Goods & Services

General Prohibition

Discrimination is  unlawful in employment, education, training, the provision of goods and services and collective agreements.  The original gender-based grounds of discrimination have  been broadened. They cover the following grounds

  • race (colour, nationality, ethnic or national origin);
  • 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)
  • housing assistance (not relevant to employment).

It is unlawful discrimination to treat a person in a less favourable way, on the basis of any of the above grounds.


Unlawful 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

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.

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.


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

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.

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.


Goods and Services I

Discrimination in relation to the provision of goods and services is prohibited by the Equal Status Act.  This includes discrimination in relation to

  • access to, or the use of any place;
  • facilities for any banking, insurance, loans or financing;
  • entertainment, recreation, cultural activities, transport or travel;
  • services provided by a club;
  • professional or trade services.

Discrimination on any of the specified grounds is prohibited. Direct discrimination occurs when a person is treated less favourably than another person would be on the basis of one of the prohibited grounds, which exists at present, existed, but no longer exists, may exist in the future or is imputed to the person. It also occurs where 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.


Goods and Services II

There is a general prohibition on discrimination on the protected grounds, in the sale or disposal of goods or the provision of services, whether the disposal is for consideration or otherwise.  This encompasses most commercial activities, whether or not undertaken for profit. The Equal Status Act applies to public and private bodies

“Goods” include any article of movable property, apart from land.  A “service” includes a service or facility of any nature, which is available to the public generally, or to a section of the public.  It also includes professional and other services provided in the course of a trade. Without prejudice, to the breadth of the definition includes specifically, banking, entertainment and leisure, transport, healthcare and social welfare services.


Services Sectors

The legislation specifically extends to and includes

  • the disposal of premises and the provision of accommodation; this covers rentals and sales, the provision of public housing, the sale of houses by housing associations;
  • education; this covers pre-school, primary, secondary and third level education;
  • registered clubs; this cover membership of and access to clubs that are registered under intoxicating liquor licensing laws.

A service need not be provided for consideration.  The activities of a voluntary organisation are covered.

Some public services come within the scope of the legislation. Services by a public body, which are broadly analogous to those which might be provided by a private entity are covered.  The service need only be provided to a section of the public.

Regulatory, governmental and control functions are outside the scope of the legislation. This would include services such as policing, immigration control, prisons and defence.


Property

Discrimination by a person in disposing of property, letting property or providing accommodation is prohibited.  There is an exception in relation to the disposal of land by gift or will.

There is an exception in the provision of accommodation and services or amenities relating to accommodation which is not generally available to the public or a section of the public.  This exemption relates principally to a wholly private letting, where the property is not available to the public.


Discrimintory Advertisement

It is prohibited to publish or display an advertisement which demonstrates an intention to discriminate in contravention of the equality legislation. A person shall not publish or display or cause to be published or displayed an advertisement which indicates an intention to engage in prohibited conduct or might reasonably be understood as indicating such an intention.

A person who makes a statement which the person knows to be false with a view to securing a publication or display shall, upon the publication or display being made, be guilty of an offence. An ‘‘advertisement’’ includes every form of advertisement, whether to the public or not and whether in a newspaper or other publication, on television or radio or by the display of a notice or by any other means.


Denial of Service

Denials of service, which can be shown would have not occurred in relation to another outside the protected group, constitute direct discrimination.  Many cases, under the Equal Status Act, have arisen in relation to the traveller community. Most of them involve denial of accommodation and transport services.

A requirement on the part of Health Services Executive in administering supplementary welfare allowance that travellers attend at a single city centre location, where others could access allowance at their local health centre, was held to be discriminatory.  In some cases, an objective difference in circumstances, including the absence of a permanent address, may justify differential treatment.


Vicarious Liability

In accordance with general principles of law, an employer or other body is vicariously liable for persons under its control.  The most common instance of vicarious liability is that of employers for their employees. The Equal Status Act provides that anything done by a person in the course of his employment shall be treated as the act of the employer, whether or not it was done with the employer’s knowledge or approval.

Service providers and the providers of goods may be liable for discriminatory conduct on the part of the employees in the course of employment. In order to be “in the course of employment”, there must be some connection with the employment.  An incident happening outside of work hours, the workplace and the work context, is unlikely to be “in the course of employment”, in most cases.

A principal is liable for discrimination by his agent, where the acts (etc.)  have been undertaken with his express or implied authority. Anything done by a person, his agent or other with his authority express or implied, is treated as his act.

In proceedings under the Act against an employer in respect of an act alleged to be done by an employee, it is a defence for the employer to prove that the employer took such steps as are reasonably practicable to prevent the employee from doing the act or from doing acts of that description in the course of employment.


Vicarious Limits

The question can arise as to whether an employer is liable for intentional wrongdoing and offences.  In some cases, serious misconduct, such as sexual assault, has been held to be outside the scope of the employee’s duties on general principles.  However, the Equal Status Act appears to intend to   broaden the common law principle of vicarious liability.

In order to be “in the course of employment”, there must be some connection with the employment.  An incident happening outside of work hours and the workplace is unlikely to be in the course of employment in most cases. An incident concerning an employee at a work function may be the subject to vicarious liability.


Educational Establishments

The general anti-discrimination provisions apply to educational establishments. Educational establishments must not discriminate on any of the protected grounds.Educational establishments include preschool, primary, post-primary and higher education institutions, whether or not supported by public funds.

Educational establishments are prohibited from discriminating in relation to

  • admission and the terms and conditions of admission;
  • access to courses, facilities, benefits or the terms of participation or;
  • expulsion of a student from the establishment and other sanctions.

Social Housing

In the context of public housing, the equality legislation is not to be interpreted as prohibiting a housing authority or housing body from providing in relation to housing accommodation, different treatment to persons based on family size, family status, civil status, disability, age or membership of the travelling community.

The housing authority to make its housing plan on the basis of different treatment of persons based on family size, status and other considerations.  This may allow positive discrimination, at least to an extent.


Discriminating Club

A registered club enjoys certain privileges under intoxicating liquor legislation. A club is considered to be a discriminating club if

  • it has any rule, policy or practice which discriminates against a member or an applicant for membership, or
  • a person involved in its management discriminates against a member or an applicant for membership in relation to the affairs of the club,

Without limiting the above, any of the following acts, if done by a club or a person involved in its management on any of the discriminatory grounds, is evidence that the club is a discriminating club

  • refusing to admit a person to membership;
  • providing different terms and conditions of membership for members or applicants for membership;
  • terminating the membership of a person or subjecting a member to any other sanction; or
  • refusing or failing, in contravention of the statutory requirement, to do all that is reasonable to accommodate the needs of a member, or an applicant for membership, with a disability.

​Clubs may give concessions to members. Clubs, whose principal purpose is catering for the needs of persons who are members of the traveller community or person of a gender, religious belief, sexual orientation, family status, disability, national or ethnic or national origin, may restrict membership to the members of those groups.  This does not apply to the racial basis of discrimination


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