The Employment Equality Acts 1998-2015 ("the EEA") and the Equal Status Acts 2000-2015 ("the ESA"), provide for protection against nine grounds of discrimination: gender, civil status, family status, sexual orientation, religion, age, disability, race and membership of the travelling community.
In 2017 two private members' Bills were proposed which seek to amend the EEA and the ESA to introduce two new grounds of discrimination, a socio-economic ground and a mental health ground.
Also of note, in the UK, a recent case recommended that employers should update equality and harassment policies and procedures to include reference to transgender discrimination.
Proposed Socio-Economic Ground
The Equality (Miscellaneous Provisions) Bill 2017 seeks to prohibit discrimination on the basis of a person's social and economic background. This Bill seeks to amend the EEA and the ESA by inserting a new ground for discrimination based on 'disadvantaged socio-economic status', referred to as "the socio-economic ground". According to this Bill, 'disadvantaged socio-economic status' means a 'socially identifiable status of social or economic disadvantage resulting from poverty, level or source of income, homelessness, place of residence or family background'.
The explanatory memorandum states that the purpose of the proposed amendments is to ensure that persons can no longer be discriminated against on the basis that they come from a disadvantaged background, such as a 'local authority estate or an area that is associated with higher levels of criminality or anti-social behaviour'. Further, it would not be possible for service providers to discriminate against people based on where they live. Discrimination on socio-economic grounds is not currently covered by legislation. A European Commission report shows that legislation in 20 out of 35 European countries provides protection against discrimination on a ground related to socio-economic status. A proponent of this Bill argues that many of his constituents have informed him that they purposefully exclude their address when applying for a job, as communicating their address would deter potential employers.
Proposed Mental Health Ground
This proposed ground of discrimination is set out in the Equality (Miscellaneous Provisions) (No.2) Bill 2017. This Bill proposes to prohibit discrimination on the basis of a person's 'mental health status' which is defined as meaning 'emotional, psychological and social wellbeing'. This proposal would insert an additional discriminatory ground based on mental health status referred to as 'the mental health ground'.
The EEA and ESA currently provide for discrimination on the ground of mental health, as it comes within the definition of disability. In the explanatory memorandum to this Bill it is argued, however, that the current definition of mental illness in the EEA and ESA is a 'restricted medical definition', and that the Bill 'aims to place mental health status within equality legislation on a human rights basis as opposed to the more restrictive medical basis'.
While the new proposals under the two Bills are at early stages, it is evident the discussion around grounds of discrimination continues to evolve.
The UK Employment Tribunal decision in Miss A de Souza E Souza v Primark Stores Ltd 2206063/2017, provides an interesting insight into the treatment of transgender discrimination claims. Gender reassignment is a 'protected characteristic' under the UK Equality Act 2010. In this case it was found that the claimant's constructive dismissal was direct gender reassignment discrimination after the respondent subjected the claimant to harassment related to gender reassignment. The harassment included a supervisor informing another staff member that the claimant was transgender, continuously calling the claimant by her male name, and staff members calling the claimant a 'joke' and saying in front of customers that 'she is evil'. Damages of £47,433 were awarded. The Employment Tribunal made a number of recommendations for the respondent to implement including:
- to adopt a written policy regarding how to deal with new or existing staff who are transgender (including the preservation of confidentiality)
- to provide training in relation to transgender discrimination and on handling grievances
- to ensure that transgender discrimination and harassment is referred to in all equality and harassment policies.
This case is in line with the European Court of Justice (ECJ) case of P v S and Cornwall County Council (1996). In this case, the ECJ found that gender discrimination is not confined to discrimination based on the fact that a person is of one or other sex, but also to discrimination arising from the gender reassignment of the person concerned.
Due to the supremacy of EU law, the definition of gender discrimination in the EEA and the ESA must therefore include discrimination on the grounds of gender reassignment. In Ireland, the matter of transgender discrimination was considered in Hannon v First Direct Logistics DEC-E2011-066. In this case, the Equality Tribunal found that the requirement of a transgender person to switch between male and female identities whenever the company deemed necessary constituted discrimination on the gender ground. The Equality Tribunal made reference to P v S and Cornwall County Council in its decision.
As it appears that gender reassignment comes under gender discrimination in Ireland, it would be prudent for employers to take note of the Employment Tribunal's recommendations in order to ensure equality and harassment policies are robust.