Download Gender Equality and Women's Employment in Ireland: Constitutional Rights and EU Directives and more Lecture notes Law in PDF only on Docsity! Irish Report
Review and Reform of EU
Equality Law: Ireland
Ursula Barry
Research Assistant : Joan O' Connor
Women’s Education Research and Resource Centre
University College Dublin
April 2003
2 Introduction Equality legislation in Ireland originates with Irish membership of the European Union (EU) then the European Economic Community (EEC) in 1973. Up until this time, gender equality and equal opportunities had not been addressed within the Irish legal framework. Ireland has a written Constitution, adopted in 1937, which refers to the equal treatment of citizens before the law, but makes no specific recognition of gender inequality. In fact the Constitution specifically refers strongly to the importance of women's role within the home and the need for the State to support that role taken a negative or restrictive perspective on women's paid employment. The Constitution states that men and women equally have the right to an adequate means of livelihood the State must ensure that they may through their occupations have the means of making reasonable provision for their domestic needs citizens shall not be forced by economic necessity to enter vocations unsuited to their sex, age or strength by her life within the home, woman gives to the State a support without which the common good cannot be achieved the State should endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to neglect of their duties in the home Given the lack of reference to gender equality or to discrimination in the Constitution, EU Directives on equal pay and antidiscrimination were highly significant in Ireland and brought about far reaching changes in employment law. Of equal significance in the early seventies was the removal of the 'marriage bar' which had operated to enforce compulsory retirement of women from employment on marriage in the civil service, most public sector organisations and certain large private sector organisations, such as the banks. Again it was membership of the EU which brought about the removal of this restrictive bar on women's employment. Later EU Directives on social security, protection of pregnancy, maternity and parental leave have all contributed to a strengthening of that legal framework. In more recent years equality legislation in Ireland has undergone a major transformation resulting in an extension of antidiscrimination law from employment to service provision and the broadening of grounds of discrimination to nine grounds from sex, marital and family status, to include age, disability, race, sexual orientation, religion, and membership of the travelling community. These developments have been the result of national political initiatives rather than a response to the requirements of EU law. In this context Ireland has become an initiator of progressive change in equality legislation within the EU, particularly in its Equal Status legislation providing protection against discrimination in the provision of services on the same nine grounds. Together with this legislative change, a stronger and broader equality infrastructure has been put in place including a new Equality Authority and dedicated equality units in specific government 5 to its implementation, was also subject to legal controversy eventually forcing the amendment of national legislation. Equal pay and equal treatment legislation introduced in the 1970's appears to have had an initial positive impact in narrowing the gender pay gap but this situation leveled off during the 1980s to the present day with only marginal closing of the gender pay gap evident over this period. Detailed analysis of the impact of the legislation is severely hampered by the absence of comprehensive national pay data in Ireland. Official national pay data has been collected only for the industrial sector (manufacturing and construction) over the decades and not the critical services sectors where the vast majority (four out of five) women are concentrated. Data collected for the 'Living in Ireland Survey' the Irish component of the European Community Household Panel (ECHP) does provide an estimate of the gender pay gap on an economy wide basis. (Callen et al 2000). Recent Amendments to Equality Legislation In 1998, the existing two equality laws were replaced with the Employment Equality Act, 1998 which extended the grounds on which discrimination in employment is outlawed from the two grounds of sex and marital status to a further seven grounds: race, sexual orientation, age, disability, religion, membership of the Travelling Community and family status. Under this Act equal pay for 'like work' is provided for. Like work is defined as work which is the same, similar or of equal value. Four categories of discrimination are prohibited under this Act : direct and indirect discrimination, harassment and victimisation. This new legislation brought in some important new legislative provisions but did not change the key limitations of equality legislation in Ireland outlined above : • The Act provides that all employment contracts shall be deemed to include equality and equal remuneration clauses. Discrimination on the nine grounds is outlawed in relation to a broad range of employmentrelated activities including training or experience for, or in relation to: employment; access to employment; conditions of employment; promotion; classification of posts; activities of employment agencies; and advertising. It applies to employing organisations including trade and professional organisations, trade unions and to collective agreements. • The time limit for claims was changed from six months from the date of the first occurrence to six months from the most recent occurrence. • The Employment Equality Agency was reconstituted as the Equality Agency and given a stronger role in conducting equality reviews and preparing equality action plans. Businesses failing to implement the provisions of an equality action plan can be issued with a substantive notice to be enforced by the courts if necessary. To date the Authority has taken the approach of voluntary compliance. 6 • Perhaps the most important change (together with the extended grounds of discrimination) is the legal definition of sexual harassment and harassment contained in Irish law for the first time under this new Act. Employers may be liable for their own discriminatory conduct but are also liable for harassment to employees perpetrated in the course of their employment for example sexual harassment of employees by customers, clients or business contacts. Sexual harassment is defined so as to include acts of physical intimacy, requests for sexual favours, unwelcome acts including words, pictures or gestures. • Positive action measures designed to remove existing inequalities and promote equal opportunities between women and men, persons with a disability, persons over the age of 50 and members of the traveller community are provided for under the Act. • The comparator for the purposes of equal pay claims while still restricted has been made broader and more flexible in that it may be in the 'same' or 'associated' employment as the complainant. • The Act includes definitions of indirect discrimination on gender grounds bringing Irish law in line with decisions of the European Court of justice. • Definition of pay does not specifically include pension rights. • The Act is applied to the defence forces for the first time. Particular Strengths of Irish Legislation compared to EU regulations 1. Irish equality legislation now covers nine grounds of discrimination using the legislative approach to gender equality in employment and applying it to specific minorities vulnerable to discrimination, such as people with disabilities, racial minorities, lesbians and gay men and others. The enactment of this legislation in 1998 protecting against discrimination in pay and working conditions for each of the nine specified grounds puts Irish equality law significantly in advance of that covered by EU directives. 2. Since 2000 Irish equality law has been extended to cover protection against discrimination in the provision of services (in addition to existing legislation on employment). This legislation covers the same nine grounds of discrimination specified in employment legislation. By outlawing discrimination in service provision and by covering specified minorities as well as sex discrimination, this aspect of the Irish equality framework encompasses social and economic activity not covered by EU Directives. 3. The 1998 Employment Equality Act defined sexual harassment in Irish law for the first time. Prior to that there were individual case laws which provided valuable precedents but no specific legislative provisions. 7 4. Employment equality legislation in Ireland, in line with EU legislation, makes definite provision for equal pay on the basis of work of 'equal value'. In this context, it takes a generally broad and flexible approach to the implementation of the principle of equal pay. 5. Irish equality legislation makes specific provision for positive action measures in relation to specific sectors of the population women, older people, disabled people and members of the traveller community who have experienced historical discrimination. This provision is aimed at bringing Irish legislation in line with the EU Amsterdam Treaty covering positive action. 6. In implementing the Directive on Maternity Leave, successive Irish governments limited entitlement to the minimum required under EU regulations. However, as a result of strong lobbying from trade union, women's organisations and others, statutory maternity leave entitlement was raised in 2001 to 18 weeks paid and 8 weeks unpaid leave. This entitlement is still lower than that provided for in other EU member states but no longer constitutes the minimum specified under EU regulations. 7. Irish equality legislation has generated a significant amount of case law, at a higher level than in many other member States. Both the Equality Authority, which has a direct role in advising and assisting claimants, as well as trade unions have played a central role in ensuring that cases of discrimination are taken through the system. Positive outcomes on discrimination claims are common. Particular Weaknesses of Irish Legislation compared to EU regulations 1. Employment equality law in Ireland is restricted to claims made against the same employer or related employers. In this sense it does not provide for the use of a broad based comparator in equal pay claims and consequently restricts the applicability and the effectiveness of the legislation. 2. Leave entitlements are extremely low in Ireland. Following the coming into force of the Parental Leave Directive, the then Irish government took a minimalist approach to its implementation in Ireland. Little has been done to change this situation. Statutory parental leave is unpaid in Ireland and there is no statutory provision for paternity leave. Recent improvements in maternity leave (paid from 14 to 18 weeks and unpaid from 4 to 8 weeks) has been a significant improvement but Ireland continues to provide relatively low provision in EU terms. 3. The definition of remuneration used in Irish equal pay legislation excludes pension benefits. However, recent EU case law will be applied in the Irish context, thus ensuring that pension entitlements are taken into account in equal pay cases. 4. There are a number of exceptions under equality legislation in Ireland, where, for example antidiscrimination provisions are not applied. For example, equal status 10 average employment rate between 1998 and 2001, driven largely by a strong rise in the employment rate of women and older people, are evident from the following data. Table 1 1. Female Labour Force Participation Rate Year 1971 1981 1987 2001 All Women 25.7% 29.1% 30.9% 43.2% Married Women 13.6% 30.2% 39.6% 52.3% 2. Employment Rates 15 – 64 years of age Year 1998 1999 2000 2001 Overall 60.5% 63.2% 65.1% 65.7% Female 48.9% 51.9% 54.9% 55.1% Older 41.6% 43.7% 45.3% 46.4% Central Statistics Office, 1998, 1999, 2000, 2001. Barriers to employment among women persist in Ireland, blocking progress towards equality and also to the potential benefits from the greater implementation of equal opportunities across the economic and social system. A recent survey by the Chambers of Commerce in Ireland highlighted the lack of childcare services as a key factor in restricting women's employment and hence their access to a productive workforce. One third of businesses surveyed by the Chambers of Commerce in Ireland in 2001 believed that low availability and high costs of childcare were impeding their efforts to recruit and retain employees. According to the employers surveyed, cost was the biggest barriers to employees finding suitable childcare. 72% of employers cited the cost of childcare as a major barrier and 67% the lack of available childcare places. (Chamber of Commerce Ireland 2001) Gender Pay Gap The period immediately following the introduction of equality legislation in the 1970s saw a narrowing of the recorded wage gap between women and men, a trend which leveled off during the 1980s. Callen and Wren's (1994) analysis of malefemale wage differentials in the manufacturing sector highlights the faster rate of growth in female over male manufacturing earnings following the introduction of equal pay legislation in the 1970s. A number of commentators highlight the restrictive application of equal pay legislation in a highly segregated labour market as the reason for this limited amount of progress. " In 1975 the ratio of women's hourly earnings to that of men was 60.7% which increased steadily to 68% in 1981. In 1984 it dropped to 67.9% but climbed back to 68.1% in 1985. 11 Disappointingly, by 1987 it had fallen back to 67%. This means that during the 1980s the narrowing of the gap between women's and men's hourly earnings in manufacturing industry had come to a standstill. Clearly, the 1974 Act has had some small impact on the male/female wage differential, but the legal intervention in this area has been limited conceptually since it ignores the specificity of women's position and participation in the labour market. " ( Curtin 1989) The restricted applicability of equal pay legislation is clearly highlighted by the work of Rosheen Callender and Frances Meenan writing in 1994 : " Progress towards equality must involve more effective outlawing of discriminatory practices in employment, together with positive action to ensure women's full and equal participation at all levels of economic and social life. To date the overall impact of European equality legislation in assisting this process has been limited. In the 17 years from the enactment of equal pay legislation until the end of 1992, some 437 claims, involving fewer than 10,000 workers (only about 2% of the female workforce), were the subject of Equality Officer recommendations. Over the entire period, a majority of these claimants were successful in establishing their entitlement to equal pay; but in recent years both the number of claims and the proportion of successful ones have been falling. Claims under the equal opportunities legislation have been even smaller in number : between 1978 and 1992 only 254 claims came to the Equality Officers for recommendation and only about 500 workers were successful in establishing an entitlement to equal treatment. Yet potentially this is the legislation which should have the most positive implications for women at work, by outlawing many forms of discrimination in employment and encouraging the entry of more women to traditionally sexsegregated industries, occupations and grading structures." (Callender and Meenan 1994) Mary Redmond commenting on the sectoral impact of the 1974 Equal Pay Act makes the point that "…since the 1974 Act came into force, the gap between men's and women's earnings has marginally narrowed. There is no data on the number of women employed in work that is the same, similar, or equal in value as the work carried out by men in the same employment. The overall problem in relation to women's pay in Ireland is that they are virtually absent from those parts of the workforce where earnings are the highest. There is some indication from trade union sources that progress in negotiating equal pay has been made in the following sectors : Food, Tobacco, Paper and Printing, Chemicals, Metals and Engineering. Large numbers of clerical, administrative and distributive workers, as well as nurses and hotel workers, have benefited from equal pay settlements." (Redmond, 1984). Analysis of the period since the mid 1980s reveals a continuation of this limited impact of equal pay legislation. The Irish economy has continued to show a wide and persistent gender wage gap over the last fifteen years although there has been some narrowing of 12 the gap between men's and women's earnings since the late eighties. Central Statistics Office data for the manufacturing sector shows a reduction of the gender wage gap since 1988 when women were earning on average just over twothirds of men's hourly earnings. The female to male wage ratio stood at 61.3% in 1977, rose to 67.6% in 1988, 72.7% in 1994, 74.4% in 1998 and rose further to 75.9% in 2001. The high rates of economic growth which occurred in the late nineties through to the present day only brought with it a marginal reduction in the gender pay gap of 1.5 percentage points between 1998 and 2001. So despite some significant narrowing of the wage gap over the period of time during which equality legislation has been in place for nearly three decades, the wage gap has remained wide in manufacturing, at 24% in 2001. Table 2 Average Hourly Earnings for Women and Men in Manufacturing Industry for Selected Years Year Female Male Total Female/Male Ratio 1977 1.68 1.03 61.3% 1987 4.85 7.15 6.29 67.6% 1994 6.53 9.10 8.14 72.7% 1998 7.60 10.21 9.27 74.4% 2001 9.43 12.41 11.4 75.9% Source : Central Statistics Office, Blackwell, 1989. The most recent published study of pay and the gender pay gap in particular was published in 2000 by Oak Tree Press for the Economic and Social Research Institute (ESRI), (authors A. Barrett, T.Callan (ed), A. Doris, D. O’ Neill, H. Russell, O. Sweetman, J. McBride) entitled ‘How Unequal – Men and Women in the Irish Labour Market’. This study was undertaken following a commitment under Partnership 2000, the National Agreement between the social partners. The study itself was monitored by a committee representing the social partners and relevant government departments. The study draws on data from the 1987, 1994, 1997 and 2000 Living in Ireland Surveys, the Irish element of the European Community Household Panel. The following data is taken from a Report by Helen Russell and Brenda Gannon of the ESRI on Equal Opportunities between Women and Men and published on the Department of Enterprise and Employment Website (www.entemp.ie 2002). Using data from the Living in Ireland Surveys, it draws on and updates the statistical trends presented in the Barrett et al Report and represents the most recent analysis of trends in the gender pay gap in Ireland. Data for all employees based on Economic and Social Research Institute (ESRI) survey data reveals a higher female to male wage ratio covering the period 19871997, rising from 80.1% in 1987 to 82.8% in 1994, to 85.0% in 1997 and to 85.3% in 2000. It is clear from this data that the gender wage gap narrowed very gradually but significantly by five percentage points over the decade 1987 to 1997 but has remained almost static over the years 19972000. It was in 1997 that the European Employment Strategy was first put in place. 15 of those on low pay, those living in poverty and are crowded into the lowest part of the jobs hierarchy. As well as equality legislation, other legislation covering parttime employment and the minimum wage have played important roles in improving the employment position of women. As women account for most of those on low pay and the large majority of part time employees in Ireland, regulation in this area is particularly important. Because the minimum wage was set at a low level and was introduced at a time of strong economic growth and rising demand for labour, its positive impact on women in low paid employment was limited. It is estimated that 6% of women employees experienced some benefit from the setting of the minimum wage (Nolan et al 2002) Educational attainment is another factor which affects women's position on the labour market and consequently their relative earning situation. However, data shows that substantial gender wage gaps are evident even where women's educational qualifications are high and little change has taken place in this pattern over the last eight years. It is also very clear from the data that the gender wage gap is the highest among women and men with the lowest educational attainment levels and lowest at the highest educational attainment level. High educational attainment does however mean that women earn above the average earnings and above male average earnings. Different factors may come into play here. For example, women with higher educational attainment linked to higher levels of earnings are more likely to have a stronger attachment to the labour market, resulting in fewer periods and shorter periods of absence from paid employment. Table 6 Male/Female Wage Differentials by Educational Qualifications 1994 1997 2000 Mean Hourly Wage 2000 Ratio Ratio Ratio Male Female No secondary qual 65.6% 68.3% 69.5% £7.72 £5.37 Junior/Group cert 73.3% 75.5% 75.0% £8.41 £6.30 Leaving Cert/Dipl 80.5% 81.9% 82.3% £10.03 £8.26 Degree 84.9% 90.6% 84.9% £16.40 £13.93 Source : Russell and Gannon 2002 Strong increases in women's participation in education and training have paralleled increases in women's employment rate. Women account for the majority of those with third level education in Ireland, a gap particular apparent among younger people aged 25 34 compared to the older age group 5564. This reflects a generational change as young women in Ireland look to increased educational attainment as a means to strengthen their situation on the labour market in terms of both pay and occupational position.(OECD 2002) The female proportion of second level students has been at slightly over 50% of the total since the late 1970's, while within the third level sector, female students have risen significantly from a position of under to one of overrepresentation over the same time period. Over the last twenty years, the female share of students in third level education has risen continuously as the following figures show : 16 Table 7 Female Share of Third Level Students 1979 42.3% 1985 43.2% 1990 45.3% 1995 49.3% 2000 54.1% (OECD 2002 Lynch, 1999) Within the second level system, data shows that girls have begun to consistently outperform boys in the results achieved in the Leaving Certificate examination, including subjects such as maths in which 83% of girls attaining a grade C or higher in higher level maths in 1996 compared to 79% of boys. This compares to figures of 35% of girls attaining a grade C or higher in higher level maths in 1979 compared to 44% of boys. Looking at the field of study that new entrant female and male students are engaging in data from 1998 shows strong gender differentiation. Over twothirds of those take up study in Humanities, Social Sciences or Art and Design fields are female compared to only 22% of those taking up study in Technology fields (Clancy 2001). Data from the State training agency AnCO later reestablished as FAS show a strong increase in women's participation in training and employment schemes. In 1975, women accounted for only 10% of trainees compared to 30% of trainees in 1980. (AnCO 1980) Recent data from FAS indicates that women today account for 46 % of participants on training and employment schemes 35% of training programme participants and 46% of employment scheme participants. Women have strongly increased their proportion of participants on active labour market schemes due to changes in eligibility criteria allowing for lone parents (the large majority of whom are women) and women spouses of long term unemployed men to enter these schemes. However, underlying the global figures for women's equal participation rates, there is evidence of significant sex differentiation. There has also been a steady increase in the percentage of women undergoing specific skills training. Between 1990 and 2000, women increased their proportion of participants on specific skills training from 37% to 45%. However, underlying the global figures for women's more equal participation rates, there is evidence of significant sex differentiation. Within specific skills training women tend to be grouped into certain training programmes and in apprenticeship training women make up only a tiny percentage of participants. Women accounted for 56% of those on general specific skills training courses but only 15% of those on sponsored specific skills training i.e. linked to specific employers or employment opportunities in 2000. Less than 1% of those undergoing apprenticeship training that year were women. (Cousins 1996, FAS 2000) Development of Equality Infrastructure Another indication of progress towards equality is the provision of an equality infrastructure which can facilitate and enable gender discrimination to be addressed and equality policies to be enhanced and implemented. Together with the introduction of new 17 equality legislation, the five year period from 1998 has also seen the strengthening of the equality infrastructure in Ireland. The Equality Authority established under the 1998 Employment Equality Act has increased resources, a greater range of activities, a stronger and more proactive role as well as a higher public profile than the Employment Equality Agency which preceded it. It is however also responsible for nine different areas of discrimination of which gender is only one. Alongside the Equality Authority, new equality units have been established in specific government departments, the Department of Justice Equality and Law Reform and the Department of Education and Science. The Department of Justice Equality and Law Reform has overall central government departmental responsibility for equality, established in the 1990s following the dissolution of the Ministry for Women's Affairs which was in place during the 1980s. Other important initiatives include the establishment of an Equal Opportunities Monitoring Committee in relation to the implementation of the National Development Plan (NDP) 20002006. Parallel to the adoption of the NDP, Gender Impact Assessment Guidelines have been adopted by Cabinet in 2001 which must be applied to the large majority of policy initiatives under the Plan. This range of initiatives represent a broader based commitment within the legal and institutional system towards gender equality and equality generally. It is not yet evident however, whether there changes are resulting in greater equality of opportunity in practice. The definite lack of gender equality in the core decisionmaking systems (see below) and the weaknesses of systems of enforcement combine to limit the effectiveness of such changes. (Barry 2001) Recent Equality Law Cases While the majority of recent equality law cases take place under the new equality legislation, there are still cases arising which date back to earlier equal pay and anti discrimination legislation. In the most recent major equal pay case settled in May 2003, over 5000 mainly women civil servants received 34 ml euros from a claim dating back twelve years. Most claimants will receive about 6,000 euros each in what the Civil and public Service union describe as "the biggest equal pay claim conceded in Europe". This claim was based on the fact that up until the late 1990s paperkeepers, most of whom were men were paid around IR£50 more per week than clerical assistants, most of whom were women, for doing similar work. Both grades were in fact amalgamated into the clerical officer grade in 1997. This huge pay gap arose from the practice in the Civil Service of paying married men 20% more than other staff until the 1970s when equal pay legislation was introduced and the marriage bar was lifted. The successful outcome of this case provides a clear example of how significant equal pay legislation can be where the strict criteria of the legislation are fulfilled and how important EU directives have been in the Irish context. New cases under current equality legislation are documented annually by the Equality Authority. Reports from the Equality Authority established under the 1998 Employment Equality Act reveal that gender equality cases, including equal pay cases, dominate the equality cases they handle. The Equality Authority Annual Report for 2002 records over a hundred cases in which their assistance was granted over that year. Cases of sex discrimination accounted for by far the largest set of employment complaints. Of the fifty 20 Section 3 : Social and Economic Impact of Proposed Reform of EU Legislation This section of the Report looks at the potential impact of specific proposed changes in EU equality legislation particular in relation to pension entitlements and to the enforcement of equality legislation in Ireland. Irish Pension System the Context The Irish pension system operates through two main pillars : a State social welfare system and a voluntary pension system (made up primarily of occupational pensions). The State provides for significant tax relief to those paying into occupational and personal pension schemes. The State welfare system comprises both a contributory and a noncontributory pension establishing a minimum level of income for those aged 65 years and over. Noncontributory State pension : This is a means tested payment under the social assistance part of the welfare system. Contributory State pension : This pension benefit is non means tested and the level of benefit is related to the level of contributions made over a working life. These payments may be supplemented by private or occupational pensions. Tax relief for occupational and private pensions : Tax relief on up to 15% of income is available to those contributing to occupational or private pensions and on lump sums payable on pension age. State pensions are flat rate payments, not related to previous income. They include additional allowances for dependants, those living alone, those over 80 years of age and subsidies towards the costs of electricity, fuel in winter months, telephone rental and TV license. Those over 66 are entitled to free travel on public transport, subject to peak hours restrictions. Those over 75 years are also entitled to a medical card providing access to public hospital services and general practitioner services. Social assistance pensions are financed from taxation revenue. State contributory pensions are financed by payrelated contributions by employers, employees and the self employed. An income ceiling applies to employee contributions but was removed from employer contributions in 2002. Recent years have seen the extension of insurancebased contributory State pensions to broader sections of the workforce, including public sector workers and the selfemployed. About 60% of those on State pensions are on the social insurance pensions. Women accounted for 31% of those on social insurance based contributory pensions and 57% of those on social assistance or noncontributory pensions in 2002. (Dept of Social and Family Affairs 2002) 21 While the contributory system is currently selffinancing, in previous years (and likely future years) State subventions to the fund have been necessary. Total expenditure on old age payments accounted for 25% of all social welfare expenditure in 2001. In 2001, a Pension Reserve Fund was established in anticipation of State pension liabilities (both social welfare and public sector occupational pensions), after 2026. Government projections expect pension costs to increase from 4.5% of GNP in 2001 to 8% in 2026 and 9% in 2056. Pensions legislation regulates occupational and private pensions and a Pensions Board (made up of government representatives, the social partners and 'interested parties' nominated by government) monitors compliance with, and enforcement of, the legislation. The Irish social welfare system is predominantly a breadwinner model and this is reflected in the operation of the pension system. The insurance (State contributory) and occupational pensions schemes are employment related and the social assistance pensions are based on a single adult (mainly male) claimant. Because of Irish women's (particularly married women and women with children) traditionally low participation rate on the formal labour market, women's pension entitlements are often derived benefits or payments. Many women have no independent entitlement to a pension. Among women in paid employment, pension entitlements are also weak. Women employed in the private sector are much less likely to be covered by occupational pension schemes than men. Because women are crowded into parttime, temporary and contract employment where low pay is common and pension provision is rare. Data from the Quarterly National Household Survey for 2002 shows pension coverage among women and men in Ireland : Table 9 Pension coverage for persons in employment aged 20 to 69 years Occupational Personal Both Total pension only pension only coverage Women 36.0 6.0 2.2 44.2 Men 34.6 17.4 3.4 55.4 All 35.2 12.6 2.9 50.7 Source : Central Statistics Office, 2002. What is evident from this data is that while women and men have similar levels of coverage within occupational pension schemes (36% of women and 35% of men in employment), men have far higher levels of personal pension cover than women. This is largely due to the significance of public sector employment for women where there is 22 extensive occupational pension coverage (88% coverage), but the precariousness of women's private sector employment where absence of coverage is common. For example only 26% of employees in the wholesale and retail trade and 13% of employees in hotels and restaurants are covered. (Central Statistics Office, 2002) "Less than one in three women working in the private sector are covered by occupational pension schemes this figure is frighteningly low at only 31%. Throughout the economy as a whole only 43% of women workers are covered by an occupational pension as opposed to 58% of men. This is partly due to the kind of industries and occupations women work in, and in particular to the number of women who have part time or contract employment which has a low level of pension coverage. It is also due to the old view that the man was the 'bread winner' and would provide the main source of income and pension for his family." Anne Maher, Chief Executive of the Pensions Board. 2001 A Report published by Hughes and Whelan of Economic and Social Research Institute shows significant differences in occupational and personal pension coverage across age groups and between women and men, based on 1995 data. Of the 52% of those in paid employment only 48% of women compared to 77% of men were covered in the over 40 age group. In the 3039 age group the gender gap is narrower, with 60% of women and 67% of men covered while for those under 30 years coverage was at the same level of 29%. This Report highlights key areas where the gaps in coverage are severe : among parttime and temporary staff (less than 10%), among women (14 percentage points lower than men) among employees of firms with less than 50 employees (31% overall; 15% in firms of up to four people).(Hughes and Whelan 1996) The introduction of the Personal Retirement Savings Account (PRSA) in 2003 was intended to address the lack of pension coverage across much of the private sector and has the potential to benefit many women workers. The PRSA operates as a flexible pension scheme which can be carried from employment to employment and can be availed of by all of those in employment, regardless of employment status. Employers are obliged to facilitate their employees unless they already operate a pension scheme for their employees. It is intended to review this scheme following three years of its operation. "…..the Personal Retirement Savings Account (PRSA)…will be a lowcost, easyaccess, longterm personal investment account available to all. The PRSA is a radical attempt to help those who are not already in pension arrangements to make provision for their retirement. It is intended to be particularly suitable for women, parttimers, contract workers and those in lowerpaid employment." Anne Maher, Chief Executive of the Pensions Board. 2001 1. Removal of Exemption with respect to Actuarial Exemptions The Pensions Act 1990 requires that men and women be treated equally in relation to Occupational Pension Schemes. In this context, the Irish pensions system has met the 25 contributory oldage pensions and maternity benefit. This entitlement should be available retrospectively so that older women, including those now of pension age, can qualify. The government should implement its commitment without delay that all women of pension age be given the full, noncontributory pension, rather than the Qualified Adult Allowance, the lower payment to which they are currently entitled. " (National Women's Council of Ireland, 2002) Economic and social policy in Ireland is placing increasing emphasis at present on private, voluntary and supplementary pension provision, reflected for example in the new PRSA scheme introduced over the last year. Occupational and personal pension coverage is likely to rise among women and men as a result of this policy, and at a higher rate among women due to their increasing rate of employment and the traditionally low level of coverage. This means that issues of equal treatment are becoming even more important and significant to increasing numbers of women. Women's stronger attachment to the workforce needs to be reflected in increased returns from employment, greater economic independence and improved living conditions in old age. Differential actuarial calculations with respect to occupational pensions on the basis of sex are permitted under Irish law, a situation which has negative effects on pension payments and benefits to women. They are permitted under 'defined benefit', 'deferred benefit' and 'defined contribution' schemes. Such sex differentiated calculations discriminate against women who face both higher contribution and lower benefit levels under many occupational pensions. A new EU Directive prohibiting sexbased actuarial calculations would have a positive impact on the economic position of older women in Ireland, a sector of the population at a particularly high risk of poverty. There is no data available on the actual numbers of women affected by sex differentiated actuarial calculations. However, 36% of women in employment covered by occupational pension schemes and a further 6% by personal pension schemes are potential beneficiaries of a prohibition on sex differentiated actuarial calculations. This could be accomplished simply by sharing the life expectancy risks and probabilities between women and men, and averaging upwards the pension entitlements accordingly. Another aspect of pension provision in Ireland which operates in a discriminatory manner and has so far remained untouched by equality legislation is the restriction of survivor pension entitlements to spouses and children. This means that cohabiting couples and same sex couples are not permitted to benefit from the pension entitlements established by their partners. Even though equality legislation in Ireland prohibits discrimination on grounds of marital status or sexual orientation, pension provision which restricts survivor entitlements have not yet been challenged under the law. Under the present system many public sector workers, for example, are obliged to contribute to a pension scheme under which they are not in a position to establish a beneficiary on their death. A system of nominating a beneficiary would allow for more flexible and nondiscriminatory provision of pension entitlements and benefits. Similar discriminations exist in the operation of capital acquisition tax (inheritance and gift taxes) which provides for favourable treatment to married couples and only limited recognition of cohabiting couples and 26 same sex couples. Legal recognition of same sex and other partnerships (as has occurred in other EU countries) could potentially address these forms of discrimination. 2. Possible Impact in Ireland of Proposed Reform of EU Equality Directives The provisions under the newly proposed EU Directive 2002/73 are unlikely to have significant or measurable effects in Ireland, primarily due to the important changes which have taken place to the framework for equality legislation in Ireland over the last five years. The Irish Employment Equality Act 1998 includes definitions of direct and indirect discrimination and sexual harassment. This Act established the Equality Authority (which replaced the Employment Equality Agency), and provides for company level equality plans, has a specified role for the Equality Authority in providing guidelines for equality plans, working with individual companies and enforcing regulations on equality plans. Irish equality legislation does provide for employes to take 'positive action' measures to promote equal opportunities for women and to facilitate the integration into employment of disabled people, persons over 50 years and members of the Traveller community. In this context, it is likely that Ireland already complies with the majority of provisions under the proposed Directive in respect of indirect discrimination, sexual harassment and the establishment of an equality agency. The burden of proof in indirect discrimination cases lies with the employer under this legislation. If protection against discrimination in job evaluation systems is specified under EU law this will bring a potentially significant change into Irish equality legislation. Sexual harassment (and harassment by reference to an individuals relevant characteristics) was codified in Irish law for the first time under the 1998 Employment Equality Act under which employers may be liable for sexual harassment by other employees as well as customers, business clients and business contacts. Employers are permitted a defence that they took steps which were 'reasonably practical' to prevent the harassment. As well as these provisions under equality legislation, labour law provides for a claim of 'constructive dismissal' (under the Unfair Dismissal Act 1996) which may be applied to situations of sexual harassment and the Safety and Health at Work Act 1989, which implements the EU Directive on safety and health of workers, also contains relevant provisions. Despite the strengthening of the legislative framework for equality discrimination is evident. Research indicates that sexual harassment is a prevalent experience among workers in Ireland. A study of over 1,000 firms in 1993 revealed that two out of five companies had received reports of sexual harassment. Studies of specific sectors of employment have also revealed significant experience of sexual harassment. For example nearly 50% of women surveyed in the Electricity Supply Board, 25% of women civil servants (majority men) and 14% of women workers in the retail sector stated that they had experienced sexual harassment at work, (Browne 1998). Nearly 16% of cases recorded by the equality Authority in 2002 were sexual harassment and harassment claims (Equality Authority 2002) 27 Workplace bullying and harassment have been addressed through codes of practice introduced over recent years : code of practice and guidelines on the prevention of workplace bullying (Health and Safety Authority 2002) procedures for addressing bullying in the workplace (Dept of Enterprise, Trade and Employment, 2002) code of practice on sexual harassment and harassment at work which can be admitted as evidence in casework (Equality Authority 2002 Discrimination against pregnant women in employment is a significant issue, a situation reflected in cases coming to the Labour Court under the Employment Equality Act. An important new development has been the increased level of penalties or remedies recently applied by the Court. Seven recommendations on pregnancy related discrimination were issued by the Labour Court in 2002 and a further seven cases were settled by the Equality Authority directly. Women dismissed because of pregnancy have received the equivalent of one year's salary in these recent cases before the Labour Court. The frequency of pregnancy related discrimination and sexual harassment cases coming to the Equality authority and before the courts provides clear evidence of the continuation of discriminatory practices in workplaces in Ireland and the importance of the legislation in providing remedies and redress for claimants. Given the existing level of provision in Irish equality legislation covering indirect discrimination and sexual harassment, it is unlikely that the proposed new EU Directive will require changes in the law. Because both social welfare and pensions in Ireland come under separate legislation, there may be some greater impact of new EU proposals. Sex differentiated actuarial calculations mainly in 'defined benefit' occupational and personal pension schemes if prohibited will require definite changes in Irish legislation and could benefit significant and increasing numbers of older women. Because current equality legislation as it applies to equal pay in Ireland excludes pensions, new EU provisions which would specifically include pensions would require an change to equality legislation and play an important role in establishing gender equality in such schemes. 3. Limitations of Existing Equality Legislation Ireland has a welldeveloped legislative framework for equality providing for equal pay for work of equal value, protecting against sexual harassment and harassment and prohibiting direct and indirect discrimination in employment and in service provision. Legislative change has succeeded in reducing the level of gender discrimination in Ireland reflected for example in a narrowing of the gender pay gap and in the greater access by women to training, employment and education. Gender discrimination persists and this is in part a consequence of the shortcomings of the legislation itself. Limitations of existing legislation arise for a number of reasons : specifying of exclusions and exemptions (including pensions) under existing legislation 30 31 Bibliography Advisory Committee for Equal Opportunities for Women and Men (2002) : An Input to a New Directive on Sex Discrimination. Equality Office, EU. Barrett, A., Callan, T (ed), Doris, A., O'Neill, D., Russell, H., Sweetman, O., McBride, J.(2000) : How Unequal Men and Women in the Irish Labour Market. Economic and Social Research Institute. Barrett, A. Fitzgerald, J., and Nolan, B. (2000): Earnings Inequality, Returns to Education and Low Pay in Boom to Bust ? The Irish Experience of Growth and Inequality. (eds) Brian Nolan, Philip O' Connell and Christopher Whelan. Economic and Social Research Institute. Barry, Ursula (1999): Gender and the Irish Employment Action Plan 1998 Women's Education Research and Resource Centre, UCD. Barry, Ursula (2000) : Gender and the Irish Employment Action Plan 2000 Women's Education Research and Resource Centre, UCD. Barry, Ursula (2001) : Gender Impact Assessment in Ireland 2001 Women's Education Research and Resource Centre, UCD. Barry, Ursula (2001) : Gender and the Irish Employment Action Plan 19972001. Women's Education Research and Resource Centre, UCD. Barry, Ursula (2002) : Gender and the Irish Employment Action Plan 2002. Women's Education Research and Resource Centre, UCD. Blackwell, John (1986,1989) : Women in the Labour Force. A Statistical Digest. Employment Equality Agency. Browne, Josephine (1996) : Sexual Harassment at Work Ireland. Callan, T and Wren, A (1994) : MaleFemale Wage Differentials: Analysis and Policy Issues. General Research Series Paper No. 163.Economic and Social research Institute. Callender, Rosheen and Meenan, Frances (1998) : Equality in Law between Men and Women in the European Community. Martinus Nijhoff Publishers. Central Statistics Office : Quarterly National Household Survey, Labour Force Survey, Industrial Series, Survey of earnings in financial business, banks and credit sector. Chambers of Commerce of Ireland (2001) : Labour Force 2001 : Childcare. Chamber of Commerce of Ireland. 32 Clancy, Patrick (2001) : College Entry in Focus : A Fourth National Survey of Access to Higher Education. Dublin. Higher Education Authority. Curtin, D : (1989) : Irish Employment Equality Law. Round Hall Press. (Dail Eireann Joint Committee on Secondary Legislation of the European Communities 1984) : Report on Proposals Relating to Equality of Opportunity. Government Publications office. Department of Enterprise, Trade and Employment (2002) : Ireland's Employment Action Plan. April 2002. Department of Enterprise, Trade and Employment. Department of Justice, Equality and Law Reform (2001) : Report of the Working Group on the Review and Improvement of Maternity Protection Legislation. Dept. of Justice, Equality and Law Reform. Department of Justice, Equality and Law Reform (2002) : Report of the Working Group on the Review of the Parental Leave Act. Dept. of Justice, Equality and Law Reform. Equality Authority (2002) : Annual Report. Equality Authority. Equality Authority (2002) : Strategic Plan 20032005. Equality Authority. European Labour Force Survey Calculations European Work Research Centre, University of Manchester. EUROSTAT (2002) : The Social Situation in the European Union. EUROSTAT. EUROSTAT (2002) : Statistics in Focus Series. Women's Earnings in the EU, At the Margins of the Labour Market Women and Men in Temporary Jobs in Europe. Earnings of Men and Women in the EU. FAS/ESRI (2002) : Occupational Employment Forecasts 2015. FAS/ESRI Manpower Forecasting Studies. Report No. 10. Economic and Social Research Institute. Hughes, Gerry (2002) : Employment and Occupational Segregation in Impact Evaluation of European Employment Strategy in Ireland. Section 4.2 Department of Enterprise, Trade and Employment Website. www.ent.ie Irish Congress of Trade Unions (1999) : Fourth Equality Programme. Delivering Gender Equality 19992004. Irish Congress of Trade Unions. Irish Congress of Trade Unions (2002) : The Equal Pay Agenda. Irish Congress of Trade Unions.