Work should be fairer place as Equality Act comes into play

The Employment Equality Act 1998 finally becomes law today following a lengthy passage through the Oireachtas.

The Act outlaws discrimination on nine grounds covering access to employment, terms and conditions of employment and pay.

Apart from the existing grounds of gender and marital status, the new areas include age, disability, family status, sexual orientation, religion, race and membership of the Travelling community.

The introduction of these grounds of discrimination will have major implications for employers as well as for employment agencies, trade unions and vocational training bodies.

The issue of funding will be more important than ever as the new equality infrastructure will face a huge workload.

This is because an increase in claims under the new legislation is anticipated, in particular relating to age and disability.

Employers will have to ensure they are not operating work practices which discriminate in terms of age. This would mean that in offering access to overtime, voluntary redundancies or promotions, age could not be used as a basis for selecting staff.

`Employers can now be held to be vicariously liable where their employees are the victims of acts of sexual harassment carried out by other employees or by any clients, customers or business contacts of the employer even where the acts occur outside the workplace'

It is also illegal not to employ someone because they appear to be too young or too old for the job if they have the requisite qualifications and experience.

Furthermore, age-related pay scales will have to be phased out over a three-year period.

The word "disability" is very broadly defined in the Act and conceivably covers all physical or psychological illnesses by which a person may be affected.

This includes less obvious illnesses such as dyslexia, alcoholism and drug addiction.

Employers will have to be careful at the pre-employment medical stage to ensure that applicants for a job are not refused employment on the ground that they suffer from a particular disability.

While companies will be obliged to provide special treatment and facilities for employees with disabilities it will not constitute discrimination for an employer to refuse to accommodate the needs of a person with a disability where this would give rise to costs "other than a nominal cost" to the employer.

This phrase is wide open to interpretation and no doubt the courts will have to rule upon its meaning sooner or later.

One of the Act's more significant features relates to sexual harassment.

It defines sexual harassment as any act of physical intimacy, a request for sexual favours, or an act or conduct involving spoken words, gestures or the production, display or circulation of written words or pictures which is unwelcome or sexually offensive, humiliating or intimidating to the recipient.

Employers can now be held to be vicariously liable where their employees are the victims of acts of sexual harassment carried out by other employees or by any clients, customers or business contacts of the employer even where the acts occur outside the workplace.

Furthermore, it is not just sexual harassment that is prohibited, but also harassment on any of the other discriminatory grounds in the Act.

The employer's liability is not absolute and it is a defence to prove that reasonable steps were taken to prevent the harassment occurring.

This brings into sharp focus the necessity to implement policies on harassment and bullying and to train managers in how to deal with such complaints.

A victim of workplace discrimination may refer a claim to the Director of Equality Investigations for investigation.

Cases may be resolved by mediation where agreed by the parties to the dispute.

Successful claimants can be awarded up to two years' remuneration (or up to 10,000 where the person was not an employee).

In an equal pay claim the maximum compensation is three years arrears of pay (six years in a Circuit Court award).

Broadly speaking, the Act has major implications for the recruitment and selection of staff.

Companies placing job advertisements in newspapers will have to ensure that they are not inadvertently discriminating against a class of prospective employees.

The importance of this point is highlighted by the fact that the Equality Authority (which replaces the existing Employment Equality Agency) is empowered to bring an injunction to prevent a job being filled where the job advertisement appears to be discriminatory.

The conducting of interviews and short-listing of candidates will have to be brought in to line with the new legislation.

It will not be sufficient to select the most suitable candidate without considering the reasons why others are not being offered a job especially if those reasons could be perceived as discriminating directly or indirectly.

All records and notes of the different stages of interviews will have to be carefully compiled and retained for a suitable period of time along with application forms and any other relevant records.

Finally, it is worth mentioning that the Equality Authority has new powers which enable it to audit the equality of opportunity which exists in a particular business employing fewer than 50 employees.

Furthermore, it may implement an equality action plan in respect of that business and take enforcement action against non-compliant employers.

Kevin Langford is a solicitor specialising in employment law in Mason Hayes & Curran