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As a result of Ireland’s increasing cutural and ethnic diversity, employers have hired and continue to hire employees from a variety of countries and with differing religious backgrounds. Here are a few answers to frequently asked questions.
- Does the law protect employees from discrimination on grounds of religion?
Article 44.2.3 of the Irish Constitution provides that “the State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status”. Breaches of the Constitution may be pleaded in legal actions. In addition, the Employment Equality Acts 1998 and 2004 (the Acts) outlaw discriminatory practices in relation to and within employment. The Acts specifically prohibit discrimination and victimisation, occurring either directly or indirectly, in employment on the following nine grounds: gender, marital status, family status, sexual orientation, religious belief, age, disability, race and membership of the traveller community. The prohibition applies to access to and conditions of employment, training and experience, promotion and regarding and the classification of posts. Section 6(1) of the 1998 Act states that direct discrimination on the grounds of religious belief shall be deemed to occur where, as a result of a person’s religious belief or absence of religious belief, that person is treated less favourably than another is, had been or would be treated. Indirect Discrimination occurs when a practice or policy, that may not appear to discriminate against one group more than another, actually does discriminate or where a requirement of a job adversely affects a particular group or class of individuals. If the practice, policy or requirement is such that the proportion of employees who are disadvantaged by it is substantially higher in the case of one group or class of individuals compared to another group or class of individuals, then indirect discrimination exists.
2. Definition of religion The Acts refer to “religious belief” rather than to “religion”.
The 1998 Act provides that “religious belief” includes religious background or outlook. Moreover, discrimination on grounds of religious belief includes not only a difference in treatment between two people of different religions, but also a difference in treatment because one person has a religious belief and the other has not (section 6(2)(e) of the 1998 Act). This means that discrimination on grounds of a person’s non-belief is covered by the law.
3. Is the employer required to accommodate an employee’s religious beliefs?
The Acts do not expressly require employers to accommodate religious beliefs. This may be explained by the fact that historically the majority of Irish citizens have been Roman Catholic. However, in practice, employers generally accommodate their employees and seek to avoid allegations of religious discrimination. An agreement by an employer to facilitate an employee with a particular religious belief and a refusal to facilitate another employee with a different religious belief may amount to direct discrimination. It could also be argued that a refusal to accommodate religious beliefs may constitute indirect discrimination. These issues are considered further in section B below.
4. Enforcement and claims.
The Workplace Relations Commission deals with complaints of alleged discrimination on the grounds of religion under the Acts. It is independent and quasi-judicial in nature. Its decisions and mediated settlements are legally binding on the parties. An employee (the complainant) who makes a successful complaint of religious discrimination before the Workplace Relations Commission is entitled to damages. The Commission may order one or more of the following:
• An order for equal treatment.
• An order for equal pay (plus arrears where appropriate).
• An order for compensation of up to 2 years pay (up to 12,697 euro for someone who is not an employee of the Respondent, i.e. a job applicant).
• An order for a specified person to take a specified action. In 2004 there were 5 claims of discrimination on the grounds of religious belief. Statistics are not available for 2005 yet, but is believed that religious belief discrimination claims have increased. An increase in such claims would be reflective of the multi-culturalism that Ireland has come to experience in recent years with the expansion of the EU.
5. Time off for prayer/annual leave for religious festivals.
Irish law does not impose any specific obligations on employers to accommodate the religious beliefs of their employees, for example by allowing time off for prayer during the working day.
All employees are afforded the same statutory rights regardless of religious belief. An employee seeking to take time off for prayer or annual leave to coincide with a religious holiday would need to comply with the terms and conditions of their contract of employment and/or Staff Handbook in relation to time off and annual leave entitlements. As mentioned above, the majority of Irish citizens are Roman Catholic. The Organisation of Working Time Act 1997 makes provision for nine national public holidays, four of which are Roman Catholic holy days.
6. Dress codes There are no specific legal provisions in Ireland relating to dress code.
Dress codes at work are usually set by the employer and are either contained in an employee’s contract of employment or a Staff Handbook. If all employees are required to wear similar clothing in the workplace then it would be difficult for an employee to allege direct discrimination. However, if an item of clothing peculiar to a particular religious group were to be excluded by an employer from the workplace, then depending on the circumstances this could give rise to a claim of indirect discrimination. As yet, this issue has not been the subject of any discrimination claims made to the Equality Tribunal.
7. Dismissal on religious grounds
Section 6(1) of the Employment Equality Act 1998 states that direct discrimination onthat direct discrimination on the grounds of religious belief shall be deemed to occur where, as a result of a person’s religious belief or absence of religious belief, that person is treated less favourably than another is, had been or would be treated. Less favourable treatment would include dismissal of an employee on the grounds of his or her religious belief or absence of religious belief. Irish law therefore prohibits dismissal on religious grounds.
8. Harassment on religious grounds Section 32 of the 1998 Act prohibits harassment.
Harassment is considered as a form of discrimination and includes any act or conduct, including spoken words, gestures or the production, display or circulation of written words, pictures or other material that is unwelcome and could reasonably be regarded as offensive, humiliating or intimidating. It is a defence for the employer to prove that it took such steps as would be considered reasonably practicable to prevent harassment and to prevent different treatment and to reverse the effects of such different treatment if it has occurred. Many employers have workplace Bullying and Harassment policies that outlaw bullying and harassment for any reason whatsoever. These policies would cover religious belief harassment.
An employer would be expected to investigate the allegations and a failure by an employer to address an allegation of bullying and/or harassment could result in an employer’s liability for compensation to the aggrieved party.