Racial Discrimination

Convention on Elimination of Racial Discrimination

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.


EU Directive on Equal Treatment

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.

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.

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.


Definition of Race

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.

Claims based on locality alone have failed.

It appears that travellers have been accepted as a distinct group, for this purpose. Travellers enjoy specific protection under Irish equality legislation.


General Prohibition

The Employment Equality Act prohibits discrimination and harassment in employment on various grounds, including race.  Racial discrimination occurs when a person is treated less favourably than another would have been treated, on the basis of race, colour, nationality, ethnic or national origin.

Employers must not discriminate against employees, agency workers or prospective employees to access to employment, conditions of employment, training, promotion, re-grading or classification of positions. Rules, instructions or practices in the workplace must not be such as to result in racial discrimination in relation to these matters.

The obligations extend to employment agencies. They must not discriminate against persons who use their services.

Any organisation or body controlling entry into a profession, vocation or occupation may not discriminate on the grounds of race in relation to membership of that body or in relation to any benefits arising.

Entities offering vocational training must not discriminate on the prohibited grounds.  However, it is deemed not to be racial discrimination, to discriminate in relation to admission or attendance fees by Irish and EU citizens, the allocation of courses or in offering assistance to categories of persons by sponsorship, bursaries or other awards, which assistance is reasonably justified having regard to traditional or historical consideration.


Racial Discrimination

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—

  • exists,
  • 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.

Discrimination may occur where a provision which is neutral on this face, applies to the disadvantage of a person of a particular race, relative to other comparators, such as fellow employees. This is indirect discrimination.


Discriminatory Advertisements

Advertisements must not be published or displayed, which might reasonably be understood as indicating an intention to discriminate. Advertisements cover every form of advertisement to the public, howsoever published.

Unless the advertisement otherwise indicates, there is deemed discrimination on racial grounds where a word or phrase is used which connotes a person having racial characteristics or is descriptive of or refers to a post or occupation of a kind, previously held or carried out only by persons having such characteristics.The prohibition on discriminatory advertisements does not apply in the case of certain exceptions set out in the legislation.

An advertisement indicating a particular racial characteristic is lawful if it is a genuine and determining occupational requirement for the position in question. The objective must be legitimate, and the requirement must be proportionate.

The Commission may apply for an injunction to the Circuit Court or High Court to prohibit a discriminatory advertisement, pending the determination of the matter, or as the court directs.


Communication Issues

Employers must be conscious that there may be language and cultural barriers to communication with non-national employees. It may be necessary to take special measures to ensure that employees who are unfamiliar with the language understand procedures and their significance. The application of the same procedure to a non-employee as to an Irish National may amount to discrimination.

It may be unlawful discrimination in some circumstances, to fail to communicate basic employment information in a language which the employee can understand. A requirement may constitute indirect discrimination on the grounds that it affects particular categories groups, disproportionately.


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 to immigration and asylum.

The Equality Act does not apply to action taken by a public authority in relation to a non-national who is outside the state or is unlawfully present in the State in accordance with immigration laws.  Action required by immigration or employment permit law is lawful. Similarly, action taken by the Department of Justice in relation to non-national in accordance with such laws does not constitute discrimination.


Government Functions

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.


Equal Pay

It is an implied term of an employment contract that a person is entitled to the same rate of remuneration as a person of another race, who at that time, or other relevant time, does like work for the same or for an associated employer.  The relevant time covers three years before and afterwards.

Work is like work if the person concerned, and the comparator

  • both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work;
  • the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole; or
  • the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

Differences in remuneration based on race in collective agreements conflict with the statutory equal remuneration clause in employment contracts and is void.


Permissible Requirements I

An employer is not obliged to recruit or promote an individual to a position or retain him there or provide training or experience, who

  • will not undertake or continue to undertake, the duties attached to the position;
  • will not accept or continue to accept the conditions under which those duties are required to be performed;
  • is not fully competent and available to undertake and fully capable of undertaking the duties attached to the position.

An employee for the purpose of anti-discrimination legislation does not include a person employed in a person’s house for the provision of providing personal services for persons residing in the house where the services affect their private or family life. This exclusion applies purely to personal services for persons who are resident in the house.


Permissible Requirements II

There is an exemption in the very limited category of case in which race may be a genuine occupational requirement. Discrimination in a sporting context is permitted in relation to the gender, age, disability, national origin / nationality grounds (but not race as such), provided that it is reasonable and relevant to the facility or event.

Discrimination on the grounds of authenticity, aesthetics, tradition and custom are permitted in relation to the gender, age, disability and race grounds of discrimination.

Certain steps and measures are not to constitute discrimination. These include steps taken on foot of court orders, EU obligations or steps taken to promote equality of opportunity for disadvantaged persons.

Positive discrimination by public authorities, based on racial or ethnic origin is permitted.


Racial Harassment

Racial harassment of an employee by another individual in the course of employment may constitute discrimination by the employer in relation to conditions of employment.  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.

Unwanted conduct may include acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or materials.  The 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 in the course of employment 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.


Travelling Community

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.  They include cases of unfavourable treatment in the selection for employment and retention during probation periods. 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.


References and Sources

Primary References

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

Statutes

Employment Equality Act 1998 (21/1998)

Equality Act 2004 (24/2004), Part 2

Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007 (27/2007), insofar as it relates to the previous two Acts

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

Legislation

Dismissal & Redundancy Consolidated Legislation   Barrett, G   2007

Irish Employment legislation (Looseleaf) Kerr  1999-

Employment Rights Legislation (IEL offprint)   Kerr  2006

UK Texts

Textbook on Employment Law, Honeyball, et al. 13th Ed. 2014

Labour Law, Deakin and Morris 5th Ed. 2012

Employment Law, Smith and Wood 13th Ed 2017

Selwyn’s law of Employment Emir A 19 Ed. 2016

Employment law : the essentials. Lewis D Sargeant M and Schwab M 11 Ed.2011

Labour Law Collins H, Ewing K D and McColgan  2012

Industrial relations law reports. (IRLR): Law Section,

Employment law Benny R Jefferson M and Sargent  5th Ed.  2012

Pitt’s Employment Law 10th  Ed. Gwyneth Pitt 2016

CLP Legal Practice Guides: Employment Law 2016 Gillian Phillips, Karen Scott

Cases and Materials on Employment Law 10th  Ed. Richard Painter, Ann E. M. Holmes 2015

Blackstone’s Statutes on Employment Law 2015 – 2016 Richard Kidner

Drafting Employment Contracts 3rd  Ed. Gillian Howard 2017

The Contract of Employment Edited by Mark Freedland, Alan Bogg, David Cabrelli, Hugh Collins, Nicola Countouris, A.C.L. Davies, Simon Deakin, Jeremias Prassl 2016

UK Practitioner Services

Tolley’s Employment Handbook 2017 Mrs Justice Slade 2017

Butterworths Employment Law Handbook 2017 Peter Wallington 2017

Blackstone’s Employment Law Practice 2017 Edited by Gavin Mansfield, John Bowers, John Macmillan 2017

Statutes