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21 1998

EMPLOYMENT EQUALITY ACT, 1998

PART IV

Specific Provisions as to Equality Between Other Categories of Persons

The comparators.

28. —(1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows:

(a) in relation to the marital status ground, C and D have different marital status;

(b) in relation to the family status ground, C has family status and D does not, or vice versa;

(c) in relation to the sexual orientation ground, C and D are of different sexual orientations;

(d) in relation to the religion ground, C and D have different religious beliefs or C has a religious belief and D does not, or vice versa;

(e) in relation to the age ground, C and D are of different ages;

(f) in relation to the disability ground, C is a person with a disability and D is not, or vice versa, or C and D are persons with different disabilities;

(g) in relation to the ground of race, C and D differ as to race, colour, nationality or ethnic or national origins or any combination of those factors;

(h) in relation to the traveller community ground, C is a member of the traveller community and D is not, or vice versa.

(2) In the following provisions of this Part, any reference to C and D which does not apply to a specific discriminatory ground shall be treated as a reference to C and D in the context of each of the discriminatory grounds (other than the gender ground) considered separately.

(3) Any reference in this Act to persons having the same relevant characteristic as C (or as D) shall be construed by reference to the discriminatory ground in relation to which the reference applies or, as the case may be, in relation to each of the discriminatory grounds (other than the gender ground) separately, so that—

(a) in relation to the marital status ground, the relevant characteristic is having the same marital status as C (or, as the case may be, as D), and

(b) in relation to the family status ground, the relevant characteristic is having the same, or the same lack of, family status as C (or, as the case may be, as D),

and so on for each of the other discriminatory grounds.

Entitlement to equal remuneration.

29. —(1) It shall be a term of the contract under which C is employed that, subject to this Act, C shall at any time be entitled to the same rate of remuneration for the work which C is employed to do as D who, at that or any other relevant time, is employed to do like work by the same or an associated employer.

(2) For the purposes of subsection (1), in relation to a particular time, a relevant time is any time (on or after the commencement of this section) which falls during the 3 years which precede, or the 3 years which follow, the particular time.

(3) For the purposes of this Part, where D's employer is an associated employer of C's employer, C and D shall not be regarded as employed to do like work unless they both have the same or reasonably comparable terms and conditions of employment.

(4) Where a term of a contract of employment or a criterion applied to employees (including C and D)—

(a) applies to all employees of a particular employer or to a particular class of such employees (including C and D),

(b) is such that the remuneration of those who fulfil the term or criterion is different from that of those who do not,

(c) is such that the proportion of employees who can fulfil the term or criterion is substantially smaller in the case of the employees having the same relevant characteristic as C when compared with the employees having the same relevant characteristic as D, and

(d) cannot be justified as being reasonable in all the circumstances of the case,

then, for the purposes of subsection (1), C and D shall each be treated as fulfilling or, as the case may be, as not fulfilling the term or criterion, whichever results in the higher remuneration.

(5) Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees.

Equality clause relating to non-gender issues.

30. —(1) If and so far as the terms of a contract of employment do not include (expressly or by reference to a collective agreement or otherwise) a non-discriminatory equality clause, they shall be taken to include one.

(2) A non-discriminatory equality clause is a provision relating to the terms of a contract of employment, other than a term relating to remuneration or pension rights, which has the effect that if—

(a) C is employed in circumstances where the work done by C is not materially different from that done by D in the same employment, and

(b) at any time C's contract of employment would (but for the non-discriminatory equality clause)—

(i) contain a term which is or becomes less favourable to C than a term of a similar kind in D's contract of employment, or

(ii) not include a term corresponding to a term in D's contract of employment which benefits D,

then the terms of C's contract of employment shall be treated as modified so that the term in question is not less favourable to C or, as the case may be, so that they include a similar term benefiting C.

(3) A non-discriminatory equality clause shall not operate in relation to a difference between C's contract of employment and D's contract of employment if the employer proves that the difference is genuinely based on grounds which are not among those specified in paragraphs (a) to (h) of section 28 (1).

(4) Without prejudice to the generality of section 8 (1), where a person offers C employment on certain terms and, were C to accept the offer on those terms, the non-discriminatory equality clause in C's contract of employment would have the effect of modifying the terms in either of the ways specified in subsection (2), the making of the offer shall be taken to amount to discrimination against C in relation to C's conditions of employment on whichever of the discriminatory grounds is (or are) relevant to the difference (or differences) between C and D.

Indirect discrimination.

31. —(1) Where a provision (whether in the nature of a requirement, practice or otherwise) relating to employment—

(a) applies to all the employees or prospective employees of a particular employer who include C and D or, as the case may be, to a particular class of those employees or prospective employees which includes C and D,

(b) operates to the disadvantage of C, as compared with D, in relation to any of the matters specified in paragraphs (a) to (e) of section 8 (1),

(c) in practice can be complied with by a substantially smaller proportion of the employees or prospective employees having the same relevant characteristic as C when compared with the employees or prospective employees having the same relevant characteristic as D, and

(d) cannot be justified as being reasonable in all the circumstances of the case,

then, subject to subsections (4) and (5), for the purposes of this Act the employer shall be regarded as discriminating against C, contrary to section 8 , on whichever of the discriminatory grounds gives rise to the relevant characteristics referred to in paragraph (c).

(2) Where a provision (whether in the nature of a requirement, practice or otherwise) relating to membership of a regulatory body—

(a) applies to all members or potential members or to a particular class of member or potential member which includes C and D,

(b) operates to the disadvantage of C, as compared with D, in relation to any of the matters specified in paragraphs (a) to (e) of section 8 (1),

(c) in practice can be complied with by a substantially smaller proportion of the members or potential members having the same relevant characteristic as C when compared with the members or potential members having the same relevant characteristic as D, and

(d) cannot be justified as being reasonable in all the circumstances of the case,

then, subject to subsection (5), for the purposes of this Act the regulatory body shall be regarded as discriminating against C, contrary to section 13 , on whichever of the discriminatory grounds gives rise to the relevant characteristics referred to in paragraph (c).

(3) Subsection (1) shall apply with the necessary modifications in relation to—

(a) the provision of any such services of an employment agency as are referred to in paragraphs (a) and (b) of section 11 (1),

(b) participation in any such course or facility as is referred to in paragraphs (a) to (c) of section 12 (1).

(4) Subsection (3) of section 8 applies for the purposes of subsection (1) and, in so far as it relates to an employer, subsection (5) as it applies for the purposes of subsections (4) to (8) of that section.

(5) If a provision is such that, apart from this subsection, an employer or regulatory body would be regarded—

(a) by virtue of subsection (1) or (2), as discriminating against an individual on the marital status ground or the family status ground, and

(b) by virtue of section 22 , also as discriminating against the same individual on the gender ground,

the employer or regulatory body shall not be regarded as discriminating against that individual by virtue of subsection (1) or, as the case may be, subsection (2).

Harassment in the workplace etc.

32. —(1) If, at a place where C is employed (in this section referred to as “the workplace”), or otherwise in the course of C's employment, another individual (“E”) harasses C by reference to the relevant characteristic of C and—

(a) C and E are both employed at that place or by the same employer,

(b) E is C's employer, or

(c) E is a client, customer or other business contact of C's employer and the circumstances of the harassment are such that C's employer ought reasonably to have taken steps to prevent it,

then, for the purposes of this Act, the harassment constitutes discrimination by C's employer, in relation to C's conditions of employment, on whichever discriminatory ground is relevant to persons having the same relevant characteristic as C.

(2) Without prejudice to the generality of subsection (1) in its application in relation to the workplace and the course of C's employment, if, in a case where one of the conditions in paragraphs (a) to (c) of that subsection is fulfilled—

(a) E harasses C by reference to the relevant characteristic of C, whether or not in the workplace or in the course of C's employment, and

(b) C is treated differently in the workplace or otherwise in the course of C's employment by reason of C's rejection or acceptance of the harassment or it could reasonably be anticipated that C would be so treated,

then, for the purposes of this Act, the harassment constitutes discrimination by C's employer, in relation to C's conditions of employment, on whichever discriminatory ground is relevant to persons having the same relevant characteristic as C.

(3) Section 23 (4) applies in relation to subsection (1)(c) with the substitution for any reference to A of a reference to C.

(4) It is immaterial for the purposes of this section whether E—

(a) stands as D in relation to C, or

(b) has the same relevant characteristic as C,

and any reference in this section to the relevant characteristic of C (or the same relevant characteristic as C) includes a reference to what E believes to be the relevant characteristic of C.

(5) For the purposes of this Act, any act or conduct of E (including, without prejudice to the generality, spoken words, gestures or the production, display or circulation of written words, pictures or other material) constitutes harassment of C by E if the action or other conduct is unwelcome to C and could reasonably be regarded, in relation to the relevant characteristic of C, as offensive, humiliating or intimidating to C.

(6) If, as a result of any act or conduct of E another person (“F”) who is C's employer would, apart from this subsection, be regarded by virtue of subsection (1) as discriminating against C, it shall be a defence for F to prove that F took such steps as are reasonably practicable—

(a) in a case where subsection (2) applies, to prevent C being treated differently in the workplace or otherwise in the course of C's employment and, if and so far as any such treatment has occurred, to reverse the effects of it, and

(b) in a case where subsection (1) applies (whether or not subsection (2) also applies), to prevent E from harassing C (or any class of persons of whom C is one).

(7) In this section “employed”, in relation to an individual, includes—

(a) seeking or using any service provided by an employment agency, and

(b) participating in any such course or facility as is 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 the course or facility.

(8) Where subsection (7) applies in relation to C, subsection (1) shall have effect as if for the words “in relation to C's conditions of employment” there were substituted “contrary to section 11 or, as the case may be, section 12 ”.

Positive action permitted.

33. —(1) Nothing in this Part or Part II shall prevent the taking of such measures as are specified in subsection (2) in order to facilitate the integration into employment, either generally or in particular areas or a particular workplace, of—

(a) persons who have attained the age of 50 years,

(b) persons with a disability or any class or description of such persons, or

(c) members of the traveller community.

(2) The measures mentioned in subsection (1) are those intended to reduce or eliminate the effects of discrimination against any of the persons referred to in paragraphs (a) to (c) of that subsection.

(3) Nothing in this Part or Part II shall render unlawful the provision, by or on behalf of the State, of training or work experience for a disadvantaged group of persons if the Minister certifies that, in the absence of the provision in question, it is unlikely that that disadvantaged group would receive similar training or work experience. Savings and exceptions related to the family, age or disability.

Savings and exceptions related to the family, age or disability.

34. —(1) In relation to the discriminatory grounds specified in paragraphs (a) to (h) of section 28 (1), nothing in this Part or Part II shall make it unlawful for an employer to provide—

(a) a benefit to an employee in respect of events related to members of the employee's family or any description of those members,

(b) a benefit to or in respect of a person as a member of an employee's family,

(c) a benefit to an employee on or by reference to an event occasioning a change in the marital status of the employee, or

(d) to an employee who has family status a benefit intended directly to provide or assist in the provision, during working hours, of care for a person for whom the employee has responsibility as mentioned in paragraphs (a) and (b) of the definition of “family status” in section 2 (1).

(2) In subsection (1)employer” includes an employment agency, a person offering a course of vocational training as mentioned in section 12 (1) and a regulatory body; and accordingly references to an employee include—

(a) a person seeking or using any service provided by the employment agency,

(b) a person participating in any such course or facility as is referred to in paragraphs (a) to (c) of section 12 (1), and

(c) a person who is a member of the regulatory body.

(3) Nothing in this Part or Part II shall make unlawful discrimination on the age ground or the disability ground in circumstances where it is shown that there is clear actuarial or other evidence that significantly increased costs would result if the discrimination were not permitted in those circumstances.

(4) Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees.

(5) Without prejudice to the generality of subsection (3), it shall not constitute discrimination on the age ground to set, in relation to any job, a maximum age for recruitment which takes account of—

(a) any cost or period of time involved in training a recruit to a standard at which the recruit will be effective in that job, and

(b) the need for there to be a reasonable period of time prior to retirement age during which the recruit will be effective in that job.

(6) Where immediately before the relevant day, arrangements are in force in any employment for age-related remuneration, it shall be a sufficient compliance with this Part and Part II if those arrangements are brought to an end within the period of 3 years beginning on the relevant day.

(7) It shall not constitute discrimination on the age ground for an employer to provide for different persons—

(a) different rates of remuneration, or

(b) different terms and conditions of employment,

if the difference is based on their relative seniority (or length of service) in a particular post or employment.

(8) In this section “the relevant day” means the day appointed for the coming into operation of section 29 .

Special provisions related to persons with disabilities.

35. —(1) Nothing in this Part or Part II shall make it unlawful for an employer to provide, for an employee with a disability, a particular rate of remuneration for work of a particular description if, by reason of that disability, the employee is restricted in his or her capacity to do the same amount of work (or to work the same hours) as a person who is employed to do work of that description but who is without that disability.

(2) Nothing in this Part or Part II shall make it unlawful for an employer or any other person to provide, for a person with a disability, special treatment or facilities where the provision of that treatment or those facilities—

(a) enables or assists that person to undertake vocational training, to take part in a selection process or to work, or

(b) provides that person with a training or working environment suited to the disability, or

(c) otherwise assists that person in relation to vocational training or work.

(3) Where, by virtue of subsection (1) or (2), D, as a person with a disability, receives a particular rate of remuneration or, as the case may be, special treatment or facilities, C, as a person without a disability, or with a different disability, shall not be entitled under this Act to that rate of remuneration, that treatment or those facilities.

Imposition of certain requirements to be lawful.

36. —(1) Nothing in this Part or Part II shall make unlawful the application of any provision (whether in the nature of a requirement, practice or otherwise) such as is mentioned in subsection (2) with respect to—

(a) holding office under, or in the service of, the State (including the Garda Síochána and the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956 , or

(b) officers or servants of a local authority, for the purposes of the Local Government Act, 1941 , a harbour authority, a health board or vocational education committee.

(2) The provisions referred to in subsection (1) are those relating to all or any of the following:

(a) residence;

(b) citizenship;

(c) proficiency in the Irish language.

(3) Nothing in this Part or Part II shall make unlawful the application of any provision (whether in the nature of a requirement, practice or otherwise) in relation to proficiency in the Irish language with respect to teachers in primary and post-primary schools.

(4) Nothing in this Part or Part II shall make it unlawful to require, in relation to a particular post—

(a) the holding of a specified educational, technical or professional qualification which is a generally accepted qualification in the State for posts of that description, or

(b) the production and evaluation of information about any qualification other than such a specified qualification.

(5) Nothing in this Part or Part II shall make it unlawful for a body controlling the entry to, or carrying on of, a profession, vocation or occupation to require a person carrying on or wishing to enter that profession, vocation or occupation to hold a specified educational, technical or other qualification which is appropriate in the circumstances.

(6) Nothing in this section shall render lawful discrimination on the gender ground.

Exclusion of discrimination on particular grounds in certain employments.

37. —(1) A religious, educational or medical institution which is under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values shall not be taken to discriminate against a person for the purposes of this Part or Part II if—

(a) it gives more favourable treatment, on the religion ground, to an employee or a prospective employee over that person where it is reasonable to do so in order to maintain the religious ethos of the institution, or

(b) it takes action which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution.

(2) Nothing in this Part or Part II applies to discrimination against C in respect of employment in a particular post if the discrimination results from preferring D on the ground that the relevant characteristic of D is or amounts to an occupational qualification for the post in question.

(3) Without prejudice to the generality of subsection (2), in relation to discrimination on the age ground, the disability ground or the ground of race, the relevant characteristic of D shall be taken to be an occupational qualification for a post where on grounds of physiology or on grounds of authenticity for the purpose of entertainment, the nature of the post—

(a) requires a person having the same relevant characteristic as D, and

(b) would be materially different if filled by a person not having that relevant characteristic.

(4) Without prejudice to the generality of subsection (2), in relation to discrimination on the religion ground or the ground of race, the relevant characteristic of D shall be taken to be an occupational qualification for a post where it is necessary that the post should be held by D because it is likely to involve the performance of duties outside the State in a place where the laws or customs are such that those duties could not reasonably be performed by a person who does not have that relevant characteristic or, as the case may require, by a person who has a relevant characteristic of C.

(5) In relation to the discriminatory grounds specified in paragraphs (a) to (h) of section 28 (1), nothing in this Part or Part II applies to the employment of any person for the purposes of a private household.

(6) In relation to discrimination on the age ground or the disability ground, nothing in this Part or Part II applies to employment—

(a) in the Defence Forces,

(b) in the Garda Síochána, or

(c) in the prison service.