The buzz for the 2019 Dublin LGBTQ+ Pride Festival has been gaining momentum this week with a series of events happening over the weekend to mark the occasion. The Pride Festival is a celebration, but from its inception in New York City, it is also a political and social demonstration. While there is no doubt that inclusivity and support for Pride is growing and increasing in visibility, it is still the case that there are individual battles being fought, and often that happens in the workplace.
In 2018, a survey, conducted by research firm Out Now for Vodafone, concluded that 78% of LGBTQ+ community in Ireland said they have hidden their sexual orientation or gender identity at work at least once. When asked about their first job, 69% of the LGBTQ+ respondents said there were negative comments about the LGBTQ+ community which made them feel uncomfortable.
No-one should be made to feel uncomfortable or isolated because of their sexual orientation or identity. Yet, even in our modern society, in some workplaces individuals can be subjected to bullying, harassment and discrimination due to their sexual orientation or identity. To mark Dublin LGBTQ+ Pride Festival we examine the legal rights the LGBTQ+ community have in the workplace under current Irish legislation and consider an employer’s duties.
Employment Equality Acts 1998 – 2015
In Ireland, discrimination can occur in the following ways:
Direct discrimination: where one person is treated less favourably than another person is, has been, or would be treated in a comparable situation because of a protected characteristic which exists, existed but no longer exists, may exist in the future or is imputed to the person concerned.
Indirect discrimination: where an apparently neutral company policy (which in principle is designed to apply equally to everyone) may place a person in a protected group at a particular disadvantage when compared to other employees or potential candidates.
Discrimination by association: where a person is treated in a less favourable manner, not because they are a member of the protected group themselves, but rather because they are associated with another person who is covered by a particular ground.
Harassment: This is defined as any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Anything from an inappropriate joke, comment, meme or social media post to even physical violence based on sexual orientation can amount to harassment.
Victimisation: If an employee is subjected to unfair treatment or suffers detriment (disadvantage, damage, harm or loss) as a result of the actions of their employer then they can pursue a case for victimisation.
Employers are not permitted to discriminate against a job candidate, employee, trainee, contractor or agency worker based on their sexual orientation. Equality in the workplace applies to advertising for employment opportunities, recruitment, training, promotion, pay increases, disciplinary processes, and grievance processes etc. From the moment a potential candidate walks in the door, an employer needs to take reasonable steps to ensure that the workplace is free from discrimination and harassment.
In light of this, employers should have workplace policies in place that prohibit any kind of discrimination or harassment. For example, in relation to diversity and equality, an anti-bullying and harassment/anti-sexual harassment policy should be in place. These policies should apply right through the recruitment process to the end of the employment relationship. Employers must take complaints seriously and ensure that any discrimination or harassment which takes place in the workplace is dealt with. Employee’s should be made aware of the options that are open to them under the employer’s policies should they feel harassed or discriminated against in the workplace. If a complaint is received, an employer must to investigate and respond. The relevant investigative steps should be set out in the relevant policies and, where the complaint is upheld, disciplinary action may be taken against the perpetrator under the disciplinary procedure where appropriate.
If an employer fails to take steps to prevent harassment, discrimination or victimisation in the workplace, an employee can seek redress against the employer in the Workplace Relations Commission (“the WRC”). The WRC may require the employer to pay the employee compensation of an amount that is considered just and equitable having regard to all the circumstance but not exceeding a maximum of 2 years’ remuneration.
Employers should have workplace policies in place that prohibit any kind of discrimination or harassment; together with appropriate procedures to deal with any complaints should they arise.
If you need assistance with any employment law or employment issues raised in this publication in Ireland please contact the Lewis Silkin Ireland team - http://www.lewissilkin.com/Ireland/
A restaurant has been ordered to pay €20,000 in compensation to a gay bar manager after a director called him ‘queer’ almost every day at work. In the case before the Workplace Relations Commission (WRC), the bar manager gave a number of examples of being subject to offensive comments from his two bosses.