Work & Gender

You are protected by law if you are:

• a full-time, part-time and temporary employee;
• a public or private sector employee;
• a self-employed contractor or partner in a partnership;
• an office-holder in state or local authorities
• seeking work through employment agencies;
• a trainee doing vocational training;
• a member of a trade organisation, union or a professional body;
• doing paid work experience.

Note: volunteers are not covered.

The law covers many types of situations, such as:

• job advertising and access to employment (e.g. interviews);
• terms and conditions of employment, such as equal pay;
• promotion, dismissal, classification and re-grading of posts;
• pensions and retirement;
• collective agreements, for example through a union.

The Employment Equality Acts provide for equal pay for like work.

'Like work' is defined as work that is the same, similar or work of equal value.

It is a term of everyone’s contract of employment that there is an entitlement to equal pay. Equal pay claims can be taken on any of the nine specified grounds (Age, Civil Status, Disability, Family Status, Gender, Membership of the Traveller Community, Race, Religion, Sexual Orientation).

What does equal pay mean?

The EEA refer to ‘remuneration’, which is broader than ‘pay’. It is defined in section 2(1) EEA as including ‘any consideration, whether in cash or in kind, which the employee receives, directly or indirectly, from the employer in respect of the employment…’.

The definition is wide and includes, for example, allowances, bonuses and eligibility for same, performance payments, and non-cash benefits such as cars and mobile phones.

What is like work?

Under section 7 (1) EEA 'like work' is work that:

1. is performed in the same or similar conditions as another employee, oris interchangeable with the work of another employee, or
2. is of equal value to the work performed by another employee.

The equal value provision allows dissimilar jobs to be compared and to be considered 'like work'.

What must I establish to take an equal pay case?

The onus of proof is on the person making the complaint to establish the basic facts. The person must identify a comparator with whom they are performing like work. A comparator is another person employed by the same or an associated employer.

They must also establish the discriminatory ground, and the pay differential. If these elements can be established, the employer must then demonstrate that the difference in pay is on grounds other than a discriminatory ground.

Therefore, no time limit for equal pay claims is provided in the EEA and so the six-year limitation period provided under the Statute of Limitations 1957 in respect of breach of contract is the appropriate time limit.

A claim for equal pay must be made within six years of the disparity in pay.

Employers have to ensure that hiring requirements and interviews do not discriminate against people, even unintentionally.

Example An employer refuses to hire a woman saying that she is not physically able for the job.

Example An employer refuses to hire a transgender woman saying that she would make customers uncomfortable.

Example An employer refuses to hire a man to work in childcare facilities.

Certain questions asked at interview or during the selection process can also be discriminatory.

Legitimate aim

Employers have to show that every condition of employment is justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary. However, employers should ensure that any qualities required of an employee are clearly linked to the job in question.

Transparency

Employers should be able to show that there was no discrimination at any point of the hiring process. An employer may be discriminating against you if there is a lack of transparency in the process, such as unclear selection criteria.

Good practices include:

• Interview and selection procedures are clear and transparent, and comply with the organisation's policies;
• Interview notes and minutes are retained;
• Members of the interview panel are independent of the employer, have extensive experience and are trained in the requirements of anti-discrimination law;
• A pre-interview meeting is held at which the panel draws up questions relating to key areas;
• Marks are allocated for critical attributes required for the duties of the position based on objective pre-determined criteria;
• People with disabilities are reasonably accommodated to allow them apply for the job. For example, providing suitable technology for an interview.

All of the criteria in relation to hiring, selection, interview applies equally to internal promotion.

Discrimination will occur when an employer omits to offer an employee access to promotion opportunities in the same manner as other eligible employees.

Employers cannot dismiss you because of your gender.

Constructive dismissal happens when an employers feels forced to resign after their employer makes their work-life difficult. If you believe this is discrimination connected your gender (as a protected ground) you may be able to make a complaint under equality law.

Employers are allowed to fix different ages for the retirement, whether voluntarily or compulsorily, of employees.

They can also offer a fixed-term contract to a person, or group of persons, over the compulsory retirement age.

To do so, employers must show that these actions are:

1.  Objectively justified by a legitimate aim, and
2.  The means of achieving that aim are appropriate and necessary.

Some examples successfully used by employers include:

• Inter-generational fairness (allowing younger workers to progress);
• Creation of a balanced age structure in the workforce; and
• Health and safety.

Example: In one case an employer successfully demonstrated that the retirement age of 65 was objectively justified and pursued a legitimate aim where it sought “to create certainty and business planning and to encourage staff morale by using the available job created by retirement as an internal promotional opportunity”.

Example: In another case an employer failed to demonstrate that their aim was necessary and appropriate. An employee was awarded €24,000 when the Equality Tribunal found that their employer failed to objectively justify a retirement age of 66. The employer sought to rely on the objective justification test by arguing that the retirement age was based on “workforce planning” to provide opportunities for younger employees. However, the Equality Tribunal found against the employer in circumstances where there had been no effort made to replace the employee another employee internally.

Guidance and Code of Practice

For further information, you may wish to note that the Irish Human Rights and Equality Commission has published Retirement and Fixed Term Contracts Guidelines for employers and employees to seek to ensure that older workers, who wish to continue in employment, are not discriminated against in Irish workplaces.

The Workplace Relations Commission has also published a Code of Practice on Longer Working. This code sets out best industrial relations practice in managing the engagement between employers and employees.

Principle of equal pension treatment

Both the Employment Equality Acts 1998-2015 and the Pensions Acts 1990-2011 prohibit discrimination on any of the nine grounds in relation to pay and pensions, for example:

• Membership of a pension’s scheme;
• Access to a pensions scheme;
• Qualifying criteria for benefits given;
• Setting of a normal pension age;
• Setting level of member contributions;
• Setting of employer contributions;
• Exercise of discretion in granting benefits under a scheme;
• Setting of annuity rates;
• The calculation of benefits accruing to a member leaving service;
• The setting of accrual rates;
• The calculation of survivor and dependent members’ benefits;
• The setting of early and later retirements terms; and
• The setting of voluntary contributions.

Example A pension scheme that requires women to show longer service than men in order to access the scheme may be deemed to be direct discrimination.

Example A pension scheme that takes account of breaks in services may be deemed to be indirectly discriminatory on the gender, or family status ground, where it can be shown to place women, or parents at a particular disadvantage, in circumstances where the break in service was due to pregnancy or parental type leave.

Exemptions

These Employment Equality Acts provide for a number of specific exemptions on certain grounds.

Example Differing treatment on the age ground is permissible in certain circumstances and may not constitute a breach of the principle of equal pension treatment.

Provided there is no discrimination on the gender ground, a scheme can treat persons with different ages or lengths of service differently when deciding to fix ages for admission under an occupational benefit scheme or for entitlement to benefits under the scheme, including fixing different ages for employees or groups of categories of employees.

Pensions Ombudsman

The Pensions Ombudsman has the powers to investigate and resolve certain complaints under the Pension’s Act. In this regard, the Pensions Acts also require pension scheme providers to have internal adjudication procedures, which should be exhausted before making a complaint to the Pension’s Ombudsman. For more information you can contact the Pension’s Ombudsman.

The Pensions Authority

For further information or if you have a specific question regarding pensions you may wish to contact the Pensions Authority. The Authority regulates occupational pension schemes; trust Retirement Annuity Contract (RAC) and Personal Retirement Savings Accounts (PRSAs). Please note that the Pensions Authority does not deal with State pensions.

The EEA prohibit less favourable treatment, on the basis of pregnancy, during maternity leave and on a woman’s return to work from maternity leave, on the gender ground and/or the family status ground.

This means that woman cannot be treated less favourably by her employer because she is pregnant, on maternity leave or, has a family.

Example An employer gives you tasks below your grade upon your return to work from maternity leave.

Health and safety concerns

Where health and safety concerns arise in relation to the pregnancy, an employer may place a pregnant woman on certified leave.

However, an employer must first consider whether a pregnant employee can be accommodated in alternative, and appropriate, work.

Dismissal and the non-renewal of contracts

Equality law prohibits pregnancy-related dismissal, and the non-renewal of a fixed-term contract during pregnancy.

Example An employer refuses to renew your contract when you take maternity leave.

An employer cannot take steps during a woman's maternity leave with a view to dismissal upon return to work. A woman on maternity leave cannot be made redundant.

To justify a dismissal during pregnancy, an employer must show that the dismissal is on exceptional grounds and not associated with the pregnancy. The employer must notify the employee in writing of these grounds.

Returning to work

A woman cannot be treated less favourably on her return to work after maternity leave, and she is entitled to return to the same position, or a suitable alternative position.

Although there is no right to reduced hours on a return to work, there is an obligation on an employer to treat applications for family friendly hours reasonably. An employer’s refusal to grant an employee reduced hours should be based on objective reasons relating to the proper operation of its service, and not on the employee’s sex, marital or family status.

The Maternity Protection Acts 1994-2004 also provide for minimum statutory legal rights and protections afforded to pregnant employees, those on maternity leave, and for those returning to work after maternity leave.

Breastfeeding

Treatment which confers benefits on women in connection with pregnancy and maternity including breastfeeding is allowed and not considered discriminatory.

Complaints mechanisms/remedies

Complaints mechanisms/remedies are also available under the Maternity Protection Acts. The Workplace Relations Commission can provide more information on the Maternity Protection Acts and the complaints mechanisms/remedies available under this legislation.

The Paternity Leave and Benefits Acts 2016 (PLBA) provides for minimum statutory protections to parents (other than the mother of child) following the birth or adoption of a child.

The Workplace Relations Commission can provide for specific information on the statutory entitlements and protections under the PBLA.

Employers should ensure that their employment policies and practices reflect this legislation and are in keeping with equality law.

Example If you are treated unfavourably by your employer or you have been discriminated against because of your intent to avail of your entitlements under the PLBA, you may be able to claim a remedy under the Employment Equality Acts.

Under EU law, a transgender person who experiences discrimination arising from their gender reassignment, or transition is protected under the gender ground, and this was affirmed by the Equality Tribunal in Hannon v. First Direct Logistics Limited (DEC-E2011-066).

In this decision, the Tribunal also found that what it referred to as “Gender Identity Disorder” was a recognised medical condition and that the complainant had a disability within the meaning of the Equality Acts.  Under the disability ground, discrimination can occur if there is a failure or refusal by an employer or service provider to provide reasonable accommodation to enable equal participation in employment or equal access to services.

In Hannon v. First Direct Logistics Limited, while the employer had been initially supportive during the employee’s period of transition from male to female, the Tribunal concluded that its conduct – including its failure to discuss the complainant’s needs adequately with her and its request for the complainant to work from home and to continue to use her male identity in work – constituted discrimination on the grounds of gender and disability and that, in the circumstances, the complainant had been discriminatorily dismissed.

Dress codes and gender discrimination

Employers must avoid unlawful discrimination in any dress code policy. Where an employer prescribes a dress code it may, in certain circumstances, constitute direct or indirect discrimination. This is not to say that employers cannot set mandatory dress codes in certain circumstances.

Where an employer prescribes a dress code that applies only to one gender, this could constitute direct or indirect discrimination on grounds of gender. The former Equality Tribunal (now the Workplace Relations Commission) and the Labour Court have considered gender discrimination in the context of workplace dress code policies and procedures.

The O’Byrne v Dunnes Stores (EED0314) and Conlon -v- Arcourt Ltd t/a Sheldon Park Hotel & Leisure Club (DEC-E2008-057) decisions are of note. One complaint concerned a male employee who had been asked to shave his beard in accordance with the employer’s dress code and the other concerned a female employee being instructed to wear a skirt.  These decisions are accessible from the Workplace Relations Commission website.

On the facts of these cases, the Equality Tribunal and the Labour Court considered that workplace dress codes could be permissible where the policy applies a common standard of neatness, conventionality and hygiene to both men and women so long as it does not unreasonably bear more heavily on one gender than it does on the other.