Ireland is a signatory to the International Convention on the Elimination of All Forms of Racial Discrimination. This covers distinction, exclusion or restriction, on the basis of race, colour, descent, national or ethnic origin, which has the purpose or effect of nullifying or impairing recognition or enjoyment on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural and other public fields.
Under the Convention, the State is obliged not to engage in or sponsor discrimination on the basis of race. States must take steps to eliminate racial discrimination. Incitement to racial hatred and discrimination must be prohibited. Steps should be taken to avoid racial prejudice in the areas of education, culture and information.
There must be redress and effective protection available against discrimination. An individual who has exhausted all internal Irish remedies may petition the Committee on the Elimination of Racial Discrimination, on the basis that the State has violated its obligations under the Convention.
The Convention and the below mentioned EU Directives have been implemented in Ireland by the Employment Equality Act 1998, the Equal Status Act 2000 and the Equality Act 2004.
European Union Directives require implementation of the principle of equal treatment, irrespective of racial or ethnic origin. They prohibit discrimination on the basis of racial or ethnic origin. They deem harassment to be discrimination.
The Directive is addressed to both to Governments and to private individuals. Member states must ensure the availability of enforcement procedures to all persons, who have been adversely affected by the failure to apply the principle of equal treatment. The sanctions must be effective, proportionate and dissuasive.
States must designate bodies for the promotion of equal treatment. This function has been designated to the Equality Authority in Ireland, now the Irish Human Rights and Equality Commission.
Discrimination in Trade and Services
A trader and other services provides may not discriminate between customers or services recipients on certain specified grounds. The grounds include
- religious belief;
- race; and
- membership of the travelling community.
The Equal Status Act protects against discrimination in relation to
- the provision of goods and services
- 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.
Race includes race, colour, nationality, ethnic origin or national origin. Race has been defined by the courts, as a long-shared history of which the group is conscious, distinguishing it from other groups, the memory of which, keeps it live. It should have cultural traditions of its own including family and social customs and manners. It is often, but not necessarily, associated with religious observance.
In addition to the above essential characteristics, the courts have considered the following features as relevant, although not essential features, in identifying a race:
- a common geographical origin or descent from a small number of common ancestors;
- a common language although not one, necessarily peculiar to the group;
- a common literature peculiar to the group
- a common religion different from that of neighbouring groups or the general community;
- being a minority or being an oppressed or dominant group within a larger community.
Ethnic groups consist of persons possessing some or all of the following characteristics;
- a common language;
- a shared history distinguishing them from other groups;
- their own traditions, including family and social customs;
- a common geographical origin or descent from a small number of common ancestors;
- a common religion;
- differences from that of a neighbouring group or the general community,
being a minority, an oppressed or a dominant group within the larger community
It appears that travellers have been accepted as a distinct group, for this purpose. Travellers enjoy specific protection under Irish equality legislation.
Claims based on locality alone have failed.
Discrimination is taken to occur where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified, including race, which—
- existed but no longer exists,
- may exist in the future, or
- is imputed to the person concerned,
There is also discrimination where a person who is associated with another person is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and similar treatment of that other person on any of the discriminatory grounds would constitute discrimination.
Immigration / Nationality
Asylum and immigration policies, which impact upon non-EU citizens raise issues of direct discrimination. There are certain specific exceptions in relation to immigration and asylum.
Government functions as such, are outside the scope of the legislation.
Requirements in relation to residency, citizenship and ability to speak Irish may be made in so far as they relate to employment in the service of the State. In particular, Irish speaking may be made a requirement of teaching posts at primary and post primary level.
Harassment is any form of unwanted conduct related to any of the discriminatory grounds, which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the person concerned. Racial harassment is harassment on the ground of race.
Unwanted conduct may include acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or materials. An employer is afforded a defence, if he took such steps as are reasonably practicable to prevent the harassment, to prevent the victim being treated differently, or in so far as the treatment has occurred, to reverse its effect.
Liability / Offence
An employer may be liable for anything done by his employees in the course of employment which contravenes equality legislation. As with vicarious liability generally, the employer need not have approved, or have even been aware of the matters concerned.
It is a defence for an employer to show that he took such steps as were reasonably practicable to prevent the employee from doing the act or from doing it in the course of employment, acts of that description.
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
A person who procures or attempts to procure an action which constitutes discrimination or victimisation is guilty of an offence.
Membership of the travelling community is a separate prohibited ground for discrimination. Travellers are those who identify themselves others as having shared history, culture and traditions including historically, a nomadic way of life in Ireland.
The travelling community is defined as a community of people, commonly called travellers who are identified both by themselves and by other as having a shared history, culture and traditions including historically, a nomadic way of life on the island of Ireland.
There have been a number of cases in which discrimination on the ground of membership of the travelling community ground has been found. As with other grounds of discrimination, the comparison is made between a person who is a member of the travelling community, and a person who is not.
Family and sibling preference in school entry has been held to be prima facia, discriminatory in relation to travellers, in that they were less likely than the generality of the population to be able to meet it. It was objectively justified as supporting the legitimate aim of a family ethos.
References and Sources
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
Equal Status Act 2000
Employment Equality Act 1998 (21/1998)
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