Committee Reports > List of Committees > Joint > 1996 > Committee on Women's Rights (4th Committee) > Report No. 04 - Impact of European Equality Legislation on Women's Affairs in Ireland: Implementation of the 3rd Action Programme and Recommendations for Implementation of the 4th Action Programme

ANNEX 1

RESEARCHER’S REPORT

PREFACE

Chapter one examines sex equality as a right within European law, how it has been implemented in the Member States and the implications of using certain types of Community measures in terms of how individuals can enforce their rights before their national courts.

Chapter two explores implementation in Ireland of European Equality legislation, ie those aspects that are legally binding in Ireland and must be implemented in national law. The manner in which the national legislation has been interpreted is examined and the effectiveness of that legislation in bringing about equality for Irish men and women.

Chapter three discusses the non-legal aspects of European equality policy and the corresponding measures introduced in Ireland. As many of the policy areas may, in future, become binding law it is important to evaluate their implementation and influence in Ireland to date.

Chapter four firstly looks at the current proposals for the 4th Action Programme and secondly makes specific recommendations for the final version. These recommendations are made in the light of a brief summary of Irish achievements in the particular areas.

1)SEX EQUALITY IN EUROPE

1.1 Introduction

The Treaty of Rome expressly prohibits discrimination in a number of areas, mainly concerned with nationality. Equality between men and women is a particular aspect of this principle of non discrimination and its origins lie in Article 119 which guarantees the principle that men and women should receive equal pay for equal work. Article 119 was first held to give rise to enforceable rights for individual citizens of the Community in 1976¹ and was later expanded into a general fundamental right of equality between the sexes in Defrenne v Sabena (No. 3)² where the European Court of Justice said “[T]he elimination of discrimination based on sex forms part of those fundamental rights [of Community law]”.

Thus, within a largely economic union, equality between the sexes forms one of the few aspects of a European social policy. However it is a policy that exists almost exclusively in the employment context. Whilst some developments have been made outside the workplace, it is only at work that a citizen of the EU can legally enforce his/her right to equal treatment.

1.2 European Equality Legislation

The Commission have chosen directives as the primary method of instituting equality legislation. The main equality directives to date are on equal pay³, equal treatment⁴, statutory social security⁵, occupational social security⁶, the self employed⁷ and pregnancy⁸. Whilst the Pregnancy Directive is a health and safety provision introduced pursuant to Article 118A, its impact upon women places it in the category of equality directives.

Recommendations have also been used, sometimes where the political will for a directive may not have existed or as a preliminary step towards a future directive. Probably the most effective of these has been the Recommendation on the Protection of the Dignity of Women and Men at Work.⁹

1.2(i) The Effect of Directives in the Member States

Directives are binding as to the result to be achieved and leave to the national authorities the choice of form and method of implementation.¹⁰ Where a directive has not been implemented by a national authority within the permitted time, or where a directive is not properly or fully implemented, a citizen of a Member State can rely upon the clear provisions of the directive in legal proceedings before a national court or tribunal. Where the relevant implementing legislation is relied upon, a national court must apply that legislation in the light of the relevant directive¹¹. A directive may not be sufficiently clear enjoy what is known as direct effects in the national courts. Even if this is so, a Member Sate may be liable in damages to a citizen who suffers loss due to the non-implementation of a directive¹².

Thus it can be seen that using directives to implement equality legislation gives rise to effective and meaningful rights for individuals of the EU.

1.2(ii) The Effect of Recommendations in European Law

Article 189 of the Treaty of Rome states that Recommendations shall have no binding force. However the European Court have said that national courts are bound to take them into consideration, particularly where the Recommendation is designed to supplement binding Community measures.¹³ This suggests that the equality Recommendations are of some relevance in the national legal system, particularly the Recommendation on the Dignity of Women and Men at Work which refers to the Equal Treatment Directive, a binding Community measure, in its preamble.

1.3 The 3rd Medium-Term Community Action Programme 1991-1995

By the time of the 3rd Action Programme on Equal Opportunities for Men and Women, the concept of formal sex equality was firmly established. The programme is clearly focussed on achieving a more substantive form of equality by eliminating the subtle and institutional forms of sex discrimination in the EU.

The difference between formal and substantive equality can be explained as equality of opportunity versus equality of outcome. Under the former, women are given the same opportunities, or starting point, as men and thus are expected to participate in society as men, working within a system based on male norms. However, women are not the same as men in a number of respects, most fundamentally in the area of childbirth and family responsibilities. Equality of outcome attempts to ensure equality between men and women in spite of those differences.

1.3(i) Aims and Objectives

The overall objective of the programme was to promote women’s full participation in, and to revalue their contribution to, economic and social life. This was to be achieved by an integrated approach with the objectives of:

1)The implementation and development of the law.

2)The integration of women into the labour market.

3)The improvement of the status of women in society.¹⁴

Each will be examined separately.

1)The implementation and development of the law.

As the legal framework for equality was well established by the time of this programme, the focus was on increasing the effectiveness of that framework.¹⁵ The specific legal issues to be addressed were:

(a)Equal pay for work of equal value;

(b)Indirect discrimination;

(c)Social protection and social security;

(d)Self employed women.¹⁶

2)The integration of women into the labour market.

The barriers here were seen as discrimination in education and access to training, which results in disproportionate levels of long-term unemployment amongst women.¹⁷ Other important issues are sexual harassment, childcare and the reconciliation of working and family life.¹⁸ The Member States were given responsibility for integrating the “equality dimension’ in their employment, education and social policies.¹⁹ Specific measures proposed included:

(a)Research and the collection and dissemination of information on the situation of women in the labour market;

(b)Job creation and vocational training for women;

(c)A Code of Practice on the protection of the dignity of women and men at work;

(d)The development of childcare facilities;

(e)Maternity protection and family leave.²⁰

3)The improvement of the status of women in society.²¹ The three issues here were:

(a)Public awareness of equality of opportunity;

(b)Women in the media;

(c)The participation of women in the decision making processes at all levels in society.

Member States were to encourage the appointment of women to both public and private committees, bodies and boards and to heighten public awareness of the importance of women participating in society.²²

2) IRISH IMPLEMENTATION OF EUROPEAN EQUALITY LEGISLATION

2.1 The Equal Pay and Equal Treatment Directives

Most European directives are implemented in Ireland by statutory instrument. The fact that the two most significant equality directives, the Equal Pay and Equal Treatment Directives, were implemented by statute gives some indication of how radically they were to change Irish law. The Equal Pay Directive 1973 was implemented in Ireland by the Anti-Discrimination (Pay) Act 1974 and the Equal Treatment Directive 1976 by the Employment Equality Act 1977. Ireland has been only occasionally subjected to proceedings in the European Court in relation to the non-implementation ofthese directives, and in general it can be said that the legislation implemented the directives thoroughly. In addition, the Irish Equality Officers and Labour Court have been imaginative and reactive to European developments in their application of the legislation over the years.

The overall effect of the Anti Discrimination (Pay) Act, 1974 and the Employment Equality Act, 1977, which are to be construed together, is to place an equality clause in every contract under which a person is employed²³. Regardless of what the contract might say, this equality clause has three consequences.

(i) No person can be treated less favourably on grounds of sex or marital status in relation to pay and conditions²⁴.

(ii) Indirect discrimination is also prohibited²⁵ which is a more subtle form of discrimination. It occurs wherever an employer imposes a requirement upon an employee which can be fulfilled by a greater number of the members of one sex or marital status, but which requirement is not essential for the job in question. Examples include a requirement to be tall, to be mobile, to be available for full-time work, not to be pregnant - all of which can be more easily complied with by men. Unless they are essential requirements for the job, the employer will be guilty of unlawful indirect discrimination on grounds of sex.

(iii) An employee cannot be victimised for taking, or threatening to take a case, under the equality legislation or for giving evidence in the case of another person.²⁶

Inequality in an employment contract may be permitted if it is based on grounds other than sex²⁷ or on a material difference between the sexes²⁸ but these reasons for unequal treatment may not themselves be discriminatory. For example, a requirement to have a particular qualification could be indirect discrimination if it was found that far more men than women held that qualification and the employer would then have to prove that it was essential for the job.²⁹

The two Irish equality Acts shall be examined separately.

2.1 (i) The Implementation of the Equal Pay Directive 1973: The Anti Discrimination (Pay) Act 1974

Section 2 of the Act states:

“It shall be a term of the contract under which a woman is employed in any place that she shall be entitled to the same rate of remuneration as a man who is employed in that place by the same (or an associated) employer if both are employed on like work.”

‘Remuneration’ covers any advantage received from an employer, eg accommodation, bonuses, marriages gratuities, sick pay etc and as a result of the European Court’s decision in Barber³⁰, occupational pensions are also included.

Previously a comparator of the opposite sex had to be named by a claimant, ie a specific co-worker of the opposite sex who was receiving greater remuneration for like work.³¹ In a recent case about discrimination against a pregnant woman the European Court allowed a claim even though no comparator existed.³² This was an important development for equal pay claimants, particularly for those in sex segregated employment where the only comparator is often a hypothetical one.

‘Like work’ is defined in section 3 as identical / interchangeable work, work of a similar nature where any differences are infrequent or of small importance or work of equal value in relation to the demands of the employment, including physical and mental effort, responsibilities and working conditions.

i) Identical / interchangeable work relates to the nature of the work, not the job description. In Department of P&T v Kennefick³³ the comparable man was responsible for additional duties, but was rarely asked to perform them. The work actually performed by the claimant and the comparator was found to be substantially the same in practice, entitling the claimant to equal pay.

ii) Work of a similar nature involves evaluating how important is the difference. In Dowdall O’Mahony & Co Ltd v 9 Females Employees³⁴ the claimants and the comparators were both doing general factory operative work and, despite the finding that the work was different in content, it was found to be of a similar nature as the differences were of small importance in relation to the work as a whole. This was decided by applying the same general criteria as would be applied in grading jobs, irrespective of sex.

iii) Work of equal value was one of the issues specifically mentioned in the 3rd Action Programme. The concept of equal pay for work of equal value possibly offers the most potential for attacking sex stereotyping and sex segregating of the workplace which results in a lesser value being placed on what is traditionally seen as ‘womens’ work’. In fact, as in many areas, the Irish equality officers have shown themselves to be remarkably sensitive to the potential subtleties of this aspect of the equality legislation. The approach of the Irish equality officers in evaluating work of equal value is to ask

“whether the work performed by the women and that performed by the men, in terms of the demands it makes upon them warrants payment of the same level of remuneration.”³⁵

The value of the work in terms of the demands specified in section 3(c) (detailed above) is the value which is or would be reflected in rates of remuneration without any sex discrimination. Whether the differences in demand are significant should be decided using the same criteria as normally used in grading jobs, irrespective of sex.³⁶ The effect of this rather sophisticated approach is to allow a woman to argue that, whilst her job is not exactly as demanding as that of the comparator, that the lesser value placed on her work is because of her sex, ie would she have been paid the same as the comparator but for her sex.³⁷

Occupational sex segregation is still one of the major problems facing the inequality of women and men in the labour market. The decision of the European Court of Justice in Enderby v Frenchay Health Authority³⁸ offers huge potential to using the concept of work of equal value to attack pay differentials between “female” and “male” jobs. In that case the European Court found that:

“[I]f the pay of speech therapists is significantly lower than that of pharmacists and if the former are almost exclusively women while the latter are predominantly men, there is a prima facie case of sex discrimination, at least where the two jobs in question are of equal value and the statistics describing that situation are valid.... Where there is a prima facie case of discrimination, it is for the employer to show that there are objective reasons for the difference in pay.”

The employer tried to argue that the different levels of pay were based not on sex but on different collective bargaining processes which, in themselves, had no discriminatory effect. This was not accepted by the Court.

By rejecting collective bargaining as justification for different pay levels for different jobs, the Court opened the way to claims by women in sex segregated employment where, in the past, differential pay levels were blamed on historical factors which had led to different collective bargaining processes. This was the situation in the Irish case of Sales and Clerical Assistants v Pennys³⁹. Unfortunately Enderby was not cited to the Equality Officer in argument and the claim failed as the Equality Officer, despite finding that the claimants’ work was at least of equal value to that of the comparators, found that the differential pay levels were justified by valid grounds other than sex. She held that:

“[T]he comparators’ pay scale derived from a separate set of negotiations in the past than those of the claimants and that these negotiations did not relate to the sex of the workers concerned.”⁴⁰

That decision would appear to be seriously at odds with the decision of the European Court in Enderby. In order to enable Irish women to use European equality law to attack occupational sex segregation and the lower value placed on women’s work, it is of vital importance that this misapplication of the law be remedied as soon as possible.

2.1(ii) The Implementation of the Equal Treatment Directive 1976: The Employment Equality Act, 1977

The Employment Equality Act defined direct and indirect discrimination, as described above,⁴¹ and outlaws discriminatory treatment in access to employment, conditions of employment and access to training or experience for employment.

2.1(ii) (a) Direct Discrimination

Much of the application of the act has been to specific and recurring types of directly discriminatory treatment, for example discriminatory interviewing, pregnancy discrimination and sexual harassment. Each of these will be examined separately to give an idea of how the legislation works in relation to access to and conditions of employment.

1) Discriminatory interviewing: This is a good example of how it is unlawful to discrimination in relation to access to employment. The Employment Equality Act is one of the few pieces of employment legislation that allows a claimant to proceed against a prospective employer, even though no contractual relationship ever existed between them. In McCarthy Daly Stapleton v Hayes⁴² the two claimants were interviewed briefly and questioned only about their marital status. Even though the successful applicant had superior qualifications than theirs, it was held that the claimants did not have to show that they would have got the job had it not been for the discriminatory questioning. They simply had to show that they were asked questions not asked of comparable male applicants to prove unlawful discrimination.

2) Pregnancy discrimination: In the past less favourable treatment on grounds of pregnancy was held not to be on grounds of sex⁴³. Later a requirement not to be pregnant in order to get a job or in order not to be less favourably treated at work was held to be indirect discrimination⁴⁴ as fewer women than men could comply, and, unless it could be shown to be an essential requirement for the job, it was unlawful discrimination. A recent decision of the European Court⁴⁵ was to have profound implications for the prevention of pregnancy discrimination as it established that

“a refusal to employ because of the financial consequences of absence connected with pregnancy must be based principally on the fact of the pregnancy.”

Thus, treatment on grounds of pregnancy was treatment that could only be afforded to women and had to be direct sex discrimination which could not be justified. The absence of a male comparator did not affect the finding of discrimination.

This historic decision has been enthusiastically followed in Ireland. For example, in Ormiston v Gypsum Industries plc⁴⁶ less favourable treatment in relation to the company’s VHI subsidization scheme, because of the claimant’s maternity leave, was held to be unlawful direct discrimination. The Equality Officer said that Dekker had established that

“pregnancy is a condition that is exclusive to women and a woman who suffers a detriment because of her pregnancy is subjected to direct discrimination because of her sex.”

She later concluded

“It is sufficient to show less favourable treatment as a result of maternity leave in order to prove a breach of the principle of equal treatment.”

Thus, any adverse consequences at work suffered by a woman because of her pregnancy will be unlawful sex discrimination.⁴⁷

3) Sexual harassment: Whilst there has been a European Recommendation on the Dignity of Women and Men at Work⁴⁸ the Irish Equality Officers and Labour Court have been remarkably progressive in this area and have held that one of the conditions of work pursuant to section 3 of the Employment Equality Act to which every worker is entitled, is to a workplace free from sexual harassment. It has been suggested that the Equal Treatment Directive also outlaws sexual harassment, but no successful case has ever been taken to the European Court and, to date, the only Member States to expressly extend their legislation implementing that directive to cover sexual harassment have been Ireland, the UK and Denmark.

In a landmark decision, and only the second of its kind in Europe⁴⁹, the Irish Labour Court held in A Garage Proprietor v A Worker that

“Freedom from sexual harassment is a condition of work to which an employee of either sex is entitled to expect. The Court will, accordingly, treat any denial of that freedom as discrimination within the terms of the Employment Equality Act.”

Later caselaw established that sexual harassment is subjective conduct and, regardless of the intention of the perpetrator, it must be viewed from the viewpoint of the recipient. An alleged victim must exhaust any suitable complaints procedure available to them, but where none exists, this can justify resignation and a claim of constructive dismissal.⁵⁰

The concept of vicarious liability whereby an employer is responsible for the wrongful acts of employees, which acts are performed in the course of the employees’ employment, does not extend to sexual harassment, according to Costello J. in the only High Court decision to date on this area.⁵¹ The employer in that case was held not to be liable for a serious sexual assault committed by two of its employees against a co-employee. In the aftermath of that case, the Labour Court held that an employer was liable for the sexual harassment committed by an employee to whom the employer had entrusted responsibility for hiring and firing staff. The employer remained vicariously liable for the manner in which the employee exercised that power.⁵²

It would seem that, in the absence of an express provision of vicarious liability in the Employment Equality Act, an employer will be liable for sexual harassment perpetrated by its employees against another employee where the employer has placed the perpetrator in a position of power over the recipient.

2.1(ii) (b) Indirect Discrimination

The 3rd Action Programme lists indirect discrimination as one of the areas of law to be implemented and developed. Both the importance and potential of indirect discrimination is recognised by the Programme which recognises that a legal framework for equality has been well established at this stage, but emphasis now must be placed on making that framework effective.⁵³ In Irish equality law indirect discrimination has grounded a number of claims, for example discrimination against part-time workers⁵⁴, married women⁵⁵, less fit women⁵⁶, older women⁵⁷ and less mobile women⁵⁸. Where the employer was unable to prove that those requirements were essential for the job, they were held to be discriminatory.

Despite the complicated nature of proving indirect discrimination, in the use of statistics, comparisons of pools of persons and close examinations of employment practices, the Irish courts and tribunals have generally applied the law of indirect discrimination in a way that exposes subtle and institutionalised forms of sex discrimination. However one High Court decision suggests a cutting back of this approach. In Nathan v Bailey Gibson⁵⁹ Murphy J. held that section 2(c) of the Employment Equality Act required a “causal connection” between the allegedly discriminatory requirement and the sex or marital status of the claimant. The most remarkable aspect of his judgement was that he held this to be the law “notwithstanding the provision of the [Equal Treatment Directive]”. Thus, a requirement to be a member of a trade union which had a female membership of less than 11% was not held to be a discriminatory requirement as there was no causal connection between membership and the plaintiff’s sex. The case has been appealed to the Supreme Court and in the unlikely event that they do not overturn Murphy J.’s decision, a reference to the European Court seems inevitable.

Probably the main problem with indirect discrimination is that it can be justified. According to the European Court this need only be “objective justification”⁶⁰ but Irish law has the more strict test of “essential”. In St Patricks College Maynooth v 19 Female Employees⁶¹ the lower rate of pro-rata pay for part-time workers was held to be indirect discrimination as more part-time workers are women, and a requirement to work full-time was not held to be an essential requirement for the job. On the other hand the European Court in Bilka-Kauflaus⁶² held that business necessity objectively justified paying pensions to full-time workers only, as it was necessary for the employer to encourage employees to work full-time.

In general, the hopes which the 3rd Action Programme had for the development of indirect discrimination have been realised by Irish equality law, particularly as a higher test of justification is applied here than in the European Court.

2.1(iii) Discrimination against Men

Even though in practice, women tend more often to be the victims of sex discrimination, men can also be subjected to sex discrimination. One of the earliest attempts to apply the principle of sex equality to a traditional and largely accepted less favourable treatment of men was taken by a Mr Hofmann to the European Court.⁶³ He challenged the German State maternity leave which was restricted to women only and argued that this was contrary to his right to equal treatment pursuant to the Equal Treatment Directive. The European Court disagreed, holding that the leave could legitimately be reserved to the mother

“in view of the fact that it is only the mother who may find herself subject to undesirable pressure to return to work prematurely.”

Arguably, a more broad interpretation of the Equal Treatment Directive has been applied in Ireland, although not yet in the area of paternity leave which has yet to be properly introduced.⁶⁴ A good example is Parents Alone Resource Centre v Fozzard⁶⁵ where a man had applied for a position with a single parents’ group, the members of whom were predominantly female. He was told that they wanted a woman for the job. When he brought a claim of sex discrimination, they argued that the position came within section 17(2) (b) of the Act which excludes from the scope of the legislation services of a personal nature. The Equality Officer did not accept that the services promoting education and welfare for single parents could not be done by a suitable man as well as by a suitable woman. Thus, to automatically dismiss the possiblity of employing the claimant was direct discrimination on grounds of sex.

In Pantry Franchise (Ireland) Ltd v A Worker⁶⁶ the differential treatment of men and women was even less relevant to the employment. Women were permitted to have long hair whereas their male colleagues had to have their hair cut short. The long haired male claimant, who was willing to wear a hairnet, successfully challenged this as a discriminatory condition as different hair requirements for men and women could not be justified in this day and age.

Another area traditionally seen as inapplicable to men is sexual harassment. However in A Company v A Worker⁶⁷ a company was held to be liable for the verbal teasing of a sexual nature to which a young male apprentice was subjected by his female supervisor.

2.1(iv) Access to an Effective Judicial Process

Article 6 of the Equal Treatment Directive provides that Member State must introduce “such measures as are necessary” to enable persons to bring a claim under the provisions of the directive. In recent years the effectiveness of judicial protection has been elevated to the rank of a fundamental principle of European law.⁶⁸ In examining the effectiveness of the Irish judicial process in relation to equality law, three areas are relevant.

1) Procedures: Irish equality law is part of a wider system of employment law. Unlike most other areas of law, cases involving the employment relationship are taken in the Employment Appeals Tribunal or the Labour Court where the aim is to provide a cheap, quick and informal resolution of disputes that is legally binding. Equality law is operated by the Labour Court which may appoint an Equality Officer to investigate a case, or may decide to hear the case itself. The Equality Officers have important powers in relation to conducting investigations at the workplace, and this has proved invaluable in establishing discrimination in what may appear to be acceptable distinctions between jobs. A determination of the Equality Officer is not binding but may be enforced by or appealed to the Labour Court. A determination of the Labour Court is legally binding and an appeal lies from there to the High Court on a point of law only.

Costs are not awarded by Equality Officers or the Labour Court. This has the effect firstly, of removing the usual risk in litigation of liability for the costs of the other side and secondly, of reducing legal representation as both parties will be liable for their own legal costs regardless of the outcome. However due to the complex nature of many equality claims, the appearance of solicitors and sometimes barristers is not unusual. In more straightforward cases representation by trade union and IBEC officials is commonplace. At this stage, most equal pay claims are conducted in this manner as the principles are well established and accepted. Equal treatment claims still tend to be more difficult.

A claim must be lodged within 6 months of the first occurrence of the alleged discriminatory act⁶⁹ but that may be extended where reasonable cause is shown. The European Court has held that national limitation periods cannot bar a claim which is directly based on a directive, as a limitation period cannot begin to run until the directive has been properly implemented into national law.⁷⁰

2) Remedies: Arrears of pay in a successful claim under the Anti Discrimination (Pay) Act are limited to arrears over three years immediately prior to the claim.⁷¹ In an equal treatment claim, a determination of the Labour Court may recommend a specified course of action and/or award compensation⁷² which cannot exceed two years remuneration⁷³. This gives wide scope to the Court to award remedies, which could include re-engagement, re-instatement or even the creation of a new position. In practice the usual remedy is compensation, which tends to be quite low particularly where the claimant is still employed by the same employer. The power to recommend a specific course of action is seldom used, but one example was where the Court ordered a a Government Departmental circular on sick leave be amended to prevent less favourable treatment of women who had suffered from pregnancy related illness.⁷⁴

It is possible that the low awards of compensation in equality cases is not consistent with the right to access to an effective judicial process under Article 6 of the Equal Treatment Directive, particularly in the light of the European Court’s judgement in Marshall (no.2)⁷⁵ where the UK’s limit on the amount of compensation that could be awarded in a sex discrimination case was successfully challenged.

3) Assistance and advice: The Employment Equality Agency was established by the Employment Equality Act⁷⁶ and has three main functions: to work towards the elimination of employment discrimination, to promote equality of employment opportunity and to keep under review the 1974 and 1977 Acts. Their powers include issuing codes of practice for employers, undertaking formal investigations and issuing non-discrimination notices to persons infringing the legislation.

Possibly the most important role of the agency is that of giving advice, and sometimes assistance to persons who feel they have been victims of sex discrimination. In 1993 they received 1,923 enquiries, which increased to 2,132 in 1994.⁷⁷

Despite the usual problems of resources, the agency fulfils an admirable role and is a particularly important part of the Irish government’s obligation to ensure individual access to an effective judicial process in equality law.

2.2 The Influence of the Recommendation on the Dignity of Women and Men at Work

The 3rd Action Programme recognises that the quality of women’s employment is significantly affected by sexual harassment at work.⁷⁸ This Recommendation constitutes the realisation of the Programme’s proposals in relation to combatting this problem.

As discussed above⁷⁹, a European Recommendation may be of some legal effect in the Member States. As Irish equality law has been very active in the area of sexual harassment through an imaginative application of the Employment Equality Act, the question of the effect of this recommendation is largely academic. However the Code of Practice attached to the recommendation does seem to have been the basis for the Code of Practice on Measures to Protect the Dignity of Women and Men at Work, published by the Department of Equality and Law Reform in 1994. Clearly the Code is not legally binding, but as the Minister for Equality and Law Reform Mr Mervyn Taylor T.D. has, on a number of occasions, expressed his intention to provide a specific statutory basis for the law on sexual harassment, it would appear likely that the current Irish Code of Practice will form some of the basis for the promised legislation.

The Code, like the European Code, emphasises the importance of an employer introducing an express policy on sexual harassment which clearly explains what sexual harassment is and that it is unacceptable conduct in the workplace. However, neither Code makes any provision for the vicarious liability of employers for sexual harassment prepetrated by their employees. This issue must be addressed in any future Irish or European initiatives in the area.

2.3 The Implementation of the Pregnancy Directive 1994: The Maternity Protection Act 1995.

The Pregnancy Directive⁸⁰ was introduced pursuant to Article 118A as a health and safety provision. Possibly this was to ensure it would be passed by majority voting. In its application it must be seen as part of the overall package of European equality legislation as it has, and will have, fundamental consequences for women in the workplace.

The directive was implemented in Ireland by the Maternity Protection Act 1994 which repealed the Maternity (Protection of Employees) Act 1981. Many of the provisions of the 1981 act were re-enacted, for example the right to maternity leave of up to 18 weeks and the right to return to work thereafter. The new measures introduced into Irish law as a result of the directive are as follows:

1) Additional maternity leave on health and safety grounds: The new Act provides that where the work of a pregnant or breastfeeding woman poses a risk to her health, she must be given alternative employment. In the past if no such alternative employment was available, she could be fairly dismissed⁸¹ but now section 18(1) enables her to take leave from her employment until the risk has passed. For the first three weeks she will be paid an allowance by her employer, and thereafter will be entitled to a social welfare allowance.⁸²

Under the normal maternity leave, there is no obligation on an employer to pay their employees, although many do top up the social welfare maternity allowance. It is possible that, by placing any financial obligation at all on the employer to pay an employee during the new health and safety leave, the 1994 Act is in contravention to both the Pregnancy and Equal Treatment Directives. The Pregnancy Directive makes no mention of who should pay the worker’s allowance but expressly states that the Directive should no treat women on the labour market unfavourably nor work to the detriment of equal treatment for men and women.⁸³ Arguably, by imposing a financial obligation on an employer which can only ever be applied to his female employees, the legislation is discouraging the employment of women and is violating the fundamental principle of the Equal Treatment Directive - that of equal treatment between men and women.

2) The right to paid time off for pre and ante-natal care: The Act introduces for the first time a statutory right to paid time off for pre and ante-natal care. This is a slight improvement upon the requirements of the Directive which only mentions time off for ante-natal care⁸⁴ and represents an important gain for Irish women in the workplace for whom, in the past, it was common practice to take holidays for their medical appointments or take unpaid leave to which they were entitled under section 16 of the 1981 Act. However, as with the leave on health and safety grounds, it is possible that the Act violates the principle of equal treatment by placing the financial burden of the new benefits on the employer rather than on the State.

3. The Burden of Proof: S.40(4) of the Act provides that where an employee to whom the Act applies is not permitted to return to work on their expected date of return, they shall be deemed to have been dismissed and that dismissal shall be deemed to be unfair unless, having regard to all the circumstances, there were substantial grounds justifying it. Thus, in very limited circumstances, an employee could be fairly dismissed on grounds of pregnancy or maternity. Whilst this is also recognised by the Directive it differs from the Act with respect to the burden of proof. Article 10 of the Directive requires the employer to ‘cite duly substantiated grounds’ for the dismissal of an employee to whom the Directive applies but this very specific requirement is not contained in S.40(4) of the Act. A requirement that there must be ‘substantial grounds justifying the dismissal’ is not the same requirement as ‘citing duly substantiated grounds’. Very possibly it was the intention in s.40(4) to implement Article 10, but it is submitted that the section requires clearer drafting and perhaps even a verbatim enactment of Article 10 in order to ensure full compliance with the Directive.

A short time after the enactment of the Maternity Protection Act 1994 the government, for the first time, introduced leave for adoptive mothers and, in special circumstances, for adoptive fathers. Whilst there is no European context to this legislation, perhaps the influence of the Pregnancy Directive inspired an end to the unfair discrimination that existed in the past between adoptive and non-adoptive mothers.

2.4 The Implementation of the Social Security Directive 1979

2.4(i) A Gradual Implementation of the Directive

The implementation in Ireland of Council Directive 79/7/EEC of 19 December 1978 on equal treatment for men and women in matters of social security has had a checkered history, which seems to have been finally resolved by a combination of judicial and political intervention.

The directive prohibits both direct and indirect discrimination on grounds of sex, marital or family status. It was due to be implemented in Ireland on 23 December 1984 but nothing at all was done at that stage. Blatant sex discrimination remained in the Irish social welfare system which meant that a man qualified for higher rates of benefit and in some circumstances qualified for benefits where a comparable woman would not have qualified at all. These discriminatory provisions were removed prospectively by the Social Welfare (No 2) Act 1985. In order to ease the burden for certain married men who ceased to be entitled to an adult dependant allowance after the coming into effect of the 1985 Act, the Social Welfare (Preservation of Rights) (No. 2) Regulations 1986⁸⁵ were introduced which allowed for an increase in benefit of up to £20 per week for those men affected. The payments ceased completely in July 1992. It was the non-payment of that benefit to women that caused the Irish government to be brought to court, both at European and national level, and finally forced to concede to the claims of the married female claimants who had been less favourably treated than comparable married men.

In McDermott and Cotter v Minister for Social Welfare⁸⁶ the European Court held that the directive was directly effective⁸⁷ from 23 December 1984, the date on which it should have been implemented. In McDermott and Cotter v Minister for Social Welfare (No. 2)⁸⁸ the European Court held that married women were entitled to all the increased benefits paid to married women even if that resulted in double payment or unjust enrichment.

In the aftermath of that decision the European Communities (Social Welfare) Regulations 1992⁸⁹ were introduced which extended some, but not all, of the extra benefits paid to married men to their female counterparts. Eventually in McClean and Tate v Minister for Social Welfare; Robinson and others v Minister for Social Welfare⁹⁰ the final category of women who were not covered by those regulations successfully sued the Minister for Social Welfare for unlawful discriminatory treatment in relation to their social welfare benefits. Carroll J. in the High Court held that during the time the directive should have been, but was not, implemented, the same rules had to be applied to women as to men and if that resulted in significant State expenditure, “The State has only itself to blame”⁹¹. Later in her judgement she explained, very simply, the legal entitlement of the women:

“What the plaintiffs are entitled to is to have the same rules applied to them as applied to married men in the same circumstances.”⁹²

2.4(ii) Social Welfare and part-time workers

Another issue in relation to the equal treatment of men and women in social security is the social welfare entitlement of part-time workers. As discussed earlier, it is now largely accepted that less favourable treatment of part-time workers may constitute indirect discrimination, as statistics clearly show the far greater participation of women in this area of the labour market. The Worker Protection (Regular Part-Time Employees) Act 1991 brought persons working at least 8 hours per week into the social welfare system. Up to then a worker had to work at least 18 hours per week with the result that many women were excluded.

Two claimants argued, in their social welfare appeals⁹³, that a woman working at least 8 but less than 18 hours per week should have her contributions prior to 1991 retrospectively paid in order to ensure equality with full-time workers within the social welfare system pursuant to the directive. In both the appeals it was decided that the less favourable treatment of part-time workers was not on grounds of their sex, but rather was in order to protect the Social Insurance Fund and thus was not contrary to the directive. The reasoning is not convincing, particularly in light of a decision of the European Court⁹⁴ which held that the less favourable treatment of part-time workers under a Dutch social security scheme was contrary to the directive. That decision was distinguished by the Appeals Officers in the cases discussed above on the grounds of the differences between the Irish and Dutch systems, but it is questionable whether the Appeals Officers were correct and whether the refusal to give the workers credits for the years between 1984 and 1991 is lawful under the directive.

2.4(iii) Social Welfare and family responsibilities

One final possibly discriminatory treatment of women within the social welfare system has been very recently removed. As many women tend to take time out from the labour market for family reasons, it had been argued that they should be given pension credits for those years. This was rejected in one appeal⁹⁵ for the same reason as in the appeals discussed above, ie the preservation of the Social Insurance Fund. That possibly discriminatory treatment has been removed by the Social Welfare (Old Age (Contributory) Pensions Regulations 1994⁹⁶ which allows for credits towards a contributory pension of up to 20 years during which the claimant was caring for children under the age of 6 or an incapacitated person requiring full time care.

2.5 The Implementation of the Occupational Social Security Directive 1986

Although this directive on equal treatment for men and women in occupational social security schemes was passed in 1986, it was the opinion of the Irish National Pensions Board in a 1989 report⁹⁷ that there was already a legal requirement under Article 1991 of the Treaty of Rome for equal treatment in this area as a result of the decision of the European Court in Bilka Kauflaus⁹⁸. The directive was implemented into Irish law by the Pensions Act of 1990. Section 66 states that, subject to certain legitimate exceptions, “every occupational benefit scheme shall comply with the principle of equal treatment”.

2.6 The Implementation of the Self-Employed Directive 1986

Council Directive 86/613/EEC on the application of the principle of equal treatment between women and men engaged in activities including agriculture in a self-employed capacity did not impose any specific obligations on the Member States, apart from that of reporting to the Commission on the level of protection of equal opportunities for self-employed women in the national legal system.

The main areas in which Irish law does not provide for equality for self-employed women are social welfare and maternity leave. A spouse who assists a self-employed worker (the obvious example being a farmer’s wife who performs many vital farming tasks) cannot make voluntary contributions to the Social Insurance Fund. They are completely reliant upon the self-employed worker’s contributions. They are not entitled to a maternity allowance or access to a replacement scheme during maternity. No attempt was made in the recent Maternity Protection Act 1994 to bring such women within the scope of the legislation in any manner whatsoever. It is important to point out that this does not mean that Ireland has failed to implement the directive. The only obligations imposed upon the State by the directive was to collate the information as to how their national system provided, or failed to provide, for equal opportunities for self-employed men and women.

3. IRISH IMPLEMENTATION OF NON BINDING EUROPEAN POLICY ON EQUALITY

In the 3rd Action Programme the Commission cited a number of policy objectives which Member States were encouraged, but not obliged, to implement. The main areas taken on board by the Irish government have been vocational training, childcare and participation in the decision making process.

3.1 Vocational Training

The 3rd Action Programme stated that discrimination in education and vocational training was a barrier to women’s participation in the labour market and a reason for disproportionate levels of female long-term unemployment. It is clear that traditional male jobs have higher pay levels than traditional female jobs. Whilst it is important to attack this inequality through equal pay legislation, it is also important to break down the barriers which prevent women from participating in certain types of employment.

3.1(i) FAS Action Programme for Women

The main objective of the FAS Action Programme for Women is the breaking down of traditional patterns of occupational segregation by encouraging female participation in traditional male occupations. The programme also aims to encourage the participation of women at all levels of future-oriented sectors of the labour market and the upgrading of existing skills levels among women.

FAS have adopted a policy of targeting places on courses where there has been little or no previous female representation and on courses which develop skills already held by women. Particular emphasis has been placed on new technology courses. The result has been an improvement in female participation in targeted courses. For example in 1994, 965 women took Specific Skills Training on 122 targeted courses, far exceeding the target of 751 places. Because women did not always come forward to participate, even by reserving these targeted places, brochures and training literature were revised specifically to encourage women’s involvement.

Positive discrimination has been applied to women applicants for apprenticeships. Women only courses have been held in areas such as Women in Technology, Women in Enterprise and Return to Work courses designed specifically for mothers who wish to return to the labour market after an extended absence.

The main problem with the FAS initiative is that many courses are open only to persons on the Live Register, thus excluding many married women. The exclusion of these women suggests indirect discrimination in access to vocational training, contrary to the Equal Treatment Directive and the Employment Equality Act. The distribution of limited resources could be tackled by the use of a means test whereby participants on the courses would have their means assessed to determine entitlement to the allowance normally paid to all course participants. Whilst not everyone would qualify for the allowance, at least they would all enjoy access to the training.

Another problem is the lack of childcare facilities at most FAS training centres and the absence of flexibility in course timetables to suit mothers of school going children, although the Minister of State with responsibility for Labour Affairs has recently indicated her intention to examine that latter difficulty⁹⁹.

3.1(ii) CERT and Teagasc

Equal opportunities policies have also been adopted by CERT and Teagasc. CERT aims to encourage greater female participation in management levels of hotel work whilst Teagasc have adjusted their courses and promotional materials to encourage female trainees, and have adopted a policy of visiting all girl secondary schools to promote awareness of career opportunities in agriculture.

3.1(iii) NOW

The NOW (New Opportunities for Women) is a European Community Initiative which aims to promote equal opportunities for women in vocational training and employment and has been involved in funding activities by voluntary groups, women’s groups and public and statutory agencies to provide new ways of facilitating women’s access to training, employment and enterprise creation. Groups involved include Lourdes Youth & Community Centre, Tallaght NOW Women’s Group, Connacht Rural Women’s Group and the Audio-Visual Women’s Network in Donegal.

3.2 Childcare

Ireland has the lowest participation rate in the labour market for mothers of children under 10 in the EU, which participation decreases as family size increases. A 1994 ERSI report¹⁰⁰ indicates that a significant factor contributing to the wage differential between Irish men and women is due to absences by women to cause for dependants, thus reducing their work experience which is amongst the most important wages productivity factor. When women do return to the labour market after a break for family reasons, they find themselves clustered in lower income and lower status employment. Thus, the availability of quality and affordable childcare is an issue of vital importance in achieving equality of outcome for women, rather than mere equality of opportunity¹⁰¹, and constitutes a core aim of the 3rd Action Programme.

In addition, the European wide levels of decreasing labour availability, particularly in skilled employment, means that women, currently unable to work outside the home due to responsibility of dependants, will become an important reserve of skilled personnel. Anne McKenna, in a 1990 paper, observed that

“Irish and European market trends will be one and the same thing. We may not feel at present the need to recruit and retail women in our workforce as keenly as it is being felt by other European countries and in the U.S. but it is almost upon us. The need to increase childcare provision for working mothers should not catch us unprepared when we have the example of so many countries before us, and when many of these neighbouring countries will soon become something much closer than geographical neighbours.”¹⁰²

There have been two main State initiatives in childcare in Ireland:

3.2(i) The Department of Equality and Law Reform

The January 1991 PESP (Programme for Economic and Social Progress) acknowledged the need for a policy to encourage development of childcare services as a collective responsibility. To this end, a working party was established by the Minister for Equality and Law Reform to report on potential prototypes of appropriate day care services. £1m was made available to seed capital programmes. The working party is due to report to the Minister soon.

3.2(ii) NOW Funding of Pilot Projects

One of the specific aims of the NOW¹⁰³ programme in Ireland was to fund chosen pilot childcare programmes and of the 33 projects chosen by NOW in Ireland, 8 had a particular focus on childcare. The projects chosen serve to develop models which are capable of replication in other locations and to encourage statutory agencies to incorporate those models into mainstream programmes. The projects chosen were Childcare for Tallaght, Dublin Committee for Travelling People, Dublin Travellers Education and Development Group, Muintearas na hOileán, Regional Family Daycare Project, Wallaroo Playschool Project and Waterford Childcare. The results of the projects demonstrated firstly the huge demand that exists in Ireland for quality childcare¹⁰⁴ and secondly the very significant employment and enterprise potential of childcare training¹⁰⁵

3.3 Women in the Decision-Making Process

As well as participation in the labour market, women must be involved at all levels of the decision making process. The main way in which this objective of the 3rd Action Programme is being attempted to be achieved in Ireland is through gender quotas on State Boards. Ministers making appointments to such Boards are required to try to achieve a minimum representation of not less than 40% of either sex on the Board, and failing this must set out their plans for achieving the 40% target within four years.¹⁰⁶

These welcome developments must be viewed in the light of the track record of State-sponsored bodies. A 1991 Department of Labour survey showed that such bodies employed 81% men and their female employment, as it was, was concentrated in a few sections and at lower hierarchical levels. The civil service employ 45% women and, again, they are disproportionately represented in the lower grades. This is partly due to the ongoing effects of the marriage bar, abolished in 1973, but the suggested lower rate of female participation in promotion competitions does give cause for concern.

A related area to participation in the decision-making process is that of gender proofing. All proposals by Government Departments for change in existing Government policies should set out in the memorandum an indication of the probable impact on women of such proposals.¹⁰⁷ This has also been applied by the Department of Equality and Law Reform to the allocation and administration of EU structural funds in Ireland, with a view to ensuring that women benefit from these funds on an equal footing with men. Gender proofing of structural funds is a requirement of European law¹⁰⁸ but it is interesting that in Ireland it had been imposed at national level before becoming a binding obligation from Brussels. One example of the policy is the Human Resources Operational Programme, a package of employment and training measures worth £3.2bn over the period to 1999, which contains for the first time a section on promoting equal opportunities involving the setting aside of £7.7m over the period to 1999 specifically for employment and training course for women.

4. RECOMMENDATIONS FOR THE 4TH MEDIUM TERM COMMUNITY ACTION PROGRAMME 1996 - 2000

4.1 Proposals for the 4th Action Programme¹⁰⁹

Like the 3rd Action Programme, the Proposals for the 4th Action Programme are aimed at consolidating the legal measures that have been introduced, but as of yet have not produced full equality between women and men in the European Union.

The key theme of the proposals for the proposed 4th Programme is that of integrating equality into all policies of the EU. Many of its specific proposals echo the yet to be achieved objectives of the 3rd Programme, although sometimes with a different emphasis. These include:

(i)Ensuring an equality dimension in all systems of the Community.¹¹⁰

(ii)Promoting changes in attitude through education, training, culture and the media.¹¹¹

(iii)Desegregating the labour market and promoting the value of women’s work.¹¹²

(iv)Encouraging women’s entrepreneurship.¹¹³

(v)Ensuring equal opportunities in the structural funds.¹¹⁴

(vi)Reconciling work and household-family life, particularly in relation to rural communities.¹¹⁵

(vii)Promoting a gender balance in decision making.¹¹⁶

(viii)Enforcing equality legislation through improved information of and access to the law.

The fact that many of these are merely rephrased objectives of the 3rd Action Programme indicates the extent of work still to be done in order to ensure equality of opportunity between men and women in the EU.

4.2 Recommendations for the 4th Action Programme

4.2(i) The Legal Basis of the Programme and its Objectives

The current proposals are for a Council Decision rather than a Council Resolution which was the legal basis for the 3rd Programme. This is a welcome development as basing the Programme upon a Decision would place it on a firmer legal footing.

However there is a lack of binding community measures being proposed as a means of achieving the objectives of the Programme. One of the few areas in which the objective is to be achieved by a binding measure rather than a mere Recommendation or Opinion, is that of sexual harassment.¹¹⁷ In other areas, despite the lack of achievement under largely ineffective measures already introduced, strong binding measures have not been suggested.

Recommendations

•Equality of outcome for men and women can only be achieved through the use of binding Community measures, ie Regulations or Directives rather than Recommendations or Opinions. These measures must impose specific obligations on the Member States with a clear timeframe within which the objectives are to be achieved. In the event of non-implementation, the Member State will then be liable in legal proceedings brought by individual citizens adversely affected by non-implementation.

•The 4th Action Programme should be placed on a firm legal footing as a Council Decision, thus involving formal consultations with interested parties and a clear role for the European Parliament.

4.2(ii) Equal Pay and Desegregation of the Labour Market

The Anti-Discrimination (Equal Pay) Act 1974 has achieved equal pay for men and women doing like work or work of equal value. The latter concept has been imaginatively used by Equality Officers and the Labour Court, but care must be taken to ensure that external factors, such as collective bargaining processes, are not permitted to justify unequal pay for work of equal value.¹¹⁸ Occupational sex segregation and the consequent devaluing of “women’s work” is the primary manner of unequal pay that exists in the EU even today. It is vitally important that this subtle way of paying women less than men is outlawed. Real attempts must be made to lessen the 32% gap between male and female wage levels in Ireland¹¹⁹ by expanding upon present commitments to breaking down the traditional barriers preventing access to training for traditional male jobs¹²⁰. The economic, as well as the social, advantages of employing women in these area needs to be promoted amongst employers¹²¹

Recommendations

•The implementation of a directive providing where statistics show a dominance of men in a higher paid job and women in a lower paid job, both jobs being of equal value, unlawful discrimination will automatically be proven unless essential market forces justify the wage differentials¹²². This would contribute towards narrowing the wage differential gap between men and women and promoting the value of women’s work.

•Community action on State vocational training programmes to train women for traditionally male jobs, encouraging flexibility in relation to all course timetables in order to facilitate participants with home commitments. Women must be guaranteed access to training, work experience and apprenticeships, by positive discrimination if necessary

4.2(iii) Equal Treatment

The Employment Equality Act 1977 has been imaginatively applied to outlaw a number of discriminatory practices and non-essential requirements in access to and conditions in employment. Attempts made by the Labour Court to use the Act to deal with sexual harassment now need to be supplemented by specific legislation, supported by a European directive.

The scope of indirect discrimination must not be limited in any way and the higher level of justification of indirect discrimination under Irish law than European law must be guarded and maintained.

Recommendations

•The implementation of a directive on sexual harassment at work, defining sexual harassment and stating it to be unlawful discriminatory treatment which violates the Equal Treatment Directive. Employers shall be obliged to implement and apply a Code of Practice on Sexual Harassment. Employers shall be liable for the sexual harassment of their employees unless they can prove that they took all reasonable steps necessary to prevent its occurrence.

•The implementation of a directive on indirect discrimination, defining indirect discrimination and laying down appropriate standards of justification for requirements of a job which impact more heavily on the basis of sex or family status, with limits placed on the extent to which economic factors can constitute justification. Less favourable treatment of part-time workers should be specifically stated to be indirect discrimination.

4.2(iv) The Reconciliation of Family and Work Life

4.2(iv) (a) Paternity Leave

Recent advances in maternity leave as a result of the Pregnancy Directive are welcome, but progress must now be made in the area of paternity leave. The EC draft directive on parental leave¹²³ should be be implemented and consideration given to introducing compulsory paternity leave in an attempt to minimise the practical disadvantages of employing women of childbearing years. The responsibility of childbirth and childrearing must be allowed to fall as equally as is biologically possible on both mothers and fathers.

4.2(iv) (b) Childcare

The practical reality is that inadequate childcare affects women’s participation in the labour market to a much greater extent than men’s, in particular women on low incomes. The issue of childcare must be pushed to the top of the agenda, both at a European and national level, if equality of outcome for women is ever to be more than an optimistic aspiration.

Recommendations

•The implementation of the draft directive on parental leave.

•The implementation of a directive on paternity leave which would provide a period of paid time off work for all fathers.

•The implementation of a directive on childcare placing obligations on the Member States to ensure the provision of adequate and affordable childcare and the regulation of childcare training, with a particular emphasis on the issue of access to childcare in rural areas. Financial considerations to be considered, such as subsidised childcare for low income families and tax concessions, which would have the dual effect of making private childcare more affordable and bringing many workers, who currently operate within the black economy, within the system.

•The implementation of a recommendation on support for carers responsible for for non-child dependants, ie elderly or handicapped relatives with a view to implementing an appropriate directive in the future.

•The implementation of a directive on flexibility in the workplace, providing for access to job-sharing, flexi-time and greater flexibility around starting times, where this is possible within the marketplace requirements of the employment.

4.2(v) Equality in Social Welfare

The final Irish implementation of the Social Security directive as a result of a recent High Court decision¹²⁴ is welcome. The area of indirect discrimination in the social welfare system must now be tackled. The culture of dependency cannot be allowed to continue and the rights of spouses of self-employed contributors merits examination.

Specific action must be taken to ensure non-discrimination in the social insurance system against women returning to the labour market after a period of absence for family reasons.

Recommendations

•Community action to ensure full and proper compliance within the Member States of the social security directives, particularly by the means of enforcement proceedings against Member States to encourage them to deal with indirect discrimination in their social security systems.

•The implementation of a new directive on the rights of spouses of self-employed, providing for access to national social insurance systems and the provision of maternity leave through the use of replacement workers.

•The implementation of a directive on positive discrimination towards women (or men), who return to the labour market after a period of absence for family reasons, in relation to their social insurance contributions.

4.2(vi) Access to the Law

The existence of a legal system that ensures equality of opportunity for men and women is of little use if that system is inaccessible and ineffective. Whilst the current system of equality legislation is reasonably effective and accessible, there is room for improvement particularly in the area of access to the information necessary to bring a case¹²⁵ and dissemination of information of European equal opportunities initiatives. The issue of ensuring access for rural women must be specifically considered.

Member States must be encouraged, or obliged, to extend the categories of persons to whom equality legislation applies. In the Irish context members of the defence forces are currently excluded¹²⁶ and it is doubtful whether this is consistent with Ireland’s obligations under the Equal Treatment Directive.

Recommendationss

•The implementation of the draft directive on the burden of proof¹²⁷ which would firstly shift the onus of proof to the employer where a claimant proves a prima facie case of discrimination, and secondly ensure that claimants have access to all the information they need to present their case.

•Community action to promote awareness of equal opportunities initiatives, particularly through the use of national media and local women’s groups.

•Community action to ensure access to equality legislation and information on equality policy for rural women with resources to be made available to assist in transport costs incurred in attending training and development programmes.

•The implementation of a directive to lessen the current scope of Member States to exclude certain categories of employees from the ambit of the equality legislation.

4.2(vii) Women in the Decision-Making Process

The equality dimension is gradually becoming part of Irish and European politics and society. Gender quotas and gender proofing must continue. Positive discrimination must be applied if society is not willing to incorporate womens’ voices into the corridors of power of its own accord.

Recommendations

•Community action to ensure that the equality dimension is integrated into all aspects of the Community.

•Community action on ensuring gender balance on State bodies, boards etc. (This may comprise a directive, but perhaps a Recommendation might be a better first step.)

•Community action to promote the image and status of women in culture and the media.

•Community action to examine the possibility of extending the current ambit of equality legislation beyond the labour market and social welfare into all aspects of public life, eg provision of services, cultural and social activities etc and beyond gender to disability, membership of ethnic communities, membership of the travelling community, religion, nationality, political beliefs etc.

BIBLIOGRAPHY

‘Women in Focus’; FAS (Dublin, 1995).

Submissions to the National Economic and Social Forum Plenary Session on ‘Working Sharing’ (Dublin 1995).

‘United National Fourth World Conference on Women - National Report of Ireland’ (Dublin 1994).

‘Equality News’ Employment Equality Agency (Dublin Jan. 1994, Dec. 1994, April 1995).

Annual Reports of the Employment Equality Agency.

‘Working Within the Law’; Meenan F. (Dublin, 1994).

‘Women in Rural Development - The Untapped Resource’; NOW.

‘Making their Mark: The Experiences of Childcare Projects within the NOW Programme in Ireland’.

‘Low Pay - The Irish Experience’; Papers from the National Conference on Low Pay organized by the Combat Poverty Agency, and the Irish Congress of Trade Unions (Dublin, 1989).

‘Irish Employment Equality Law’; Curtin D. (Dublin, 1989).

‘Childcare in Ireland: Challenge and Opportunity’ Employment Equality Agency (Dublin, 1989).

¹ Defrenne v Sabena (No. 2) Case 43/75 [1978] ECR 455.

² Case 149/77 [1978] ECR 1365.

³ Directive 75/117/EEC.

⁴ Directive 76/207/EEC.

⁵ Directive 79/7/EEC.

⁶ Directive 86/378/EEC.

⁷ Directive 86/613/EEC.

⁸ Directive 92/85/EC.

⁹ Commission Document C(91) 2625, 27 November 1991.

¹⁰ ‘Article 189, Treaty of Rome.

¹¹ Marleasing C-106/89 [1990] ECR I-4135

¹² Francovitch and Bonifaci Joined cases C-9 and 6/90 [1991] ECR I-5357

¹³ Grimaldi v Fond des Maladies Professionnelles Case C-322/88 [1989] ECR 4407

¹⁴ at page 4.

¹⁵ at page 7.

¹⁶ at page 8.

¹⁷ at page 12.

¹⁸ at page 13.

¹⁹ at page 19.

²⁰ at pages 22-23.

²¹ at page 4.

²² at page 27.

²³ “Employed” has been widely construed to cover not only employees, but also independent contractors where they personally execute the work.

²⁴ Section 2(a) Employment Equality Act, 1977.

²⁵ Section 2(c) Employment Equality Act, 1977.

²⁶ Section 2(d) Employment Equality Act, 1977.

²⁷ Equal Pay Act section 2(3)

²⁸ Employment Equality Act section 4(3).

²⁹ CERT Ltd v Landv EE 20/1983; DEP 2/1984.

³⁰ Barber v Guardian Royal Assurance Exchange Case 262/88 [1990] ECR I-1889.

³¹ MacCarthys v Smith Case 129/79 [1980] ECR 1275.

³² Dekker Case 177/88 [1990] ECR I-3941.

³³ EP 9/1979; DEP 2/1980.

³⁴ EP 2/1987; DEP 6/1987.

³⁵ Toyota Motor Distribution (Ireland) Ltd v Fitzpatrick EP 10/1987. My emphasis.

³⁶ Kayfoam Woolson Ltd EP 4/1987.

³⁷ Curtin D. Irish Employment Equality Law (Dublin, 1987) at 209.

³⁸ Case C-129/92, judgment of 27 October 1993.

³⁹ EP 6/1994.

⁴⁰ at paragraph 5.34.

⁴¹ See 2.1.

⁴² EE 17/1981.

⁴³ Turley v Adlers Department Store (1980) ICR 66.

⁴⁴ Williams v An Foras Forbatha EE 6/1981; DEE 4/1982.

⁴⁵ Dekker Case 177/88 [1990] ECR I-3941.

⁴⁶ EE 16/1992.

⁴⁷ There is a limitation on this principle as the result of the decision of the European Court in HertzCase 179/1988 [1990] ECR 3979 as the Court refused to extend the protection of the Equal Treatment Directive beyond the period of the woman’s maternity leave.

⁴⁸ See later at 2.2.

⁴⁹ The first was in Northern Ireland: Mortiboys v Crescent Garage Ltd 34/1983, S.D. N.I. Industrial Tribunal.

⁵⁰ A Company v A Worker DEE 4/1992.

⁵¹ A Health Board v B.C. [1994] ELR 27.

⁵² A Workers v A Company EEO 2/1994.

⁵³ At page 7-8. See 1.3(i) above.

⁵⁴ Kildare VEC v 3 Female Cleaners EE 4/1989.

⁵⁵ Vavasour v Bonnybrook Unemployment Action Group [1991] ELR 199.

⁵⁶ Nenagh UDC v McNally EE 6/1989.

⁵⁷ Martyn v North Western Health Board [1987] IR 568.

⁵⁸ A Prospective Female Employee v A Company EE 12/1989.

⁵⁹ [1993] ELR 106.

⁶⁰ Bilka-Kauflaus Case 170/88 [1986] ECR 1607.

⁶¹ EP 4/1984, DEP 10/1984.

⁶² Case 170/88 [1986] ECR 1607.

⁶³ Hofmann Case 184/83 [1984] ECR 3047.

⁶⁴ A very limited form of paternity leave was introduced in the Maternity Protection Act 1994 where a mother dies before the expiration of her leave and also in the Adoptive Leave Act 1995 where an adoptive father has a similar right, but also has the right to take the full leave where he is adopting alone.

⁶⁵ EE 2/1988.

⁶⁶ [1994] ELR 8.

⁶⁷ DEE 9/1992.

⁶⁸ Curtin D. ‘The Decentralised Enforcement of Community Law Rights’ in Constitutional Adjudication of European Community and National Law’ ed. Curtin D. and O’Keefe D. (Dublin, 1992) 33 at 41.

⁶⁹ Employment Equality Act, section 19(5).

⁷⁰ Emmott v Minister for Social Welfare Case C-208/90 [1991] ECR I-4269.

⁷¹ Equal Pay Act, section 8(5).

⁷² Employment Equality Act, section 22.

⁷³ Employment Equality Act, section 23.

⁷⁴ Department of Defence v An Employee EE 3/1992; DEE 14/1992.

⁷⁵ Case C-271/91 [1993] ECR I-4367.

⁷⁶ Section 34.

⁷⁷ Employment Equality Agency Annual Report 1994 at 13.

⁷⁸ At page 13.

⁷⁹ See 1.2(ii).

⁸⁰ Council Directive No. 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding.

⁸¹ Unfair Dismissals Act 1977, section 6(2) (f).

⁸² Health and Safety Benefit Scheme, introduced by the European Communities (Social Welfare) Regulations, 1994 (S.I. No. 312 of 1994) and the Social Welfare (Health and Safety Benefit) Regulations 1994 (S.I. 313 of 1994).

⁸³ Preamble.

⁸⁴ Article 9.

⁸⁵ S.I. 422/86.

⁸⁶ Case 286/85 [1987] ECR 1453.

⁸⁷ On the direct effect of non-implemented directives, see earlier at 1.2(i).

⁸⁸ [1991] ECR 1155.

⁸⁹ S.I. 152/92.

⁹⁰ Joined cases, judgement of Carroll J, High Court 3 February 1995.

⁹¹ at page 15 of her unreported judgement.

⁹² at page 39.

⁹³ SAP 48/49; 38/91.

⁹⁴ Ruzius-Wilbrink Case 102/88 [1989] ECR 4311.

⁹⁵ AP 378/91.

⁹⁶ S.I. No. 235 of 1994.

⁹⁷ ‘Report on Equal Treatment for Men and Women in Occupational Pensions Schemes’ National Pensions Board (1989).

⁹⁸ On Bilka Kauflaus generally see 2.1(ii) (b).

⁹⁹ An example of the flexibility possible was the Caring for Children training course held in the FAS Training Centre, Tallaght pursuant to the Childcare for Tallaght programme, sponsored by NOW. FAS agreed to allow later daily starting times and one months holiday during the summer, thus making the course more accessible than would normally be the case.

¹⁰⁰ Callen T. and Wren A. ‘Male/Female Wage Differentials: Analysis and Policy Issues’ (Economic and Social Research Institute, 1994).

¹⁰¹ On the distinctions between equality of opportunity and equality of outcome, see 1.3.

¹⁰² McKenna A. ‘Childcare in Ireland 1990’. Papers published by the Employment Equality Agency ‘Childcare in Ireland: Challenge and Opportunity’ (1990).

¹⁰³ New Opportunities for Women, a European Community initiative which aims to promote equal opportunities for women in vocational training and employment.

¹⁰⁴ For example, for the Wallaroo course there were 80 applications for 12 places, in Parents Alone Resources Centre 175 applicants for 60 places and in Tallaght 120 applications for 14 places.

¹⁰⁵ For example, the participants in the Donegal Munitearas na hOileán City and Guilds childcare programme which was adapted for delivery through the Irish language, are now all engaged either in establishing creche facilities in their own area, or have obtained employment in pre-school supervision, daycare or other related serves.

¹⁰⁶ Decision S 21590 of 30 March 1993.

¹⁰⁷ Decision S 12113 P of 9 February 1993.

¹⁰⁸ European Structural Fund Regulation 2081/93. O.J. No L 193, 31 July 1993.

¹⁰⁹ Proposals for a Council Decision on the 4th Community Action Programme on Equal Opportunities for Women and Men 1996-2000. COM (95) 381 of 19th July 1995.

¹¹⁰ at page 6.

¹¹¹ at page 10.

¹¹² at page 12.

¹¹³ at page 15.

¹¹⁴ at page 16.

¹¹⁵ at page 19.

¹¹⁶ at page 23-24.

¹¹⁷ at page 27.

¹¹⁸ See EP 6/1994 where this did happen, in spite of a decision of the European Court to the contrary; discussed at 2.1(i).

¹¹⁹ ILO Report on Women’s Hourly Earnings, which ranked Ireland behind not only some of its European neighbours but also many Third World countries. See Irish Times, September 7 1995.

¹²⁰ See 3.1.

¹²¹ A good example here is the experience of Mr Eddie Dalton, Service Manager at E.P. Mooney and Co. Ltd, main Nissan Dealer, recounted in ‘Women in Focus’ (FAS, 1995). He explained how using a female mechanic to deal with women customers, many of whom believe that mechanics are out to rob them, gives more faith to customers that they are being treated fairly.

¹²² An example would be where the shortage of trained personnel in a particular area might justify a higher wage for work of equal value to a lower paid job.

¹²³ COM(83)686 of 27 November 1983.

¹²⁴ Tate v Minister for Social Welfare; Robinson and other v The Minister for Social Welfare Carroll J. 3 February 1995.

¹²⁵ At the moment in Ireland it is at the discretion of the Equality Officer or the Labour Court whether or not an employer must make such information available

¹²⁶ Section 12, Employment Equality Act 1977.

¹²⁷ COM(88)269.