Employment Equality Act, 1998

Employment Equality Act, 1998 Skip to content Disclaimer Feedback Helpdesk Gaeilge Léim go dtí an t-ábhar Séanadh Aiseolas Deasc chabhrach English Gaeilge English Produced by the Office of the Attorney General Táirgthe ag Oifig an Ard-Aighne Home Legislation Acts of the Oireachtas Statutory Instruments Pre-1922 Legislation Constitution External Resources Bills (Houses of the Oireachtas) Iris Oifigiúil / Official Gazette Revised Acts (LRC) Classified List of Legislation (LRC) Translations (acts.ie) Translations (Houses of the Oireachtas) Government Publications for Sale EU Law (EUR-Lex) FAQ Disclaimer Feedback Helpdesk Search Baile Reachtaíocht Achtanna an Oireachtais Ionstraimí Reachtúla Reachtaíocht Réamh-1922 Bunreacht Acmhainní Seachtracha Billí (Tithe an Oireachtais) Iris Oifigiúil Achtanna Athbhreithnithe (CAD) (An Coimisiún um Athchóiriú an Dlí) Liosta Rangaithe Reachtaíochta Aistriúcháin (achtanna.ie) Aistriúcháin (Tithe an Oireachtais) Foilseacháin Rialtais ar Díol Dlí AE (EUR-Lex) CCanna (Ceisteanna Coitianta) Séanadh Aiseolas Deasc chabhrach Cuardach TitleTeideal Year(s) or rangeBliain nó blianta nó raon TypeCineál All Legislation Acts Statutory Instruments Advanced SearchCuardach Casta HomeBaile ActsAchtanna 1998 Employment Equality Act, 1998 Employment Equality Act, 1998 Permanent Page URL View by SectionAmharc de réir Ailt View Full ActAmharc ar an Acht Iomlán Bill History Stair Bille Commencement, Amendments, SIs made under the Act Tosach Feidhme, Leasuithe, IRí arna ndéanamh faoin Acht Revised Act Acht Athbh… Open PDFOscail PDF Print Full ActPriontáil an tAcht Iomlán Number 21 of 1998 EMPLOYMENT EQUALITY ACT, 1998 ARRANGEMENT OF SECTIONS PART I Preliminary and General Section 1. Short title and commencement. 2. Interpretation. 3. Orders and regulations. 4. Expenses. 5. Repeals and consequential amendments. PART II Discrimination: General Provisions Introductory 6. Discrimination for the purposes of this Act. 7. Like work. Discrimination in Specific Areas 8. Discrimination by employers etc. 9. Provisions in certain agreements and orders. 10. Advertising. 11. Employment agencies. 12. Vocational training. 13. Membership of certain bodies. 14. Procuring etc. discrimination or victimisation. Vicarious Liability etc. 15. Liability of employers and principals. Obligations of Employers etc. 16. Nature and extent of employer's obligations in certain cases. 17. Compliance with statutory requirements etc. PART III Specific Provisions as to Equality Between Women and Men Introductory 18. Application of equality principles to both men and women. Remuneration 19. Entitlement to equal remuneration. 20. Implied term as to equal remuneration. Other Matters 21. Equality clause relating to gender issues. 22. Indirect discrimination on the gender ground. 23. Sexual harassment in the workplace etc. 24. Positive action on equal opportunities. 25. Exclusion of discrimination in certain employments. 26. Exceptions relating to family and personal matters. 27. Garda Síochána and prison service. PART IV Specific Provisions as to Equality Between other Categories of Persons 28. The comparators. 29. Entitlement to equal remuneration. 30. Equality clause relating to non-gender issues. 31. Indirect discrimination. 32. Harassment in the workplace etc. 33. Positive action permitted. 34. Savings and exceptions related to the family, age or disability. 35. Special provisions related to persons with disabilities. 36. Imposition of certain requirements to be lawful. 37. Exclusion of discrimination on particular grounds in certain employments. PART V Equality Authority General 38. Continuation of Employment Equality Agency as Equality Authority. 39. Functions of Authority. 40. Strategic Plans. 41. Membership. 42. Chairperson. 43. Disqualification. 44. Ordinary members. 45. Chairperson and ordinary members may be re-appointed. 46. Vice-chairperson. 47. Meetings and business. 48. Advisory committees. 49. Chief Executive Officer. 50. Accountability of Chief Executive Officer. 51. Staff. 52. Seal of Authority. 53. Accounts and audits. 54. Annual report and provision of information to Minister. 55. Grants and borrowing powers. 56. Codes of practice. 57. Research and information. Inquiries by Authority 58. Inquiries. 59. Obtaining information etc. for purposes of inquiry. 60. Offences relating to inquiries etc. 61. Recommendations arising out of and reports of inquiries. 62. Non-discrimination notices. 63. Appeal against non-discrimination notice. 64. Register of non-discrimination notices. 65. Injunctions for failure to comply with non-discrimination notice. 66. Offence relating to failure to comply with non-discrimination notice. 67. Assistance by Authority in connection with certain references. PART VI Equality Reviews and Action Plans and Review of Legislation 68. Definition (Part VI). 69. Equality reviews and action plans. 70. Enforcement powers in respect of equality reviews and action plans. 71. Appeal against substantive notice. 72. Enforcement of substantive notices. 73. Review of legislation. PART VII Other Remedies and Enforcement Introductory 74. Interpretation (Part VII). Equality Investigations 75. Director of Equality Investigations and other officers. Redress 76. Right to information. 77. The forum for seeking redress. 78. Mediation. 79. Investigations by Director or the Labour Court. 80. References to the Circuit Court. 81. Consequences of failure to supply information etc. 82. Redress which may be ordered. 83. Appeals from the Director to the Labour Court. 84. References by the Labour Court to the Director. 85. Enforcement powers of the Authority. Collective Agreements 86. Reference of collective agreements to Director. 87. Mediation, decisions and appeals relating to collective agreements. Decisions and Determinations Generally 88. Form and content of decisions and determinations. 89. Supply and publication of decisions and determinations. 90. Appeals and references from the Labour Court. Enforcement by Circuit Court 91. Enforcement of determinations, decisions and mediated settlements. 92. Additional powers of Circuit Court on enforcement. 93. Compensation in lieu of re-instatement or re-engagement. Information 94. Powers to enter premises, obtain information, etc. 95. Requirements on persons to provide information. 96. Sanctions for failure or refusal to supply documents, information, etc. 97. Supplementary provisions as to information. Offences 98. Penalty for dismissal of employee for exercising rights. 99. Obstruction etc. of Director and other officers. 100. Offences: general provisions. Supplementary 101. Alternative avenues of redress. 102. Striking out cases which are not pursued. 103. Provisions relating to insolvency. 104. Special provision as to Defence Forces. 105. Amendment of Industrial Relations Act, 1990. Acts Referred to Adoptive Leave Act, 1995 1995, No. 2 Air Navigation and Transport Act, 1946 1946, No. 23 Anti-Discrimination (Pay) Act, 1974 1974, No. 15 Bankruptcy Act, 1988 1988, No. 27 Civil Service Commissioners Act, 1956 1956, No. 45 Civil Service Regulation Act, 1956 1956, No. 46 Civil Service Regulation Acts, 1956 to 1996 Companies Act, 1963 1963, No. 33 Comptroller and Auditor General (Amendment) Act, 1993 1993, No. 8 Courts Act, 1981 1981, No. 11 Defence Act, 1954 1954, No. 18 Employment Agency Act, 1971 1971, No. 27 Employment Equality Act, 1977 1977, No. 16 European Parliament Elections Act, 1997 1997, No. 2 Finance Act, 1987 1987, No. 10 Health Act, 1970 1970, No. 1 Industrial Relations Act, 1946 1946, No. 26 Industrial Relations Act, 1969 1969, No. 14 Industrial Relations Act, 1990 1990, No. 19 Interpretation Act, 1937 1937, No. 38 Interpretation Acts, 1937 to 1997 Irish Aviation Authority Act, 1993 1993, No. 29 Local Government Act, 1941 1941, No. 23 Maternity Protection Act, 1994 1994, No. 34 Merchant Shipping Act, 1947 1947, No. 46 Merchant Shipping (Certification of Seamen) Act, 1979 1979, No. 37 Pensions Act, 1990 1990, No. 25 Petty Sessions (Ireland) Act, 1851 14 & 15 Vict., c. 9 Employees (Employers' Insolvency) Act, 1984 1984, No. 21 Redundancy Payments Act, 1967 1967, No. 21 Solicitors Act, 1954 1954, No. 36 Trade Union Act, 1941 1941, No. 22 Transport (Miscellaneous Provisions) Act, 1971 1971, No. 14 Unfair Dismissals Acts, 1977 to 1993 Number 21 of 1998 EMPLOYMENT EQUALITY ACT, 1998 AN ACT TO MAKE FURTHER PROVISION FOR THE PROMOTION OF EQUALITY BETWEEN EMPLOYED PERSONS; TO MAKE FURTHER PROVISION WITH RESPECT TO DISCRIMINATION IN, AND IN CONNECTION WITH, EMPLOYMENT, VOCATIONAL TRAINING AND MEMBERSHIP OF CERTAIN BODIES; TO MAKE FURTHER PROVISION IN CONNECTION WITH COUNCIL DIRECTIVE NO. 75/117/EEC ON THE APPROXIMATION OF THE LAWS OF THE MEMBER STATES RELATING TO THE APPLICATION OF THE PRINCIPLE OF EQUAL PAY FOR MEN AND WOMEN AND COUNCIL DIRECTIVE NO. 76/207/EEC ON THE IMPLEMENTATION OF THE PRINCIPLE OF EQUAL TREATMENT FOR MEN AND WOMEN AS REGARDS ACCESS TO EMPLOYMENT, VOCATIONAL TRAINING AND PROMOTION, AND WORKING CONDITIONS; TO MAKE FURTHER PROVISION WITH RESPECT TO HARASSMENT IN EMPLOYMENT AND IN THE WORKPLACE; TO CHANGE THE NAME AND CONSTITUTION OF THE EMPLOYMENT EQUALITY AGENCY AND PROVIDE FOR THE ADMINISTRATION BY THAT BODY OF VARIOUS MATTERS PERTAINING TO THIS ACT; TO ESTABLISH PROCEDURES FOR THE INVESTIGATION AND REMEDYING OF VARIOUS MATTERS ARISING UNDER THIS ACT; TO REPEAL THE ANTI-DISCRIMINATION (PAY) ACT, 1974 , AND THE EMPLOYMENT EQUALITY ACT, 1977 , AND TO PROVIDE FOR RELATED MATTERS. [18th June, 1998] BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS: PART I Preliminary and General Short title and commencement. 1.—(1) This Act may be cited as the Employment Equality Act, 1998. (2) Except in so far as any provision of this Act provides expressly for the coming into operation of any such provision, this Act shall come into operation on such day as may be fixed by order made by the Minister, and different days may be so fixed for different provisions and for different purposes. Interpretation. 2.—(1) In this Act, unless the context otherwise requires— “act” includes a deliberate omission; “advertisement” includes every form of advertisement, whether to the public or not and whether in a newspaper or other publication, on television or radio or by display of a notice or by any other means, and references to the publishing of advertisements shall be construed accordingly; “agency worker” means an employee whose contract of employment is as mentioned in paragraph (b) of the definition of such a contract in this subsection; “associated employer” shall be construed in accordance with subsection (2); “the Authority” means the Equality Authority; “contract of employment” means, subject to subsection (3)— (a) a contract of service or apprenticeship, or (b) any other contract whereby an individual agrees with a person carrying on the business of an employment agency, within the meaning of the Employment Agency Act, 1971 , to do or perform personally any work or service for another person (whether or not that other person is a party to the contract), whether the contract is express or implied and, if express, whether it is oral or in writing; “the Director” means the Director of Equality Investigations; “disability” means— (a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body, (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness, (c) the malfunction, malformation or disfigurement of a part of a person's body, (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or (e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person; “the discriminatory grounds” has the meaning given by section 6 (2); “dismissal” includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “dismissed” shall be construed accordingly; “employee”, subject to subsection (3), means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment; “employer”, subject to subsection (3), means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment; “employment agency” (when not defined by reference to the Employment Agency Act, 1971 ) means a person who, whether for profit or otherwise, provides services related to the finding of employment for prospective employees or the supplying of employees to employers; “equality clause” means a gender equality clause, as defined in section 21 or a non-discriminatory equality clause, as defined in section 30 ; “equal remuneration term” means such a term of a contract as is specified in section 19 (1), 20 (1) or 29 (1); “family status” means responsibility— (a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or (b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis, and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability; “functions”, in relation to the Authority, includes powers and duties; “like work” shall be construed in accordance with section 7 ; “marital status” means single, married, separated, divorced or widowed; “member of the family”, in relation to any person, means— (a) that person's spouse, or (b) a brother, sister, uncle, aunt, nephew, niece, lineal ancestor or lineal descendant of that person or that person's spouse; “the Minister” means the Minister for Justice, Equality and Law Reform; “pension rights” means a pension or any other benefits flowing from an occupational pension scheme; “proceedings” include any referral, mediation or investigation under Part VII but does not include criminal proceedings for an offence under this Act; “provider of agency work” shall be construed in accordance with subsection (5); “regulatory body” means a body which falls within any of paragraphs (a) to (c) of section 13 ; “relevant characteristic” shall be construed in accordance with section 28 (3); “religious belief” includes religious background or outlook; “remuneration”, in relation to an employee, does not include pension rights but, subject to that, includes any consideration, whether in cash or in kind, which the employee receives, directly or indirectly, from the employer in respect of the employment; “sexual orientation” means heterosexual, homosexual or bisexual orientation; “trade union” means a trade union which is the holder of a negotiation licence under Part II of the Trade Union Act, 1941 ; “vocational training” shall be construed in accordance with section 12 (2). (2) For the purposes of this Act, two employers shall be taken to be associated if one is a body corporate of which the other (whether directly or indirectly) has control or if both are bodies corporate of which a third person (whether directly or indirectly) has control. (3) For the purposes of this Act— (a) a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956 , shall be deemed to be an employee employed by the State or Government, as the case may be, under a contract of service, (b) an officer or servant of a local authority for the purposes of the Local Government Act, 1941 , a harbour authority, a health board or a vocational education committee shall be deemed to be an employee employed by the authority, board or committee, as the case may be, under a contract of service, and (c) in relation to an agency worker, the person who is liable for the pay of the agency worker shall be deemed to be the employer. (4) In this Act a reference to “conditions of employment” does not include remuneration or pension rights. (5) A person who, under a contract with an employment agency, within the meaning of the Employment Agency Act, 1971 , obtains the services of one or more agency workers but is not their employer for the purposes of this Act is in this Act referred to, in relation to the agency workers, as the “provider of agency work”. (6) In this Act a reference to a Part or section is to a Part or section of this Act, unless it is indicated that reference to some other enactment is intended. (7) In this Act a reference to a subsection or paragraph is to the subsection or paragraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended. (8) In this Act a reference to an enactment includes a reference to that enactment as amended by or under any other enactment, including this Act. Orders and regulations. 3.—(1) Any power under this Act to make an order, other than under section 1 (2), includes power to amend or revoke an order made in the exercise of that power. (2) Where an order is proposed to be made under this Act, other than an order under section 1 (2) or subsection (3) or (5) of section 56 , a draft of the order shall be laid before both Houses of the Oireachtas, and the order shall not be made until a resolution approving the draft has been passed by each such House. (3) The Minister may make regulations for the purpose of giving effect to this Act. (4) Every regulation made under this Act shall be laid before each House of the Oireachtas as soon as practicable after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder. (5) Any order or regulation made under this Act may contain such consequential, supplementary and ancillary provisions as the Minister considers necessary or expedient. Expenses. 4.—Any expenses incurred in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas. Repeals and consequential amendments. 5.—(1) Subject to subsection (2), the Anti-Discrimination (Pay) Act, 1974 , and the Employment Equality Act, 1977 , are hereby repealed. (2) Without prejudice to the operation of section 21 (which relates to the effect of repeals) of the Interpretation Act, 1937 , nothing in this section shall affect the continuing operation of orders made under section 14 (which relates to power to repeal or amend certain enactments) of the Employment Equality Act, 1977 , and, accordingly, any such orders shall have effect, after the coming into operation of this section, as if that section continued in force. (3) In subsection (2) of section 4 (which relates to the deputy chairman of the Labour Court) of the Industrial Relations Act, 1969 , to substitute “, this Act and the Employment Equality Act, 1998” for “and this Act”. PART II Discrimination: General Provisions Introductory Discrimination for the purposes of this Act. 6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated. (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are— (a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”), (b) that they are of different marital status (in this Act referred to as “the marital status ground”), (c) that one has family status and the other does not (in this Act referred to as “the family status ground”), (d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”), (e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”), (f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”), (g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”), (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”), (i) that one is a member of the traveller community and the other is not (in this Act referred to as “the traveller community ground”). (3) Where— (a) a person has attained the age of 65 years, or (b) a person has not attained the age of 18 years, then, subject to section 12 (3), treating that person more favourably or less favourably than another (whatever that other person's age) shall not be regarded as discrimination on the age ground. (4) The Minister shall review the operation of this Act, within 2 years of the date of the coming into operation of this section, with a view to assessing whether there is a need to add to the discriminatory grounds set out in this section. Like work. 7.—(1) Subject to subsection (2), for the purposes of this Act, in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if— (a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work, (b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or (c) the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions. (2) In relation to the work which an agency worker is employed to do, no person except another agency worker may be regarded under subsection (1) as employed to do like work (and, accordingly, in relation to the work which a non-agency worker is employed to do, an agency worker may not be regarded as employed to do like work). (3) In any case where— (a) the remuneration received by one person (“the primary worker”) is less than the remuneration received by another (“the comparator”), and (b) the work performed by the primary worker is greater in value than the work performed by the comparator, having regard to the matters mentioned in subsection (1)(c), then, for the purposes of subsection (1)(c), the work performed by the primary worker shall be regarded as equal in value to the work performed by the comparator. Discrimination in Specific Areas Discrimination by employers etc. 8.—(1) In relation to— (a) access to employment, (b) conditions of employment, (c) training or experience for or in relation to employment, (d) promotion or re-grading, or (e) classification of posts, an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker. (2) For the purposes of this Act, neither an employer nor a provider of agency work shall be taken to discriminate against an agency worker unless (on one of the discriminatory grounds) that agency worker is treated less favourably than another agency worker is, has been or would be treated. (3) In subsections (4) to (8), references to an employee include references to an agency worker and, in relation to such a worker, references to the employer include references to the provider of agency work. (4) A person who is an employer shall not, in relation to employees or employment— (a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or (b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination. (5) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee— (a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered, or (b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different. (6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one— (a) the same terms of employment (other than remuneration and pension rights), (b) the same working conditions, and (c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures, as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different. (7) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to training or experience for, or in relation to, employment if, on any of the discriminatory grounds, the employer refuses to offer or afford to that employee the same opportunities or facilities for employment counselling, training (whether on or off the job) and work experience as the employer offers or affords to other employees, where the circumstances in which that employee and those other employees are employed are not materially different. (8) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds— (a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or (b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities. Provisions in certain agreements and orders. 9.—(1) In a case where— (a) an agreement or order to which this section applies contains a provision in which differences in rates of remuneration are based on any of the discriminatory grounds, and (b) in relation to a person to whom the agreement or order relates, that provision conflicts with an equal remuneration term in that person's contract of employment, then, subject to subsection (4), that provision shall be null and void. (2) If an agreement or order to which this section applies contains a provision which does not fall within subsection (1) but which gives rise to discrimination in relation to any of the matters in paragraphs (a) to (e) of section 8 (1) then, subject to subsection (4), that provision shall be null and void. (3) This section applies to the following agreements and orders, whether made before or after the coming into operation of this section: (a) collective agreements; (b) employment regulation orders, within the meaning of Part IV of the Industrial Relations Act, 1946 ; and (c) registered employment agreements, within the meaning of Part III of that Act. (4) In the case of a provision which— (a) is contained in an agreement or order made before the coming into operation of this section, and (b) is discriminatory on a ground other than the gender ground, subsection (1) or, as the case may be, subsection (2) shall not apply until the first anniversary of the date on which this section comes into operation; and, accordingly, until that date, the equal remuneration term or equality clause in a person's contract of employment shall not override any such provision of an agreement or order which relates to that person. Advertising. 10.—(1) A person shall not publish or display, or cause to be published or displayed, an advertisement which relates to employment and which— (a) indicates an intention to discriminate, or (b) might reasonably be understood as indicating such an intention. (2) For the purposes of subsection (1), where in an advertisement a word or phrase is used defining or describing a post and the word or phrase is one which— (a) connotes an individual of a particular sex or an individual having (in terms of any of the discriminatory grounds) a particular relevant characteristic, or (b) is descriptive of, or refers to, a post or occupation of a kind previously held or carried on only by members of one sex or only by individuals having such a particular relevant characteristic, then, unless the advertisement indicates a contrary intention, the advertisement shall be taken to indicate an intention to discriminate on whichever discriminatory ground is relevant in the circumstances. (3) Nothing in this section relates to an advertisement which, or to the extent to which it, specifies a requirement, restriction or other matter which relates to employment and which it would not be unlawful for the employer in question to impose, having regard to any other provision of this Part or of Part III or Part IV . (4) A person who, with a view to securing publication or display of an advertisement in contravention of subsection (1), makes a statement knowing it to be false shall, upon such publication or display, be guilty of an offence. (5) Without prejudice to subsection (4), if an advertisement is published or displayed and it appears to the High Court or the Circuit Court, on the motion of the Authority, that there are grounds for believing that publication or display of the advertisement may be in contravention of subsection (1), the court may grant an injunction preventing the appointment of any person to any post to which the advertisement relates until— (a) the decision of the Director on a contemporaneous reference under section 85 of the publication or display of the advertisement, or (b) the court otherwise orders, and, for the purpose of this subsection, a reference under section 85 shall be regarded as contemporaneous with a motion if it is made on the same day as the motion or not more than 14 days earlier or later. (6) The jurisdiction conferred on the Circuit Court by subsection (5) shall be exercised by the judge for the time being assigned to the circuit where the person by whom the advertisement was published or displayed (or caused to be published or displayed) ordinarily resides or carries on any profession, business or occupation. Employment agencies. 11.—(1) Without prejudice to its obligations as an employer, an employment agency shall not discriminate against any person— (a) who seeks the services of the agency to obtain employment with another person, or (b) who seeks from the agency guidance as to a career or any other service (including training) related to the employment of that person. (2) Subsection (1) does not apply to the extent that the employment in question is such that an employer could lawfully refuse to offer it to the person concerned. (3) An employment agency shall not be under any liability under this section if it proves— (a) that it acted in reliance on a statement made to it by the employer concerned to the effect that, by reason of the operation of subsection (2), its action would not be unlawful, and (b) that it was reasonable for it to rely on the statement. (4) An employer who, with a view to obtaining the services of an employment agency, knowingly makes such a statement as is referred to in subsection (3) (a) which is false or misleading in a material respect shall be guilty of an offence. (5) Nothing in this Act shall make it unlawful for an employment agency to provide services exclusively for persons with disabilities or any class or description of such persons. Vocational training. 12.—(1) Subject to subsection (7) any person, including an educational or training body, who offers a course of vocational training shall not, in respect of any such course offered to persons over the maximum age at which those persons are statutorily obliged to attend school, discriminate against a person (whether at the request of an employer, a trade union or a group of employers or trade unions or otherwise)— (a) in the terms on which any such course or related facility is offered, (b) by refusing or omitting to afford access to any such course or facility, or (c) in the manner in which any such course or facility is provided. (2) In this section “vocational training” means any system of instruction which enables a person being instructed to acquire, maintain, bring up to date or perfect the knowledge or technical capacity required for the carrying on of an occupational activity and which may be considered as exclusively concerned with training for such an activity. (3) For the purposes of this section, section 6 (3)(b) shall have effect as if the reference to the age of 18 years were a reference to the age referred to in subsection (1). (4) For the purposes of ensuring the availability of nurses to hospitals and teachers to primary schools which are under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values, and in order to maintain the religious ethos of the hospitals or primary schools, the prohibition of discrimination in subsection (1), in so far as it relates to discrimination on the religion ground, shall not apply in respect of— (a) the nomination of persons for admission to the School of Nursing pursuant to clause 24(4)(a) or (c) of the Adelaide Hospital Charter as substituted by paragraph 5(s) of the Health Act, 1970 (Section 76) (Adelaide and Meath Hospital, Dublin, incorporating the National Children's Hospital) Order, 1996, or (b) places in a vocational training course specified in an order made under subsection (5). (5) Where an educational or training body applies to the Minister for Health and Children, in the case of hospitals, or to the Minister for Education and Science, in the case of primary schools, for an order permitting the body concerned to reserve places in a vocational training course offered by the body, the Minister for Health and Children or the Minister for Education and Science, as the case may be, may, with the consent of the Minister, by order allow the body to reserve places in such numbers as seem reasonably necessary to the Minister for Health and Children or the Minister for Education and Science, as the case may be, to meet the purposes set out in subsection (4). (6) Without prejudice to section 3 (1), an order under subsection (5) may be revoked by a further order made by the Minister for Health and Children or the Minister for Education and Science, as the case may be, with the like consent; but any such revocation order shall contain transitional provisions safeguarding any person who took advantage of the effect of the order when it was in force. (7) Nothing in subsection (1) shall make unlawful discrimination on the age ground or the ground of race in respect of any course of vocational training offered by a vocational or training body where— (a) it provides different treatment in relation to— (i) the fees for admission or attendance at any such course by persons who are citizens of Ireland or nationals of another Member State of the European Union, or (ii) the allocation of places on any such course to those citizens or nationals, or (b) it offers assistance to particular categories of persons by way of sponsorships, scholarships, bursaries or other awards, which assistance is reasonably justifiable, having regard to traditional or historical considerations. Membership of certain bodies. 13.—A body which— (a) is an organisation of workers or of employers, (b) is a professional or trade organisation, or (c) controls entry to, or the carrying on of, a profession, vocation or occupation, shall not discriminate against a person in relation to membership of that body or any benefits, other than pension rights, provided by it or in relation to entry to, or the carrying on of, that profession, vocation or occupation. Procuring etc. discrimination or victimisation. 14.—A person who procures or attempts to procure another person to do anything which— (a) constitutes discrimination which is unlawful under this Act, or (b) constitutes victimisation for the purposes of Part VII , shall be guilty of an offence. Vicarious Liability etc. Liability of employers and principals. 15.—(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person's employer, whether or not it was done with the employer's knowledge or approval. (2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person. (3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee— (a) from doing that act, or (b) from doing in the course of his or her employment acts of that description. Obligations of Employers etc. Nature and extent of employer's obligations in certain cases. 16.—(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual— (a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or (b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed. (2) In relation to— (a) the provision by an employment agency of services or guidance to an individual in relation to employment in a position, (b) the offer to an individual of a course of vocational training or any related facility directed towards employment in a position, and (c) the admission of an individual to membership of a regulatory body or into a profession, vocation or occupation controlled by a regulatory body, subsection (1) shall apply, with any necessary modification, as it applies to the recruitment of an individual to a position. (3) (a) For the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties. (b) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates. (c) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer. (4) In subsection (3)— “employer” includes an employment agency, a person offering a course of vocational training as mentioned in section 12 (1) and a regulatory body; and accordingly references to a person who has a disability include— (a) such a person who is seeking or using any service provided by the employment agency, (b) such a person who is participating in any such course or facility as is referred to in paragraphs (a) to (c) of section 12 (1), and (c) such a person who is a member of or is seeking membership of the regulatory body; “providing”, in relation to the special treatment or facilities to which paragraph (a) relates, includes making provision for, allowing or availing of such treatment or facilities, and “provide” shall be construed accordingly. (5) Nothing in this Act shall be construed as requiring an employer to recruit, retain in employment or promote an individual if the employer is aware, on the basis of a criminal conviction of the individual or other reliable information, that the individual engages, or has a propensity to engage, in any form of sexual behaviour which is unlawful. (6) Without prejudice to the generality of subsection (5), that subsection applies in particular where the employment concerned involves access to minors or to other persons who are vulnerable. Compliance with statutory requirements etc. 17.—(1) In relation to discrimination on the marital status ground, nothing in this Act shall render unlawful any act done in compliance with any provision of the Maternity Protection Act, 1994 , or the Adoptive Leave Act, 1995 . (2) In relation to discrimination on the ground of race, nothing in this Act shall render unlawful any act done in compliance with any provision made by or under— (a) section 40 (3) of the Solicitors Act, 1954 , or (b) section 35 of the Finance Act, 1987 . (3) In relation to discrimination on the age ground or the disability ground, nothing in this Act shall render unlawful any act done in compliance with any provision made by or under— (a) sections 5 , 9 , 11 and 16 of the Air Navigation and Transport Act, 1946 , (b) section 12 of the Merchant Shipping Act, 1947 , (c) section 29 of the Transport (Miscellaneous Provisions) Act, 1971 , (d) sections 3 and 8 of the Merchant Shipping (Certification of Seamen) Act, 1979 , or (e) sections 5 , 14 , 58 and 60 of the Irish Aviation Authority Act, 1993 . (4) In relation to discrimination on the age ground, nothing in this Act shall render unlawful any act done in compliance with paragraph 1 of Schedule 3 to the Redundancy Payments Act, 1967 . PART III Specific Provisions as to Equality Between Women and Men Introductory Application of equality principles to both men and women. 18.—(1) For the purposes of this Part, “A” and “B” represent 2 persons of opposite sex so that, where “A” is a woman, “B” is a man, and vice versa. (2) Subject to subsection (1), nothing in this Act affects the operation of the Interpretation Acts, 1937 to 1997, in so far as they provide that, unless the contrary intention appears— (a) words importing the masculine gender shall be construed as importing also the feminine gender, and (b) words importing the feminine gender shall be construed as also importing the masculine gender. Remuneration Entitlement to equal remuneration. 19.—(1) It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer. (2) In this section— (a) “employed” includes, in addition to employment under a contract of employment, employment under a contract personally to execute any work or labour, and (b) in relation to a particular time, a relevant time is any time (including a time before the commencement of this Act) during the 3 years which precede, or the 3 years which follow, the particular time. (3) For the purposes of this Part, where B's employer is an associated employer of A's employer, A and B shall not be regarded as employed to do like work unless they both have the same or reasonably comparable terms and conditions of employment. (4) Where a term of a contract or a criterion applied to employees (including A and B)— (a) applies to all the employees of a particular employer or to a particular class of such employees (including A and B), (b) is such that the remuneration of those employees who fulfil the term or criterion is different from that of those who do not, (c) is such that the proportion of employees who are disadvantaged by the term or criterion is substantially higher in the case of those of the same sex as A than in the case of those of the same sex as B, and (d) cannot be justified by objective factors unrelated to A's sex, then, for the purpose of subsection (1), A and B shall each be treated as fulfilling or, as the case may be, as not fulfilling the term or criterion, whichever results in the higher remuneration. (5) Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees. Implied term as to equal remuneration. 20.— (1) Where a person is employed under a contract which does not include (expressly or by reference to a collective agreement or otherwise) a term satisfying subsection (1) of section 19 , the contract shall be taken to include a term giving effect to that subsection; and, if such an implied term conflicts with an express term, it shall override the express term. (2) In this section “employed” has the same meaning as in section 19 . Other Matters Equality clause relating to gender issues. 21.— (1) If and so far as the terms of a contract of employment do not include (expressly or by reference to a collective agreement or otherwise) a gender equality clause, they shall be taken to include one. (2) A gender equality clause is a provision relating to the terms of a contract of employment, other than a term relating to remuneration or pension rights, which has the effect that if— (a) A is employed in circumstances where the work done by A is not materially different from that done by B in the same employment, and (b) at any time A's contract of employment would (but for the gender equality clause)— (i) contain a term which is or becomes less favourable to A than a term of a similar kind in B's contract of employment, or (ii) not include a term corresponding to a term in B's contract of employment which benefits B, then the terms of A's contract of employment shall be treated as modified so that the term in question is not less favourable to A or, as the case may be, so that they include a similar term benefiting A. (3) A gender equality clause shall not operate in relation to a difference between A's contract of employment and B's contract of employment if the employer proves that the difference is genuinely based on grounds other than the gender ground. (4) Without prejudice to the generality of section 8 (1), where a person offers A employment on certain terms and, were A to accept the offer on those terms, the gender equality clause in A's contract of employment would have the effect of modifying the terms in either of the ways specified in subsection (2), the making of the offer shall be taken to amount to discrimination against A on the gender ground in relation to A's conditions of employment. Indirect discrimination on the gender ground. 22.—(1) Where a provision (whether in the nature of a requirement, practice or otherwise) which relates to any of the matters specified in paragraphs (a) to (e) of section 8 (1) or to membership of a regulatory body— (a) applies to both A and B, (b) is such that the proportion of persons who are disadvantaged by the provision is substantially higher in the case of those of the same sex as A than in the case of those of the same sex as B, and (c) cannot be justified by objective factors unrelated to A's sex, then, for the purposes of this Act, A's employer or, as the case may be, the regulatory body shall be regarded as discriminating against A on the gender ground contrary to section 8 or, as the case may require, section 13 . (2) Subsection (1) shall apply to the provision of any such services as are referred to in paragraphs (a) and (b) of section 11 (1) subject to the following modifications: (a) for the words “any of the matters specified in paragraphs (a) to (e) of section 8 (1)” there shall be substituted the words “a person seeking any such services or guidance as are referred to in paragraphs (a) and (b) of section 11 (1)”; (b) the reference to the employer shall be construed as a reference to the employment agency; and (c) the reference to section 8 shall be construed as a reference to section 11 . (3) Subsection (1) shall apply to participation in any such course or facility as is referred to in paragraphs (a) to (c) of section 12 (1) subject to the following modifications: (a) the reference to paragraphs (a) to (e) of section 8 (1) shall be construed as a reference to paragraphs (a) to (c) of section 12 (1); (b) the reference to the employer shall be construed as a reference to the person offering the course or facility; and (c) the reference to section 8 shall be construed as a reference to section 12 . (4) The reference in subsection (1)(b) to persons who are disadvantaged by a provision includes not only those who are so disadvantaged because of their sex but also those who are so disadvantaged by reference to their marital status or family status. (5) Subsection (3) of section 8 applies for the purposes of subsection (1) as it applies for the purposes of subsections (4) to (8) of that section. Sexual harassment in the workplace etc. 23.—(1) If, at a place where A is employed (in this section referred to as “the workplace”), or otherwise in the course of A's employment, B sexually harasses A and either— (a) A and B are both employed at that place or by the same employer, (b) B is A's employer, or (c) B is a client, customer or other business contact of A's employer and the circumstances of the harassment are such that A's employer ought reasonably to have taken steps to prevent it, then, for the purposes of this Act, the sexual harassment constitutes discrimination by A's employer, on the gender ground, in relation to A's conditions of employment. (2) Without prejudice to the generality of subsection (1) in its application in relation to the workplace and the course of A's employment, if, in a case where one of the conditions in paragraphs (a) to (c) of that subsection is fulfilled— (a) B sexually harasses A, whether or not in the workplace or in the course of A's employment, and (b) A is treated differently in the workplace or otherwise in the course of A's employment by reason of A's rejection or acceptance of the sexual harassment or it could reasonably be anticipated that A would be so treated, then, for the purposes of this Act, the sexual harassment constitutes discrimination by A's employer, on the gender ground, in relation to A's conditions of employment. (3) For the purposes of this Act— (a) any act of physical intimacy by B towards A, (b) any request by B for sexual favours from A, or (c) any other act or conduct of B (including, without prejudice to the generality, spoken words, gestures or the production, display or circulation of written words, pictures or other material), shall constitute sexual harassment of A by B if the act, request or conduct is unwelcome to A and could reasonably be regarded as sexually, or otherwise on the gender ground, offensive, humiliating or intimidating to A. (4) According to the nature of the business of A's employer, the reference in subsection (1)(c) to a client, customer or other business contact includes a reference to any other person with whom A's employer might reasonably expect A to come into contact in the workplace or otherwise in the course of A's employment. (5) If, as a result of any act or conduct of B, another person (“the Employer”) who is A's employer would, apart from this subsection, be regarded by virtue of subsection (1) as discriminating against A, it shall be a defence for the Employer to prove that the Employer took such steps as are reasonably practicable— (a) in a case where subsection (2) applies, to prevent A being treated differently in the workplace or otherwise in the course of A's employment and, if and so far as any such treatment has occurred, to reverse the effects of it, and (b) in a case where subsection (1) applies (whether or not subsection (2) also applies) to prevent B from sexually harassing A (or any class of persons of whom A is one). (6) In this section “employed”, in relation to an individual (whether A or B), includes— (a) seeking or using any service provided by an employment agency, and (b) participation in any such course or facility as is referred to in paragraphs (a) to (c) of section 12 (1), and, accordingly, any reference to that individual's employer includes a reference to the employment agency providing the service or, as the case may be, the person offering the course of training. (7) Where subsection (6) applies in relation to A, subsection (1) shall have effect as if for the words “in relation to A's conditions of employment” there were substituted “contrary to section 11 or, as the case may be, section 12 ”. Positive action on equal opportunities. 24.—(1) The provisions of this Act are without prejudice to measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women's opportunities in the areas of access to employment, vocational training and promotion, and working conditions. (2) In the Defence Act, 1954 , in section 289(2) (the Army Nursing Service limited to women) for the word “women” there shall be inserted “persons”. Exclusion of discrimination in certain employments. 25.—(1) Nothing in this Part or Part II applies to discrimination against A in respect of employment in a particular post if the discrimination results from preferring B on the ground that, by reference to one or more of subsections (2) to (4) the sex of B is or amounts to an occupational qualification for the post in question. (2) For the purposes of this section, the sex of B shall be taken to be an occupational qualification for a post where, on grounds of physiology (excluding physical strength or stamina) or on grounds of authenticity for the purpose of entertainment, the nature of the post— (a) requires a person of the same sex as B, and (b) would be materially different if filled by a person of the same sex as A. (3) For the purposes of this section, the sex of B shall be taken to be an occupational qualification for a post where it is necessary that the post should be held by B because it is likely to involve the performance of duties outside the State in a place where the laws or customs are such that those duties could not reasonably be performed by a person who is of the same sex as A. (4) For the purposes of this section, the sex of B shall be taken to be an occupational qualification for a post— (a) where the duties of the post involve personal services and it is necessary to have persons of both sexes engaged in such duties, or (b) where, because of the nature of the employment it is necessary to provide sleeping and sanitary accommodation for employees on a communal basis and it would be unreasonable to expect the provision of separate accommodation of that nature or impracticable for an employer so to provide. Exceptions relating to family and personal matters. 26.—(1) Nothing in this Act shall make it unlawful for an employer to arrange for or provide treatment which confers benefits on women in connection with pregnancy and maternity (including breast feeding) or adoption. (2) This Act does not apply to discrimination on the gender ground in employment which consists of the performance of services of a personal nature, such as the care of an elderly or incapacitated person in that person's home, where the sex of the employee constitutes a determining factor. Garda Síochána and prison service. 27.—(1) With regard to employment in the Garda Síochána or the prison service, nothing in this Act— (a) applies to the assignment of a man or, as the case may require, a woman to a particular post where this is essential— (i) in the interests of privacy or decency, (ii) in order to guard, escort or control violent individuals or quell riots or violent disturbances, or (iii) in order, within the Garda Síochána, to disarm or arrest violent individuals, to control or disperse violent crowds or to effect the rescue of hostages or other persons held unlawfully, or (b) prevents the application of one criterion as to height for men and another for women, if the criteria chosen are such that the proportion of women in the State likely to meet the criterion for women is approximately the same as the proportion of men in the State likely to meet the criterion for men. (2) (a) If— (i) in the opinion of the Minister there are insufficient numbers of either men or women serving in the Garda Síochána to be assigned to such posts as are for the time being referred to in subsection (1)(a), and (ii) the Minister by order under this subsection so provides, this Act shall not apply to such competitions for recruitment to the Garda Síochána as may be specified in the order. (b) If— (i) in the opinion of the Minister there are insufficient numbers of either men or women serving in the prison service to be assigned to such posts as are for the time being referred to in subsection (1)(a), and (ii) the Minister by order under this subsection so provides, this Act shall not apply to such competitions for recruitment to the prison service as may be specified in the order. PART IV Specific Provisions as to Equality Between Other Categories of Persons The comparators. 28.—(1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows: (a) in relation to the marital status ground, C and D have different marital status; (b) in relation to the family status ground, C has family status and D does not, or vice versa; (c) in relation to the sexual orientation ground, C and D are of different sexual orientations; (d) in relation to the religion g …