S.I. No. 337/2001 - European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001

I, JOHN O'DONOGHUE, T.D., Minister for Justice, Equality and Law Reform, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 (No. 27 of 1972), and for the purpose of giving effect to Council Directive 97/80/EC of 15 December 1997¹ , make the following Regulations:

1.

Interpretation

2.

“Act of 1977” means the Unfair Dismissals Act, 1977 (No. 10 of 1977);

“Act of 1994” means the Maternity Protection Act, 1994 (No. 34 of 1994);

“Act of 1998” means the Employment Equality Act, 1998 (No. 21 of 1998), and includes any enactment repealed by it;

“discrimination” means:

• (a) an unfair dismissal (within the meaning of the Act of 1977) of a woman resulting wholly or mainly from -

• (i) her pregnancy, giving birth or breastfeeding or any matters connected therewith, or

• (ii) the exercise or proposed exercise by her of a right under the Act of 1994 to any form of protective leave or natal care absence,

• (b) a failure, being a failure which gives rise to a dispute to which Part V of the Act of 1994 applies, to comply with a provision of that Act,

• (c) a discriminatory action on the gender ground which is in contravention of the Act of 1998, including a failure on that ground to comply with an equal remuneration term or to comply with a gender equality clause, or a failure so to comply with a similar term or clause under any enactment repealed by that Act,

• (d) the inclusion in a collective agreement of -

• (i) a provision in which differences in rates of remuneration are based on the gender ground and which conflicts with an equal remuneration term in a contract of employment, or

• (ii) a provision which gives rise to discrimination on the gender ground in relation to any of the following matters:

• (I) access to employment,

• (II) conditions of employment,

• (III) training or experience for or in relation to employment,

• (IV) promotion or regarding, or

• (V) classification of posts,

• (e) victimisation;

“indirect discrimination” shall be construed by reference to section 19(4) or 22, as the case may be, of the Act of 1998, as amended by Regulation 4 of these Regulations;

victimisation” means a dismissal from employment or other penalisation of a complainant which is solely or mainly occasioned by the complainant having, in respect of an action referred to in paragraph (c) or (d) of the definition of “discrimination” in this Regulation, in good faith -

• (a) sought redress under the Act of 1998,

• (b) opposed by lawful means any such action,

• (c) given evidence in relation to it in any criminal proceedings or other proceedings under the Act of 1998, or

• (d) given notice of an intention to proceed in accordance with paragraph (a), (b) or (c) of this definition.

• (2) In these Regulations, unless the context otherwise requires, terms or expressions used in the context of references to any of the Acts of 1977, 1994 or 1998 have the meanings given to them by the Act concerned.

Burden of proof in gender discrimination cases

3.

• (2) This Regulation is without prejudice to section 6(6) of the Act of 1977 or any other enactment or rule of law in relation to the burden of proof in proceedings which may be more favourable to such a person.

• (3) Nothing in this Regulation shall operate to reduce the existing level of protection of persons in relation to the burden of proof in proceedings.

• (4) In this Regulation “proceedings” means proceedings under any of the Acts of 1977, 1994 or 1998 before the person, body or court dealing with a request or reference by or on behalf of a person and includes any subsequent proceedings, including proceedings on appeal, arising from the request or reference.

Amendment of Act of 1998

4.

• (a) in section 19(4), by the substitution of the following for paragraph (d):

• “(d) is not appropriate and necessary and cannot be justified by objective factors unrelated to A's sex,”, and

• (b) in section 22(1), by the substitution of the following for paragraph (c):

• “(c) is not appropriate and necessary and cannot be justified by objective factors unrelated to A's sex,”.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation)

These Regulations give effect to Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex.

Footnotes