Prohibited Grounds of Discrimination
A trader and other services provides may not discriminate between customers or services recipients on certain specified grounds. The grounds are
- marital status;
- religious belief;
- sexual orientation;
- race; and
- membership of the travelling community.
Discrimination involves the application of different treatment, practices or rules to comparable situations or, in most cases, the application of the same treatment, practices and rules to different situations.
The legislation prohibits discrimination in respect of characteristics imputed to a person, even if he does actually have those characteristics.
It is unlawful discrimination if a person is treated less favourably because he is associated with a person who falls into one of the protected categories.
Age discrimination is that based on age. The principles that apply to the various non-gender grounds of discrimination apply to discrimination based on age. It is generally prohibited. Age-related discrimination requires that the complainant and the comparator be of a different age. There must be a relatively significant age gap.
Discrimination occurs when a person is treated less favourably than another person would be on the basis of one of the prohibited grounds, including age, which exists at present, existed, but no longer exists, may exist in the future or is imputed to the person.
There is also discrimination when a person associated with another has been or would be treated less favourably than someone who is not, in circumstances where similar treatment of that other person would constitute prohibited discrimination.
Indirect discrimination occurs where an apparently neutral provision puts a person at a disadvantage on the basis of one of the prohibited grounds of discrimination unless justified by a legitimate aim. If there is a legitimate aim, then the means of achieving that aim must be appropriate and necessary.
Discrimination may be claimed to exist on multiple grounds. In this case, a decision must be made in respect of each claim. Different exceptions apply to the various grounds. In some cases, equality officers recognise multiple compound bases of discrimination.
The EU Directives on equality allow for unequal treatment on otherwise prohibited discriminatory grounds for particular occupations in contexts which warrant such treatment, provided that it is legitimate and proportionate.
EU Council Directive provides that states may provide that differences in treatment on the grounds of age shall not constitute discrimination, provided that the difference may be objectively and reasonably justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.
Discrimination on the grounds of authenticity, aesthetics, tradition and custom are permitted in relation to the gender, age, disability and race grounds of discrimination.
General Exceptions I
There are important exceptions to the general prohibition on discrimination on the basis of age. They apply to certain types of differentiation on the age basis for particular purposes which are deemed objectively justifiable. There is a wide exception which effectively permits aged based
The Equal Status Act provide that the treatment of a person under 18 years of age less favourably or more favourably than another, is not discrimination on the age ground.
The age ground generally applies, only in relation to persons above the maximum age at which a person is statutorily obliged to attend school.
General Exceptions II
Educational establishments may reserve places for mature students aged 23 years and upwards, in a manner that would otherwise constitute age-based discrimination.
Public houses and night clubs may impose a minimum age threshold, higher than the legal limit of 18 years. However, discrimination against older persons is likely to constitute age discrimination.
A significant case involved the refusal of motor insurance to persons over 70. A blanket policy of refusal was found presumptively, to constitute direct discrimination. A blanket refusal of loan facilities based on age is also likely to be discriminatory. There is an exception which permits the imposition or maintenance of a reasonable preferential fee, rate or charge for persons in a specified age group.
Further Exemptions I
There are a number of exemptions in relation to the age ground of discrimination. They include the following.
- Treating a person who has reached the age of 18 years less, favourably or more favourably than another;
- Age-based eligibility for adoptive and foster parents, which are reasonable, having regard to the needs of the child or children concerned;
- Allocation of third level educational places to mature students;
- Minimum age threshold in relation to alcoholic drinks where the policy is implemented in good faith and publicised by notice permanently displayed; this may mandate refusal of service of alcohol to persons over 18 but under a specified age.
Further Exemptions II
There are general exceptions in relation to discrimination on the age ground
- which relate to the promotion of the special interests of persons in a category;
- differences based on authenticity, aesthetics, tradition or custom in a dramatic performance or entertainment;
- age requirements for adoptive or foster parents, where reasonable, having regard to the needs of the children;
- a disposal by will or gift;
- differences not specifically provided for in the treatment of persons in respect of the disposal of the goods or the provision of services which can reasonably be regarded as goods or services, suitable only for the needs of certain person.
There is an exemption in respect of services that involve the appraisal of risks. This applies principally to insurance services and other matters related to the assessment of risk. It also applies to other financial services, including loan agreements, annuities and pensions.
The entity which discriminates must be able to show that the difference in treatment is effected by reference to actuarial or statistical data, which is obtained from a source on which it is reasonable to rely. It must be reasonable having regard to the data or by reference to other relevant underwriting or commercial factors.
There are special provisions in the Health Insurance Acts in respect of community rated health insurance.
There is a prohibition on the use of genetic data under the Disability Act, in relation to underwriting insurance policies and mortgages.
Occupational Schemes I
Occupational benefit schemes include statutory and non-statutory schemes for providing benefits to employees or categories of employees, on becoming ill, incapacitated or redundant. The use of age must not constitute disguised discrimination on the gender ground.
Differences in treatment in relation to annuities, pensions, insurance policies and other matters relating to the assessment of risk, which are effected with reference to actuarial or statistical data obtained from a source, on which it is reasonable to rely or other relevant underwriting or commercial factors which are reasonable, having regard to the data and to relevant factors, do not constitute unlawful discrimination.
The general implied contractual term prohibiting discrimination in employment does not apply to pension rights.
Occupational Schemes II
Member states may provide in relation to occupational and social security schemes, that the fixing of ages
- for admission to the scheme;
- for entitlement to retirement or invalidity benefits, including, the fixing under those schemes of different ages for employees, or groups or categories of employees, and
- the use in the context of such schemes, of age criteria in actuarial calculations,
do not constitute discrimination on the grounds of age.
It is not discrimination to use in the context of scheme, age criteria in actuarial calculations or to provide different rates of severance payment for employees or groups or categories of employees, being rates based on or taking into account the period between the age of an employee on leaving an employment and his compulsory retirement age.
The discrimination must not constitute disguised discrimination on the gender ground.
It is an occupational requirement for employment in the Garda Síochána, prison service or any emergency service that persons employed therein are fully competent and available to undertake, and fully capable of undertaking, the range of functions that they may be called upon to perform so that the operational capacity of the Garda Síochána or the service concerned may be preserved.
If the Minister is of opinion that the age profile of members of the Garda Síochána, prison service or any emergency service is such that its operational capacity is or is likely to be adversely affected, and he or she by order so declares, the age ground shall not apply in relation to such competitions for recruitment to that service as are specified in the order.
References and Sources
Religion and Belief Discrimination in Employment – the EU law Lucy Vickers European Network of Legal Experts in the non-discrimination field
Employment Law Meenan 2014 Ch.12
Employment Law Supplement Meenan 2016
Employment Law Regan & Murphy 2009 ( 2nd Ed 2017) Ch. 13
Employment Law in Ireland Cox & Ryan 2009 Ch 15
Equality Law in the Work Place Purdy 2015
Equality Law in Ireland Reid 2012
Employment Equality Law Bolger and Bruton 2012
Irish Employment Equality Law McCurtain and O’Higgins 1989
Disability Discrimination Law Smith 2010
Equal Status Acts Discrimination in Goods & Services Walsh 2012
Other Irish Books
Employment Law Forde & Byrne 2009
Principles of Irish Employment Law Daly & Doherty 2010
Equal Status Act 2000
Equality Act 2004 (24/2004), Part 2
Civil Law (Miscellaneous Provisions) Act 2008 (14/2008), Part 16
Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), ss. 18 to 26
Equality (Miscellaneous Provisions) Act 2015 (43/2015), ss. 3 to 11