The implications of the Employment Equality Act 1998
Ireland's Employment Equality Act 1998, which came into force in October 1999, has been described as one of the most significant pieces of Irish employment legislation in the last 20 years. The Act outlaws discrimination on seven new grounds, in addition to those of gender and marital status. Single parents, gay people, older workers and those with disabilities are among those who should see their access to jobs and promotion opportunities improve once the Act takes effect. The Act also defines sexual harassment and harassment for the first time in Irish law. These provisions provide Ireland with one of the most far-reaching equality laws in Europe. However, the success of the new legislation in promoting equality will also be influenced by various social, political and economic factors, with initiatives within organisations continuing to be significant.
While legislation outlawing discrimination on the grounds of gender and marital status in relation to pay and other aspects of employment was introduced in Ireland in the 1970s, primarily as a response to EU Directives, until recently there has been little legislative provision in relation to other forms of discrimination. The enactment of the Employment Equality Act 1998 has changed this situation dramatically. This legislation, which had been in the pipeline for a number of years, comes into force in October 1999.
Main provisions of the Act
The Act broadens Irish legislation to outlaw discrimination on seven new grounds in addition to those of gender and marital status. These are family status, sexual orientation, religious belief, age, disability, race and membership of the traveller community. The Act also defines sexual harassment and harassment for the first time in Irish law. The Act replaces previous acts implementing the EU equal pay and equal treatment Directives.
The Act provides that all employment contracts shall be deemed to include equality and equal remuneration clauses. Discrimination on any of the nine grounds is outlawed in relation to a broad range of employment-related activities and situations including training or experience for, or in relation to: employment; access to employment; conditions of employment; promotion; classification of posts; activities of employment agencies; and advertising. The Act also applies to trade unions, trade and professional associations, and to collective agreements.
Other notable features of the Act include:
- employers may be liable for the sexual harassment of employees by customers, clients or business contacts of the employer as well as by other employees, subject to the defence that the employer took such steps as were "reasonably practicable" to prevent the harassment;
- the comparator for the purposes of equal pay claims need no longer be employed in the same place as the claimant;
- the inclusion of definitions of indirect discrimination, and in particular of a definition of indirect discrimination on the gender ground which clarifies Irish legislation and brings it in line with decisions of the European Court of Justice (ECJ);
- the definition of pay to exclude pension rights;
- the provision for employers to take "positive action" measures to promote equal opportunities for women and to facilitate the integration into employment of disabled people, persons over 50 and members of the traveller community; and
- the application of the Act to the defence forces for the first time.
Exemptions and exclusions
In certain circumstances, the Act allows employers to pay different rates or practice differential treatment on genuine grounds other than gender, race etc. For instance, higher pay which is related to superior qualifications or experience is permitted. Different treatment on the basis of seniority is also allowed, as is discrimination with relation to a characteristic that is an "occupational qualification". For example, gender may be relevant where the occupation involves the provision of personal services. The Act also allows certain discrimination on the grounds of sex, age and disability in relation to employment in the defence forces, police and the prison service.
Enforcement and remedies
Complaints under the Act will be mainly dealt with by the new office of the Director of Equality Investigations, which may refer claims to mediation or investigation. The remedies provided for under the Act are:
- in equal pay cases an order for equal pay and the payment of arrears of up to three years' pay (up to six years' pay in cases based on the gender ground);
- in equal treatment cases an order for equal treatment and compensation of up to two years pay (IEP 10,000 if the person is not an employee) or of an unlimited amount in cases based on the gender ground; and
- in dismissal cases an order for reinstatement or re-engagement with or without compensation.
The Act sets up the Equality Authority which will work to eliminate discrimination, promote equality of opportunity and engage in the administrative enforcement of the Act. The new Authority is set to replace the Employment Equality Agency which was established in 1977 as an independent, state-funded body. The Equality Authority will have a considerable remit since its scope will be broader than that of the previous agency. The question of resources will therefore be important. To date, new premises have been obtained and some IEP 3.7 million funding for "equality infrastructure" was promised by the government earlier in 1999.
Success and limitations of equality legislation to date
While the Act has yet to be implemented, its likely impact may be relatively limited, given that the equal pay and equal treatment legislation introduced in the 1970s has failed to improve significantly the position of women in employment in the long term. The potential of the law in itself to bring about equality is questionable.
Although the female workforce has increased in the last 25 years to almost 40% of the total workforce, and the entry of married women into the labour force has particularly accelerated, women's overall participation remains below the EU average of 45.6% (according to "Women in the labour force", FP Ruane and JM Sutherland, Employment Equality Agency, Dublin (1999)).
The impact of equality legislation in promoting female participation is uncertain, since these changes have also been influenced by a number of economic, social and political factors, such as the expansion of the service sector, which has traditionally employed a substantial number of women. Factors such as changing demographics, declining fertility rates, and increased levels of educational attainment have also enabled more women to enter the labour market.
Increased participation, however, does not imply equality of access to occupations which are equal in pay and status to those occupied by men. As is the case elsewhere in Europe, women in Ireland generally earn less than men and their earnings have remained static at approximately 73% of men hourly pay over the last decade (see Ruane and Sutherland, cited above). This differential is explained by several factors such as the fact that women work on average fewer hours than men, and are less likely to benefit from bonuses or premia for shiftwork or dangerous work. They are also more likely to have interrupted career patterns. A major cause of women's relatively low wage rates is horizontal and vertical segregation in the labour market, whereby women are concentrated disproportionately into a narrow range of sectors and occupations which are associated with lower levels of pay, and with access to fewer opportunities for training and advancement to senior levels. For example, over 67% of females are employed in service, clerical work, professional and technical work (see Ruane and Sutherland). This segregation along the lines of gender has made it difficult for the equality laws to permeate.
Therefore, whilst equality laws appear to have an impact up to a certain point, in that they have an educational function, prompt actions to remove the potential for discrimination in pay and procedures, and remove the most "blatant" forms of discrimination, there are limits to the effectiveness of the law because of the difficulties referred to above.
One aspect of the equality laws which has made some difference to women's pay has been the fairly flexible interpretation of the "equal value" clauses in both Irish and ECJ rulings, which have produced outcomes more favourable to women (see "Statutory employment protection", N Butler in "Irish industrial relations in practice", TV Murphy and WK Roche (eds), Oak Tree, Dublin (1997)). In 1997, a record equal pay award was made by the Labour Court to four women clerical workers employed by the Irish Civil Aviation Authority as communications assistants earning IEP 12,468 per year. The Court ruled that the women's work was equal in value to that of male radio officers earning IEP 21,941, and each woman received IEP 100,000 in back pay (IE9801240N). Such cases draw attention to the potential of the equal pay laws, thus encouraging trade unions or employers to be proactive in examining pay systems, thereby avoiding becoming entangled in legal mechanisms.
Limitations of the new Employment Equality Act
In spite of the inclusion of new grounds on which discrimination is outlawed, some aspects of the law would appear to place limitations on its potential effectiveness:
- Exemptions/exclusions under the law. Under the provisions relating to people with disabilities, employers are not obliged to incur more than "nominal costs" in accommodating the needs of disabled employees, and can be exempt from the Act if they can show that any alterations would be too costly. This is likely to result in a situation in which the duty on employers is significantly reduced. Another controversial issue is the exemption for religious, educational or medical establishments which are run by religious orders or institutions which promote certain religious values. Such organisations can discriminate if there is a perception that these values could be undermined.
- Claimants under equal pay provisions. An actual comparator must be found with which claimants must compare themselves. Trade unions had lobbied for the new legislation to allow for comparison with "hypothetical" pay comparators, but employer groups strongly objected to such a provision.
Other recent measures to promote equality
Aside from legislation, recent measures to promote equality include:
- Centralised national agreements. Some commitment to improving equality has been maintained at national level through Ireland's centralised social partnership agreements. Under the current three-year Partnership 2000 (P2000) national agreement (IE9702103F), a commitment was made to develop a strategy which enhances equality and counter discrimination in both employment and non-employment areas and to extend the principle of non-discrimination to wider groups. The Parental Leave Act 1998, was also introduced to comply with the EU Directive on parental leave (IE9806251N). The expert working group on childcare, also set up under the auspices of Partnership 2000, has issued recommendations for a national childcare strategy (IE9902269F). It also recommended the expansion of "family-friendly" policies to assist women in reconciling employment and family life, to encourage the involvement of fathers, and to assist employers in the retention of skilled employees.
- Equality bargaining. As a result of trade unionists' lobbying for change, plus a rise in women's employment and union membership in recent years, the Irish Congress of Trade Unions has adopted the document Mainstreaming equality, which promotes the integration of equality issues within the trade union agenda nationally and locally.
While the Employment Equality Act breaks new ground in extending protection against discrimination to previously neglected groups, its likely impact may depend on a number of key factors such as adequate resources, and will, in all likelihood, still need to be complemented by additional government, employer and trade union initiatives. The relatively limited impact of previous equality legislation means that expectations regarding the effects of the new law should be realistic. It also needs to be recognised that equality issues are influenced by economic and social factors, rather than by equality legislation alone. (Enda Hannon and Jackie Sinclair, UCD)
Additional references: "Labour law in Ireland", C Fennel and I Lynch, Gill and Macmillan, Dublin (1993); "Managing equality - the implications of the new Employment Equality Act", H Mulligan, Industrial Relations News 30, 19 August 1999.