Oriel Recruitment

Combatting workplace bias
Gavin Miller presents an overview of the ins and outs of the various laws that protect workers from discrimination on a range of grounds.

Ten years on from the introduction of the Employment Equality Act in 1998, discrimination in the workplace soil appears to be a serious ongoing concern. Employment equality claims increased by 44% in the Equality Tribunal last year, rising from 448 to 667. With gender
discrimination now accounting for only 12% of claims, it seems that this area of law is beginning to reflect the rapid
transformation that Irish society has undergone over the past few years as issues of race and age come to the fore.

Nearly half (307) of the overall complaints arose from racial discrimination while there has been a significant rise in age-related case in the first six months of 2008 compared to 2007. The most recent Equality Authority report makes for similar reading. It opened 360 files relating to employment equality in 2007 with the age and race grounds again being key factors.

The effects of immigration, increased life expectancy and a greater awareness of legal rights should be a significant source of employment equality litigation in the future. This was already seen over the summer when a number of senior Gardai challenged their compulsory retirement age of 60 along with the high-profile case of an English pipe-fitter awarded €20,000 after bring subjected to anti-English abuse and harassment by fellow Irish workers. With approximately €460,000 awarded in compensation overall last year (averaging €14,43l per case), this is a topic to which companies would be well- advised to pay attention.

An employer cannot discriminate against an employee or prospective employee in relation to: (a) access to employment, (b) conditions of employment, (c) training or experience in relation to employment, (d) promotion or regrading or (e) classification of posts. The Employment Equality Act, which was subsequently amended by the Equal Status Acts 2000 and 2004, also prohibits discrimination against a person on the basis of their association with another person

Less favorable treatment
The legal definition of discrimination at work requires that a person be treated less favorably than another in a comparable situation on any of nine specified discriminatory grounds. These are gender, marital status, family status, sexual orientation, religion, age, disability, race (colour, nationality, ethnic or national origin) or membership of the Traveller community. EU case law has also held that discrimination involves different rules being applied to comparable situations or the application of the same rules to different situations. In other words, discrimination can occur when a worker is treated differently and not just less favorably.

 
There are four different types of discrimination—, direct, indirect, harassment and victimisation. As direct discrimination requires less favorable treatment than another employee, a suitable comparator must be found to establish the difference in treatment. This individual will have the some characteristics as the complainant (apart from not falling into one of else discriminatory grounds) such on similar work experience or qualifications. However, the comparator does sot have to bean actual person and a hypothetical example can be used.

Where discrimination in relation to pay is alleged, the comparator must he doing like work. ‘Like work” is considered to be the same work performed under similar conditions or interchangeable work which is of a similar nature to that of the other and  any differences are of small importance in relation to the work as a whole. The work performed should also be equal in value to that of the other, having regard to skill or physical requirements, responsibility or working conditions.

Finally, it is important to note that it is not sufficient to show, for example, that an interview panel was biased or acted improperly. The key issue is whether or not the person was treated less favorably than another interviewee.

Indirect discrimination
Indirect discrimination is more complicated as it involves the use of an apparently neutral provision which puts certain individuals at a particular disadvantage compared to other employees. Under the Act, such a provision will only be permitted if it can be objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. An employer will need to show that the criteria are not only a real requirement of the job (ie legitimate) but that the consequences of their application do not disproportionately affect certain groups (ie they are appropriate and necessary). Since the employer is also treated as discriminating unless the above test is met, this section of legislation which was introduced in 2004 is now more favorable to workers than what was enacted originally. Statistics are also admissible for the purpose of determining whether the neutral provision is adversely affecting members of a particular group which falls under one of the discriminatory grounds.

The Act provides that any person who suffers harassment or sexual harassment in the course of their employment is considered to have suffered discrimination. Further, an employee who suffers adverse treatment or is dismissed by their employer as a reaction to a complaint of discrimination can seek redress for victimisation in the same way as those who suffered discrimination.

Separate and independent of the Equality Tribunal, the Equality Authority is responsible for enforcing laws relating to job advertising, It is unlawful to publish any employment advertisement which indicates an intention to discriminate or which might reasonably be understood as indicating such at intention.
Once a complainant makes a prima facie case in relation to the facts of the alleged discrimination, the burden of proof switches to the employer. It is then presumed there has been discrimination and it is up to the employer to prove the contrary. On the basis that just under half (42%) of all cases resulted in decision in favour of complainants last year, this is clearly something employers are struggling to do,

Statutory defences
Lawful discrimination is permitted in certain situations under the legislation. Male and females can be excluded from certain jobs where the characteristics relating to gender constitute a genuine and determining occupational requirement for the post and the objective is legitimate and the requirement proportionate. Jobs in entertainment would be a good example of this. Similarly, where a characteristic relating to a discriminatory ground is a genuine occupational requirement, differences in treatment are permitted. A company requiring a salesman in Iran could probably exclude Jewish applicants under this provision.

Religious, educational or medical institutions which promote certain religions values are permitted to give more favorable treatment to an employee or prospective employee to maintain or prevent the undermining of the religious ethos of the institution. A person who is employed in a private home supplying personal services does not come under the definition of an employee for the purposes of the employment equality legislation. Certain positions within An Garda Siochana and the prison services are excluded from the Act such as those relating to controlling violent individuals, quelling disturbances or which are in the interests of privacy or decency.

Age discrimination is permitted its the workplace on quite broad grounds. An employer can fix different ages for the voluntary or compulsory retirement of employees or certain categories of employees.

The law also allows the setting of a maximum age for the recruitment of workers which takes into account the cost and period of time involved in training the recruit and the need for there to be a reasonable period of time prior to retirement age for the recruit to be effective in that job. While the European Court of Justice recently upheld the validity of compulsory retirement age in a Spanish case called “Palacios”, the judgment is also authority for the fact that these discriminatory measures must be justified objectively and reasonably.

Given the increasing desire for some employees to continue to work into their late 60s and even 70s, it is likely we will see further challenges to the rationale behind other mandatory retirement policies in the future.