Religious Discrimination
Employment Equality Act
Part II S.6 to S.12 Part IV
REVISED
Updated to 7 March 2016
…..
Discrimination: General Provisions
Introductory
Discrimination for the purposes of this Act.
6.—F14[(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—
(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—
(i) exists,
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned,
(b) a person who is associated with another person—
(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and
(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.]
(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—
(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),
(b) that they are of different F15[civil status] (in this Act referred to as “the F15[civil status] ground”),
(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),
(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),
(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),
(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),
(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),
(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),
(i) that one is a member of the F16[Traveller] community and the other is not (in this Act referred to as “the F16[Traveller] community ground”).
F17[(2A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.]
F14[(3) (a) The age ground applies only in relation to persons above the maximum age at which a person is statutorily obliged to attend school.
(b) Notwithstanding subsection (1) and section 37(2), an employer may set a minimum age, not exceeding 18 years, for recruitment to a post.
F18[(c) Offering a fixed term contract to a person over the compulsory retirement age for that employment or to a particular class or description of employees in that employment shall not be taken as constituting discrimination on the age ground if—
(i) it is objectively and reasonably justified by a legitimate aim, and
(ii) the means of achieving that aim are appropriate and necessary.]
(d) Subsection (1)(b) of section 2 (exclusions) of the Unfair Dismissals Act 1977 is amended by deleting ‘or who on that date was a person to whom by reason of his age the Redundancy Payments Acts 1967 to 1973, did not apply’ and inserting ‘or who on that date had not attained the age of 16 years’.]
Annotations:
Amendments:
F14
Substituted (18.07.2004) by Equality Act 2004 (24/2004), s. 4(a) and (c), commenced on enactment.
F15
Substituted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 102(3), S.I. No. 648 of 2010.
F16
Substituted (25.10.2000) by Equal Status Act 2000 (8/2000), s. 39 and sch. para. (b), S.I. No. 351 of 2000.
F17
Inserted (18.07.2004) by Equality Act 2004 (24/2004), s. 4(b), commenced on enactment.
F18
Substituted (1.01.2016) by Equality (Miscellaneous Provisions) Act 2015 (43/2015), s. 4, S.I. No. 610 of 2015.
Like work.
7.—(1) Subject to subsection (2), for the purposes of this Act, in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if—
(a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work,
(b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or
(c) the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.
(2) In relation to the work which an agency worker is employed to do, no person except another agency worker may be regarded under subsection (1) as employed to do like work (and, accordingly, in relation to the work which a non-agency worker is employed to do, an agency worker may not be regarded as employed to do like work).
(3) In any case where—
(a) the remuneration received by one person (“the primary worker”) is less than the remuneration received by another (“the comparator”), and
(b) the work performed by the primary worker is greater in value than the work performed by the comparator, having regard to the matters mentioned in subsection (1)(c),
then, for the purposes of subsection (1)(c), the work performed by the primary worker shall be regarded as equal in value to the work performed by the comparator.
Annotations:
Modifications (not altering text):
C9
Application of section restricted (5.12.2011) by Protection of Employees (Temporary Agency Work) Act 2012 (13/2012), s. 9, commenced as per s. 1(2).
Restriction of certain enactments.
9.—The following provisions shall, in so far only as they are inconsistent with this Act, not apply to an agency worker to whom this Act applies:
(a) sections 7 and 8 of the Employment Equality Act 1998; and
…
Discrimination by employers etc.
8.—(1) In relation to—
(a) access to employment,
(b) conditions of employment,
(c) training or experience for or in relation to employment,
(d) promotion or re-grading, or
(e) classification of posts,
an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.
(2) For the purposes of this Act, neither an employer nor a provider of agency work shall be taken to discriminate against an agency worker unless (on one of the discriminatory grounds) that agency worker is treated less favourably than another agency worker is, has been or would be treated.
(3) In subsections (4) to (8), references to an employee include references to an agency worker and, in relation to such a worker, references to the employer include references to the provider of agency work.
(4) A person who is an employer shall not, in relation to employees or employment—
(a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or
(b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.
(5) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—
(a) in any arrangements the employer makes for the purpose of deciding to whom employment should be F19[offered,]
(b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not F19[materially different, or]
F20[(c) by publishing or displaying, or causing to be published or displayed, an advertisement which contravenes section 10(1) in so far as such advertisement relates to access to employment.]
(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—
(a) the same terms of employment (other than remuneration and pension rights),
(b) the same working conditions, and
(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,
as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.
(7) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to training or experience for, or in relation to, employment if, on any of the discriminatory grounds, the employer refuses to offer or afford to that employee the same opportunities or facilities for employment counselling, training (whether on or off the job) and work experience as the employer offers or affords to other employees, where the circumstances in which that employee and those other employees are employed are not materially different.
(8) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds—
(a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or
(b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.
Annotations:
Amendments:
F19
Substituted (1.01.2016) by Equality (Miscellaneous Provisions) Act 2015 (43/2015), s. 5(a) and (b), S.I. No. 610 of 2015.
F20
Inserted (1.01.2016) by Equality (Miscellaneous Provisions) Act 2015 (43/2015), s. 5(c), S.I. No. 610 of 2015.
Modifications (not altering text):
C10
Application of section restricted (5.12.2011) by Protection of Employees (Temporary Agency Work) Act 2012 (13/2012), s. 9, commenced as per s. 1(2).
Restriction of certain enactments.
9.—The following provisions shall, in so far only as they are inconsistent with this Act, not apply to an agency worker to whom this Act applies:
(a) sections 7 and 8 of the Employment Equality Act 1998; and
…
Editorial Notes:
E9
Power granted to Irish Human Rights and Equality Authority to serve an equality and human rights compliance notice on persons who have contravened or are contravening subs. (4) (1.11.2014) by Irish Human Rights and Equality Commission Act 2014 (25/2014), s. 36(1)(b), S.I. No. 449 of 2014.
Provisions in certain agreements and orders.
9.—(1) In a case where—
(a) an agreement or order to which this section applies contains a provision in which differences in rates of remuneration are based on any of the discriminatory grounds, and
(b) in relation to a person to whom the agreement or order relates, that provision conflicts with an equal remuneration term in that person’s contract of employment,
then, subject to subsection (4), that provision shall be null and void.
(2) If an agreement or order to which this section applies contains a provision which does not fall within subsection (1) but which gives rise to discrimination in relation to any of the matters in paragraphs (a) to (e) of section 8(1) then, subject to subsection (4), that provision shall be null and void.
(3) This section applies to the following agreements and orders, whether made before or after the coming into operation of this section:
(a) collective agreements;
(b) employment regulation orders, within the meaning of Part IV of the Industrial Relations Act, 1946; and
(c) registered employment agreements, within the meaning of Part III of that Act.
(4) In the case of a provision which—
(a) is contained in an agreement or order made before the coming into operation of this section, and
(b) is discriminatory on a ground other than the gender ground,
subsection (1) or, as the case may be, subsection (2) shall not apply until the first anniversary of the date on which this section comes into operation; and, accordingly, until that date, the equal remuneration term or equality clause in a person’s contract of employment shall not override any such provision of an agreement or order which relates to that person.
Advertising.
10.—(1) A person shall not publish or display, or cause to be published or displayed, an advertisement which relates to employment and which—
(a) indicates an intention to discriminate, or
(b) might reasonably be understood as indicating such an intention.
F21[(2) For the purposes of subsection (1), where in an advertisement a word or phrase is used defining or describing a post and the word or phrase is one which—
(a) connotes or refers to an individual of one sex or an individual having a characteristic mentioned in any of the discriminatory grounds (other than the gender ground), or
(b) is descriptive of, or refers to, a post or occupation of a kind previously held or carried on only by the members of one sex or individuals having such a characteristic,
then, unless the advertisement indicates a contrary intention, the advertisement shall be taken as indicating an intention to discriminate on whichever discriminatory ground is relevant in the circumstances.]
(3) Nothing in this section relates to an advertisement which, or to the extent to which it, specifies a requirement, restriction or other matter which relates to employment and which it would not be unlawful for the employer in question to impose, having regard to any other provision of this Part or of Part III or Part IV.
(4) A person who, with a view to securing publication or display of an advertisement in contravention of subsection (1), makes a statement knowing it to be false shall, upon such publication or display, be guilty of an offence.
(5) Without prejudice to subsection (4), if an advertisement is published or displayed and it appears to the High Court or the Circuit Court, on the motion of the Authority, that there are grounds for believing that publication or display of the advertisement may be in contravention of subsection (1), the court may grant an injunction preventing the appointment of any person to any post to which the advertisement relates until—
(a) the decision of the F22[Director General of the Workplace Relations Commission] on a contemporaneous reference under section 85 of the publication or display of the advertisement, or
(b) the court otherwise orders,
and, for the purpose of this subsection, a reference under section 85 shall be regarded as contemporaneous with a motion if it is made on the same day as the motion or not more than 14 days earlier or later.
(6) The jurisdiction conferred on the Circuit Court by subsection (5) shall be exercised by the judge for the time being assigned to the circuit where the person by whom the advertisement was published or displayed (or caused to be published or displayed) ordinarily resides or carries on any profession, business or occupation.
Annotations:
Amendments:
F21
Substituted (18.07.2004) by Equality Act 2004 (24/2004), s. 5, commenced on enactment.
F22
Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 83(1)(c)(ii), S.I. No. 410 of 2015, subject to transitional provision in subs. (2).
Editorial Notes:
E10
Power granted to Irish Human Rights and Equality Commission to serve an equality and human rights compliance notice on persons who have contravened or are contravening subs. (1) (1.11.2014) by Irish Human Rights and Equality Commission Act 2014 (25/2014), s. 36(1)(b), S.I. No. 449 of 2014.
Employment agencies.
11.—(1) Without prejudice to its obligations as an employer, an employment agency shall not discriminate against any person—
(a) who seeks the services of the agency to obtain employment with another person, or
(b) who seeks from the agency guidance as to a career or any other service (including training) related to the employment of that person.
(2) Subsection (1) does not apply to the extent that the employment in question is such that an employer could lawfully refuse to offer it to the person concerned.
(3) An employment agency shall not be under any liability under this section if it proves—
(a) that it acted in reliance on a statement made to it by the employer concerned to the effect that, by reason of the operation of subsection (2), its action would not be unlawful, and
(b) that it was reasonable for it to rely on the statement.
(4) An employer who, with a view to obtaining the services of an employment agency, knowingly makes such a statement as is referred to in subsection (3) (a) which is false or misleading in a material respect shall be guilty of an offence.
(5) Nothing in this Act shall make it unlawful for an employment agency to provide services exclusively for persons with disabilities or any class or description of such persons.
Annotations:
Modifications (not altering text):
C11
Application of section restricted (17.07.2014) by Social Welfare Consolidation Act 2005 (26/2005), s. 359B(4), as inserted by Social Welfare and Pensions Act 2014 (16/2014), s. 18(2), commenced on enactment.
[Discrimination on grounds of age in relation to employment schemes and other schemes and programmes
359B. —
…
(4) Section 11 of the Employment Equality Act 1998 shall not apply in relation to the performance by the Minister of his or her functions under this section.]
Vocational training.
12.—(1) Subject to subsection (7) any person, including an educational or training body, who offers a course of vocational training shall not, in respect of any such course offered to persons over the maximum age at which those persons are statutorily obliged to attend school, discriminate against a person (whether at the request of an employer, a trade union or a group of employers or trade unions or otherwise)—
(a) in the terms on which any such course or related facility is offered,
(b) by refusing or omitting to afford access to any such course or F23[facility,]
(c) in the manner in which any such course or facility is F23[provided, or]
F24[(d) by publishing or displaying, or causing to be published or displayed, an advertisement in contravention of section 10(1) in respect of any such course offered.]
(2) In this section “vocational training” means any system of instruction which enables a person being instructed to acquire, maintain, bring up to date or perfect the knowledge or technical capacity required for the carrying on of an occupational activity and which may be considered as exclusively concerned with training for such an activity.
(3) F25[…]
(4) For the purposes of ensuring the availability of nurses to hospitals and teachers to primary schools which are under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values, and in order to maintain the religious ethos of the hospitals or primary schools, the prohibition of discrimination in subsection (1), in so far as it relates to discrimination on the religion ground, shall not apply in respect of—
(a) the nomination of persons for admission to the School of Nursing pursuant to clause 24(4)(a) or (c) of the Adelaide Hospital Charter as substituted by paragraph 5(s) of the Health Act, 1970 (Section 76) (Adelaide and Meath Hospital, Dublin, incorporating the National Children’s Hospital) Order, 1996, or
(b) places in a vocational training course specified in an order made under subsection (5).
(5) Where an educational or training body applies to the Minister for Health and Children, in the case of hospitals, or to the Minister for Education and Science, in the case of primary schools, for an order permitting the body concerned to reserve places in a vocational training course offered by the body, the Minister for Health and Children or the Minister for Education and Science, as the case may be, may, with the consent of the Minister, by order allow the body to reserve places in such numbers as seem reasonably necessary to the Minister for Health and Children or the Minister for Education and Science, as the case may be, to meet the purposes set out in subsection (4).
(6) Without prejudice to section 3(1), an order under subsection (5) may be revoked by a further order made by the Minister for Health and Children or the Minister for Education and Science, as the case may be, with the like consent; but any such revocation order shall contain transitional provisions safeguarding any person who took advantage of the effect of the order when it was in force.
(7) F26[Without prejudice to section 3 of the Refugee Act, 1996, nothing in subsection (1)] shall make unlawful discrimination on the age ground or the ground of race in respect of any course of vocational training offered by F26[an educational] or training body where—
(a) it provides different treatment in relation to—
F27[(i) the fees for admission or attendance at any such course by persons who are citizens of Ireland, nationals of another Member State, nationals of the Swiss Confederation or nationals of a member state of the European Economic Area and persons who are not, or]
(ii) the allocation of places on any such course to those citizens or nationals, or
(b) it offers assistance to particular categories of persons by way of sponsorships, scholarships, bursaries or other awards, which assistance is reasonably justifiable, having regard to traditional or historical F26[considerations, or]
F28[(c) in the case of a university or other third-level institution, it provides different treatment in the allocation of places on any such course to mature students (within the meaning of the Local Authorities (Higher Education Grants) Acts, 1968 to 1992).]
F29[(8) In this section, ‘member state of the European Economic Area’ means a state that is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2 May 1992, as adjusted by all subsequent amendments to that Agreement.]
Annotations:
Amendments:
F23
Substituted (1.01.2016) by Equality (Miscellaneous Provisions) Act 2015 (43/2015), s. 6(a)(i) and (ii), S.I. No. 610 of 2015.
F24
Inserted (1.01.2016) by Equality (Miscellaneous Provisions) Act 2015 (43/2015), s. 6(a)(iii), S.I. No. 610 of 2015.
F25
Deleted (18.07.2004) by Equality Act 2004 (24/2004), s. 6, commenced on enactment.
F26
Substituted (25.10.2000) by Equal Status Act 2000 (8/2000), s. 39 and sch. para. (c)(i), S.I. No. 351 of 2000.
F27
Substituted (1.01.2016) by Equality (Miscellaneous Provisions) Act 2015 (43/2015), s. 6(b), S.I. No. 610 of 2015.
F28
Inserted (25.10.2000) by Equal Status Act 2000 (8/2000), s. 39 and sch. para. (c)(iii), S.I. No. 351 of 2000.
F29
Inserted (1.01.2016) by Equality (Miscellaneous Provisions) Act 2015 (43/2015), s. 6(c), S.I. No. 610 of 2015.
Editorial Notes:
E11
Power pursuant to section exercised (17.07.2013) by Employment Equality Acts 1998 to 2011 (section 12) (Church of Ireland College of Education) Order 2013 (S.I. No. 288 of 2013).
E12Previous affecting provision: power pursuant to section exercised (2.07.2008) by Employment Equality Act, 1998 (Section 12) (Church of Ireland C
Specific Provisions as to Equality Between Other Categories of Persons
The comparators.
28.—(1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows:
(a) in relation to the F51[civil status] ground, C and D have different F51[civil status];
(b) in relation to the family status ground, C has family status and D does not, or vice versa;
(c) in relation to the sexual orientation ground, C and D are of different sexual orientations;
(d) in relation to the religion ground, C and D have different religious beliefs or C has a religious belief and D does not, or vice versa;
(e) in relation to the age ground, C and D are of different ages;
(f) in relation to the disability ground, C is a person with a disability and D is not, or vice versa, or C and D are persons with different disabilities;
(g) in relation to the ground of race, C and D differ as to race, colour, nationality or ethnic or national origins or any combination of those factors;
(h) in relation to the F52[Traveller] community ground, C is a member of the F52[Traveller] community and D is not, or vice versa.
(2) In the following provisions of this Part, any reference to C and D which does not apply to a specific discriminatory ground shall be treated as a reference to C and D in the context of each of the discriminatory grounds (other than the gender ground) considered separately.
(3) Any reference in this Act to persons having the same relevant characteristic as C (or as D) shall be construed by reference to the discriminatory ground in relation to which the reference applies or, as the case may be, in relation to each of the discriminatory grounds (other than the gender ground) separately, so that—
(a) in relation to the F51[civil status] ground, the relevant characteristic is having the same F51[civil status] as C (or, as the case may be, as D), and
(b) in relation to the family status ground, the relevant characteristic is having the same, or the same lack of, family status as C (or, as the case may be, as D),
and so on for each of the other discriminatory grounds.
Annotations:
Amendments:
F51
Substituted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 102(3), S.I. No. 648 of 2010.
F52
Substituted (25.10.2000) by Equal Status Act 2000 (8/2000), s. 39 and sch. para. (d), S.I. No. 351 of 2000.
Entitlement to equal remuneration.
29.—(1) It shall be a term of the contract under which C is employed that, subject to this Act, C shall at any time be entitled to the same rate of remuneration for the work which C is employed to do as D who, at that or any other relevant time, is employed to do like work by the same or an associated employer.
(2) For the purposes of subsection (1), in relation to a particular time, a relevant time is any time (on or after the commencement of this section) which falls during the 3 years which precede, or the 3 years which follow, the particular time.
(3) For the purposes of this Part, where D’s employer is an associated employer of C’s employer, C and D shall not be regarded as employed to do like work unless they both have the same or reasonably comparable terms and conditions of employment.
F53[(4) Section 19(4) applies in relation to C and D as it applies in relation to A and B, with the modification that the reference in it to persons of a particular gender (being As or Bs) is a reference to persons (being Cs or Ds) who differ in a respect mentioned in any paragraph of section 28(1) and with any other necessary modifications.]
(5) Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees.
Annotations:
Amendments:
F53
Substituted (18.07.2004) by Equality Act 2004 (24/2004), s. 19, commenced on enactment.
Equality clause relating to non-gender issues.
30.—(1) If and so far as the terms of a contract of employment do not include (expressly or by reference to a collective agreement or otherwise) a non-discriminatory equality clause, they shall be taken to include one.
(2) A non-discriminatory equality clause is a provision relating to the terms of a contract of employment, other than a term relating to remuneration or pension rights, which has the effect that if—
(a) C is employed in circumstances where the work done by C is not materially different from that done by D in the same employment, and
(b) at any time C’s contract of employment would (but for the non-discriminatory equality clause)—
(i) contain a term which is or becomes less favourable to C than a term of a similar kind in D’s contract of employment, or
(ii) not include a term corresponding to a term in D’s contract of employment which benefits D,
then the terms of C’s contract of employment shall be treated as modified so that the term in question is not less favourable to C or, as the case may be, so that they include a similar term benefiting C.
(3) A non-discriminatory equality clause shall not operate in relation to a difference between C’s contract of employment and D’s contract of employment if the employer proves that the difference is genuinely based on grounds which are not among those specified in paragraphs (a) to (h) of section 28(1).
(4) Without prejudice to the generality of section 8(1), where a person offers C employment on certain terms and, were C to accept the offer on those terms, the non-discriminatory equality clause in C’s contract of employment would have the effect of modifying the terms in either of the ways specified in subsection (2), the making of the offer shall be taken to amount to discrimination against C in relation to C’s conditions of employment on whichever of the discriminatory grounds is (or are) relevant to the difference (or differences) between C and D.
Indirect discrimination.
31.—F54[(1) Subsections (1) and (1A) (inserted by section 13 of the Equality Act 2004) of section 22 apply, in relation to C and D as they apply in relation to A and B, with the modification that the reference in subsection (1) to persons of a particular gender (being As or Bs) is a reference to persons (being Cs or Ds) who differ in a respect mentioned in any paragraph of section 28(1) and with any other necessary modifications.]
(2) F55[…]
(3) Subsection (1) shall apply with the necessary modifications in relation to—
(a) the provision of any such services of an employment agency as are referred to in paragraphs (a) and (b) of section 11(1),
(b) participation in any such course or facility as is referred to in paragraphs (a) to (c) of section 12(1).
(4) Subsection (3) of section 8 applies for the purposes of subsection (1) and, in so far as it relates to an employer, subsection (5) as it applies for the purposes of subsections (4) to (8) of that section.
(5) If a provision is such that, apart from this subsection, an employer or regulatory body would be regarded—
(a) by virtue of subsection (1)F56[…], as discriminating against an individual on the F57[civil status] ground or the family status ground, and
(b) by virtue of section 22, also as discriminating against the same individual on the gender ground,
the employer or regulatory body shall not be regarded as discriminating against that individual by virtue of subsection (1)F56[…].
Annotations:
Amendments:
F54
Substituted (18.07.2004) by Equality Act 2004 (24/2004), s. 20(a), commenced on enactment.
F55
Deleted (18.07.2004) by Equality Act 2004 (24/2004), s. 20(a), commenced on enactment.
F56
Deleted (18.07.2004) by Equality Act 2004 (24/2004), s. 20(b), commenced on enactment.
F57
Substituted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 102(3), S.I. No. 648 of 2010.
Harassment in the workplace etc.
32.—F58[…]
Annotations:
Amendments:
F58
Repealed (18.07.2004) by Equality Act 2004 (24/2004), s. 21, commenced on enactment.
Positive action permitted.
F59[33.—Nothing in this Part or Part II shall render unlawful measures maintained or adopted with a view to ensuring full equality in practice between employees, being measures—
(a) to prevent or compensate for disadvantages linked to any of the discriminatory grounds (other than the gender ground),
(b) to protect the health or safety at work of persons with a disability, or
(c) to create or maintain facilities for safeguarding or promoting the integration of such persons into the working environment.]
Annotations:
Amendments:
F59
Substituted (18.072004) by Equality Act 2004 (24/2004), s. 22, commenced on enactment.
Modifications (not altering text):
Editorial Notes:
E20
Previous affecting provision: word “traveller” in subs. (1)(c) capitalised (25.10.2000) by Equal Status Act 2000 (8/2000), s. 39 and sch. para. (e), S.I. No. 351 of 2000; superseded as per F-note above.
Savings and exceptions related to the family, age or disability.
34.—(1) In relation to the discriminatory grounds specified in paragraphs (a) to (h) of section 28(1), nothing in this Part or Part II shall make it unlawful for an employer to provide—
(a) a benefit to an employee in respect of events related to members of the employee’s family or any description of those members,
(b) a benefit to or in respect of a person as a member of an employee’s family,
(c) a benefit to an employee on or by reference to an event occasioning a change in the F60[civil status] of the employee, or
(d) to an employee who has family status a benefit intended directly to provide or assist in the provision, during working hours, of care for a person for whom the employee has responsibility as mentioned in paragraphs (a) and (b) of the definition of “family status” in section 2(1).
(2) In subsection (1)“employer” includes an employment agency, a person offering a course of vocational training as mentioned in section 12(1) and a regulatory body; and accordingly references to an employee include—
(a) a person seeking or using any service provided by the employment agency,
(b) a person participating in any such course or facility as is referred to in paragraphs (a) to (c) of section 12(1), and
(c) a person who is a member of the regulatory body.
F61[(3) In an occupational benefits scheme it shall not constitute discrimination on the age ground for an employer—
(a) to fix ages for admission to such a scheme or for entitlement to benefits under it,
(b) to fix different such ages for all employees or a category of employees,
(c) to use, in the context of such a scheme, age criteria in actuarial calculations, or
(d) to provide different rates of severance payment for different employees or groups or categories of employees, being rates based on or taking into account the period between the age of an employee on leaving the employment and his or her compulsory retirement age,
provided that that does not constitute discrimination on the gender ground.]
F62[(3A) In subsection (3)—
‘occupational benefits scheme’ includes any scheme (whether statutory or non-statutory) providing for benefits to employees or any category of employees on their becoming ill, incapacitated or redundant but does not include any occupational pension scheme providing for pensions, gratuities or other allowances payable on retirement or death;
‘severance payment’ means a sum paid voluntarily by an employer to an employee otherwise than as pay when the employee leaves the employment.]
F63[(4) Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees if—
(a) it is objectively and reasonably justified by a legitimate aim, and
(b) the means of achieving that aim are appropriate and necessary.]
(5) Without prejudice to the generality of subsection (3), it shall not constitute discrimination on the age ground to set, in relation to any job, a maximum age for recruitment which takes account of—
(a) any cost or period of time involved in training a recruit to a standard at which the recruit will be effective in that job, and
(b) the need for there to be a reasonable period of time prior to retirement age during which the recruit will be effective in that job.
(6) Where immediately before the relevant day, arrangements are in force in any employment for age-related remuneration, it shall be a sufficient compliance with this Part and Part II if those arrangements are brought to an end within the period of 3 years beginning on the relevant day.
(7) It shall not constitute discrimination on the age ground for an employer to provide for different persons—
(a) different rates of remuneration, or
(b) different terms and conditions of employment,
if the difference is based on their relative seniority (or length of service) in a particular post or employment.
F62[(7A) Nothing in this Act invalidates any term in a collective agreement, whenever made, to the effect that in particular circumstances, where length of service would otherwise be regarded as equal, seniority in a particular post or employment may be determined by reference to the relative ages of employees on their entry to that post or employment.]
(8) In this section “the relevant day” means the day appointed for the coming into operation of section 29.
Annotations:
Amendments:
F60
Substituted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 102(3), S.I. No. 648 of 2010.
F61
Substituted (18.07.2004) by Equality Act 2004 (24/2004) s. 23(a), commenced on enactment.
F62
Inserted (18.07.2004) by Equality Act 2004 (24/2004) s. 23(a) and (b), commenced on enactment.
F63
Substituted (1.01.2016) by Equality (Miscellaneous Provisions) Act 2015 (43/2015), s. 10, S.I. No. 610 of 2015.
Special provisions related to persons with disabilities.
35.—F64[(1) Nothing in this Part or Part II shall make it unlawful for an employer to provide, for an employee with a disability, a particular rate of remuneration for work of a particular description if, by reason of the disability, the amount of that work done by the employee during a particular period is less than the amount of similar work done, or which could reasonably be expected to be done, during that period by an employee without the disability.]
(2) Nothing in this Part or Part II shall make it unlawful for an employer or any other person to provide, for a person with a disability, special treatment or facilities where the provision of that treatment or those facilities—
(a) enables or assists that person to undertake vocational training, to take part in a selection process or to work, or
(b) provides that person with a training or working environment suited to the disability, or
(c) otherwise assists that person in relation to vocational training or work.
(3) Where, by virtue of subsection (1) or (2), D, as a person with a disability, receives a particular rate of remuneration or, as the case may be, special treatment or facilities, C, as a person without a disability, or with a different disability, shall not be entitled under this Act to that rate of remuneration, that treatment or those facilities.
F65[(4) References in this section to a particular rate of remuneration are to a rate of remuneration which is not below the minimum rate to which the employee concerned is entitled under the National Minimum Wage Act 2000.]
Annotations:
Amendments:
F64
Substituted (18.07.2004) by Equality Act 2004 (24/2004), s. 24(a), commenced on enactment.
F65
Inserted (18.07.2004) by Equality Act 2004 (24/2004), s. 24(b), commenced on enactment.
Imposition of certain requirements to be lawful.
36.—(1) Nothing in this Part or Part II shall make unlawful the application of any provision (whether in the nature of a requirement, practice or otherwise) such as is mentioned in subsection (2) with respect to—
(a) holding office under, or in the service of, the State (including the Garda Síochána and the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956, or
(b) officers or servants of a local authority, for the purposes of the Local Government Act, 1941, a harbour authority F66[or a health board or a member of staff of an education and training board].
(2) The provisions referred to in subsection (1) are those relating to all or any of the following:
(a) residence;
(b) citizenship;
(c) proficiency in the Irish language.
(3) Nothing in this Part or Part II shall make unlawful the application of any provision (whether in the nature of a requirement, practice or otherwise) in relation to proficiency in the Irish language with respect to teachers in primary and post-primary schools.
(4) Nothing in this Part or Part II shall make it unlawful to require, in relation to a particular post—
(a) the holding of a specified educational, technical or professional qualification which is a generally accepted qualification in the State for posts of that description, or
(b) the production and evaluation of information about any qualification other than such a specified qualification.
(5) Nothing in this Part or Part II shall make it unlawful for a body controlling the entry to, or carrying on of, a profession, vocation or occupation to require a person carrying on or wishing to enter that profession, vocation or occupation to hold a specified educational, technical or other qualification which is appropriate in the circumstances.
(6) Nothing in this section shall render lawful discrimination on the gender ground.
Annotations:
Amendments:
F66
Substituted (1.07.2013) by Education and Training Boards Act 2013 (11/2013), s. 72 and sch. 6 item 25, S.I. No. 211 of 2013.
Exclusion of discrimination on particular grounds in certain employments.
37.—(1) F67[Subject to subsections (1A) and (1B), a religious, educational or medical institution] which is under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values shall not be taken to discriminate against a person for the purposes of this Part or Part II if—
(a) it gives more favourable treatment, on the religion ground, to an employee or a prospective employee over that person where it is reasonable to do so in order to maintain the religious ethos of the institution, or
(b) it takes action which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution.
F68[(1A) Where an educational or medical institution referred to in subsection (1) is maintained, in whole or in part, by monies provided by the Oireachtas more favourable treatment on the religion ground referred to in paragraph (a) of that subsection shall be taken to be discrimination unless—
(a) that treatment does not constitute discrimination on any of the other discriminatory grounds, and
(b) by reason of the nature of the institution’s activities or the context in which the activities are being carried out, the religion or belief of the employee or prospective employee constitutes a genuine, legitimate and justified occupational requirement having regard to the institution’s ethos.]
F68[(1B) Where an educational or medical institution referred to subsection (1) is maintained, in whole or in part, by monies provided by the Oireachtas, action of the type referred to in paragraph (b) of that subsection shall be taken to be discrimination unless by reason of the nature of the employment concerned or the context in which it is carried out—
(a) the action is objectively justified by the institution’s aim of preventing the undermining of the religious ethos of the institution, and
(b) the means of achieving that aim are appropriate and necessary.]
F68[(1C) An action referred to in subsection (1B) shall not be objectively justified in accordance with paragraph (a) of that subsection, or appropriate and necessary in accordance with paragraph (b) of that subsection, unless the action of the institution is—
(a) rationally and strictly related to the institution’s religious ethos,
(b) a response to conduct of the employee or prospective employee undermining the religious ethos of the institution rather than a response to that employee’s, or prospective employee’s, gender, civil status, family status, sexual orientation, age, disability, race or membership of the Traveller community, and
(c) proportionate to the conduct of the employee or prospective employee, as the case may be, having due regard to—
(i) any other action the employer may take in the circumstances,
(ii) the consequences of that action for that employee or prospective employee,
(iii) the employee’s or prospective employee’s right to privacy, and
(iv) the actual damage caused to the religious ethos of the institution by the conduct of that employee or prospective employee.]
F69[(2) For the purposes of this Part a difference of treatment which is based on a characteristic related to any of the discriminatory grounds (except the gender ground) shall not constitute discrimination where, by reason of the particular occupational activities concerned or of the context in which they are carried out—
(a) the characteristic constitutes a genuine and determining occupational requirement, and
(b) the objective is legitimate and the requirement proportionate.
(3) It is an occupational requirement for employment in the Garda Síochána, prison service or any emergency service that persons employed therein are fully competent and available to undertake, and fully capable of undertaking, the range of functions that they may be called upon to perform so that the operational capacity of the Garda Síochána or the service concerned may be preserved.
(4) If—
(a) the Minister is of opinion that the age profile of members of the Garda Síochána, prison service or any emergency service is such that its operational capacity is or is likely to be adversely affected, and
(b) he or she by order so declares,
the age ground shall not apply in relation to such competitions for recruitment to that service as are specified in the order.
(5) In relation to discrimination on the age ground or disability ground, nothing in this Part or Part II applies in relation to employment in the Defence Forces.
(6) In subsection (4)(a) the reference to the Minister, in relation to an emergency service, is a reference to the Minister of the Government with official functions in regard to that service.]
Annotations:
Amendments:
F67
Substituted (1.01.2016) by Equality (Miscellaneous Provisions) Act 2015 (43/2015), s. 11(a), S.I. No. 610 of 2015.
F68
Inserted (1.01.2016) by Equality (Miscellaneous Provisions) Act 2015 (43/2015), s. 11(a), S.I. No. 610 of 2015.
F69
Substituted (18.07.2004) by Equality Act 2004 (24/2004), s. 25, commenced on enactment.
The text in italics on this page is sourced from lawreform.ie and is re-published under the Licence for Re-Use of Public Sector Information made pursuant to Directive 2003/98/EC Directive 2013/37/EU of the European Parliament and of the Council on the re-use of public sector information transposed into Irish law by the European Communities (Re-Use of Public Sector Information) Regulations 2005 to 2015.