Proving an Employment Equality Claim in Ireland

Employment Equality Acts 

The Employment Equality Acts outlaw discriminatory treatment on any of the nine prohibited grounds in a broad reaching manner, covering not only exiting employment relationships but also the termination of those relationships. The nine grounds are:

• Gender
• Civil status
• Family status
• Sexual orientation
• Religious belief
• Age
• Disability
• Race, colour, nationality, ethnic or national origins
• Membership of the Traveller community

There is no requirement for any minimum period of service to be cloaked with the protection of the Acts and therefore job applicants are protected from discrimination, harassment and victimisation. 

Discriminatory Treatment

Employment equality regulation outlaws discrimination in relation to access to employment, conditions of employment, pay, training or experience for or in relation to employment, promotion or regrading or classification of posts. The laws also prohibit the issuing by an employer of instructions to discriminate. Discriminatory dismissal (which includes constructive dismissal on any of the protected grounds) is also prohibited by the regulations. 

Multiple Discriminatory Acts

It has been recognised by the courts and Workplace Relations Commission that the combination of certain protected classes, such as race and gender or gender and disability, can cause less favourable treatment. This multiple, dual or combined discrimination is not expressly provided or legislated for within the Employment Equality Acts but nevertheless, such claims have been upheld.

Defining Discrimination

Discrimination is defined in a number of different ways in the Employment Equality Acts. Section 6(1) states that discrimination shall be taken to occur where a person is treated less favourable than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds. This definition is a very broad definition of discrimination and includes discrimination on a discriminatory ground which existed but no longer existed or which may exist in the future. 

Comparable Treatment

In general a complainant must prove less favourable treatment as compared with another person in a similar position to the complainant. Therefore without a comparator, the claim will fail and the choice of comparator is of significant importance to the success of any claim. The comparator cannot be selected out of context with other employees.

Hypothetical Comparator

The Labour Court has previously held that when no similar employee is available for comparison, it may allow the employee to reply on a hypothetical comparator. However, when a comparator is introduced, a successful claim will require demonstration of discrimination on each of the grounds alleged. 

Making an Equality Complaint 

 It is always recommended that employers be afforded an opportunity to address any workplace concerns, complaints or grievances, in the first instance. If an employee does not achieve an adequate response, they may bring a claim to the Workplace Relations Commission, where the matter may be adjudicated. 

Engaging an Employment Solicitor

By engaging an employment solicitor to assist with a workplace dispute, an employer or employee can rest assured that they are fully briefed on the options available. Crushell & Co have a track record of achieving successful outcomes for clients through both formal and informal processes.