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«THE EUROPEAN NETWORK OF LEGAL EXPERTS IN THE FIELD OF GENDER EQUALITY Multiple Discrimination in EU Law Opportunities for legal responses to ...»

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The Equality Tribunal then turned to the age ground in relation to the application in the year 2000 to join the pension. Section 72(1) of the Pensions Act 1990 (as amended) permits pension schemes to fix an age or a period of qualifying service as a condition or criterion for admission into the scheme, where in the context of the relevant employment to do so is appropriate and necessary by reference to a legitimate object of the employer, provided that it does not result in unequal treatment on the gender ground. In short, it was held that the fact that the complainant was over 50 years by the time the respondent, in compliance with the Protection of Employment (Part-Time Work) Act 2001, admitted its part-time workers to the scheme to be coincidental. It was considered that there was not a prima facie case of discrimination on the age ground.

This case highlights the problem of multiple or intersectional discrimination. In addition, it emphasises some of the problems of past discrimination of part-time workers who were mainly women. In Ireland each ground of discrimination under the Employment Equality Acts 1998 to 2008 or under the Pensions Acts 1990 to 2008 has to be pleaded and proved separately. However, even if successful the maximum award can only be two years’ remuneration. It is interesting that there is no reference in the recommendation to multiple discrimination nor indeed to any statistics in the wider workforce in respect of indirect gender discrimination and age. There is also no linking of the two grounds of discrimination or of considering the one ground together. Furthermore there is no reference to EU Directives, but the Equality In practical terms an extra top-up arrangement for employees, frequently used by employees in a pension scheme to get enhanced pensions.

74 Multiple Discrimination in EU Law Tribunal did rely on Bilka – Kaufhaus.81 The Tribunal also distinguished Bilka from the present case by noting in Bilka that the employees had to have 15 years of fulltime service to be able to enjoy the benefits of the pension scheme, a condition which was much harder to fulfil for female employees than it was for male employees. In the present case, however, the part-time employees were simply not allowed to join the scheme at all. Whilst this case is not the most perfect example of intersectional discrimination, it highlights the difficulties that may arise.

6. Effects of legislation and case law in practice Commencement of proceedings: the commencement of proceedings before the Equality Tribunal is by way of Form EE1, which asks prospective claimants to ‘tick’ boxes in respect of each and every ground that they are claiming under and then set out the particulars of their claim under each and every ground. If a prospective claimant wishes to bring a claim on the gender ground, then at their request the matter may be referred to the Equality Tribunal where there is a maximum of two years gross remuneration in respect of redress, or alternatively a reference to the Circuit Court where there is no ceiling in respect of an award of discrimination.82 However, if the claimant wishes to bring proceedings under two or more grounds the choice of venue is more problematic, because technically they can bring proceedings before the Circuit Court on the gender ground and before the Equality Tribunal on the age ground. This can result in two hearings. In practice, when a claimant is bringing a claim on the gender ground and also on another ground, it is usually decided to bring it before the Equality Tribunal even though there is a two-year ceiling on the gender ground. Of course, this results in the prospective claimant waiving their right to a higher level of compensation on the gender ground. The Judge of the Circuit Court can avoid two hearings by referring a question back to the Equality Tribunal and therefore arguably the Equality Tribunal can investigate and prepare a report for the court.83 Ceiling on compensation award: in the event that a claimant is successful in proceedings on two or more grounds or where the situation included both discrimination on one or more than one of such grounds and harassment or sexual harassment, there is a ceiling of two year’s remuneration which may be awarded by the Equality Tribunal. Such limit does not apply in respect of an equal remuneration term.84 However, if there is a reference to the Circuit Court on the gender ground, this limit on compensation does not apply.

Gender, marital status and family status grounds: if a claimant brings a claim on these grounds and if the employer is regarded as indirectly discriminating against an individual on the marital status or family status ground and is also regarded as discriminating on the gender ground, the employer shall be regarded as indirectly discriminating on the gender ground only.

7. Role of equality bodies The Equality Authority has been to the fore in respect of diversity in the workplace.

As recently as November 2008, it published an action strategy for integrated workplaces supported by the employer bodies and trade unions. This is an action plan to enable Black and minority ethnic employees (to include Travellers) to work in a ECJ 61984J0170, 1986.

In respect of equal remuneration, the award may go back six years.

Section 79(4) of the 1998 Act.

Section 82(6)(b) of the 1998 Act as amended.

Multiple Discrimination in EU Law 75 welcoming workplace, free from discrimination and harassment, and providing for cultural and linguistic diversity.85 Other awareness campaigns include avoidance of stereotyping across the nine grounds.86 The Equality Authority have advised and or represented claimants with multiple claims before the Equality Tribunal and the Labour Court, but given the current considerable cutbacks this may no longer be possible.

8. Reinforcement of legal approach at EU level necessary?

There might be merit in a recast or consolidation of the employment directives. The concept of ‘compound’ discrimination could also be considered in respect of redress, for example. Older women may be more vulnerable to discrimination, yet for example a successful claimant on the gender and age ground may only be awarded two years’ remuneration which is little compensation if a woman loses her job at, say, the age of 59 with no employment or pension prospects.

9. Community-law definition of multiple discrimination necessary?

It is submitted that at national level, with the exception of some procedural difficulties, the application of legislation with multiple grounds is relatively satisfactory. However, difficulties can arise in respect of ‘intersectional discrimination’, e.g. age and gender or race and religion. A definition of multiple discrimination or ‘intersectional discrimination’ would be useful, with the clarification that a claim brought on a number of grounds shall be investigated together as a ‘compound ground’ and that a prima facie case does not have to be proved on two grounds, therefore taking the two grounds together to prove a prima face claim. However, the issue of redress on each and every ground may be addressed in order to avoid the Irish difficulty.

10. Available literature or research?

The Equality Authority published a document entitled 2007 European Year of Equal Opportunities for All – A national strategy for Ireland. The priorities are multiple discrimination, an approach to multiple discrimination in relation to women and to include gender mainstreaming as a strategy for the year 2007. A report entitled The Experience of Discrimination in Ireland – Analysis of the QNHS Equality Module was published jointly by the Equality Authority and the Economic and Social Research Institute.87 This report results from the ‘Research Programme on Equality and Discrimination’ carried out by the Central Statistics Office in 2004. Discrimination was defined as including all of the nine grounds, but it also showed examples of discrimination on a number of grounds, and across a range of social contexts, both in the workplace and in respect of goods and services. As many as 24 600 people were surveyed and all grounds of discrimination. Of the perceived grounds of discrimination, age-related discrimination was the most commonly reported (19 %) followed by race/ethnicity/nationality (16 %) and sex (12 %). In respect of women and men, women were more likely to report discrimination on marital and family status grounds and to a lesser extent on the gender ground. 45 % of reports of genderbased discrimination came from men predominantly in relation to financial services.

Whilst the data does not provide the information, the report suggests that young men http://www.equality.ie/index.asp?locID=109&docID=744, accessed 24 February 2009.

E.g., Give Stereotyping the Boot http://www.equality.ie/index.asp?locID=106&docID=746, accessed 24 February 2009.

Dublin, 2008.

76 Multiple Discrimination in EU Law interpret higher motor insurance premiums on the basis of their age as discrimination.

Age, nationality/ethnicity and disability were more commonly cited by men as the perceived grounds of discrimination. The report notes that with regard to the gender and age grounds, women were more likely to feel that they have been discriminated against at work than men, namely 5.7 % compared to 4.1 %. This difference remains when it is corrected for socio-demographic statistics including marital status, family status and job characteristics.88 The Equality Authority published An Introduction to the Situation and Experience in Ireland.89

11. Further research There may be further research, but it would be of an empirical nature as opposed to a legal nature.

–  –  –

1. Concept of multiple discrimination in legislation Multiple discrimination has entered our legislation in the extremely simplified form of double discrimination. The only references to it are in legislative decrees nos. 215 and 216 of 2003, transposing Directives 43/2000 and 78/2000, and in the corresponding delegation act. In particular, Article 1 of Decree No. 215/2003 provides that the implementation of equal treatment irrespective of race and ethnic origin must take place ‘also in a perspective that takes into account the different impact that the same forms of discrimination can have on women and men, and the existence of forms of racism with a cultural and religious character’; this formula is repeated in Article 7 of the Decree, where the tasks of the National Office against Racial Discrimination (UNAR) are defined. In this respect, the Decree fulfils the guideline provided by Delegation Act No. 39/2002, which in Article 29 requires that the implementation of Directive 43/2000 take into account the existence of discrimination on the double ground of gender and race and ethnic origin. A similar concept of multiple discrimination is provided by Aicle 1 of Decree No. 216/2003, which states that the implementation of equal treatment, irrespective of religion or belief, disability, age or sexual orientation, as regards employment and occupation must be carried out in a ‘perspective that also takes into account the different impact that the same forms of discrimination can have on women and men’. Multiple discrimination, therefore, is not properly defined and it is perceived by the legislator only as an intersection between the grounds of gender and other discriminatory factors.

2. Case law There is a group of cases in which gender could be recorded in combination with another ground of discrimination. These are cases where reaching the pensionable age or the possibility to rely on early retirement are used as a criterion for redundancy. In our system, the pensionable age, and consequently the age of early retirement, is lower for women than it is for men, although women can choose to keep working until the age provided for men. This means that the criterion of reaching the age of retirement, irrespective of the lower pensionable age of women, is discriminatory both On page 15. Note, however, that this difference is smaller than earlier studies in relation to pay would suggest. It was also noted that men felt that they were more likely to have been discriminated against in respect of job search.

2006; http://www.equality.ie/index.asp?locID=106&docID=577, accessed 24 February 2009.

Multiple Discrimination in EU Law 77 on the ground of gender and age, as it causes women to be dismissed at a younger age and earlier than man, despite the fact that women can choose to keep working until the retirement age provided for men. Nevertheless, the case law that deals with this issue, which is very limited, is absolutely unaware of the hypothesis of multiple discrimination. Therefore, there are cases where the criterion of reaching retirement is regarded as discriminatory exclusively on grounds of age, the gender ground being ignored (Tribunale Milano 27/4/2005) and cases where the existence of gender discrimination is denied and the age ground is not taken into consideration at all either (Cassazione No. 9866/2007; Cassazione No. 20455/2006; Tribunale Genova 30/9/1997).

3. Any cases where gender-related discrimination is overlooked?

As described above, gender-related discrimination has been totally ignored or denied by the limited case law on the redundancy criteria of approaching the age of retirement or early retirement, irrespective of the lower pensionable age of women.

This despite the fact that the Constitutional Court had declared it unlawful, for violation of the equality principle, that the notional contributions paid to women for the purpose of retiring earlier are lower than those of men; this decision has neutralized the consequences of the different pensionable age between men and women, in relation to the discipline of early retirement (cases No. 371/1989 and No. 134/199). The reason why gender discrimination is often overlooked goes hand in hand with the reason why only few discrimination cases are initiated: lack of awareness of anti-discrimination legislation among the judiciary and lawyers; a widespread lack of trust regarding the effectiveness of anti-discrimination legislation;

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