EQUALITY

What is it and how can you ensure that you are protected to the fullest extent of the law?
This article aims to set out the basic principles of equality law in Ireland.

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"I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks."

- 'Notorious' Ruth Bader Ginsburg, Associate Justice of the Supreme Court of the United States of America and champion of women's rights. 




"Injustice anywhere is a threat to justice everywhere."

- Martin Luther King Jr. @ Justices' Library, Supreme Court of the United Kingdom

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“The aim of human rights, if I may borrow a term from engineering, is to move beyond the design and drawing-board phase, to move beyond thinking and talking about the foundation stones - to laying those foundation stones, inch by inch, together.”

- Mary Robinson, Dlíodóir agus 7ú Uachtarán Na hÉireann

(EQUALITY IS ALSO A FACTOR IN EMPLOYMENT LAW, PLEASE VISIT THE WORKER'S RIGHTS PAGE FOR MORE)

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EUROPEAN EQUALITY BODIES

The Council of Europe system includes the European Convention on Human Rights, the Revised European Social Charter and the European Court of Human Rights. 

The European Union (EU) system includes the Charter of Fundamental Rights, the EU Directives on Equality and the Court of Justice of the European Union. 

The Council of Europe was created in 1949 to protect human rights, democracy and the rule of law. Ireland was a founding member. It has 47 member states including all 27 European Union members. 

European Convention on Human Rights : The European Convention for the Protection of Human Rights and Fundamental Freedoms, better known as the European Convention on  Human Rights (ECHR) is the basis of the European human rights system. It was drafted by the Council of Europe in 1950 and has been in force since 1953. It was the first regional treaty designed to protect human rights, democracy and the rule of law.  

European Court of Human Rights : The European Court of Human Rights was established as a permanent court to handle individual cases. It decides cases brought by individuals whose Convention rights have been breached, once they have taken all possible steps to have their claim dealt with at national level. This means that the case has been before the High Court and the Supreme Court and has not been upheld by them. States have a duty to comply with judgments against them from the European Court of Human Rights.

There have been over 30 judgments issued by the European Court of  Human Rights in which Ireland was a party. However, the Court often considers cases against other countries which concern issues common to Ireland. The Court’s case-law makes the Convention relevant and up to date as new judgements consider its meaning in light of present-day circumstances.

More detailed information on European Human Rights can be found HERE.

European equality laws were incorporated into Irish law by way of the European Convention on Human Rights Act 2003.

European Convention on Human Rights Act, 2003  (ECHR)

Although Ireland was one of the original countries that signed the European Convention on Human Rights, the Convention was only brought into Irish law in 2003. The signing of the Good Friday/Belfast agreement in 1998 involved a commitment to bring the Convention into domestic law on the island of Ireland. The European Convention on Human Rights Act 2003 (ECHR Act) incorporates the standards set out in the ECHR in Irish law, allowing them to be considered before the Irish Courts. 

Key features of the ECHR Act 2003:

Section 2 sets out that when the Court is making a  judgment in relation to an existing piece of legislation or practice, it must interpret Irish law in a manner that is compatible with the ECHR standards. The ECHR standards are usually considered in parallel with the Irish Constitution as it has primacy over the ECHR Act (in cases where there is any uncertainty). If the two conflict, the Constitution prevails. 

Section 3 creates a statutory obligation on every ‘organ  of the state’, whether that is a government department, a local authority or public institution such as An Garda Síochána or the Health Service Executive to ‘perform[s] its functions in a manner compatible with the State’s obligations under the Convention’. 

Section 4 provides that decisions coming from the  European Court of Human Rights may be used in arguments before the Irish Courts. 

Section 5 deals with ‘declarations of incompatibility’.  This means that a Court may make a declaration that a legal provision is incompatible with Ireland’s obligations under the ECHR. However, the law in question remains in force, but the declaration may result in the Óireachtas repealing or replacing the law.


IRISH EQUALITY LEGISLATION

In Ireland, we have very neatly gathered all of our domestic equality legislation into a collective known as 'The Equal Status Acts 2000-2018 (‘the Acts’). These Acts prohibit discrimination in the provision of goods and services, accommodation and education.

At the heart of the Acts is the guarantee (based on European standards) that people who fall under one of the following nine grounds cannot be discriminated against. These grounds are:

1. Gender,

2. Marital status,

3. Family status,

4. Age,

5. Sexual orientation,

6. Race,

7. Religion,

8. Membership of the Traveller community, and

9. Disability. 

In addition, the Acts prohibit discrimination in the provision of accommodation services against people who are in receipt of rent supplement, housing assistance, or social welfare payments.

The Acts prohibit discrimination (with a few exemptions) in relation to access to, and the use of, goods and service, including indirect discrimination and discrimination by association, sexual harassment and harassment, and victimisation. The Acts also prescribe positive action to promote equality for disadvantaged persons or to cater for the special needs of persons.

Discriminatory advertising is also prohibited under the Acts. It is prohibited to publish, display or cause to be published or displayed, an advertisement which indicates an intention to discriminate, harass or sexually harass or might reasonably be understood as indicating such an intention.

A person is said to be discriminated against if they are treated less favourably than another is, has been or would be treated in a comparable situation on any of the grounds mentioned above.

To establish direct discrimination, a direct comparison must be made. For example, in the case of disability discrimination, the comparison must be between a person who has a disability and another who has not, or between persons with different disabilities.

REASONABLE ACCOMMODATION

The Acts require those selling goods or providing services to provide reasonable accommodation or special treatment or facilities where without these it would be impossible or unreasonably difficult for a person with disabilities to avail of the goods and services, unless this would cost more than a nominal cost. What amounts to a nominal cost will depend on the individual facts, such as the size and resources of the body involved.

Services provided by the State (such as the Health Service Executive, local authorities, and so on) are covered but there are some exemptions. The main exemption is that anything required to be done by another Irish law or EU law cannot be regarded as discrimination under the Equal Status Acts. 

For example, it is not discrimination to refuse a social welfare payment to a person if that person is excluded from entitlement to the payment or benefit under social welfare law. There are also specific exemptions on the nationality ground in relation to the treatment by public authorities of certain foreign nationals.

The following video from the Irish Human Rights and Equality Commission is essential viewing in relation to discrimination:

The Equal Status Acts 2000 - 2018, as discussed above, encapsulate a range of other pieces of associated legislation. These are the:

Intoxicating Liquor Act 2003,

Equality Act 2004,

Civil Law (Miscellaneous Provisions) Act 2008,

Civil Law (Miscellaneous Provisions) Act 2011,

Equal Status (Amendment) Act 2012 ,

Equality (Miscellaneous Provisions) Act 2015, and

Education (Admission to Schools) Act 2018.


HUMAN RIGHTS ISSUES

Equality is a human rights issue. In Ireland the Irish Human Rights and Equality Commission (established under the Irish Human Rights and Equality Commission Act 2014) has the function of:

Promoting and protecting human rights and equality ,

Encouraging the development of a culture of respect for human rights, equality, and intercultural understanding in the State ,

Promoting understanding and awareness of the importance of human rights and equality in the State ,

Encouraging good practice in intercultural relations, to promote tolerance and acceptance of diversity in the State and respect for the freedom and dignity of each person, and working towards the elimination of human rights abuses, discrimination and prohibited conduct.

Although Ireland has ratified a number of international human rights treaties, under Irish law, an individual can only engage the protections afforded under human rights law that has been incorporated into national law, such as for example the rights protected under:

1. the Irish Constitution, 

2. the European Convention of Human Rights Acts 2003 and 2014, and

3. where EU law is applicable, the EU Charter of Fundamental Rights .

This is because the Irish Constitution states that “no international agreement shall be part of the domestic law of the State save as may be provided by the Óireachtas”

This means that although Ireland binds itself in international law upon ratifying a human rights treaty, it only gives effect to the provisions of that treaty in domestic law through Acts of the Óireachtas, or where a treaty right is already provided for under the Irish Constitution. 

The lack of incorporation does not, however, mean that these standards cannot be raised in legal argument. For example, the Irish Courts can, and have, attached a form of persuasive authority to unincorporated international human rights instruments. 

On exhausting all domestic remedies, it may then be open to an individual to make a complaint to a regional, or international human rights body. 

For example, at a regional level individuals can make complaints to the European Court of Human Rights – more information can be accessed by visiting the European Court of Human Rights website

Also, certain international human rights conventions to which Ireland is a party, have individual complaints mechanisms. More information can be accessed on the United Nations Human Rights website.

As explained above however, the enforceability of either the regional or international human rights bodies may be limited due to Ireland’s legal system.


DISCRIMINATION IN EDUCATION

It is unlawful for an educational establishment to discriminate in relation to:

Admissions,

Access to any course, facility or benefit they provide,

Any other term or condition of participation, or

The expulsion of a student, or any other sanction against a student.

However, the Equal Status Acts do allow education providers, in limited situations, to treat people differently. These are known as exemptions. These include for example: 

Gender: Primary and secondary schools can be just for girls or just for boys. 

Religion: Under reforms introduced by the Education (Admission to School) Act 2018, schools recognised under the Education Act 1998 can no longer use religion as a selection criterion in school admissions, in most cases. This change in the law still allows schools of minority religions to give preference to a student who seeks admission to a school providing religious instruction or education consistent with his or her minority religious beliefs, but only where the school is oversubscribed.

Religion and gender: Places which provide training for ministers of religion can admit students of only one gender and a particular religious belief.

Age: Places which educate adults can treat mature students differently so as to encourage them to attend. For example, they may have easier entry requirements than students coming straight from school.

Disability: The school or college must provide reasonable accommodations for students with disabilities who need them so that they can participate fully. However, a place of education can treat a student with a disability differently if the nature of their disability would make it impossible or very difficult to teach other students.

Nationality: Places which educate adults can have different rules about fees, admission and grants for students who are citizens of countries outside the EU. (see Student Grants page for more)

Age, gender and disability: In the provision or organisation of sporting facilities or sporting events, it is not discrimination to treat people differently where it is reasonably necessary, according to age, gender or disability. For example, competitions on sports day could be just for girls or just for boys of a certain age.


If you feel as though you have been, or may have been, discriminated against under any of the above grounds, you can find out how to make a complaint by visiting the Irish Human Rights and equality Commission website.

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