or more agency workers but is not their employer for the purposes of this Act is in this Act referred to, in relation to the agency workers, as the “provider of agency work”.

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

(7)In this Act a reference to a subsection or paragraph is to the subsection or paragraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended.

(8)In this Act a reference to an enactment includes a reference to that enactment as amended by or under any other enactment, including this Act.

3. Orders and regulations.

3.—(1)Any power under this Act to make an order, other than under section 1(2), includes power to amend or revoke an order made in the exercise of that power.

(2)Where an order is proposed to be made under this Act, other than an order under section 1(2) or subsection (3) or (5) of section 56, a draft of the order shall be laid before both Houses of the Oireachtas, and the order shall not be made until a resolution approving the draft has been passed by each such House.

(3)The Minister may make regulations for the purpose of giving effect to this Act.

(4)Every regulation made under this Act shall be laid before each House of the Oireachtas as soon as practicable after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

(5)Any order or regulation made under this Act may contain such consequential, supplementary and ancillary provisions as the Minister considers necessary or expedient.

4. Expenses.

4.—Any expenses incurred in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

5. Repeals and consequential amendments.

5.—(1)Subject to subsection (2), the Anti-Discrimination (Pay) Act, 1974, and the Employment Equality Act, 1977, are hereby repealed.

(2)F13[…]

(3)In subsection (2) of section 4 (which relates to the deputy chairman of the Labour Court) of the Industrial Relations Act, 1969, to substitute “, this Act and the Employment Equality Act, 1998” for “and this Act”.

PART II Discrimination: General Provisions

6. Discrimination for the purposes of this Act.

6.—F14[(1)For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified insubsection (2)(in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue ofparagraph (a), constitute discrimination.]

(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 F15[civil status] (in this Act referred to as “the F15[civil 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 F16[Traveller] community and the other is not (in this Act referred to as “the F16[Traveller] community ground”).

F17[(2A) Without prejudice to the generality ofsubsections (1)and(2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.]

F14[(3)(a) The age ground applies only in relation to persons above the maximum age at which a person is statutorily obliged to attend school.

(b)Notwithstandingsubsection (1)andsection 37(2), an employer may set a minimum age, not exceeding 18 years, for recruitment to a post.

F18[(c) Offering a fixed term contract to a person over the compulsory retirement age for that employment or to a particular class or description of employees in that employment shall not be taken as constituting discrimination on the age ground if—

(i) it is objectively and reasonably justified by a legitimate aim, and

(ii) the means of achieving that aim are appropriate and necessary.]

(d)Subsection (1)(b) of section 2 (exclusions) ofthe Unfair Dismissals Act 1977is amended by deleting "or who on that date was a person to whom by reason of his age the Redundancy Payments Acts 1967 to 1973, did not apply" and inserting "or who on that date had not attained the age of 16 years".]

7. 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.

8. 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,