Employment Discrimination Update: The Equality (Miscellaneous Provisions) Act 2015

The Equality (Miscellaneous Provisions) Act 2015 came into effect from 1st January 2016 and has brought with it new protections against discrimination in the workplace. The Act makes a number of significant amendments to the Employment Equality Act 1998 in the areas of retirement and age discrimination, discrimination by religious, medical and educational institutions on religious grounds,  and indirect discrimination.

Retirement and Age Discrimination

Section 4 of the new Act amends S. 6(3)(c) of the Employment Equality Act and deals with offers of fixed term contracts to persons over the compulsory retirement age. The new provisions state that such offers will not constitute age discrimination only if the offer is (a) objectively justified by a legitimate aim, and (b) the means of achieving this aim are appropriate and necessary. These safeguards bring Irish legislation closer to the framework agreement on fixed term work of Directive 1990/70/EC and are in line with case law from the European Court of Justice such as Mangold v Helm (2005) C-144/04, where it was held that national legislation that takes the age of an employee as the only criterion for the application of a fixed-term contract should be struck down where the differential treatment based on age has not been shown to be objectively necessary for the attainment of a legitimate objective.

Section 10 of the Act amends S. 34(4) of the Employment Equality Act by providing that the fixing of different retirement ages must be objectively justified if it is to avoid being considered age discrimination. Such measures must be justified by a legitimate aim and the means of achieving this aim must be appropriate and necessary.  Again, this brings Irish law closer to the EU position as outlined in Directive 2000/78/EC. As recognised in  Palacios de la Villa v Cortefiel Servicios SA (2007) C-411/05, this position still permits broad discretion in setting national policy on compulsory retirement ages as the encouragement of recruitment is undoubtedly a legitimate aim given the demands of the labour market and the aims of the EU and EC. However, if an employer wants to include a compulsory retirement clause in an employment contract they are now explicitly obliged to justify this or else be open to charges of age discrimination.

Discrimination and Religious, Educational and Medical Institutions

Section 37 of the Employment Equality Act provides for an exemption in the case of religious, educational and medical institutions by permitting discrimination towards employees and prospective employees in order to protect the religious ethos of the institution. The new Act has not abolished this exemption but it has constrained its application somewhat in the case of publicly funded institutions through the insertion of S. 37(1A-1C).  For the exemption to apply to such  institutions, there must be no other discriminatory ground (such as gender or race) on which the differential treatment would constitute discrimination, and  the differential treatment must be objectively justified . The proportionality test set out in S. 37(1C) will govern the standard of what is considered justified in this regard. Any action to protect the institution’s ethos will not be considered objectively justified, appropriate and necessary unless it is (a) rationally and strictly related to the institution’s religious ethos, (b) in response to conduct of the prospective employee rather than membership of another protected category, and (c) proportionate to their conduct.

Indirect Discrimination    

Section 9 of the Act amends the definition of indirect discrimination at S. 22 of the Employment Equality Act to refer to where an apparently neutral provision “would put”, rather than “puts”, a person at a particular disadvantage (e.g. with regard to equal pay, gender grounds). This small but significant change in the wording from “puts” to “would put” will allow a court to make hypothetical comparisons to determine whether or not a clause in an employment contract constitutes indirect discrimination, rather than being confined to considering whether in reality the clause is discriminatory in effect, as previously was the case.

The 2015 Act would appear to create space for numerous additional cases in this area of employment law. If you have any queries in relation to these new provisions or believe you have you have been discriminated against at the hands of an employer, you should contact our offices without delay.

Patrick McNestry

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