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Editorial

The Equality Act 2004

February 2005 - Employment. Legal Developments by Landwell.

More articles by this firm.

The Equality Act 2004 ("the 2004 Act") came into force on 19 July 2004 and introduced a number of important changes to discrimination law in Ireland.

The 2004 Act amends both the Employment Equality Act 1998 ("the 1998 Act") and the Equal Status Act 2000 ("the 2000 Act") to comply with European Council Directives.

The 1998 Act and the 2000 Act prohibit discrimination on nine grounds in the area of employment and access to the provision of goods and services, namely, gender, marital status, family status, age, disability, race, sexual orientation, religious belief or membership of the traveller community.

The 2004 Act broadens the category of workers to whom the discrimination legislation applies, age discrimination has been extended, there are greater burdens on employees to accommodate disabled employees and the definition of harassment has been amended to the extent it may be easier for an employee to prove he or she has been harassed.

Main Changes

  • Self-Employed Persons - Partners
    It is unlawful for an employer to discriminate against an employee or potential employee under existing legislation. The 2004 Act broadens the category of workers and now prohibits employers from discriminating against persons who are employed on a consultancy or self-employed basis or partners in a partnership such as accountancy or law firms. The impact of this for employers is that a claim for discrimination or harassment can now be taken, not just by their own employees, but possibly by persons working on a consultancy or self-employed basis. It also means there is a statutory obligation on a partnership practice not to discriminate on e.g. gender grounds either in relation to access to the partnership or in relation to the partnership terms and conditions.
  • Home Workers
    Previously a person working in a private home, such as an au-pair or cleaner, were not protected by discrimination legislation. However, the 2004 Act has extended the definition of employee to include a person working in a private home.
  • Age Discrimination
    The 1998 Act provided protection from discrimination to employees aged between 18 and 65. The 2004 Act has amended the age discrimination legislation by affording protection to employees over age 16 and by removing the upper age limit in the 1998 Act. However, this does not preclude an employer from setting a contractual retirement age or offering a fixed term contract to a person over the compulsory retirement age.
  • Disabled Employees
    There are more obligations on employers now to adapt the workplace for a disabled person. An employer must take practical measures to adapt the workplace unless this would impose a "disproportionate burden" having regard to the employer's financial resources. This is a more onerous obligation on an employer than the obligations contained in the 1998 Act.
  • Definition of Harassment
    The 2004 Act defines harassment as any form of unwanted conduct relating to any of the discriminatory grounds, which in either case has the purpose or effect of violating a person's dignity and creating an intimidating or hostile environment. Interestingly, under previous equality legislation there was a requirement for the conduct to be "reasonably regarded" as offensive. The removal of the reasonableness requirement under the 2004 Act, makes the test more subjective and arguably easier for a complainant to prove harassment.

Government plans to improve parental leave rights

The Minister of State at the Department of Justice, Equality and Law Reform, Mr Willie O'Dea recently announced that the Government has agreed to improve the existing parental leave provisions under the Parental Leave Act 1998 ("the 1998 Act") in a new Bill to be published by the end of the year. The new Bill will enhance the entitlement of employees to take time off to care for their children by allowing the parental leave to be taken in a staged format and over a longer period of time.

The recommendations are on foot of the recommendations of the Working Group on the Review of the Parental Leave Act 1998, published in April 2002 which the Government has agreed to implement as part of a package of legislation on employment rights in the Sustaining Progress Partnership Agreement.

Under the current 1998 Act, employees with one year's continuous service are entitled to take unpaid parental leave in a continuous period of fourteen weeks or any combination of days or hours with the agreement of the employer per child before their child reaches five years of age. The entitlement to parental leave is only currently available to natural or adoptive parents.

Proposed Changes

  • Extension of parental leave entitlements to employees acting in "loco parentis" in respect of an eligible child i.e. employees who are not natural or adoptive parents but who have children in their care, for example foster parents.
  • A statutory entitlement to take the fourteen weeks parental leave in separate blocks of a minimum of six continuous weeks, or more favourable terms with the agreement of the employer.
  • Increase the maximum age of the eligible child from five to eight years
  • Increase in the maximum age of the eligible child to sixteen years in the case of children with disabilities
  • If an employee on parental leave becomes ill and is unable to care for the child, they will be entitled to contractual sick leave (if any under the terms of their contract of employment) for the duration of the illness.

The intended legislation seeks to make the parental leave procedure more transparent in that it will impose an obligation on employers to put in place Codes of Practice on the manner in which parental leave may be taken and the way in which an employer can terminate parental leave.

The impact of these developments mean that a greater range of employees can now avail of parental leave for an extended period of time and employers will also need to be more flexible in the arrangements provided to employees to facilitate their requests.

Colleen Cleary
Senior Associate
Employment and HR Unit
Landwell

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