Knowledge can save you money

A recent judgment of £85,000 (€108,000) awarded against an employer for discriminating against a female employee will have made…

A recent judgment of £85,000 (€108,000) awarded against an employer for discriminating against a female employee will have made human resource managers around the State sit up and take notice. This follows a £50,000 judgment last year against two Dublin maternity hospitals, the Rotunda and the Coombe, which were found to have discriminated against a female applicant for the position of consultant obstetrician.

Ms Marguerite Bolger is a barrister and an expert on employment law and, along with Ms Cliona Kimber, another barrister, has just published a book, Sex Discrimination Law, which outlines the law in this neglected area.

"I do seminars on employment law," she told The Irish Times. "If I do one on bullying or unfair dismissal or disciplinary procedures, they're queueing up. But mention equality and they don't want to know."

She thinks this is because, until now, the awards tended to be small. "A lot of awards tended to be around £3,000 or £4,000. People had to pay their costs, and they had to deal with the stress and strain for very little," Ms Bolger said.


That is now changing. Under the latest legislation, the Employment Equality Act, cases can be taken to the Circuit Court, which can award costs. The highest award that can be granted there is twice the applicant's annual remuneration.

For a company found to have discriminated against an employee on sex grounds, such an award would be combined with its own and the applicant's legal costs, not to mention a lot of very negative publicity.

How can such claims be avoided? "You have to look at the whole process from start to finish," said Ms Kimber.

"Start with the advertisement in the paper. That does not have to specify that the candidate should be a man to be discriminatory. A case went all the way to the High Court where a woman argued that the requirement that the candidate should have a certain number of years' experience was inherently discriminatory," Ms Kimber said.

The application form should also be closely examined for anything that could be discriminatory, including marital status, which is outlawed as a ground for discrimination under the latest equality legislation.

"The interview board is very important," she added. "The process should be open and transparent. Notes should be taken and they should be kept. It is best if the composition of an interview board is mixed."

Not keeping notes of an interview can be costly, stressed Ms Bolger, especially if statistics show a disproportionate number of men in senior roles. A female teacher won £5,000 from a Vocational Education Committee that had no clear notes of the interview that could have indicated why it gave a senior post to a man instead of her. This was taken in the context of a pattern of men dominating senior posts in education.

"If there are objective, non-gender-based reasons for giving a man a job, they should stand up and be in the interview notes," she said.

Once a person is employed she (or he - although most discrimination cases are taken by women) must be treated equally. This extends to part-time workers. "For example, in a workplace where the majority of part-time employees are women, the part-time workers must have the same rates of pay and the same rights [to equality] as the full-time workers," said Ms Kimber. Employers must also check on their training policies. If the statistics show that a majority of men are taking up training opportunities, which inevitably lead to promotion, then the employer should find out why. "If you are to prevent litigation, you should pre-empt it," Ms Bolger explained.

When it comes to dismissing people, two issues stand out for employers under equality legislation - pregnancy and sexual harassment. It is illegal to dismiss a woman because she gets pregnant, and a person who leaves because of sexual harassment could sue for constructive dismissal.

All this may seem like a heavy burden on employers but the authors disagree. "Why, 26 years after the Equal Pay Act, are we still even talking about equal pay?" asked Ms Bolger. "It is still not seen as a big commercial and business issue."

The latest round of awards may have changed all this.

What is the key thing for employees who feel they may have suffered discrimination? "Know your rights" is the advice from Ms Kimber and Ms Bolger.

Sex Discrimination Law is published by Roundhall, Sweet and Maxwell and available at a cost of £100.

Sheila O'Flanagan is on holiday and will return next week.