Compliance and enforcement aspects (horizontal provisions of all directives)

• Pages: 73-80

73

11Compliance and enforcement aspects (horizontal provisions of all

directives)

11.1General (legal) context

11.1.1Surveys and reports about the particular difficulties related to obtaining legal

redress

There are no particular issues about obtaining redress.

11.1.2Other issues related to the pursuit of a discrimination claim

There are two issues related to the pursuit of a discrimination claim, namely publicity and

the costs of bringing such a claim. Firstly, if a person brings a claim, the decision will be

published and unless there are issues that are personal, for example, a sexual harassment

claim, the names of the parties will be published on the website of the Workplace Relations

Commission. Such publicity may affect their future chances of employment more

particularly in a relatively small country. Secondly, if a prospective complainant is a

member of a trade union, the trade union may act for the complainant as part of their

membership subscription but failing that, there may be legal costs for the complainant;

although it may be noted that at the adjudication officer and appeal stage to the Labour

Court, there may not be a costs order245 against an unsuccessful complainant.

11.1.3Political and societal debate and pending legislative proposals

There are none.

11.2Victimisation

Section 74(2) of the Employment Equality Act 1998 (as amended) provides that

victimisation occurs where dismissal or other adverse treatment of an employee by his or

her employer occurs as a reaction to a complaint of discrimination made by the employee

to the employer. ‘Victimisation’ also includes any reaction by an employer to any

proceedings by a complainant, an employee having represented or otherwise supported a

complainant, the work of an employee having been compared with that of another

employee, an employee having being a witness in any proceedings under this Act or the

Equal Status Act 2000 or an employee having given notice of an intention to take any of

the above actions.

In Barrett v Department of Defence,246the Labour Court set out the three components

which must be present for a claim of victimisation under Section 74(2) of the Act to be

made out. It stated that the claimant must have taken action of a type referred to in

Section 74(2) – what it terms ‘a protected act’, and the claimant must be subjected to

adverse treatment by his or her employer; and the adverse treatment must be in reaction

to the protected act having been taken by the claimant to stop the bringing of the

complaint.

The protection against victimisation complies with the Directives.

245 Unless the claim is frivolous and vexatious; such an order is remote.

246 EDA/1017 (Labour Court). See also Matthews v ESB t/a ESB Networks DEC- E 2015-068 (Equality Tribunal)

EDA1610 (Labour Court).