In 2021, the Minister for Children, Equality, Disability, Integration and Youth announced a comprehensive review of the equality legislation with a view to the promotion of equality and the elimination of discrimination. Following from this review and the requirement to implement the EU Pay Transparency Directive, the Government recently published the General Scheme of the Equality (Miscellaneous Provisions) Bill 2004 (“the Bill”). The Bill proposes a number of significant amendments to the equality legislation, namely to the Equal Status Act 2000 (“the ES Act”), the Employment Equality Act 1998-2015 (“the EEA”), the Intoxicating Liquor Act 2003 and the Workplace Relations Act 2015. The key proposals in relation to the EEA and the ES Act are outlined below.
Part II of the Bill proposes a number of amendments to the Employment Equality Acts 1998 -2015
Head 4 provides for pay transparency prior to employment. This proposed amendment transposes part of Article 5 of the EU Pay Transparency Directive requiring employers to provide information regarding pay levels or ranges either in a job advertisement or in advance of an interview. The proposed amendment however goes further than what the Directive provides for by requiring employers to provide it in the advertisement.
Head 5 provides for a prohibition on employers asking job applicants about their pay history or their current rate of pay. Similar to the previous Head, the proposed amendment transposes the relevant section of Article 5 of the EU Pay Transparency Directive.
Head 6 provides for an amendment to the definition of “vocational training”. The current definition narrows the scope of vocational training to apply to persons engaging in vocational training that is connected with an occupational activity. The proposed amendment will mean that more education providers will be brought into the definition.
Head 7 provides for an extension to the possibility of taking positive action on grounds (other than gender) to include prospective employees (i.e. employees seeking to access employment in a specific organisation).
Head 8 proposes the removal of the provision in the EEA that allows differential pay rates to be paid to disabled persons. Any justification that may have existed for differential pay rates has been superseded by the Department of Social Protection’s Wage Subsidy Scheme which makes up any shortfall in productivity directly to the employer.
Head 9 would require employers to show that the specific criteria they seek of a job applicant is necessary and proportionate for a particular role. This will assist in preventing indirect discrimination on a number of grounds.
Head 10 proposes an extension of the current six-month time limit to 12 months to bring a claim under the EEA, with a further extension of 6 months for reasonable cause.
Head 11 provides for two proposed amendments. The purpose of the first is to ensure that the redress ordered under the EEAs satisfies the test set out in the Race Directive (2000/43/EC) that they must be “effective, proportionate and dissuasive”.
Under Head 11, it is also proposed to extend the eligibility to the maximum compensation to someone who has left their employment prior to the referral of their complaint, without necessarily being dismissed. Currently, such persons cannot be awarded more than €13,000. The extension of eligibility would mean an entitlement to maximum compensation of two years’ remuneration or €40,000.
Part III Amendment to the Equal Status Act 2000 (“the ES Act”)
Head 12 amends several definitions of the Equal Status Act, with an amendment to the addition of “prohibited conduct” to include victimisation. This would mean that victimisation would be an offence under the Act and a person could seek redress if they were subjected to victimisation under Part III of the Act.
Head 13 proposes to amend the ES Act with the insertion of a new paragraph to provide certainty that consideration can be given to discrimination cases that are taken under a number of protected grounds. The purpose of this provision is to strengthen the existing provisions on discrimination by allowing for complaints in which there may not be sufficient merit on an individual ground, but where combined grounds amount to poor treatment of a sufficiently serious nature to satisfy the test for discriminatory treatment.
Head 14 proposes the insertion of a new section which provides that the “disproportionate burden” test for reasonable accommodation would now be imposed on public bodies, financial and insurance institutions, credit unions and public transport operators.
Head 15 proposes the introduction of a new section under which “victimisation” would be treated as a tort.
Head 16 provides for the extension of time limits that apply to redress under the ES Act. Currently, a person making a complaint of discrimination must notify a person or organisation alleged to have discriminated within two months of the alleged incident. If unsatisfied with the response, he or she then has six months from the date of the alleged incident to make a complaint to the Workplace Relations Commission (“WRC”).
It is proposed that the notification period is extended to four months with a potential extension for reasonable cause of a further two months. The time period for making a claim to the WRC is also proposed to be extended to 12 months with a potential further extension of 6 month for reasonable cause.
Head 17 proposes increasing the compensation limits from €15,000 (the maximum District Court award) to €75,000 (the maximum Circuit Court award). Considering the proposed significant increase, it is intended that adjudicators would be given guidance to determine the level of award within compensation bands.
Takeaway from Employers:
While the proposed amendments are still at the early stage of the legislative process, the General Scheme of the Bill suggests significant changes to equality legislation with serious implications for employers. Employers should familiarise themselves with the Bill and ensure that adequate analysis is undertaken of their recruitment practices to include salary ranges and job descriptions.
Employers should also be mindful of the potential extension of time limits in relation to the submission of a complaint to the WRC under the relevant Acts and the potential for higher awards in certain instances.
Link:
General Scheme – Equality (Miscellaneous Provisions) Bill 2024
Author – Ethna Dillon and Jenny Wakely
24th April 2025
Anne O’Connell Solicitors
19-22 Lower Baggot Street
Dublin 2.
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