A conference on workplace discrimination heard last week that when the new Employment Equality Act comes into force later this year, employers will be held vicariously liable for the actions of employees even when the employer did not know about, or approve of, the employee's actions.
Ms Mary Honan, a barrister specialising in employment law, told the Workplace Discrimination conference in Dublin, organised by the EAP (Employee Assistance Programmes) Institute, that the vicarious liability of employers for discrimination or harassment of employees by employees is among the most significant changes in the new Act.
Section 15 of the Act says: "Anything done by a person in the course of his or her employment shall. . . be treated for the purposes of this Act as done also by that person's employer, whether or not it was done with the employer's knowledge or approval."
Ms Honan's paper outlines defences to an employer's vicarious liability. Section 15(3) of the Act states: "it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee (a) from doing that act; or (b) from doing in the course of his employment acts of that description".
Concerning the employer's vicarious liability for sexual harassment, the employer must be able to prove that he or she took reasonably practicable steps to prevent the perpetrator from sexually harassing a worker, she said.
Her paper, which is available from the EAP Institute, provides a succinct overview of the Employment Equality Act 1998, and focuses on the most significant changes which the Act will bring about. It outlines the new procedures which will be put in place, the redress available under the Act and provides a useful summary of the relevant Irish and European equality legislation.
As well as gender and marital status, the new discriminatory grounds are family status, sexual orientation, religious belief, age, disability, race and membership of the travelling community.
In his paper to the conference, Mr Tom Hayes of EIRI Associates argued that employers will be obliged significantly to examine many existing practices to ensure they are compliant with the new legislation. He believes that many such practices will be "found wanting".
His paper drew on the experience to date of anti-discrimination legislation in Britain and the US and highlighted some differences between these approaches and the new Irish legislation.
He said the Americans with Disabilities Act 1990, protected, among others, people with AIDS, cancer, cerebral palsy, tuberculosis, heart disease and hearing or visual impairments. In the US, "alcoholism is treated as a disability and is protected if the person is qualified to perform the essential functions of the job. However, an alcoholic is not protected from discipline, discharge or denial of employment when the alcoholic's use of alcohol adversely impacts job performance or conduct".
But while impairments like kleptomania, compulsive gambling, "sexual behaviour disorder" and disorders caused by use of illegal drugs are not covered by the US legislation, "it could well be argued that they are covered by the Irish legislation", he said.
Copies of the conference papers are available for £65 (€83) from Ms Claire Rowell, EAP Institute, 143, Barrack Street, Waterford. Telephone: 051 855733.
