Equality Act 2004

Type Act

Publication 2004-07-18

State In force

Text As published

Source Irish Statute Book

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articles 66

This is the act as published. Later amendments are not folded into the text below: each one is a separate act in this repository and an entry in this law's history.

Act to amend the Employment Equality Act 1998 and Equal Status Act 2000 for the purpose of making further and better provision in relation to equality of treatment in the workplace and elsewhere; to give effect to Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation and Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions; and to revoke in part and enact in respect of proceedings under this Act the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001, which gave effect to Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex

Reform history JSON API

“(2) If a person who is a party to a settlement to which section 24 applies fails to give effect, in whole or in part, to the terms of the settlement, then, on an application under this section, the Circuit Court may make an order directing that person to carry out those terms or, as the case may be, the terms to which the application relates; but the Circuit Court shall not, by virtue of this subsection, direct any person to pay any sum or do any other thing which (had the matter been dealt with otherwise than by mediation) could not have been provided for by way of redress under section 27.”,

“(4) An application under this section may be made—

(a) in any case, by the complainant,

(b) in any case where the Authority is not the complainant but considers that the decision or settlement is unlikely to be implemented without its intervention, by the Authority with the consent of the complainant, or

(c) in the case of a settlement, by the respondent.”,

(d) in subsection (5)(b), by substituting “any person” for “person affected”, and

(e) by substituting the following subsection for subsection (6):

“(6)

(a) Where an application is made to the Circuit Court by the Authority under this section, the Court may make an order for costs in favour of the Authority.

(b) Paragraph (a) is without prejudice to the power of the Court to make an order for costs in favour of a person who is bound by the terms of the decision or, as the case may be, a person who is a party to the settlement.”.

63 New section 37A.

63.—The Act of 2000 is amended by inserting the following section after section 37:


““Award of expenses.	37A.—(1) Without prejudice to section 37, the Director may, if of opinion that a person is obstructing or impeding an investigation, order that the person pay to another person a specified amount in respect of the travelling or other expenses incurred by that other person in connection with the investigation. (2) Notwithstanding subsection (1), expenses shall not be payable in respect of the attendance at the investigation of any person representing a complainant or respondent. (3) The amount of any expenses ordered to be paid under this section may be recovered as a simple contract debt.”.

““Award of expenses.

37A.—(1) Without prejudice to section 37, the Director may, if of opinion that a person is obstructing or impeding an investigation, order that the person pay to another person a specified amount in respect of the travelling or other expenses incurred by that other person in connection with the investigation. (2) Notwithstanding subsection (1), expenses shall not be payable in respect of the attendance at the investigation of any person representing a complainant or respondent. (3) The amount of any expenses ordered to be paid under this section may be recovered as a simple contract debt.”.

64 New section 38A.

64.—The Act of 2000 is amended by inserting the following section after section 38, but in Part III:


“Burden of proof.	38A.—(1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary. (2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person. (3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the respondent to prove the contrary.”.

“Burden of proof.

38A.—(1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary. (2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person. (3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the respondent to prove the contrary.”.

65 Amendment of section 41.

65.—Section 41 (regulations) of the Act of 2000 is amended in subsection (2) by deleting the words after “any such regulations the Minister” and inserting “shall consult with the Authority and the Director”.

Part 4 Amendment of Pensions Act 1990

66 Amendment of Pensions Act 1990.

66.—(1) Subject to subsection (2) and section 83 (as applied by section 81J(2) (inserted by section 22 of the Social Welfare (Miscellaneous Provisions) Act 2004) of the Pensions Act 1990) of the Act of 1998, the Labour Court shall cease to have jurisdiction under Part VII (as so inserted) of the said Act of 1990 in cases of dismissal in circumstances amounting to discrimination or victimisation.

(2) A case which was referred to the Labour Court before the commencement of this section and which, but for subsection (1), would fall to be investigated by the Court under section 79(1) (as so applied) of the Act of 1998 shall—

(a) if, on the date of such commencement, the Court has not begun to investigate the case, be transferred by the Court to the Director as if it had been referred to him or her in the first instance, and the Pensions Acts 1990 to 2004 shall apply accordingly in relation to it, with any necessary modifications, and

(b) in any other case, be treated for all purposes as if subsection (1) had not been enacted.

(3) The Pensions Act 1990 is amended—

(a) in section 65 (inserted by section 22 of the said Act of 2004), by substituting “Director of the Equality Tribunal” for “Director of Equality Investigations” in subsection (1),

(b) in section 81E (as so inserted)—

(i) by substituting “subsections (3) to (6)” for “subsections (2) to (6)” in subsection (1),

(ii) by deleting subsection (2),

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

“(3) If the grounds for such a claim arise in relation to a breach of the principle of equal pension treatment on the gender ground, the person making the claim may, subject to subsections (4) to (7) and section 81F(1), seek redress by referring the case to the Circuit Court instead of to the Director.”,

(iv) by substituting the following for the definition of “the complainant” in subsection (4):

“‘the complainant’ means—

(i) the person by whom it is referred, or

(ii) where such a person is unable, by reason of an intellectual or a psychological disability, to pursue it effectively, his or her parent, guardian or other person acting in place of a parent;”

and

(v) by deleting “, the Labour Court” in subsection (6),

(i) by deleting “, (2)” in subsection (2),

(ii) by deleting “Effect” in subsection (4)(c) and inserting “Unless otherwise agreed by the complainant and respondent, effect”, and

(iii) by deleting subsection (5),

(d) in section 81H (as so inserted)—

(i) by substituting “section 81E;” for “section 81E.” in subsection (1),

(ii) by adding the following paragraph to that subsection:

“(e) an order for re-instatement or re-engagement, with or without an order for compensation.”,

(iii) by deleting subsection (2),

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

“(3) The types of redress for which the Circuit Court may provide on a reference under section 81E(3) are such one or more of the orders referred to in subsection (1) as may be appropriate in the circumstances of the case, and no enactment relating to the jurisdiction of the Circuit Court shall be taken to limit the amount of compensation which may be ordered by the Circuit Court by virtue of this subsection.”,

(v) by inserting “or (1)(e)” after “(1)(d)” in subsection (4) and by deleting “or the Labour Court” and “or by that Court under subsection (2)(b)” in that subsection,

(vi) by deleting “or the Labour Court” and “or the Labour Court, as the case may be,” in subsection (5), and

(vii) by deleting “, Labour Court” in subsection (8),

(e) in section 81J (as so inserted), by substituting “76, 77A” for “76” in subsection (2),

(f) in the Fourth Schedule (as so inserted)—

(i) by substituting “74(3), 76(1), 78(5), 79(1), 79(3A)” for “76(1), 78(5), 79(1),” and deleting “84(1)”, “101(5), 101(6)(a)” in column (2) opposite reference number 4,

(ii) by deleting reference number 7,

(iii) by substituting “Section 83(6)” for “Sections 79(4) and 83(6)” in column (2) opposite reference number 9,

(iv) by substituting “85(1) to 85(5), 85(6)” for “85” in column (2), and substituting “Authority” for “authority” in column (3), opposite reference number 12,

(v) by substituting “‘paragraph (c) or (f) of section 82(1)’ ” for “‘section 82(2)’ ” in column (3) opposite reference number 27,

(vi) by substituting “section 81H(1)” for “section 81H(2)” in column (4) opposite reference number 27, and

(vii) by inserting the following after reference number 30:


	“30A.	Section 101A(2)	Where the conduct of an employer constitutes both a contravention of Part III or IV and a contravention of either the Protection of Employees (Part-Time Work) Act 2001 or the Protection of Employees (Fixed-Term Work) Act 2003, relief may not be granted to the employee concerned in respect of the conduct under both this Act and either of the said Acts.	Where the conduct of an employer constitutes both a contravention of Part VII of the Pensions Act 1990 and a contravention of either the Protection of Employees (Part-Time Work) Act 2001 or the Protection of Employees (Fixed-Term Work) Act 2003, relief may not be granted to the employee concerned in respect of the conduct under both this Act as it applies to Part VII of the Pensions Act 1990 and either of the said Acts.”.

SCHEDULE Amendments of Act of 1998 Referred to in Section 46


Section of Act of 1998	Amendment
Section 77.	1. Substitution of following subsection for subsections (1) and (2): “(1) A person who claims— (a) to have been discriminated against or subjected to victimisation, (b) to have been dismissed in circumstances amounting to discrimination or victimisation, (c) not to be receiving remuneration in accordance with an equal remuneration term, or (d) not to be receiving a benefit under an equality clause, in contravention of this Act may, subject to subsections (3) to (9), seek redress by referring the case to the Director.”. 2. Substitution of following subsection for subsection (3): “(3) If the grounds for such a claim arise— (a) under Part III, or (b) in any other circumstances (including circumstances amounting to victimisation) to which the Equal Pay Directive or Equal Treatment Directive is relevant, then, subject to subsections (4) to (9), the person making the claim may seek redress by referring the case to the Circuit Court instead of to the Director.”. 3. In subsections (8) and (10), deletion of “, (2)”.
Section 78.	4. Deletion of subsection (2). 5. Substitution of the following subsection for subsection (3): “(3) If the complainant or respondent objects to a case being dealt with by way of mediation, the Director shall not exercise his or her powers under this section but shall deal with the case under section 79.”. 6. In subsection (4), deletion of “, whether by an equality mediation officer or by the Labour Court,”. 7. In subsection (5), deletion of— (a) “or, as the case may be, the Labour Court” where it occurs in paragraphs (a) and (c), and (b) “or the Labour Court, as the case may require” in paragraph (d). 8. Substitution of following subsection for subsection (6): “(6) If, after a case has been referred to an equality mediation officer under subsection (1), it appears to the officer that the case cannot be resolved by mediation, he or she shall issue a notice to that effect to the complainant and respondent.”. 9. In subsection (7) (as amended by section 34), deletion of “or, as the case may be, the Labour Court” and “or the Labour Court, as the case may require,”.
Section 79.	10. In subsection (1), deletion of— (a) “or the Labour Court”, (b) “or the Labour Court, as the case may be”, and (c) “or that Court”. 11. In subsection (2), deletion of words after “in private”. 12. In subsection (4), deletion of— (a) “or, as the case may be, the Labour Court”, (b) “the Labour Court”, and (c) the words from “; and any such” to “Employment”. 13. In subsection (5), deletion of “or the Labour Court”. 14. In subsection (6) (as amended by section 35(b)), deletion of— (a) “or, as the case may be, the Labour Court shall make a determination”, and (b) “or determination”.
Section 81.	15. Substitution of “or the Director” for each reference to “, the Director or the Labour Court”.
Section 82.	16. In subsection (1)— (a) substitution of “specified;” for “specified.” in paragraph (e), and (b) addition of following paragraph: “(f) an order for re-instatement or re-engagement, with or without an order for compensation.”. 17. Deletion of subsection (2). 18. In subsection (3)— (a) substitution of “paragraphs (c) to (f)” for “paragraphs (c) to (e)”, and (b) deletion of paragraph (d). 19. In subsection (4)— (a) insertion of “or (1)(f)” after “(1)(c)”, and (b) deletion of “or the Labour Court” and “or by that Court under subsection (2)(b)”. 20. In subsection (5), deletion of— (a) “or the Labour Court”, and (b) “or the Labour Court, as the case may be,”.
Section 84.	21. Deletion of subsection (1). 22. In subsection (3), substitution of “subsection (2)” for “subsection (1) or (2)”.
Section 88.	23. In subsection (3) (a), deletion of “or determination”.
Section 90.	24. Substitution of following subsections for subsections (1) to (6): “(1) Where a determination is made by the Labour Court on an appeal under this Part, either of the parties may appeal to the High Court on a point of law. (2) The Labour Court may— (a) refer to the High Court a point of law arising in the course of such an appeal, and (b) if it thinks it appropriate, adjourn the appeal pending the outcome of the reference.”.
Section 91.	25. In subsection (3)(a), deletion of each reference to “determination or”.
Section 92.	26. In subsection (3), insertion of “or decision” after each reference to “determination”.
Section 93.	27. In subsection (1), insertion of “or decision” after “determination”.
Section 98.	28. In subsection (2), substitution of “Director” for “Labour Court”. 29. In subsection (5), substitution of— (a) “Director” for “Labour Court”, (b) “paragraph (c) or (f) of section 81(1)” for “section 82(2)”, and (c) “Director's decision” for “Labour Court's determination”.
Section 101.	30. Substitution of subsection (2) by the following: “(2) Where an individual has referred a case to the Director under section 77(1) and either a settlement has been reached by mediation or the Director has begun an investigation under section 79, the individual— (a) shall not be entitled to recover damages at common law in respect of the case, and (b) if he or she was dismissed before so referring the case, shall not be entitled to seek redress (or to exercise, or continue to exercise, any other power) under the Unfair Dismissals Acts 1977 to 1993 in respect of the dismissal.”. 31. In subsection (4), deletion of opening words to and including “the dismissal” and insertion of “An employee who has been dismissed shall not be entitled to seek redress under this Part in respect of the dismissal if”. 32. Deletion of subsection (6).
Section 103.	33. In subsection (3), deletion of— (a) “or determination” in paragraph (b), and (b) “90,” in paragraph (d).
Section 104.	34. In subsection (1), deletion of “, the Labour Court”. 35. In subsection (2)(a), deletion of “or the Labour Court”.

Footnotes

OJ No. L14, 20.01.1998, p.6

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