Equal Status Act

Background

The Irish Constitution contains a guarantee of equal treatment.  However, the courts have interpreted the protection narrowly. It allows, to a significant extent, the treatment of persons with references to differences in relevant circumstances.  It prohibits insidious and arbitrary discrimination only. Apart from a limited number of cases, the equality clause in the Irish Constitution has not been widely deployed.

Gender Equality is enshrined in the European Union founding treaty. Ireland was obliged to give effect to anti-discrimination legislation in the area of equal pay and equal treatment in employment on acceding to the European Economic Community.  A famous case in 1975 decided that the gender equality protection in the EEC Treaty was directly applicable so that it invalidated the inconsistent national law.


Irish Legislation

Anti-discrimination law has developed considerably over the last 45 years.  Anti-Discrimination law first evolved in the context of employment equality.  The earliest Irish anti-discrimination legislation dealt with gender discrimination only. The Equal Pay Directive, which was made law in Ireland by the Anti-Discrimination (Pay) Act 1974, provided for equal pay for work of the same or equal value for men and women.

The Employment Equality Act 1977, implemented the Equal Treatment Directive. The Directive prohibited discrimination on the basis of gender, family or marital status.  It covered equality in relation to conditions of employment, vocational training and working conditions.  It did not apply to social insurance.

The Equal Status Act applies the principle of equality to the disposal and provision of goods and services to the public generally.  It deals with discrimination outside employment.  It prohibits direct and indirect discrimination, the procurement of discrimination, victimisation and harassment on any of the specified grounds.


EU Directives

The EU legislation has been updated by a series of new Directives since the start of this Century.  The updated directives are reflected in the current equality legislation.  The current anti-discrimination legislation provides for ten distinct grounds of discrimination. The legislation has been extended to include specific prohibitions on harassment and sexual harassment.

Special provision is made in respect of gender discrimination, which in effect applies higher standards of protection.

National law on equality must be implemented within the context of the superior status of European Union law.  Domestic law must be interpreted in a manner that it is compatible with the EU Equality Directives from which it derives.   Accordingly, the Irish legislation must be implemented and interpreted consistently with the various Directives on equality such as the Gender, Goods and Services Directives and the Racial Equality Directives.


Prohibited Discrimination in Trading and Services

The Equal Status Act prohibits discrimination in the provision of goods, services or accommodation.  Services include access to and use of anyplace;

  • banking, insurance, loans, grants and finance;
  • entertainment, recreation, refreshment or cultural activities;
  • transport and travel;
  • club facilities;
  • professional or trade services.

The Act covers the commercial and non-commercial sectors. It applies to commercial and social; services. It applies to the  provision of goods and services, the letting and sale of property, educational establishments, clubs and advertising.

Harassment includes any unwelcome act, request or conduct including spoken words, gestures or the production, display or circulation of written words, materials or pictures which could reasonably be regarded as offensive, humiliating or intimidating.


General Prohibition

Discrimination is unlawful in employment, education, training, the provision of goods and services and collective agreements.It is unlawful discrimination to treat a person in a less favourable way, on the basis of any of the below grounds.

The original gender-based grounds of discrimination have  been broadened.

The prohibited grounds are as follows;

  • gender;
  • sexual orientation (heterosexual, homosexual or bisexual);
  • membership of the travelling community;
  • disability (including the total or partial absence of bodily or mental functions or chronic disease);
  • ageism;
  • religious belief or outlook;
  • family status (whether the person concerned is a parent or not);
  • marital status (whether the person concerned is single, married, divorced, separated or widowed)
  • civil status (a civil partner);
  • housing assistance

Types of Discrimination

Discrimination can be direct or indirect. Discrimination need not be intentional. It is often something that has grown up over time. However, discrimination on one of the prohibited grounds is nonetheless, unlawful.

Indirect discrimination is where apparently neutral provisions put one person in a particular category at a particular disadvantage in respect of a matter compared with another. Indirect discrimination is unlawful unless it can be objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

Indirect discrimination can be justified if there is an objective reason based on a real need and the differentiation is appropriate, necessary and tailored appropriately in furtherance of that justification.


Direct Discrimination

Direct discrimination is unlawful, subject to very limited permitted exceptions.  Once it is shown that a person has been treated less favourably than a comparator on one of the prohibited grounds under equality law, the discrimination is unlawful, unless it can be justified under very narrow exceptions.

Unlawful discrimination occurs where a person is treated less favourably than another person is or would have been treated in a comparable situation, on any one of the discriminatory grounds, which either exist, formerly existed, may exist in the future or is imputed to the person.

Unlawful discrimination also occurs where a person who is associated with another, is treated by reason of that association, less favourably than a person who is not so associated, is, has been or would have been treated in a comparable situation, if similar treatment of that other person would constitute unlawful discrimination, on the statutory discriminatory grounds.


Association

Discrimination may occur notwithstanding that the person concerned does not, in fact, fall into the relevant category, provided that he is assumed or perceived to be in that category.  For example, a person denied access to services because he is assumed to be of another race or a member of the travelling community, would be discriminated against by imputation.

In the case of discrimination by association, the person who is associated with the complainant, need not have been discriminated against, or been present on the relevant occasion. It is not clear to what extent the associated person must be an actual person whom the complainant knows.

Discrimination by association may occur where a person is refused a benefit because he is with another person or is known to be associated with another person, who is a person to which one of the prohibited grounds of discrimination applies.  Accordingly, if a person is refused employment on the basis of the race or disability of a spouse, then a clear case of discrimination by association would arise.


Direct and Indirect Discrimination

The Equal Status Act applies to direct and indirect discrimination. Direct discrimination means less favourable treatment than would be accorded to another on one of the protected ground, than for persons who are in a substantially similar position.

Indirect discrimination arises  where an apparently neutral position or arrangement, is such that it adversely affects substantially more persons in the protected category than others.

A comparison may be made with an actual or hypothetical comparator.  Once a prima facie case of discrimination has been made out, the onus switches to be a respondent, to justify or disprove the prohibited discrimination.


Comparator

A comparison must be made with a person in the same situation who does not share the requisite characteristic or status, the subject of anti-discrimination law.  This is referred to as a comparator.  The person may be actual or hypothetical.

Where an actual comparator cannot be produced, the standard practice of the respondent or other equivalent evidence as to how a comparator would be treated may be sufficient to establish how a hypothetical comparator would be treated.

It must be shown, that an actual or hypothetical person, who does not fall within the relevant category, would be treated differently. The treatment afforded to the complainant must be less favourable. In the context of employment, this would clearly cover a difference in salary.  However, what is less favourable will depend on the circumstances and the relevant ground.  Less favourable treatment may arise where a service provider affords different treatment, to that provided generally.

The difference in treatment must be adverse.  A difference in itself is not sufficient.  It must be less favourable.  Once a prima facie case of discrimination is shown, the respondent must prove that there is an explanation which is not discriminatory.  It may do so by showing that legitimate standard practice and treatment, was applied.  Statistical evidence may be produced make or rebut the claim.


Indirect Discrimination

Indirect discrimination is defined as occurring where an apparently neutral provision puts a person in one of the protected categories, at a particular disadvantage compared with other persons, unless the provision is objectivity justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. Unlike the case with direct discrimination, this latter ground of defence may be available.

Indirect discrimination may arise across the range of commercial and non-commercial activities. It may arise in the provision of goods and services. It may arise in relation to commercial or employment contracts, policies, conditions criteria, practice or regimes.  It must be such that it puts the person concerned at a particular disadvantage.

Indirect discrimination is treatment that arises from the application of an ostensibly neutral provision or treatment.  Treatment of persons which is apparently equivalent may operate to the detriment of a member of one of the protected categories.  The ground of unlawful discrimination focuses on the effect of the conduct or treatment concerned.

Indirect discrimination may be found in the practices and policies, patterns and institutions of a commercial body.  There need not be any intention to discriminate.  In many cases, the practices will have arisen from historical practice.


Comparators Indirect

The complainant must show that a particular treatment puts him in a position of disadvantage on the basis of one of the protected grounds, compared with others to whom the ground does not apply.  Where in any proceedings, facts are established on behalf of such person from which it may be presumed that prohibited conduct has occurred in relation to him, it is a matter for the respondent to prove to the contrary.

In indirect discrimination cases, the comparison is made between two groups.  The complainant must compare his position with persons who are not members of the relevant group. The person must show that the relevant group or category is disadvantaged relative to the less disadvantageous impact on the comparator group.  It may be shown that a substantially higher number of persons in one category are disadvantaged relative to that in the other.

The relevant pool of comparators will depend on the circumstances.  It will normally be other classes or groups of the public, who are likely to be affected by the practice or provision in question.  It may be the population at large or may be a narrower section of the public, whose members use the particular service.

In some cases, the courts may take judicial notice of matters which are common knowledge.  In other cases, expert evidence must be produced. Statistical evidence will commonly be used.


Rebutting the Presumption

If a prima facie case of discrimination is shown, the respondent may provide objective justification for the practice (or treatment, etc.), in order to avoid a finding of unlawful discrimination. A respondent may show that there is a legitimate aim. The practice (etc.) must be appropriate and necessary in order to pursue the legitimate aim, and it must, in fact, advance the legitimate aim.

What constitutes a legitimate aim, has been interpreted widely. It may be something general and intangible, such as ethos or community, in the case of a non-commercial institution.  In the case of commercial institutions, it may be justification may be based on the grounds of commercial efficiency.


Some Cases of Indirect Discrimination

In cases against Irish Rail involving their ticket system, apparently neutral provisions, insofar as they affected disabled persons and persons over sixty respectively were found to put the respective categories at a disadvantage.  It was not accepted that the means of achieving a legitimate aim was appropriate and necessary. A more targeted solution was required.

In a case involving a hotel, which offered cheaper rates to Internet bookers, in which it was alleged that proportionately elder people did not take advantage of this facility, it was found that there was prima facie discrimination. However, it was found that there was legitimate objective and that it was reasonable and necessary to offer discounts to those who booked over the Internet only.


Positive Discrimination

Positive discrimination is not required, although it is permitted in some cases. Measures taken in order to ensure equality are not unlawful, where they are preferential treatment or the taking of positive measures which are bona fide intended to

  • promote equality of opportunity for persons who are, in relation to other persons, disadvantaged or who have been or are likely to be unable to avail themselves of the same opportunities as those other persons;
  • cater for the special needs of persons, or a category of persons, who, because of their circumstances, may require facilities, arrangements, services or assistance not required by persons  who do not have those special needs, or
  • the use of gender status or the collection, storage or use of gender-related information by insurance providers that is bona fide intended for any or all of the following purposes: reserving and internal pricing; reinsurance pricing; marketing and advertising; life and health underwriting.

Vicitmisation

Victimisation applies under the Equal Status legislation. Where a person makes a complaint in good faith under the legislation and suffers adverse treatment as a result of that complaint, victimisation may be found.

Victimisation is penalisation as a result of a complaint regarding discriminatory treatment, taking action on foot of discriminatory treatment or participating in proceedings.

Employees enjoy significant protection against victimisation.


Workplace Relation Commission

The Workplace Relations Commission may publish and approve codes of practice for the elimination of discrimination and the promotion of equality of opportunity.  The code of practice is admissible as evidence in court, in relation to proceedings before the WRC and  Circuit Court.

The WRC has power to make inquiries of business purposes, summons persons to attend as witnesses.  It may in the course or conclusion of the inquiry, issue a non-discrimination notice.  This may be enforced by application to court  to enforce its term.


References and Sources

Irish Books

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

Statutes

Equal Status Act 2002

Equality Act 2004

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


REVISED

Updated to 1 January 2016

This Revised Act is an administrative consolidation of the Equal Status Act 2000. It is prepared by the Law Reform Commission in accordance with its function under the Law Reform Commission Act 1975 (3/1975) to keep the law under review and to undertake revision and consolidation of statute law.

All Acts up to and including International Protection Act 2015 (66/2015), enacted 30 December 2015, and all statutory instruments up to and including Credit Union Act 1997 (Regulatory Requirements) Regulations 2016 (S.I. No. 1 of 2016), made 1 January 2016, were considered in the preparation of this Revised Act.

Disclaimer: While every care has been taken in the preparation of this Revised Act, the Law Reform Commission can assume no responsibility for and give no guarantees, undertakings or warranties concerning the accuracy, completeness or up to date nature of the information provided and does not accept any liability whatsoever arising from any errors or omissions. Please notify any errors, omissions and comments by email to

revisedacts@lawreform.ie.