The General Scheme of the Equality (Miscellaneous Provisions) Bill 2024 has been published by the Government. The General Scheme follows on from a review of Ireland's equality legislation that was announced in 2021. The aim of the Review was to examine the functioning of the Equal Status Acts 2000-2018 and the Employment Equality Acts 1998-2021 and their effectiveness in combatting discrimination and promoting equality. This General Scheme arises out of that Review. It also seeks to transpose certain aspects of the EU Pay Transparency Directive. The General Scheme contains significant changes to Irish equality law which will have implications for all employers.
The General Scheme contains proposals to amend a number of Acts, namely the Employment Equality Act 1998, the Equal Status Act 2000, the Intoxicating Liquor Act 2003 and the Workplace Relations Act 2015. We will deal with some of the most significant amendments below.
Amendments to the Employment Equality Act 1998
Head 4 will prohibit the publication of a job advert that does not include information on the salary levels or ranges for the job advertised. This is aimed at enhancing pay transparency prior to employment and transposes Article 5 of the Pay Transparency Directive. In fact, it goes beyond what is required by the Directive which states that such information must be provided either in the job advertisement or in advance of the interview.
Head 5 will prohibit employers from asking job applicants about their own pay history or current rate of pay. This also derives from Article 5 of the Pay Transparency Directive and is aimed at combatting systemic pay inequality.
Head 6 will amend the definition of vocational training under the EEAs to specifically include practical work experience. Head 7 will allow positive action to ensure full equality in practice between employees or prospective employees. Head 8 will remove an existing provision in the EEAs that allows differential pay rates to persons with disabilities.
Head 9 will require employers to show that the specific criteria they seek of a job applicant is necessary and proportionate for a particular role. Section 36(4) of the EEAs allows an employer to set out the specific educational, technical or professional qualifications they require for a particular job.
Head 10 will provide for an extension of the time limit to 12 months that applies to bringing a claim under the EEAs, with a further 6 month extension for reasonable cause. The Review found that the current time limits (of 6 months, extendable by a further 6 months for reasonable cause) are very tight, particularly where the complainant is marginalised and unaware of redress mechanisms.
Head 11 will provide that redress under the EEAs must be effective, proportionate and dissuasive. This is to ensure that the remedies specified by the WRC/Labour Court are of sufficient scale to meet the test set out in the Race Directive (i.e. that they are "effective, proportionate and dissuasive"). Another amendment under this Head will extend the eligibility to the maximum compensation of 2 years' remuneration or €40,000 to someone who has left their employment (without necessarily being dismissed) prior to the date of reference of the case. Currently, someone who has left employment prior to referral cannot be awarded more than €13,000.
Amendments to the Equal Status Act 2000
Head 12 will amend the definition of "prohibited conduct" to include victimisation. This means that victimisation will be an offence under the Equal Status Act which persons can seek redress in respect of. Head 15 will insert "victimisation" as a statutory tort. Currently, it is treated as a protected ground that requires a comparator.
Head 13 will insert a new paragraph which deals with intersectional discrimination, providing certainty that consideration can be given to discrimination cases that are taken under a number of the protected grounds. This provision is intended to allow for complaints in which there may not be sufficient merit on an individual ground but where the intersection or combination of grounds leads to an instance of poor treatment which is sufficiently serious to meet the test of discriminatory action. However, where discrimination is found on the basis of an intersectional combination of grounds, this provision will not introduce additional redress on each of these grounds.
Head 16 will provide for the extension of time limits that apply to redress under the Equal Status Act. A person making a complaint of discrimination will be required to notify the person/organisation alleged to have discriminated within 4 months, with a possible extension of further 2 months, of the alleged incident. The time limit is currently 2 months, extendable by a further 2 months. If unsatisfied with the response, they must then bring a claim within 12 months of the alleged incident. This period can be extended by a further 6 months for reasonable cause. Currently, this period is 6 months, extendable by a further 6 months for reasonable cause.
Head 17 will amend the compensation limits that can be awarded under the Equal Status Act, from that of the District Court (€15,000) to the limit of the Circuit Court, which is currently €75,000. There is a concern that the current compensation levels are too low to be dissuasive to organisations. In addition, the EU Equality Directives require that all compensation must be 'effective, proportionate and dissuasive'. However, as this is a significant increase, it is intended that guidance will be provided to adjudicators to determine the level of award within compensation bands while still affording them the necessary discretion to specify particular course of action.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.
