Compliance and enforcement aspects (horizontal provisions of all directives)

• Pages: 73-80

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11 Compliance and enforcement aspects (horizontal provisions of all

directives)

11.1 General (legal) context

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

redress

There are no particular issues about obtaining redress.

11.1.2 Other 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. First ly, 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 chanc es of employment more

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

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

membership subscriptio n 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 complain ant.

11.1.3 Political and societal debate and pending legislative proposals

There are none.

11.2 Victimisation

Section 74(2) of the Employment Equalit y 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 in cludes 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 emp loyee 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,246 the Labour Court set out the three comp onents

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 th e 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 Directiv es.

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).