EQUALITY

(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: