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    Equality in the Workplace

An Employer’s Guide

In this article we look at how an employer in Ireland can promote equality at work and avoid discrimination and breaches of the Employment Equality Acts. We examine the definition of Equality at work. We offer suggestions to the busy employer on how to avoid falling foul of the law.

 

How is equality in the workplace defined ?

The Employment Equality Acts 1998 – 2015 provide the legal definition of discrimination in the workplace. They list nine grounds under which discrimination is prohibited. The Employment Equality Acts define discrimination as treating one person less favourably than another based on any of the nine grounds (See below). The equality legislation looks at whether a person has been treated less favourably at work than another person in a similar situation. That other person is called a comparator. They can in certain circumstances be theoretical where an actual comparator is not available.

Discrimination can be direct or indirect . Indirect usually occurs where a policy is introduced which has an unintended negative impact on one employee or group of employees on one of the nine grounds. Direct discrimination can be more apparent and intentional.

Vicarious liability

As an employer you have a general duty of care towards your employees. Under Employment Equality law in Ireland you have a duty to protect your employee from acts of discrimination or harassment from you, other employees and third parties , eg. contractors, suppliers, customers. As well as having an active equality policy in the workplace, you should ask third party suppliers and contractors if they have such a policy in place. If they haven’t such a policy, then you could be held to be vicariously liable for the actions of third party employees. If you haven’t one in place, then you will be held liable for the breaches of equality legislation committed by your employees.


 For more on vicarious liability see


 

Equality in practice

The thing about discrimination is that often the perpetrator can be blind to the fact that their actions are discriminatory and causing pain and suffering to the victim. That is why education and training is important. Every action which you take as an employer, to create an awareness and understanding of discrimination helps reduce the likelihood of you being vicariously liable for the actions of your employees when they breach equality employment legislation. Training does not have to be complex, but it should be ongoing, so as to create and maintain a constant awareness of the effects of discrimination in the workplace.

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Equality Policy

The aim of an Equality policy regarding employment should be to ensure that no employee or job applicant receives less favourable treatment on any grounds which cannot be shown to be justified. This covers all areas of the workplace including, Recruitment, Selection, Training, Promotion, Pay and Employee benefits, Grievance and Disciplinary procedures and Terms and Conditions of Employment. If you do not have an Equality at Work policy, you are putting your business at risk of a substantial claim. If you have had a policy in place for a number of years, it may be a good time to have it reviewed to check that it is up to date,. Employment law in Ireland is constantly changing.

The law on Equality in Ireland

The Employment Equality Acts 1998 – 20015 prohibit discrimination in the workplace. The equality llegislation covers all areas of work, including recruitment, promotion, pay, conditions of employment, training, experience. It outlines the nine grounds under which discrimination is unlawful

  • Gender. This includes a man, a woman or a transsexual/transgender person

  • marital status.

  • family status

  • sexual orientation

  • religion

  • age

  • disability

  • race

  • membership of the traveller community

 

The main aims of the Acts are as follows:

To promote equality;

To prohibit discrimination across the nine grounds (some exemptions

might apply);

To prohibit sexual harassment and harassment;

To prohibit victimisation;

To require reasonable accommodation for people with disabilities in

relation to access, participation and training in employment;

To allow positive action measures to ensure full equality in practice across

the nine grounds.

Other important pieces of legislation affecting equality in the workplace include:

  • Maternity Protection Acts 1994 and 2004
  • Adoption Leave Acts 1995 and 2005
  • Parental Leave Acts 1998 and 2006
  • Equal Status Act 2000 – 2012.
  • Carer’s Leave Act 2001
  • Protection of Employees (Part-time Work) Act 2001
  • Protection of Employees (Fixed-term Work) Act 2003
  • National Minimum Wage Act 2000
  • Unfair Dismissals Acts 1977 to 2007
  • Protection of Employees (Temporary Agency Work) Act 2012.
  • Criminal Justice Act 2011
  • Protected Disclosures Act 2014

The Equal Status Act 2000 – 2012 brings equality to users of a service or product. Businesses must take into account the Equality rights under the acts of customers, client and end users .

The employer’s defence to harassment

The equality legislation provides a defence for an employer who can show that they took such steps as were reasonably practicable to prevent the harassment from taking place and to undo the effects of it.

In deciding whether or not the employer took reasonable steps an adjudicator will look to see if there was a code of practice for dealing with Harassment in the workplace and how effectively it was promoted and implemented.

As an employer you should have a code of practice dealing with harassment and sexual harassment at work. If you don’t then you will be exposed when a claim is made.


For more on harassment see


For more on sexual harassment see


Positive Action

 

The acts allow for employers to discriminate in a positive way to promote full equality in practice in the workplace.

Exemptions to the Employment Equality Acts

There are exemptions from the Employment Equality Acts. Some can apply to all employment types. Others apply to certain types of employment or are covered under positive action.

Applicable to all employment types

Capacity and competence. If the person cannot do the job due to incompetence or incapacity, then it is not discrimination to decide not to hire them. Consider carefully however the question of making reasonable adjustments to enable someone with a disability to do the job.

Necessary qualifications. You can reject job applicants who do not have the necessary, educational, technical or professional qualifications for the job.

Employee family based benefits. An example would be childcare facilities.

Applicable to certain types of employment

Officers of the State may be required to achieve special requirements, e.g. Irish Citizenship etc.

Employment in another person’s home.

The provision of a private service in a person’s home is not covered by the Employment Equality Acts.

Religious, educational and medical institutions

This is to protect the religious ethos of the institution, where it exists. Breach of equality on any of the nine grounds is prohibited.

The nine grounds exemptions

Gender ground

Positive discrimination in favour of female employees who are pregnant or breastfeeding is allowed and does not constitute discrimination on the basis of gender under the Employment Equality Acts.

Age ground

If the difference in treatment can be objectively justified then it does not constitute inequality.

Where legislation allows a distinction to be made among workers, then a breach of the Employment Equality Acts does not take place.

Steps an employer can take

  1.  Examine your policies and procedures to check that you have a policy on equality in place, together with a code of practice dealing with harassment and sexual harassment.
  2.  If you haven't up to date policies then get them as soon as possible to minimise the risk of being sued and to promote a caring workplace which reflects on company profits ultimately.
  3. If you haven't the time to devote to this then contact us and we will arrange it for you.

 

 

Is there a DIY solution to drafting an Equality Policy to suit my needs ?

Yes. We advise you to get help from our experts. However if you want to do it yourself you can download our updated Equality Policy document, together with our simple guide to completing it . You can opt to have the completed document reviewed by one of our experts for peace of mind. Just click on the blue button to view our selection of employment law documents to help reduce your legal expenses.

 

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Where can I get an expert to set up policies and procedures for dealing with my responsibilities under Irish Employment Equality legislation ?

We understand that most employers are busy meeting the needs of their customers/clients. If you want to set up and maintain an Equality at Work policy but find that you do not have the time to devote to it, don't despair. Help is at hand. We  will work closley with you to prepare an Equality at Work policy to suit your individual needs. We will be there to assist in its implimentation too. We have over thirty years experience of employment law in Ireland. You can contact us using the blue button.

 

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