Gender discrimination from the legal perspective INTO Conference 01 October 2016 Anne Lyne, Partner, Hayes solicitors

What I will be covering this morning? 1 A brief introduction to the law - Employment Equality Acts 1998-2015 What is gender discrimination? Workshop exercises and case law

What are the aims of Gender Equality Law? 2 To ensure equality between genders as regards treatment, opportunities, and economic achievements in workplace To increase diversity and greater engagement of women in the workforce To ensure equal pay for equal work Protection of Leave entitlements maternity, paternity, parental, carer’s

Irish Employment Equality Law 3 Equality legislation was first introduced in Ireland in 1974 with Equal Pay Act being introduced following our joining the EEC The current Employment Equality Acts came into force in in October 1999

Irish Employment Equality Law 4 The Acts prohibits employers from: Discriminating Harassing; or Victimising prospective or current employees on nine grounds (including gender)

9 Grounds of Discrimination 5 Gender Civil status Family status Sexual orientation Race Religion Age Disability Membership of the Traveller Community

Irish Employment Equality Law 6 The Acts are very specific: The fact that someone is “mean” or “rude” to you does not give you protection under the Acts In order to be protected the act must come under one of the protected grounds

What is Gender Discrimination? 7 An employee is said to be discriminated against on grounds of gender if he/she is treated less favourably than another is, has been or would be treated in a comparable situation

Discrimination – continued 8 You may bring a claim alleging that you have been discriminated against on the grounds that you are a man, woman or transsexual The European Court of Justice in P v S and Cornwall Council (1996) held that discrimination against a transsexual person constituted discrimination on the gender ground.

Discrimination – continued 9 Discrimination can be direct or indirect Need to identify a comparator Gender discrimination claims may be brought directly to the Circuit Court where there is no cap on the monies that may be awarded by way of compensation. Claims on all other grounds must be initiated before the Workplace Relations Commission (“the WRC”).

Direct Discrimination 10 Occurs when someone is treated less favourably than another person because of a protected characteristic i.e. their gender Acteristi E.g. A school advertises for the position of a female only Principal – this is clearly discrimination against male candidates

Indirect Discrimination 11 When practices/policies that do not appear to discriminate against one group more than another actually have a discriminatory impact. Instances of indirect discrimination are less obvious and are more difficult to establish E.g. a work roster which provides that employees must work night shifts every second week or ad hoc could be said to indirectly discriminatory against women on the grounds of gender and/or family status.

Harassment As defined by Irish Employment Equality law: 12 As defined by Irish Employment Equality law: Harassment = any form of unwanted conduct related to any of the 9 grounds Sexual Harassment = any form of unwanted verbal, non-verbal or physical conduct of a sexual nature Harassment or Sexual Harassment can include acts, requests, words, gestures, display or circulation of written material, text messages etc.

Harassment 13 Look at the conduct from point of view of the recipient – subjective definition. The Equality Tribunal has pointed out that it is the effect on the recipient rather than the intention of the perpetrator which is most important. Equality Tribunal will however take into account the broader picture. Usually has to happen more than once

Victimisation 14 Defined in very broad terms under Employment Equality Acts Essentially occurs where an employee is dismissed or otherwise badly treated by his/her employer and this occurs as a reaction to some action the employee has taken, for example, if the employee is badly treated following the making of a complaint of discrimination

Irish Employment Equality Law 15 On any of the 9 grounds the Acts prohibits employers from treating an employee less favourably : Getting a job promotions training conditions of employment dismissal

Principle of Vicarious Liability 16 Essentially means that an employer can be held liable for the wrongdoing(s) of employees Principle kicks in once it can be shown that the wrongdoing was committed by an employee under the control of the employer and that the actions were within the scope of that control Under the Employment Equality Acts 1998-2015, employers will be vicariously liable for discriminatory acts of employees whether such acts are done with or without the employer’s knowledge or consent However, employers can avoid liability where they can prove that they took reasonable steps to prevent the discriminatory act e.g. proof that the employer had appropriate policies in place to deal with instances of discrimination, whether staff received training etc.

Please refer to handout for further discussions. Workshop Exercise 17 Please refer to handout for further discussions. .