Thematic feature - implementation of the EU framework equal treatment Directive
This article examines the Irish situation, as of August 2003, with regard to the implementation and impact of the 2000 EU Directive establishing a general framework for equal treatment in employment and occupation, which seeks to combat discrimination on the grounds of religion or belief, disability, age and sexual orientation.
The EU Directive establishing a general framework for equal treatment in employment and occupation (Directive 2000/78/EC) was adopted in November 2000 (EU0102295F). The Directive seeks to lay down a general framework for combating discrimination, as regards employment and occupation, on the grounds of: religion or belief; disability; age; and sexual orientation. It is to be implemented by the EU Member States by 2 December 2003 (with a possible later deadline for the provisions on age and disability discrimination, if Member States see this as necessary).
A Community Action Programme to combat discrimination 2001-6 was also adopted in November 2000 (EU9912218F). It supports activities combating discrimination on grounds of racial or ethnic origin, religion or belief, disability, age or sexual orientation. Its priorities are: analysis and evaluation, developing the capacity to combat and prevent discrimination, and raising awareness.
In August 2003, the EIRO national centres in each EU Member State (plus Norway), were asked, in response to a questionnaire, to assess how the framework equal treatment Directive is being implemented in each country, and the responses of the state and social partners. The Irish responses are set out below (along with the questions asked).
What was the legislative situation and the policy position of the state as at December 2000 (ie when the Directive was adopted) concerning employment discrimination in the areas of: age; disability; religion or belief; and sexual orientation?
Much of the basic equality legislation and institutional supports required by the new Directive was already in place in Ireland in December 2000 (IE0109101F). Indeed, in many areas the Irish legislation goes some way beyond the requirements of the Directive and the provisions present in many other European countries. Therefore, the changes necessary to transpose the Directive into Irish law are not on the same scale as will be necessary in many other EU countries.
The Employment Equality Act 1998 (IE9909144F), which came into effect in October 1999, outlaws discrimination on the nine grounds of gender, race, marital status, family status, sexual orientation, religion, disability, age, and membership of the traveller community. Part of the rationale behind the integrated approach to the Employment Equality Act (ie one piece of legislation covering nine grounds of employment discrimination) is that there is potential for the different grounds to reinforce each other, so that advances within one ground can assist advances across the others.
The Act provides that all employment contracts shall be deemed to include equality and equal remuneration clauses. Discrimination 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 Employment Equality Act include:
- the comparator, for the purposes of equal pay claims, need not 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; and
- a 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 aged over 50 and members of the traveller community.
The Employment Equality Act also established the Equality Authority, which is a public body charged with promoting equality and tackling discrimination on the nine grounds covered, and engaging in the administrative enforcement of the Act. The Act also established the Equality Tribunal whose remit is to decide cases under the Employment Equality Act, and provide legal enforcement and remedies. In the first instance, claims under the Act are dealt with by the Equality Tribunal. Cases may then be referred to the Labour Court, and, if necessary, then on to the Circuit Court and the High Court. Cases may also be brought to the European Court of Justice.
Question 2 - State response
How has the state responded to the Directive since December 2000 in terms of:
- legislation concerning discrimination and draft legislation on the grounds of age, disability, religion or belief and sexual orientation (please specify details of title, date and main provisions and exclusions). With respect to age and disability, please specify if the state has opted to take the option of extending the deadline for implementation of the Directive and, if so, on what grounds;
- broader policy response, consistent with the Action Programme, for example: support for anti-discrimination activities; analysis of the extent and nature of the discrimination; arrangements for monitoring and enforcement; positive action; information and dissemination activities; and promotion of social dialogue and anti-discrimination collective agreements.
Although, as outlined above, the majority of anti-discrimination measures contained in the framework equal treatment Directive are already in place in Ireland, the Irish government is currently in the process of drafting a new Equality Bill in order to comply fully with the Directive. The government envisages that the Bill will be published by late 2003.
The new equality legislation will extend the current equality provisions to self-employed workers, private households, the defence forces and those beyond the current 18-65 age range. In this regard, the following changes will be necessary:
- the extension of the scope of the legislation to self-employed people;
- the extension of positive action provisions to all of the nine grounds of discrimination covered in the 1998 Act;
- the extension of the age provisions to those over 65 and under 18 (but above minimum school-leaving age). Employers will still be able to set minimum recruitment ages of 18 or under and will also be able to set retirement ages;
- amendment of the current exclusion of employment in private households from the legislation;
- allowing members of the defence forces access to the redress mechanisms in the Act (except in the areas of age and disability); and
- changing the wording of the requirement on employers to provide reasonable accommodation for persons with disabilities from not more than 'nominal cost' to not more than a 'disproportionate burden' (the wording used in the equal treatment framework Directive).
In addition, the Irish legislation may require a number of other amendments. Significantly, it is likely that the current 104-weeks' pay compensation ceiling in non-gender employment-related discrimination cases will have to be removed. Crucially, the Directive also provides for important new statutory representation rights for trade unions and other non-governmental organisations, which will have to be incorporated into Irish law. There are a number of new provisions allowing organisations such as trade unions to act in support of a complainant in procedures enforcing obligations under the Directive.
With regard to the broader policy response consistent with the EU's anti-discrimination Action Programme, such issues have been incorporated as topics in successive national agreements, including the current one, Sustaining Progress, signed in March 2003 (IE0304201N). Section 5.3 of Sustaining Progress states, 'Equality is a key goal which must underpin activity in all policy areas in order to ensure a fair and inclusive society with equal opportunity. A comprehensive framework of equality legislation, institutions and mechanisms is now in place. This framework comprehends the Employment Equality and Equal Status Acts, together with the infrastructure which gives effect to them – the Equality Authority and ODEI – Equality Tribunal, as well as the National Disability Authority which supports mainstream policy and standards of service for people with disabilities. It is essential that this is kept up-to-date and relevant.'
The key elements of the equality framework set out in Sustaining Progress are: the dissemination of information and increasing awareness of the protections available and the duties imposed under equality legislation; the continued development of opportunities to embed equality policy and practice as a core value in Irish society; support for key positive action measures and their implementation and monitoring; new legislation to take account of EU developments; maintenance of a strong infrastructural framework to underpin the drive to eliminate discrimination, foster equal opportunity and support mainstreaming; and prioritising key statistical needs.
Key actions proposed include a review of the discriminatory grounds under the equality legislation. Furthermore, the government will bring the consultation process on the Disability Bill to a conclusion as soon as possible..
Section 13 of Sustaining Progress also includes a list of proposals in the equal opportunities area, including the continuation of the National Framework Committee for Equal Opportunities at the Level of the Enterprise. The work of the Committee will include: developing and disseminating practical support for the 'equal opportunities workplace'; supporting individual projects; and engaging with equality planning and equality reviews. The activities of the Committee will be supported by a specific budget.
Social partner response
What have been the views and policy response of the social partners to (a) the Directive and (b) its transposition into national law? How has social dialogue proceeded on the issues covered by the Directive? Have there been any collective agreements on the issues covered by the Directive since December 2000 in terms of age, disability, religion or belief, or sexual orientation (please give examples, including reasons and bases for introduction)?
At a seminar held in Dublin in 2001, the Irish Congress of Trade Unions (ICTU) called for various measures to extend the provisions of the Employment Equality Act 1998. Some of these measures, such as extending positive discrimination, will be included in the new Equality Bill (see above). Also at this seminar, a representative from the Irish Business and Employers Confederation (IBEC) stated that legislation had limitations in dealing with discrimination, suggesting that, although there is a need for legislation, it is a 'blunt instrument'. IBEC also suggested that the role of the education system in combating discrimination has been overlooked.
In terms of collective agreements, the issues covered by the Directive have been dealt with under national agreements - most recently in the current Sustaining Progress (see above). However, there are few company-level collective agreements embracing such issues in Ireland.
What has been the impact of any initiatives in your country in the areas covered by the Directive? Are there monitoring arrangements in place, and if so, what experiences do they report in response to the Directive?
The Employment Equality Act has undoubtedly had a significant impact in terms of tackling discrimination in Ireland. The work/caseload of the Equality Authority and the Equality Tribunal have increased substantially since their inception under the Act.
There was a 17% increase in the number of discrimination cases before the Equality Tribunal in 2002 – 1,298 complaints, compared with 1,114 in 2001. Of these, 89 cases (30 in 2001) were decided in favour of the complainant, and 104 (37 in 2001) in favour of the respondent. The number of employment-related claims increased by 19%, from 260 to 309. Significantly, however, gender cases declined markedly (down from 118 to 78), while employment cases relating to disability (up from 26 to 44), age (up from 27 to 43), and race (up from 27 to 43) rose markedly.
Meanwhile, during 2002, the Equality Authority dealt with a total of 1,284 case files, an increase of 19% on 2001. Of these cases, 489 related to the Employment Equality Act, with the rest relating to the Equal Status Act. Under the Employment Equality Act, gender discrimination remains the single biggest issue, and comprised 33% of casework, with pregnancy-related discrimination particularly common. There were about 100 cases on race discrimination grounds, accounting for 22% of employment-related casework. This was followed by discrimination on the disability ground, which accounted for 19% of employment cases. The Equality Authority states that, in 2002, a total of 10,978 people made enquiries seeking information about equality legislation, which represented a 10% increase on the previous year. (Tony Dobbins, IRN)