Equality Act 2004

PART 1 Preliminary and General

1 Short title, collective citations and construction.

1.—(1) This Act may be cited as the Equality Act 2004.

(2) Part 2 and the Employment Equality Act 1998 may be cited as the Employment Equality Acts 1998 and 2004 and shall be construed together as one.

(3) Part 3 and the Equal Status Acts 2000 and 2003 may be cited as the Equal Status Acts 2000 to 2004 and shall be construed together as one.

(4) Part 4 of this Act and the Pensions Acts 1990 to 2004 may be cited together as the Pensions Acts 1990 to 2004 and shall be construed together as one.

2 Interpretation.

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

“Act of 1998” means the Employment Equality Act 1998;

“Act of 2000” means the Equal Status Act 2000.

PART 2 Amendments to Employment Equality Act 1998

3 Amendment of section 2.

3.—Section 2 (interpretation) of the Act of 1998 is amended—

(a) in subsection (1)—

(i) by substituting the following definitions for those of “contract of employment”, “the Director”, “discrimination”, “employee” and “proceedings”:

“‘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 of the Employment Agency Act 1971 to 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;

‘the Director’ means the Director of the Equality Tribunal;

‘discrimination’ includes the issue of an instruction to discriminate and, in Parts V and VI, includes prohibited conduct within the meaning of the Equal Status Act 2000, and cognate words shall be contrued accordingly;

‘employee’, subject to subsection (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;

‘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;”,

(ii) by substituting “section 12(2);” for “section 12(2).” in the definition of “vocational training” and by adding after that definition “and cognate words or expressions shall be construed accordingly.”,

(iii) by inserting the following definitions:

“‘collective agreement’ means an agreement between an employer and a body or bodies representative of the employees to which the agreement relates;

‘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 services in loco parentis or involve caring for those residing in the home;

‘persons’, in sections 19, 22, 29 and 31 does not import the singular;

‘provision’ means a term in a contract of employment or a requirement, criterion, practice, regime, policy or condition relating to employment;”,

and

(iv) by deleting the definition of “relevant characteristic”,

(b) in subsection (3)—

(i) by deleting “and” at the end of paragraph (b),

(ii) by substituting “employer, and” for “employer.” in paragraph (c), and

(iii) by adding the following paragraph:

“(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 the party 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 generality of the foregoing, references in sections 19(4)(a) and 22(1)(a) to employees shall be construed as references to those persons.”.

4 Amendment of section 6.

4.—Section 6 (discrimination for purposes of Act) of the Act of 1998 is amended—

(a) by substituting the following subsection for subsection (1):

“(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 in subsection (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 of paragraph (a), constitute discrimination.”,

(b) by inserting the following subsection after subsection (2):

“(2A) Without prejudice to the generality of subsections (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.”,

and

(c) by substituting the following subsection for subsection (3):

“(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)Notwithstanding subsection (1) and section 37(2), an employer may set a minimum age, not exceeding 18 years, for recruitment to a post.

(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.

(d)Subsection (1)(b) of section 2 (exclusions) of the Unfair Dismissals Act 1977 is 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’.”.

5 Amendment of section 10.

5.—Section 10 (advertising) of the Act of 1998 is amended by substituting the following subsection for subsection (2):

“(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 or refers to an individual of one sex or an individual having a characteristic mentioned in any of the discriminatory grounds (other than the gender ground), or

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

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

6 Amendment of section 12.

6.—Section 12 (vocational training) of the Act of 1998 is amended by the deletion of subsection (3).

7 New section 13A.

7.—The Act of 1998 is amended by inserting the following section after section 13:

“Partnerships.

13A.—(1) This Act applies to a partner in a partnership as it applies to an employee and accordingly has effect with the modification that— (a) references to an employee include references to such a partner, and (b) references to an employer include references to a partnership, and with any other necessary modifications. (2) In subsection (1) references to a partner shall be construed, in the case of a limited partnership, as references to a general partner, as defined in section 3 of the Limited Partnerships Act 1907.”.

8 New section 14A.

8.—The Act of 1998 is amended by inserting the following section after section 14:

“Harassment and sexual harassment.

14A.—(1) For the purposes of this Act, where— (a) an employee (in this section referred to as ‘the victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is— (i) employed at that place or by the same employer, (ii) the victim's employer, or (iii) a client, customer or other business contact of the victim's employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it, or (b) without prejudice to the generality of paragraph (a)— (i) such harassment has occurred, and (ii) either— (I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or (II) it could reasonably be anticipated that he or she would be so treated, the harassment or sexual harassment constitutes discrimination by the victim's employer in relation to the victim's conditions of employment. (2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable— (a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and (b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim's employment and, if and so far as any such treatment has occurred, to reverse its effects. (3) A person's rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person. (4) The reference in subsection (1)(a)(iii) to a client, customer or other business contact of the victim's employer includes a reference to any other person with whom the employer might reasonably expect the victim to come into contact in the workplace or otherwise in the course of his or her employment. (5) In this section ‘employee’ includes an individual who is— (a) seeking or using any service provided by an employment agency, and (b) participating in any course or facility referred to in paragraphs (a) to (c) of section 12(1), and accordingly any reference to the individual's employer includes a reference to the employment agency providing the service or, as the case may be, the person offering or providing the course or facility. (6) Where subsection (5) applies in relation to a victim, subsection (1) shall have effect as if for ‘in relation to the victim's conditions of employment’ there were substituted ‘contrary to section 11’ or, as the case may be, section 12. (7) (a) In this section— (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and (ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. (b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”.

9 Amendment of section 16.

9.—Section 16 (nature and extent of employer's duties in certain cases) of the Act of 1998 is amended—

(a) by the substitution of the following subsection for subsection (3):

“(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person's employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer's business, and

(iii) the possibility of obtaining public funding or other assistance.”,

and

(b) in subsection (4), by deleting the definition of “providing”, by substituting “body.” for “body;” in paragraph (c) of the definition of “employer” and by inserting the following definition:

“‘appropriate measures’, in relation to a person with a disability—

(a) means effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;”.

10 Amendment of section 17.

10.—Section 17 (compliance with statutory requirements etc.) of the Act of 1998 is amended—

(a) by substituting the following subsection for subsection (2):

“(2) In relation to discrimination on the basis of nationality, nothing in this Act shall render unlawful any action taken in accordance with the Employment Permits Act 2003.”,

(b) by substituting the following subsection for subsection (4):

“(4) In relation to discrimination on the age ground, nothing in this Act shall render unlawful any act done in compliance with—

(a) the Protection of Young Persons (Employment) Act 1996,

(b) the National Minimum Wage Act 2000, or

(c) section 3 of the Redundancy Payments Act 1971, as amended by section 5 of the Redundancy Payments Act 1979.”.

11 Amendment of section 18.

11.—Section 18 (application of equality principles to both men and women) of the Act of 1998 is amended by substituting the following subsection for subsection (1):

“(1) (a) Subject to paragraph (b), for the purposes of this Part ‘A’ and ‘B’ represent 2 persons of opposite sex so that, where A is a woman, B is a man, and vice versa.

(b) For the purposes of this Part (except sections 19 and 20), where the treatment of a woman on a ground related to her pregnancy or maternity leave is, by virtue of section 6(2A), in issue, ‘B’ is either a man or a woman.”.

12 Amendment of section 19.

12.—Section 19 (entitlement to equal remuneration) of the Act of 1998 is amended—

(a) by substituting the following subsection for subsection (2):

“(2) In this section ‘relevant time’, in relation to a particular time, is any time (including a time before the commencement of this section) during the 3 years which precede, or the 3 years which follow, the particular time.”,

and

(b) by substituting the following subsection for subsection (4), as amended by the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001):

“(4) (a) Indirect discrimination occurs where an apparently neutral provision puts persons of a particular gender (being As or Bs) at a particular disadvantage in respect of remuneration compared with other employees of their employer.

(b) Where paragraph (a) applies, the persons referred to in that paragraph shall each be treated for the purposes of subsection (1) as complying or, as the case may be, not complying with the provision concerned, whichever results in the higher remuneration, unless the provision is objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary.

(c) In any proceedings statistics are admissible for the purpose of determining whether this subsection applies in relation to A or B.”.

13 Amendment of section 22.

13.—Section 22 (indirect discrimination on the gender ground) of the Act of 1998 is amended—

(a) by substituting the following subsections for subsection (1), as amended by the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001):

“(1) (a) Indirect discrimination occurs where an apparently neutral provision puts persons of a particular gender (being As or Bs) at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.

(b) Where paragraph (a) applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to (including A or B), unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.