PART III

Specific Provisions as to Equality Between Women and Men

Introductory

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

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.

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

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.

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.

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 ”.

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”.

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.

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.

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.