S.I. No. 331/1985 - European Communities (Employment Equality) Regulations, 1985.

S.I. No. 331 of 1985.

EUROPEAN COMMUNITIES (EMPLOYMENT EQUALITY) REGULATIONS, 1985.

I, RUAIRI QUINN, Minister for Labour, in exercise of the power conferred on me by section 3 of the European Communities Act, 1972 (No. 27 of 1972), and for the purpose of giving effect to Council Directive 76/207/EEC,¹ hereby make the following Regulations:—

1. These Regulations may be cited as the European Communities (Employment Equality) Regulations, 1985.

2. In these Regulations "the Act of 1977" means the Employment Equality Act, 1977 (No. 16 of 1977).

3. Section 12 of the Act of 1977 is hereby amended by the substitution of the following subsection for subsection (1):—

"(1) This Act does not apply to Employment—

( a ) in the Defence Forces,

( b ) which consists of the performance of services of a personal nature, such as the care of an elderly or incapacitated person in that person's home, where the sex of the employee constitutes a determining factor.",

4. The Act of 1977 is hereby amended by the substitution of the following section for section 17:—

"17. (1) This Act does not apply to any act connected with or related to the Employment of a person where the sex of the person is an occupational qualification for a post in relation to which the act occurs.

(2) For the purposes of this section, the sex of a person shall be taken to be an occupational qualification for a post in the following cases—

( a ) where, on grounds of physiology (excluding physical strength or stamina) or on grounds of authenticity for the purpose of a form of entertainment, the nature of the post requires a member of a particular sex because otherwise the nature of the post would be materially different if carried out by a member of the other sex,

( b ) where the duties of a post involve personal services and it is necessary to have persons of both sexes engaged in such duties,

( c ) where because of the nature of the Employment it is necessary to provide sleeping and sanitary accommodation for employees on a communal basis and it would be unreasonable to expect the provision of separate such accommodation or impracticable for an employer so to provide,

( d ) where it is necessary that the post should be held by a member of a particular sex because it is likely to involve the performance of duties outside the State in a place where the laws or customs are such that the duties can be performed only by a member of that sex,

( e ) where—

(i) the post is a post in the prison service, and

(ii) it is necessary, in the interests of privacy and decency, that the post be filled by a person of a particular sex by reason of the fact that the duties of the post necessitate direct personal supervision of prisoners of that sex while they are dressing, undressing or are in a state of undress, or necessitate the carrying out of personal searches,

(f) where—

(i) the post is a post within the Garda Síochána, and

(ii) it is necessary, in the interests of privacy and decency, that the post be filled by a person of a particular sex by reason of the nature of the duties of that post, in particular where such duties necessitate the carrying out of personal searches or the interviewing of persons in connection with the investigation of sexual offences.

(3) Paragraphs (e) and (f) of subsection (2) apply in relation to the filling of a post only where the employer concerned does not already have sufficient employees—

( a ) who are capable of carrying out the duties falling within the paragraph concerned, and

( b ) whom it would be practicable to employ in carrying out those duties.".

5. The Act of 1977 is hereby amended by the insertion of the following sections after section 17 (inserted by these Regulations):—

"Provisions regarding duties of certain posts in certain posts in prison service or Garda Síochána.

17A. (1) This section shall apply in relation to a post in the following cases:—

( a ) where—

(i) the post is a post in the prison service, and

(ii) the duties of the post include guarding, escorting or controlling violent persons, or quelling riots or violent disturbances, or

( b ) where—

(i) the post is a post within the Garda Síochána, and

(ii) the duties of the post include disarming, controlling, arresting or escorting violent persons, quelling riots or violent disturbances, controlling or dispersing violent crowds or effecting the rescue of hostages or kidnap victims.

(2) This section applies to the filling of a post only where the employer does not already have sufficient employees—

( a ) who are capable of carrying out the relevant duties referred to in subsection (1), and

( b ) whom it would be practicable to employ in carrying out those duties.

(3) In relation to Employment in a post to which this section applies, for the purposes of this Act a requirement that a person has the capacity to perform the duties of that post shall be deemed to be an essential requirement for such Employment for the purposes of section 2 (c).

Prohibition of differentiation between sexes in certain statutory instruments, etc.

17B. (1) Orders, regulations, rules, directions, instructions, arrangements or schemes to which this section applies shall not treat men and women differently except—

( a ) as to requirements relating to height, or

( b ) so far as special treatment is accorded to women in connection with pregnancy or childbirth, or

( c ) as to requirements where the sex of a person is taken to be an occupational qualification for a post for the purposes of section 17 of this Act, or

( d ) as to requirements which are essential requirements for the purposes of section 2 (c) of this Act and which, but for section 17A (inserted by these Regulations) of this Act, could amount to discrimination within the meaning of the said section 2 ( c ).

(2) This section applies to—

( a ) orders or regulations under section 12 , 13 or 14 of the Police Forces Amalgamation Act, 1925 (No. 7 of 1925),

( b ) regulations under section 16 of the Civil Service Commissioners Act, 1956 (No. 45 of 1956), so far as they relate to employment in the prison service,

( c ) arrangements made by the Minister for the Public Service under section 17 of the Civil Service Regulation Act, 1956 (No. 46 of 1956), so far as they relate to Employment in the prison service,

( d ) instructions or directions issued, or rules made, by the Minister for Justice in exercise of the powers conferred on him by or under the Prisons Acts, 1826 to 1980, in relation to posts in a prison or place of detention to which those Acts apply,

( e ) regulations or schemes under the Superannuation and Pensions Act, 1976 (No. 22 of 1976), so far as they relate to Employment in the prison service.

(3) Section 1 (3) of the Garda Síochána Act, 1958 (No. 14 of 1958), is hereby repealed.".

GIVEN under my Official Seal, this 2nd day of October, 1985.

RUAIRI QUINN,

Minister for Labour.

EXPLANATORY NOTE.

The general effect of these Regulations is to:

( a ) terminate the exclusion of Employment in a private residence or by a close relative from the scope of the Employment Equality Act, 1977 , and substitute for it the exclusion of Employment which consists of the performance of services of a personal nature, where the sex of the employee constitutes a determining factor;

( b ) modify the exclusion of Employment in the Garda Síochána, and in the prison service.