Country report : non-discrimination : Ireland 2018.
Date: 2018-10-11
Institutions: Directorate-General for Justice and Consumers
Subjects: Ireland, age discrimination, anti-discriminatory measure, discrimination based on disability, discrimination on the basis of sexual orientation, equal treatment, ethnic discrimination, national law, religious discrimination, sexual discrimination, social policy

Ireland 

2018 

Including summaries in 
English, French and 
German 

1 

 
 
 
 
 
 
EUROPEAN COMMISSION 

Directorate-General for Justice and Consumers 
Directorate D — Equality and Union citizenship 
Unit D.1 Non-discrimination and Roma coordination 

European Commission 
B-1049 Brussels 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
EUROPEAN COMMISSION 

Country report  

Non-discrimination 

Ireland 

Orlagh O’Farrell, updated by Judy Walsh 

Reporting period 1 January 2017 – 31 December 2017 

2018 

Directorate-General for Justice and Consumers 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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Luxembourg: Publications Office of the European Union, 2018 

PDF 

ISBN 978-92-79-85023-3   

doi: 10.2838/565543 

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© European Union, 2018 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Country report - Non-discrimination – Ireland – 2018 

CONTENTS 

EXECUTIVE SUMMARY ........................................................................................ 5 
RÉSUMÉ ............................................................................................................ 11 
ZUSAMMENFASSUNG ........................................................................................ 18 
INTRODUCTION ................................................................................................ 25 
GENERAL LEGAL FRAMEWORK .................................................................. 27 
1 
THE DEFINITION OF DISCRIMINATION .................................................... 28 
2 
2.1  Grounds of unlawful discrimination explicitly covered ................................ 28 

2.1.1  Definition of the grounds of unlawful discrimination within the 

directives ................................................................................. 28 
2.1.2  Multiple discrimination ............................................................... 31 
Assumed and associated discrimination ....................................... 32 
2.1.3 
2.2  Direct discrimination (Article 2(2)(a)) ...................................................... 34 
2.2.1 
Situation testing ....................................................................... 34 
Indirect discrimination (Article 2(2)(b)) ................................................... 35 
Statistical evidence ................................................................... 36 
2.3.1 
2.4  Harassment (Article 2(3)) ...................................................................... 37 
2.5 
Instructions to discriminate (Article 2(4)) ................................................ 40 
2.6  Reasonable accommodation duties (Article 2(2)(b)(ii) and Article 5 Directive 

2.3 

2000/78) ............................................................................................. 41 
PERSONAL AND MATERIAL SCOPE ............................................................ 49 
3.1  Personal scope ..................................................................................... 49 

3.1.1 

EU and non-EU nationals (Recital 13 and Article 3(2) Directive 
2000/43 and Recital 12 and Article 3(2) Directive 2000/78) ........... 49 
3.1.2  Natural and legal persons (Recital 16 Directive 2000/43) ............... 49 
Private and public sector including public bodies (Article 3(1)) ........ 50 
3.1.3 
3.2  Material scope ...................................................................................... 51 
Employment, self-employment and occupation ............................. 51 

3.2.1 
3.2.2  Conditions for access to employment, to self-employment or to 

3.2.3 

3.2.4 

occupation, including selection criteria, recruitment conditions and 
promotion, whatever the branch of activity and at all levels of the 
professional hierarchy (Article 3(1)(a)) ........................................ 51 
Employment and working conditions, including pay and dismissals 
(Article 3(1)(c)) ........................................................................ 51 
Access to all types and to all levels of vocational guidance, vocational 
training, advanced vocational training and retraining, including 
practical work experience (Article 3(1)(b)) ................................... 53 

3.2.5  Membership of, and involvement in, an organisation of workers or 

3.2.6 

employers, or any organisation whose members carry on a particular 
profession, including the benefits provided for by such organisations 
(Article 3(1)(d)) ........................................................................ 54 
Social protection, including social security and healthcare (Article 
3(1)(e) Directive 2000/43) ......................................................... 54 
Social advantages (Article 3(1)(f) Directive 2000/43) .................... 56 
Education (Article 3(1)(g) Directive 2000/43) ............................... 56 
Access to and supply of goods and services which are available to the 
public (Article 3(1)(h) Directive 2000/43) .................................... 61 
3.2.10  Housing (Article 3(1)(h) Directive 2000/43) ................................. 63 
EXCEPTIONS ............................................................................................. 67 
4.1  Genuine and determining occupational requirements (Article 4) .................. 67 
4.2  Employers with an ethos based on religion or belief (Article 4(2) Directive 

3.2.7 
3.2.8 
3.2.9 

2000/78) ............................................................................................. 67 

4.3  Armed forces and other specific occupations (Article 3(4) and Recital 18 

Directive 2000/78) ................................................................................ 69 
4.4  Nationality discrimination (Article 3(2)) ................................................... 70 
4.5  Work-related family benefits (Recital 22 Directive 2000/78) ....................... 71 

3 

3 

4 

 
 
4.6  Health and safety (Article 7(2) Directive 2000/78) .................................... 72 
4.7  Exceptions related to discrimination on the ground of age (Article 6 Directive 

2000/78) ............................................................................................. 72 
4.7.1  Direct discrimination ................................................................. 72 
4.7.2 

Special conditions for young people, older workers and persons with 
caring responsibilities ................................................................ 74 
4.7.3  Minimum and maximum age requirements ................................... 75 
4.7.4  Retirement ............................................................................... 75 
4.7.5  Redundancy ............................................................................. 78 
4.8  Public security, public order, criminal offences, protection of health, protection 
of the rights and freedoms of others (Article 2(5), Directive 2000/78) ......... 79 
4.9  Any other exceptions ............................................................................. 79 
POSITIVE ACTION (Article 5 Directive 2000/43, Article 7 Directive 
2000/78) .................................................................................................. 82 
REMEDIES AND ENFORCEMENT ................................................................. 85 
6.1 
Judicial and/or administrative procedures (Article 7 Directive 2000/43, Article 
9 Directive 2000/78) ............................................................................. 85 

6.2  Legal standing and associations (Article 7(2) Directive 2000/43, Article 9(2) 

Directive 2000/78) ................................................................................ 89 
6.3  Burden of proof (Article 8 Directive 2000/43, Article 10 Directive 2000/78).. 90 
6.4  Victimisation (Article 9 Directive 2000/43, Article 11 Directive 2000/78) ...... 91 
6.5  Sanctions and remedies (Article 15 Directive 2000/43, Article 17 Directive 

2000/78) ............................................................................................. 91 

5 

6 

7 

8 

BODIES FOR THE PROMOTION OF EQUAL TREATMENT (Article 13 Directive 
2000/43) .................................................................................................. 94 
IMPLEMENTATION ISSUES...................................................................... 115 
8.1  Dissemination of information, dialogue with NGOs and between social partners
 ........................................................................................................ 115 
8.2  Compliance (Article 14 Directive 2000/43, Article 16 Directive 2000/78).... 116 
COORDINATION AT NATIONAL LEVEL ..................................................... 118 
9 
10  CURRENT BEST PRACTICES ..................................................................... 119 
11  SENSITIVE OR CONTROVERSIAL ISSUES ................................................ 120 
11.1  Potential breaches of the directives (if any) ............................................ 120 
11.2  Other issues of concern ....................................................................... 121 
12  LATEST DEVELOPMENTS IN 2017 ............................................................ 122 
12.1  Legislative amendments ...................................................................... 122 
12.2  Case law ............................................................................................ 122 
ANNEX 1: TABLE OF KEY NATIONAL ANTI-DISCRIMINATION LEGISLATION ... 128 
ANNEX 2: TABLE OF INTERNATIONAL INSTRUMENTS ..................................... 129 

4 

 
 
 
 
EXECUTIVE SUMMARY  

1. Introduction 

Irish society is quite homogeneous. According to the 2016 census,1 of a population of just 
under 4.8 million, 78.3 % are Roman Catholic, 9.8 % non-religious (an increase of 73.6 % 
from 2011), and the remainder are of various other religions. 82.2 % describe themselves 
as ‘White Irish’ and 0.7 % as Irish Travellers.2 57 850 people identify as ‘Black African’ or 
‘Black Irish’ and 9.5 % as ‘Any other White background’. 643 131 people, approximately 
13.5 % of the population, recorded having a disability. A total of 6 034 same sex couples 
live  in  Ireland.  Non-Irish  nationals  consist  of  535  475  (11.6  %  of  the  population),  with 
nationals  of  other  EU  countries  comprising  the  top  five  nationality  groups  (Polish,  UK, 
Lithuanian, Romanian and Latvian). 

Ireland’s  anti-discrimination  laws  were  expanded  significantly  in  the  late  1990s.  The 
Employment  Equality  Act  19983  and  the  Equal  Status  Act  20004  provided  for  nine 
discriminatory  grounds  and  established  a  national  equality  body  as  well  as  a  dedicated 
forum  for  hearing  anti-discrimination  complaints,  the  Equality  Tribunal.  From  2008 
successive  national  budgets  severely  curtailed  funding  for  equality  infrastructure.  In 
November  2014,  the  Irish  Human  Rights  and  Equality  Commission  (IHREC)5  was 
established  as  Ireland’s  national  equality  body.  The  body  is  equipped  with  equivalent 
powers  to  its  predecessor  and  the  funding  position  has  improved.  The  Equality  Tribunal 
was subsumed, along with several employment rights bodies, into the Workplace Relations 
Commission  (WRC)  in  2015.6  The  impact  of  this  change  (if  any)  on  discrimination 
complaints cannot yet be evaluated.  

Ireland’s indigenous ethnic minority, the Travelling community, experiences high levels of 
relative  social  deprivation  and  discrimination.  In  this  respect,  the  formal  recognition  of 
Traveller ethnicity in March 2017 was a welcome development.7 While no new legislative 
provisions accompanied that shift in government policy, the National Traveller and Roma 
Inclusion  Strategy  2017–2021,  published  in  June  2017,  contains  a  commitment  to 
reviewing the statute that governs the provision of Traveller-specific accommodation.  An 
implementation  plan  will  be  published  in  2018.  A  number  of  bills  purporting  to  amend 
discrimination law were debated before the Oireachtas (parliament) across 2017 but none 
were enacted by year-end. Religious criteria in school admission policies have featured in 
national debates about equality law over the past few years and in 2016 a bill was published 
which purports to reform law and practice in this area. IHREC’s observations on the draft 
law  suggest  changes  aimed  at  securing  compliance  with  inter  alia  the  Racial  Equality 
Directive.8 A substantially revised bill will be put before the Oireachtas in 2018.  

There were no major developments in anti-discrimination principles in the 2017 case law. 
The Supreme Court made a preliminary reference concerning judicial and administrative 

1   http://www.cso.ie/en/census/census2016reports/.  
2   There are no official statistics on Roma. 
3   Ireland, Employment Equality Act 1998, 18.06.1998, 

http://www.irishstatutebook.ie/eli/1998/act/21/enacted/en/print.  

4   Ireland, Equal Status Act 2000, 26.03.2000, 

http://www.irishstatutebook.ie/eli/2000/act/8/enacted/en/html.  

5   Ireland, Irish Human Rights and Equality Commission Act 2014, 27.07.2014, 

http://www.irishstatutebook.ie/2014/en/act/pub/0025/print.html.  

6   Ireland, Workplace Relations Act 2015, 20.05.2015, 

http://www.irishstatutebook.ie/eli/2015/act/16/enacted/en/pdf. 
7   The statement by an Taoiseach (Prime Minister) is available here: 

http://www.taoiseach.gov.ie/eng/News/Taoiseach%27s_Speeches/Statement_by_An_Taoiseach_Enda_Ken
ny_TD_on_the_recognition_of_Travellers_as_an_ethnic_group_Dail_Eireann_1_March_2017.html.  

8   Irish Human Rights and Equality Commission (2016) Observations on the Education (Admission to Schools) 
Bill 2016, available at: https://www.ihrec.ie/app/uploads/2016/11/Observations-on-Education-Admission-
to-Schools-Bill-2016.pdf.  

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procedures to the CJEU in June 2017.9 The question relates to whether  EU law  requires 
that the Workplace Relations Commission must have jurisdiction to hear a complaint where 
the remedy sought is the disapplication of secondary legislation but where the WRC does 
not have jurisdiction to commence such proceedings under national law. A high proportion 
of  Traveller  community  ground  complaints  against  service  providers  were  dismissed 
because they were referred to the incorrect forum, highlighting the continuing problems 
generated  by  transferring  jurisdiction  in  2003  to  the  District  Court  for  discrimination 
encountered on or at the point of entry to licensed premises. In a case concerning denial 
of access to an English language interpreter for the purposes of participating in a grievance 
process,  the  Labour  Court  reiterated  principles  established  in  case  law  concerning 
vulnerable migrants to the effect that direct discrimination could result from a  failure to 
treat different situations differently.10  

2. Main legislation 

The Irish Constitution enshrines a guarantee of equality before the law with no specified 
discriminatory grounds. It is invoked relatively infrequently.11 

Irish anti-discrimination legislation consists of the Employment Equality Acts 1998-2015, 
which govern employment and occupation, and the  Equal Status Acts 2000-2015, which 
cover goods, services, housing/ accommodation and education. The Pensions Acts 1990-
201512  apply  to  occupational  pension  schemes.  They  cover  the  grounds  of  gender,  age, 
race, religion, family status, disability, civil status, sexual orientation, and membership of 
the  Traveller  Community.  A  further  ‘housing  assistance’  ground  was  added  to  the  Equal 
Status Acts in 2015 to prohibit discrimination in providing rental accommodation to people 
who receive social protection benefits such as housing assistance payments.13 

Other laws also contain provisions prohibiting discrimination, namely, the Unfair Dismissals 
Acts 1977-2015,14 the Prohibition of Incitement to Hatred Act 1989,15 which criminalises 
hate  speech,  and  the  Intoxicating  Liquor  Act  2003,16  Section  19  of  which  provides  for 
enforcement of discrimination law in the context of premises licensed for the sale of alcohol.  

Irish  anti-discrimination  legislation  goes  beyond  the  EU  equality  directives,  in  that  the 
personal  scope  of  the  Equal  Status  Acts  2000-2015  prohibit  discrimination  in  access  to 
goods  and  services  not  just  on  grounds  of  race  and  gender  but  also  on  the  grounds  of 
disability,  age,  religion,  sexual  orientation,  membership  of  Traveller  community,  family 
status,  civil  status,  and  housing  assistance.  Nationality-based  discrimination  is  also 
expressly prohibited under the ‘race’ ground. The definition of disability is broader than in 
EU  law  and  reasonable  accommodation  on  that  ground  must  be  provided  to  people 
accessing goods and services. There is a substantial body of case law on all discriminatory 

9   Supreme Court, Minister for Justice, Equality and Law Reform v The Workplace Relations Commission and 

ors. [2017] IESC 43, 15.06.2017, 
http://www.courts.ie/Judgments.nsf/bce24a8184816f1580256ef30048ca50/7b97206199a365a4802581410
04d3f72?OpenDocument. 

10   Boxmore Plastics v Zimareva, EDA 1732, 30.11.2017, 

https://www.workplacerelations.ie/en/Cases/2017/November/EDA1732.html. 

11   Dewhurst, E. (2015) ‘Principles of Irish Constitutional Equality Law: Recent Developments’, Bar Review 

20(4), pp. 74-77, available at: https://www.lawlibrary.ie/rss/barreview/4-2015.pdf.  

12   Ireland, Pensions Act 1990, 24.07.1990, 

http://www.irishstatutebook.ie/eli/1990/act/25/enacted/en/print.html; amended by section 22 of the Social 
Welfare (Miscellaneous Provisions) Act 2004, 
http://www.irishstatutebook.ie/eli/2004/act/9/section/22/enacted/en/html#sec22. 

13   Ireland, Equality (Miscellaneous Provisions) Act 2015, 10.12.2015: 
http://www.irishstatutebook.ie/eli/2015/act/43/enacted/en/pdf. 

14   Ireland, Unfair Dismissals Acts 1997-2015, 06.04.1997, 

http://www.lawreform.ie/_fileupload/RevisedActs/WithAnnotations/HTML/EN_ACT_1977_0010.htm. 

15   Ireland, Prohibition of Incitement to Hatred Act 1989, 29.11.1989, 
http://www.irishstatutebook.ie/eli/1989/act/19/enacted/en/html. 

16   Ireland, Intoxicating Liquor Act 2003, 14.07.2003, 

http://www.irishstatutebook.ie/eli/2003/act/31/enacted/en/print#sec19.  

6 

 
 
 
 
 
 
                                                   
 
grounds, the bulk of which is from the Equality Tribunal (now the WRC) and the Labour 
Court.17 Studies suggest that under-reporting of discrimination and failure to take action 
in response to perceived discrimination are significant problems.18  

Ireland has ratified the main Council of Europe human rights instruments but not Protocol 
12 of the European Convention on Human Rights. It has also ratified most of the primary 
United  Nations  instruments.  Ratification  of  the  UN  Convention  on  the  Rights  of  Persons 
with Disabilities is expected to occur in 2018 along with the enactment of a law, which in 
its  draft  form,  designates  the  Irish  Human  Rights  and  Equality  Commission  as  the 
independent  mechanism  to  promote,  protect  and  monitor  implementation  of  the 
Convention.19 Ireland is a dualist state, meaning that for international law to be enforceable 
in the Irish legal system, it must be transposed by means of legislation into the national 
legal order. The main international convention that has been transposed into Irish law is 
the  European  Convention  on  Human  Rights,  which  was  incorporated  by  means  of  the 
European Convention on Human Rights Act 2003.20  

3. Main principles and definitions 

Direct discrimination is defined in the anti-discrimination laws as treating one person less 
favourably than another person is treated, has been treated or would be treated on any of 
the  discriminatory  grounds.  This  prohibition  includes  discrimination  by  association,  and 
discrimination on a discriminatory ground that  exists, existed but no longer  exists, may 
exist in the future, or is imputed to the person concerned. Indirect discrimination is defined 
as occurring where an apparently neutral provision would put a person covered by one of 
the discriminatory grounds at a particular disadvantage compared with other persons. This 
differential impact may be permitted where it can be objectively justified by a legitimate 
aim, and the means of achieving that aim are appropriate and necessary. Harassment is 
defined  as  any  unwanted  conduct  related  to  a  discriminatory  ground,  which  has  the 
purpose  or  effect  of  violating  a  person’s  dignity  and  creating  an  intimidating,  hostile, 
degrading, humiliating or offensive environment for the person. This conduct can include 
acts, requests, spoken words, gestures or the production, display or circulation of written 
words,  pictures  or  other  material.  Victimisation  covers  any  person  who  claims 
discrimination, instigates proceedings, supports a complainant, acts as a comparator or a 
witness  to  a  complaint,  opposes  discrimination  by  lawful  means,  or  gives  notice  of  an 
intention to do any of the above, and as a result they suffer dismissal or adverse treatment. 
Instructions to discriminate are prohibited expressly under the Employment Equality Acts 
and  covered  to  an  extent  under  the  Equal  Status  Acts  by  the  prohibition  on  the 
procurement of discrimination.  

The Employment Equality Acts 1998-2015 provide that where a person who has a disability 
can perform the duties of the post with or without the assistance of ‘appropriate measures’ 
they  will  be  deemed  competent  under  the  Act.  The  employer  has  an  obligation  to  take 
appropriate measures to enable a person with a disability to have access to employment, 
to participate or advance in employment, to undergo training unless such measures would 
impose  a  disproportionate  burden  on  the  employer.  To  determine  what  amounts  to  a 
disproportionate burden account must be taken of the costs of the measure in question, 
the scale and financial resources of the employer in question, the possibility of obtaining 

17   The determinations of both bodies are published here: 

https://www.workplacerelations.ie/en/Decisions_Determinations/. 

18   See e.g. Equality and Rights Alliance (2013) Access to Justice and Under-Reporting of Discrimination and 

Human Rights Abuses, available at: 
http://www.eracampaign.org/uploads/Access%20to%20Justice%20and%20under-
reporting%20ERA%20Aug%202013.pdf; McGinnity, F., Grotti, R., Kenny, O., and Russell, H. (2017) Who 
experiences discrimination in Ireland? Evidence from the CSO Equality Modules, Dublin: ESRI, available at: 
https://www.ihrec.ie/app/uploads/2017/11/Who-experiences-discrimination-in-Ireland-Report.pdf.   

19   Disability (Miscellaneous Provisions) Bill 2016, 

https://www.oireachtas.ie/viewdoc.asp?DocID=34322&&CatID=59. 
20   Ireland, European Convention on Human Rights Act 2003, 30.06.2003, 
http://www.irishstatutebook.ie/eli/2003/act/20/enacted/en/print.html. 

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public  funding  or  other  assistance.  The  Equal  Status  Acts  2000-2015  provide  that  a 
provider of goods or services must do all that is reasonable to accommodate the needs of 
a person with a disability by providing special treatment or facilities, without which it would 
be impossible or unduly difficult for the person to avail of the good or service in question. 
The duty is subject to  a nominal cost ceiling, which varies according to the scale of the 
organisation and the resources available to it. 

The  Employment  Equality  Acts  contain  a  number  of  exceptions  to  the  principle  of  non-
discrimination, which does not apply to access to employment in another person’s home 
for  the  provision  of  personal  services.  There  are  exceptions  where  the  characteristic  in 
question  is  a  genuine  and  determining  occupational  requirement  for  the  post  and  the 
objective is legitimate and the requirement proportionate. There are exceptions relating to 
the grounds of age and disability in occupational pensions and remuneration in respect of 
someone  with  a  restricted  capacity  respectively.  There  is  an  exception  relating  to 
discrimination  in  employment  for  the  purposes  of  maintaining  the  religious  ethos  of  an 
institution, provided that this is ‘legitimate’, ‘proportionate’, and limited so that it could not 
be used to justify discrimination on another ground. There are also exceptions in respect 
of certain forms of employment such as the armed forces, the Garda Síochána (police) and 
the  emergency  services.  With  regard  to  the  Equal  Status  Acts  there  are  a  number  of 
exceptions  and  exemptions  to  the  non-discrimination  rule.  Differences  of  treatment  are 
permissible in respect of annuities, pensions and insurance policies where there is actuarial 
evidence  to  show  that  the  difference  is  reasonable.  There  are  exceptions  to  the  non-
discrimination  norm  for  the  purposes  of  organising  sporting  events,  for  authenticity 
purposes  for  a  dramatic  performance,  or  other  entertainment,  or  for  the  provision  of 
services for religious purposes. There is an exception that discrimination in relation to the 
provision  of  goods  or  services  is  not  actionable  in  circumstances  that  would  lead  a 
reasonable person to believe there is a substantial risk of criminal or disorderly conduct. 
The Equal Status Acts also contains a number of exceptions in respect of education on the 
grounds of age, gender, religious ethos and disability. 

Multiple discrimination is not explicitly prohibited. 

4. Material scope 

The Employment Equality Acts 1998-2015 apply to the field of employment and vocational 
training  and  do  not  distinguish  between  public  and  private  sector  employees. 
Discrimination is prohibited in access to employment, conditions of employment (including 
pay),  training  or  experience  for  or  in  relation  to  employment,  promotion,  re-grading  or 
classification of posts, and advertisements. Employment agencies and agency workers are 
also covered. 

The Equal Status Acts 2000-2015 prohibit discrimination in relation to goods and services, 
including  education  and  housing/accommodation.  State  services  are  not  explicitly 
mentioned but are covered according to case law. The main compliance issue relates to a 
provision that exempts any action required by law from scrutiny.21  

5. Enforcing the law 

Complaints under the Employment Equality Acts 1998-2015, the Equal Status Acts 2000-
2015 and the Pensions Acts 1990-2015 may be brought before the  Workplace Relations 
Commission (WRC). The WRC assumes an investigative role in the hearing of complaints; 
complainants may represent themselves, costs may not be awarded against either party, 
and the procedure is informal. The option of mediation is available. A mediated settlement 
agreed by the parties becomes legally binding and its terms can be enforced at the Circuit 
Court. The decisions may be appealed; the Labour Court hears the employment appeals, 

21   Section 14(a)(i), http://www.irishstatutebook.ie/eli/2000/act/8/enacted/en/print#sec14.  

8 

 
 
 
 
 
 
 
 
                                                   
whereas the Circuit Court hears the equal status appeals. Labour Court and Circuit Court 
determinations can be appealed on a point of law to the High Court.  

Claims  are  brought  before  the  relevant  body  by  way  of  application  using  online  forms. 
Equal Status Acts complaints are subject to an additional requirement: the service provider 
must  be  notified  in  writing  of  the  incident  and  of  the  complainant’s  intention  to  seek 
redress.  Hearings  are  held  in  private  before  the  WRC.  The  decisions  of  the  WRC  are 
available for public inspection since they are published on its website.  

From  2003  complaints  about  discrimination  involving  licensed  premises  (i.e.  pubs  etc.) 
must  be  brought  to  the  District  Court  rather  than  the  WRC.  The  major  impact  of  this 
amendment is increased costs and procedural complexity for complainants.  

Organisations may represent an individual complainant at the WRC and the Labour Court 
where they are authorised to do so by the complainant, but not before the Circuit Court or 
the  High  Court.  Trade  unions  regularly  represent  their  members.  Organisations  are  not 
permitted to take a complaint, with the exception of the Irish Human Rights and Equality 
Commission (IHREC). IHREC enjoys legal standing to bring complaints to the WRC relating 
to  patterns  of  discrimination,  discriminatory  advertising  or  the  contents  of  a  collective 
agreement.  It  can  also  provide  assistance  and  legal  representation  to  an  individual 
complainant. IHREC was providing legal assistance in 20 ongoing anti-discrimination law 
cases at the end of 2016.22 

The legislation provides for a shift in the burden of proof in non-discrimination cases, where 
the facts established suggest that there is a prima facie case of discrimination. The use of 
statistics  is  permitted,  but  is  not  required  in  order  to  raise  a  prima  facie  case  of 
discrimination.  Situation  testing  has  not  been  used  to  any  great  extent.  There  are  no 
procedural or other rules prohibiting its use.  

The  Employment  Equality  Acts  1998-2015  provide  for  a  broad  range  of  remedies: 
compensation, orders for employers to take specific courses of action, re-instatement and 
re-engagement.  All  employment  contracts  are  deemed  to  have  an  equality  clause  that 
transforms  any  provisions  of  the  contract  that  would  otherwise  give  rise  to  unlawful 
discrimination. All discriminatory provisions in collective agreements are deemed null and 
void and it is not possible to contract out of the terms of the equality legislation. There are 
maximum  limits  on  financial  awards,  those  limits  in  the  context  of  employment  are  a 
maximum of two years pay, and where the complainant was not in employment then the 
maximum award is EUR 13 000. 

The  Equal  Status  Acts  2000-2015  also  provide  for  a  variety  of  remedies  including 
compensation,  or  orders  for  service  providers  to  take  specific  courses  of  action.  This 
legislation  also  imposes  maximum  award  limits,  which  is  currently  set  at  EUR  15  000. 
Under  both  Acts  the  financial  sanctions  are  much  lighter  than  those  provided  for  in  the 
case of gender discrimination. This suggests that the sanctions available in the case of the 
non-gender grounds may not be effective, proportionate or dissuasive. 

A 3% quota applies to  the  employment  of people with disabilities in the civil and public 
service.  The  Government  has  undertaken  to  progressively  increase  the  statutory  target 
towards 6% by 2024.23 The Higher Education Authority oversees a range of measures that 
provide support to distinct categories of students covered by the discriminatory grounds 

22   Irish Human Rights and Equality Commission (2017) Annual Report 2016, p.32, available at: 

https://www.ihrec.ie/app/uploads/2017/06/IHREC-Annual-Report-2016.pdf.  

23   Government of Ireland (2015) Comprehensive Employment Strategy for People with Disabilities 2015-2024, 

http://www.justice.ie/en/JELR/Comprehensive%20Employment%20Strategy%20for%20People%20with%2
0Disabilities%20-
%20FINAL.pdf/Files/Comprehensive%20Employment%20Strategy%20for%20People%20with%20Disabilitie
s%20-%20FINAL.pdf. 

9 

 
 
 
 
 
 
 
 
                                                   
 
including  mature  students  and  students  with  disabilities.24  Additional  English  language 
support is provided to migrant children in schools. 

IHREC is the primary vehicle through which dialogue and consultation with NGOs and the 
social partners takes place. It is equipped with a range of relevant statutory powers and 
functions,  including  the  power  to  establish  advisory  committees  and  to  draft  codes  of 
practice. 

6. Equality bodies 

The Equality Authority was merged with the Irish Human Rights Commission to form the 
Irish Human Rights and Equality Commission (IHREC).25 IHREC, which was established on 
1 November 2014, is an independent body mandated to work towards the elimination of 
discrimination, promote equality of opportunity, provide information to the public on anti-
discrimination law  and review  various  legislative  enactments  including  the  primary  anti-
discrimination laws. It fulfils these functions by means of research and awareness raising, 
review of the legislation and the drafting of statutory codes of practice. IHREC also has the 
power  to  instigate  litigation  on  its  own  behalf  or  to  assist  a  litigant.  It  is  authorised  to 
conduct inquiries, and carry out equality reviews. The Department of Justice and Equality, 
under the direction of the Minister, funds IHREC, which reports to the Irish Parliament.  

7. Key issues 

An interesting innovation is Section 42 of the Irish Human Rights and Equality Commission 
Act 2014, which introduces a positive duty on public bodies to have due regard to human 
rights and equality in carrying out their functions. IHREC will assist public bodies to comply 
with the positive duty; it has produced a preliminary guide and is empowered to draw up 
codes of practice. During 2017 it collaborated with numerous public sector bodies on pilot 
initiatives, which will inform good practice guidance.    

Flexible  sanctions  are  available,  which  enable  remedies  to  be  tailored  to  particular 
circumstances and which can also generate significant effects beyond the immediate case. 
However,  the  limits  set  on  compensation  arguably  undermine  the  requirement  that 
sanctions  be  ‘effective,  proportionate  and  dissuasive’.  It  is  uncertain  that  the  ESA 
adequately  covers  social  protection  and  social  advantages,  due  in  part  to  the  broad 
exemption  for  measures  that  are  required  by  law.  The  pursuit  of  complaints  about 
discrimination in accessing goods and services is hampered by some procedural obstacles. 
Potential problems with the EEA include a narrow definition of vocational training, failure 
to cover beliefs that are not religious in nature, and a provision that enables lower rates of 
remuneration to be paid to persons with disabilities. 

24   See further Higher Education Authority (2015) National Plan for Equity of Access to Higher Education 2015–

2019, available at: 
http://hea.ie/assets/uploads/2017/04/national_plan_for_equity_of_access_to_higher_education_2015-
2019_single_page_version_01.pdf. 

25   Ireland, Irish Human Rights and Equality Commission Act 2004, 27.07.2014, 

http://www.irishstatutebook.ie/2014/en/act/pub/0025/print.html. 

10 

 
 
 
 
 
 
 
 
 
                                                   
RÉSUMÉ 

1. Introduction 

La société irlandaise est assez homogène. Selon le recensement de 2016,26 la population 
d’un  peu  moins  de  4,8 millions  d’habitants  comprend  78,3 %  de  catholiques  romains  et 
9,8 %  de  non-religieux  (soit  une  hausse  de  73,6 %  par  rapport  à  2011),  le  solde  étant 
formé  de  personnes  appartenant  à  d’autres  religions  diverses.  Selon  la  même  source, 
82,2 % se décrivent comme des «Irlandais de race blanche» et 0,7 % comme des gens du 
voyage irlandais;27 57 850 personnes s’identifient comme des «Africains de race noire» ou 
comme  des  «Irlandais  de  race  noire»;  et  9,5 %  comme  étant  de  «toute  autre  origine 
blanche».  Environ  13,5 %  de  la  population  (643 131  personnes)  déclarent  souffrir  d’un 
handicap. Un total de 6 034 couples de même sexe vivent en Irlande. Les ressortissants 
étrangers  sont  au  nombre  de  535 475  (11,6 %  de  la  population),  parmi  lesquels  des 
ressortissants d’autres États membres de l’UE - les cinq nationalités les plus représentées 
étant la polonaise, la britannique, la lituanienne, la roumaine et la lettone.  

La  législation irlandaise  en  matière  d’égalité  a  été  considérablement  élargie  à  la  fin  des 
années 1990. La loi de 1998 sur l’égalité dans l’emploi28 et la loi de 2000 sur l’égalité des 
statuts29 prévoient neuf motifs de discrimination et instituent un organisme national pour 
la  promotion  de  l’égalité  ainsi  qu’une  instance  spécifiquement  chargée  de  l’audition  des 
plaintes  pour  discrimination,  à  savoir  l’Equality  Tribunal  (Tribunal  pour  l’égalité).  Les 
restrictions budgétaires successivement appliquées à partir de 2008 ont considérablement 
réduit le financement de cette infrastructure. La Commission irlandaise pour les droits de 
l’homme et l’égalité ou IHREC,30 instituée en novembre 2014 en tant qu’organisme national 
pour l’égalité, est dotée de pouvoirs équivalents à ceux de son prédécesseur et la situation 
s’améliore sur le plan du financement. L’Equality Tribunal a été intégré en 2015, de même 
que  plusieurs  autres  organismes  de  défense  des  droits  en  matière  d’emploi,  à  la 
Commission pour les relations sur le lieu de travail (WRC).31 Il est trop tôt pour mesurer 
l’impact (éventuel) de ce changement sur les recours en matière de discrimination.  

La minorité ethnique autochtone irlandaise des gens du voyage connaît un niveau relatif 
élevé de misère sociale et de discrimination, et la reconnaissance officielle de l’ethnicité de 
ce groupe en mars 2017 a été une évolution bienvenue à cet égard.32 Si aucune disposition 
législative  nouvelle  n’a  accompagné  ce  revirement  de  la  politique  gouvernementale,  la 
stratégie nationale 2017-2021 en faveur de l’inclusion des gens du voyage et des Roms 
(National  Traveller  and  Roma  Inclusion  Strategy  2017–2021),  publiée  en  juin  2017, 
contient  l’engagement  d’examiner  la  loi  qui  régit  la  mise  à  disposition  d’aménagements 
spécifiques  à  l’intention  des  gens  du  voyage.  Un  plan  de  mise  en  œuvre  sera  publié  en 
2018. Une série de projets de loi censés modifier la législation en matière de discrimination 
ont été débattus devant le parlement (Oireachtas) tout au long de 2017 mais aucun d’entre 
eux n’avait été adopté en fin d’année. Les critères religieux appliqués dans le cadre des 
politiques  d’inscription  scolaire  font  l’objet  depuis  quelques  années  de  débats  nationaux 
concernant  la  législation  relative  à  l’égalité,  et  un  projet  de  loi  publié  en  2016  vise  à 
réformer la loi et la pratique dans ce domaine. Les observations de la Commission pour les 
droits  de  l’homme  et  l’égalité  à  propos  du  projet  de  loi  suggèrent  des  modifications 

26   http://www.cso.ie/en/census/census2016reports/. 
27   Il n’existe aucune statistique officielle concernant les Roms. 
28   Irlande, Employment Equality Act 1998 du 18 juin 1998, 

http://www.irishstatutebook.ie/eli/1998/act/21/enacted/en/print.  

29   Irlande, Equal Status Act 2000 du 26 mars 2000, 

http://www.irishstatutebook.ie/eli/2000/act/8/enacted/en/html.  

30   Irlande, Irish Human Rights and Equality Commission Act (2014) (Loi du 27 juillet 2014 sur la Commission 
pour les droits de l’homme et l’égalité), http://www.irishstatutebook.ie/2014/en/act/pub/0025/print.html. 

31   Irlande, Workplace Relations Act 2015 du 20 mai 2015. 
32   La déclaration du Taoiseach (Premier ministre) est disponible sur: 

http://www.taoiseach.gov.ie/eng/News/Taoiseach%27s_Speeches/Statement_by_An_Taoiseach_Enda_Ken
ny_TD_on_the_recognition_of_Travellers_as_an_ethnic_group_Dail_Eireann_1_March_2017.html 

11 

 
 
 
 
 
                                                   
 
destinées à assurer une conformité avec la directive sur l’égalité raciale entre autres.33 Un 
projet de loi substantiellement révisé sera soumis au parlement en 2018. 

Aucune  évolution  majeure  n’est  à  signaler  dans  la  jurisprudence  de  2017  en  ce  qui 
concerne les principes de non-discrimination. La Cour suprême a adressé à la CJUE en juin 
2017  une  demande  de  décision  préjudicielle  concernant  les  procédures  judiciaires  et 
administratives.34 La question porte sur le point de savoir si la législation de l’UE exige que 
la  Commission  pour  les  relations  sur  le  lieu  de  travail  (WRC)  soit  habilitée  à  être  saisie 
lorsque le recours porte sur la non-application de la législation dérivée mais que le droit 
national n’habilite pas la Commission en question à entamer des poursuites de ce type. 
Une  forte  proportion  de  plaintes  déposées  par  la  communauté  des  gens  du  voyage  à 
l’encontre  de  prestataires  de  services  ont  été  rejetées  pour  n’avoir  pas  été  adressées  à 
l’instance voulue – une situation qui met en évidence la persistance de problèmes causés 
depuis 2003 par le transfert de compétence vers le tribunal de district (District Court) pour 
ce  qui  concerne  la  discrimination  pratiquée  à  l’entrée  ou  à  l’intérieur  d’établissements 
titulaires d’une licence de débit de boissons. Dans une affaire relative au refus d’accès à 
un interprète de langue anglaise dans le cadre d’une participation à un processus de grief, 
le tribunal du travail (Labour Court) a réaffirmé les principes consacrés par la jurisprudence 
concernant  les  migrants  vulnérables  en  vertu  desquels  le  fait  de  ne  pas  traiter 
différemment des situations différentes peut donner lieu à une discrimination directe.35  

2. Législation principale 

La Constitution irlandaise consacre la garantie d’une égalité devant la loi sans spécifier de 
motifs discriminatoires. Il est assez rare qu’elle soit invoquée.36 

La  législation  irlandaise  antidiscrimination  comprend  les  lois  sur  l’égalité  dans  l’emploi 
(1998-2015), qui régissent l’emploi et le travail, et les lois sur l’égalité des statuts (2000-
2015), qui couvrent les biens, les services, le logement/hébergement et l’éducation. Les 
lois sur les pensions (1990-2015)37 s’appliquent aux régimes de pensions professionnels. 
Elles visent les motifs suivants: le genre, l’âge, la race, la religion, la situation familiale, le 
handicap, l’état civil, l’orientation sexuelle et l’appartenance à la communauté des gens du 
voyage. Le motif supplémentaire de «l’aide au logement» a été ajouté aux lois sur l’égalité 
des statuts en 2015 pour interdire la discrimination en matière de location d’une habitation 
à l’encontre de bénéficiaires de prestations sociales telles qu’une aide au logement.38 

D’autres lois contiennent également des dispositions interdisant la discrimination, à savoir, 
les  lois  sur  les  licenciements  abusifs  (1977-2015),39  la  loi  de  1989  sur  l’interdiction  de 
l’incitation à la haine,40 qui pénalise les discours haineux, et la loi de 2003 sur les boissons 

33   Irish Human Rights and Equality Commission (2016) Observations on the Education (Admission to Schools) 
Bill 2016, disponible sur: https://www.ihrec.ie/app/uploads/2016/11/Observations-on-Education-Admission-
to-Schools-Bill-2016.pdf.  

34   Cour suprême, Minister for Justice, Equality and Law Reform c. The Workplace Relations Commission & 

others. [2017] IESC 43, 15.06.2017, 
http://www.courts.ie/Judgments.nsf/bce24a8184816f1580256ef30048ca50/7b97206199a365a4802581410
04d3f72?OpenDocument. 

35   Boxmore Plastics c. Zimareva, EDA 1732, 30.11.2017, 

https://www.workplacerelations.ie/en/Cases/2017/November/EDA1732.html. 

36   Dewhurst, E. (2015) «Principles of Irish Constitutional Equality Law: Recent Developments», Bar Review 

20(4), p. 74-77, disponible sur: https://www.lawlibrary.ie/rss/barreview/4-2015.pdf.  

37   Irlande, Pensions Act 1990 du 24 juillet 1990, 

http://www.irishstatutebook.ie/eli/1990/act/25/enacted/en/print.html; modifiée par l’article 22 de la loi de 
2004 sur la sécurité sociale (dispositions diverses) (Social Welfare (Miscellaneous Provisions) Act 2004), 
http://www.irishstatutebook.ie/eli/2004/act/9/section/22/enacted/en/html#sec22. 

38   Irlande, Equality (Miscellaneous Provisions) Act 2015, loi du 10 décembre 2015 sur l’égalité (dispositions 

diverses), http://www.irishstatutebook.ie/eli/2015/act/43/enacted/en/pdf. 

39   Irlande, Unfair Dismissals Acts 1997-2015, 6 avril 1997, 

http://www.lawreform.ie/_fileupload/RevisedActs/WithAnnotations/HTML/EN_ACT_1977_0010.htm. 

40   Irlande, Prohibition of Incitement to Hatred Act 1989, 29 novembre 1989, 

http://www.irishstatutebook.ie/eli/1989/act/19/enacted/en/html. 

12 

 
 
 
 
 
 
                                                   
 
alcoolisées,41 dont l’article 19 prévoit une mise en application du droit antidiscrimination 
dans le cadre des établissements titulaires d’une licence de vente d’alcool. 

La législation antidiscrimination irlandaise va au-delà des directives de l’Union européenne 
sur l’égalité dans la mesure où le champ d’application personnel des lois sur l’égalité des 
statuts (2000-2015) interdit la discrimination dans l’accès aux biens et aux services non 
seulement pour des motifs de race et de genre, mais également de handicap, d’âge, de 
religion, d’orientation sexuelle, d’appartenance à la communauté des gens du voyage, de 
situation  familiale,  d’état  civil  et  d’aide  au  logement.  La  discrimination  fondée  sur  la 
nationalité  est  également  interdite  de  façon  expresse  au  titre  du  motif  de  la  «race».  La 
définition  du  handicap  est  plus  large  que  celle  figurant  dans  le  droit  de  l’UE  et  un 
aménagement raisonnable doit être assuré aux personnes concernées pour leur permettre 
d’accéder aux biens et aux services. Il existe une jurisprudence assez abondante pour tous 
les  motifs  discriminatoires,  laquelle  provient  principalement  de  l’Equality  Tribunal 
(aujourd’hui Commission pour les relations sur le lieu de travail) et de la Labour Court.42 
Des  études  conduisent  à  penser  que  le  sous-signalement  d’actes  discriminatoires  et 
l’absence  de  mesures  en  réponse  à  la  discrimination  perçue  constituent  des  problèmes 
majeurs.43  

L’Irlande a ratifié les principaux instruments du Conseil de l’Europe en matière de droits 
de  l’homme,  mais  pas  le  protocole  n° 12  à  la  Convention  européenne  des  droits  de 
l’homme. Elle a également ratifié la plupart des grands instruments des Nations unies. La 
ratification  de  la  Convention  des  Nations  unies  relative  aux  droits  des  personnes 
handicapées devrait intervenir en 2018 parallèlement à l’adoption d’une loi qui, dans sa 
version  préliminaire,  désigne  la  Commission  irlandaise  pour  les  droits  de  l’homme  et 
l’égalité comme le mécanisme indépendant en charge de la promotion, de la protection et 
du suivi de l’application de la Convention.44 L’Irlande est un État dualiste, ce qui signifie 
que  pour  être  exécutoire  au  niveau  du  système  juridique  irlandais,  la  législation 
internationale  doit  être  transposée  en  droit  interne  par  voie  législative.  La  principale 
convention  internationale  qui  ait  été  transposée  en  droit  irlandais  est  la  Convention 
européenne de sauvegarde des droits de l’homme, laquelle y a été incorporée au moyen 
de l’European Convention on Human Rights 2003.45  

3. Principes généraux et définitions 

La discrimination directe est définie dans les lois antidiscrimination comme le fait de traiter 
une personne de manière moins favorable qu’une autre ne l’est, ne l’a été ou ne le serait 
en raison de l’un des motifs discriminatoires. Cette interdiction inclut la discrimination par 
association et la discrimination fondée sur un motif existant, ayant existé mais n’existant 
plus, pouvant exister dans le futur ou imputé à la personne concernée. La discrimination 
indirecte  est  définie  comme  se  produisant  lorsqu’une  disposition  apparemment  neutre 
ferait  qu’une  personne  concernée  par  l’un  des  motifs  discriminatoires  subirait  un 
désavantage  particulier  par  rapport  à  d’autres  personnes.  Cette  différence  d’impact  est 
autorisée lorsqu’elle peut être objectivement justifiée par un but légitime et que les moyens 
pour atteindre ce but sont appropriés et nécessaires. Le harcèlement est défini comme tout 

41   Irlande, Intoxicating Liquor Act 2003 du 14 juillet 2003, 

http://www.irishstatutebook.ie/eli/2003/act/31/enacted/en/print#sec19.  

42   Les décisions des deux instances sont publiées sur: 

https://www.workplacerelations.ie/en/Decisions_Determinations/. 

43   Voir notamment Equality and Rights Alliance (2013) Access to Justice and Under-Reporting of Discrimination 

and Human Rights Abuses, disponible sur: 
http://www.eracampaign.org/uploads/Access%20to%20Justice%20and%20under-
reporting%20ERA%20Aug%202013.pdf; McGinnity, F., Grotti, R., Kenny, O., & Russell, H. (2017) Who 
experiences discrimination in Ireland? Evidence from the CSO Equality Modules, Dublin: ESRI, disponible 
sur: https://www.ihrec.ie/app/uploads/2017/11/Who-experiences-discrimination-in-Ireland-Report.pdf.   

44   Projet de loi sur le handicap (dispositions diverses) 2016, 

https://www.oireachtas.ie/viewdoc.asp?DocID=34322&&CatID=59. 
45   Irlande, European Convention on Human Rights 2003, 30 juin 2003, 

http://www.irishstatutebook.ie/eli/2003/act/20/enacted/en/print.html. 

13 

 
 
 
 
 
                                                   
comportement indésirable lié à un motif discriminatoire et ayant pour objet ou pour effet 
de  porter  atteinte  à  la  dignité  d’une  personne  et  de  créer  pour  elle  un  environnement 
intimidant, hostile, dégradant, humiliant ou offensant. Ce comportement peut consister en 
actes, demandes, mots exprimés, gestes ou production, affichage ou distribution de mots 
écrits, de dessins ou d’autre matériel. Les rétorsions visent toute situation dans laquelle 
une personne se déclarant victime de discrimination engage des poursuites ou soutient un 
plaignant, agit en qualité de comparateur ou comme témoin dans une procédure de plainte, 
s’oppose à la discrimination par des moyens légaux ou fait part de son intention d’agir de 
l’une  des  manières  précitées  et  fait  l’objet  pour  cette  raison  d’un  licenciement  ou  d’un 
traitement défavorable. L’injonction de discriminer est expressément interdite par les lois 
sur l’égalité dans l’emploi et couverte dans une certaine mesure par les lois sur l’égalité 
des statuts au travers d’une interdiction d’obtenir une discrimination.  

Les lois sur l’égalité dans l’emploi (1998-2015) disposent que, lorsqu’une personne atteinte 
d’un handicap peut s’acquitter des fonctions du poste qu’elle occupe avec ou sans l’aide de 
«mesures  appropriées»,  elle  est  considérée  comme  compétente  en  vertu  de  la  loi. 
L’employeur  est  tenu  de  prendre  des  mesures  appropriées  afin  de  permettre  à  une 
personne souffrant d’un handicap d’avoir accès à l’emploi, de participer à l’emploi ou d’y 
être promue, et de suivre une formation, à moins que ces mesures imposent une charge 
disproportionnée  à  l’employeur.  Pour  déterminer  ce  que  représente  une  charge 
disproportionnée, il convient de tenir compte du coût de la mesure en question, de la taille 
et  des  ressources  financières  de  l’employeur  concerné,  et  de  la  possibilité  d’obtenir  un 
financement public ou une autre forme d’assistance. Les lois sur l’égalité des statuts (2000-
2015) stipulent qu’un fournisseur de biens et de services doit prendre toutes les mesures 
raisonnables  pour  répondre  aux  besoins  d’une  personne  handicapée  en  prévoyant  un 
traitement  ou  un  équipement  spécial  sans  lequel  il  serait  impossible  ou  excessivement 
difficile pour cette personne de pouvoir disposer des biens et services en question. Le coût 
nominal de cette obligation est plafonné – son montant maximum variant selon la taille de 
l’organisation et les ressources dont elle dispose.  

Les lois sur l’égalité dans l’emploi prévoient un certain nombre d’exceptions au principe de 
non-discrimination, lequel ne s’applique pas aux personnes travaillant au domicile d’une 
autre personne dans le cadre de la prestation de services personnels. Il existe aussi des 
dérogations lorsque la caractéristique en question constitue une exigence professionnelle 
véritable et déterminante pour le poste à pourvoir et que l’objectif est légitime et l’exigence 
proportionnée.  Il  existe  un  certain  nombre  d’exceptions  liées  aux  motifs  de  l’âge  et  du 
handicap  qui  s’appliquent  respectivement  aux  retraites  professionnelles  et  à  la 
rémunération  d’une  personne  à  capacité  restreinte.  Une  exception  concerne  la 
discrimination dans l’emploi liée au maintien de l’éthique religieuse d’une institution pour 
autant que la dérogation soit «légitime», «proportionnée» et limitée de façon à ne pouvoir 
servir de justification à une discrimination fondée sur un autre motif. On trouve également 
des exceptions concernant certaines formes d’emploi telles que les forces armées, la Garda 
Síochána  (police  irlandaise)  et  les  services  d’urgence.  Les  lois  sur  l’égalité  des  statuts 
contiennent  un  certain  nombre  d’exceptions  et  d’exemptions  à  la  règle  de  non-
discrimination. Des différences de traitement sont admissibles au niveau des rentes, des 
pensions et des polices d’assurance lorsqu’une preuve actuarielle atteste que la différence 
est  raisonnable.  Il  existe  des  exceptions  à  la  règle  de  non-discrimination  pour  ce  qui 
concerne l’organisation d’événements sportifs, de spectacles ou d’autres divertissements 
dans  un  souci  d’authenticité,  ou  la  prestation  de  services  à  des  fins  religieuses.  Une 
exception prévoit que la discrimination en rapport avec la fourniture de biens et de services 
n’est pas passible de poursuites lorsque les circonstances peuvent conduire une personne 
raisonnable  à  croire  qu’il  existe  un  risque  important  de  comportement  criminel  ou  de 
perturbation de l’ordre public. Les lois sur l’égalité des statuts contiennent également un 
certain nombre d’exceptions dans le domaine de l’enseignement, liées aux motifs de l’âge, 
du genre, de l’éthique religieuse et du handicap.  

La discrimination multiple n’est pas explicitement interdite. 

14 

 
 
 
 
4. Champ d’application matériel 

Les lois sur l’égalité dans l’emploi (1998-2015) s’appliquent au domaine de l’emploi et de 
la  formation  professionnelle  et  n’établissent  pas  de  distinction  entre  les  travailleurs  du 
secteur public et ceux du secteur privé. La discrimination est interdite en ce qui concerne 
l’accès à l’emploi, les conditions de travail (y  compris la rémunération), la formation ou 
l’expérience requise pour l’emploi ou en rapport avec celui-ci, la promotion, le reclassement 
et la classification professionnels, et les offres d’emploi. Les agences de placement et les 
travailleurs intérimaires sont également couverts. 

Les lois sur l’égalité des statuts (2000-2015) interdisent la discrimination en matière de 
biens  et  services,  y  compris  dans  le  domaine  de  l’enseignement  et  du  logement/de 
l’hébergement. Elles ne mentionnent pas spécifiquement les services publics, mais ceux-ci 
sont couverts en vertu de la jurisprudence. Le principal problème de conformité concerne 
une disposition prévoyant l’exemption de contrôle de toute action exigée par la loi.46  

5. Mise en application de la loi 

Les recours invoquant les lois sur l’égalité dans l’emploi (1998-2015), les lois sur l’égalité 
des statuts (2000-2015) et les lois sur les pensions (1990-2015) peuvent être adressés à 
la Commission pour les relations sur le lieu de travail (WRC). Cette dernière assure un rôle 
d’investigation  dans  l’audition  des  plaintes.  Les  plaignants  peuvent  se  représenter  eux-
mêmes, les frais ne peuvent être portés à la charge d’aucune des parties et la procédure 
est  informelle.  L’option  de  la  médiation  est  prévue.  Un  règlement  intervenant  au  terme 
d’une  médiation  est  exécutoire  pour  les  parties  et  le  respect  de  ses  clauses  peut  être 
imposé par le tribunal itinérant (Circuit Court). Il peut être fait appel des décisions auprès 
de  la  juridiction  du  travail  (Labour  Court)  lorsqu’il  s’agit  d’emploi  et  auprès  du  tribunal 
itinérant  (Circuit  Court)  lorsqu’il  s’agit  d’égalité  de  statut.  Il  peut  être  fait  appel  des 
décisions de la  Labour  Court  et du Circuit Court sur un point de droit auprès de la  High 
Court.  

La requête est déposée auprès de l’instance concernée au moyen d’un formulaire en ligne. 
Les  recours  invoquant  les  lois  sur  l’égalité  des  statuts  doivent  répondre  à  une  exigence 
supplémentaire, à savoir que le prestataire de service doit être averti par écrit de l’incident 
et de l’intention de la partie plaignante de demander réparation. Les audiences se tiennent 
à  huis  clos  devant  la  WRC.  Les  décisions  de  la  WRC  sont  disponibles  pour  consultation 
publique, étant donné qu’elles sont publiées sur son site Internet.  

Depuis  2003,  les  recours  relatifs  à  une  discrimination  impliquant  des  établissements 
titulaires d’une licence de débit de boissons (pubs, etc.) doivent être adressés à la District 
Court (tribunal de district) plutôt qu’à la WRC. Cette modification se traduit principalement 
par  des  frais  plus  importants  et  une  plus  grande  complexité  de  procédure  pour  les 
plaignants.  

Des organisations peuvent représenter un plaignant individuel devant la WRC et la Labour 
Court pour autant que ledit plaignant les y autorise, mais pas devant la Circuit Court ou la 
High Court. Il est courant que des syndicats représentent leurs membres. Les organisations 
ne sont pas autorisées à déposer plainte, à l’exception de l’Irish Human Rights and Equality 
Commission  ou  IHREC  (Commission  irlandaise  pour  les  droits  de  l’homme  et  l’égalité), 
laquelle est habilitée à saisir la WRC à propos de pratiques discriminatoires, de publicités 
à  caractère  discriminatoire  ou  du  contenu  de  conventions  collectives.  L’IHREC  peut 
également offrir une assistance et une représentation juridique à un plaignant individuel. 
Fin  2016,  elle  apportait  son  aide  juridique  dans  20 affaires  en  cours  en  rapport  avec  la 
législation antidiscrimination.47 

46   Article 14(a)(i), http://www.irishstatutebook.ie/eli/2000/act/8/enacted/en/print#sec14.  
47   IHREC (Irish Human Rights and Equality Commission) (2017), Annual Report 2016, p. 32, disponible sur: 

https://www.ihrec.ie/app/uploads/2017/06/IHREC-Annual-Report-2016.pdf. 

15 

 
 
 
 
 
 
 
 
                                                   
La  législation  prévoit  le  renversement  de  la  charge  de  la  preuve  dans  les  affaires  de 
discrimination  lorsque  les  faits  établis  conduisent  à  présumer  l’existence  d’une 
discrimination. L’utilisation de statistiques est autorisée mais n’est pas requise pour établir 
une  présomption  de  discrimination.  Le  test  de  situation  est  peu  utilisé,  bien  qu’aucune 
règle procédurale ou autre ne l’interdise. 

Les  lois  sur  l’égalité  dans  l’emploi  (1998-2015)  prévoient  un  large  éventail  de  recours: 
indemnisation, ordres aux employeurs de prendre des mesures spécifiques, réintégration 
dans la fonction ou réengagement. Tous les contrats de travail sont censés posséder une 
clause  d’égalité  transformant  toute  disposition  du  contrat  susceptible  d’entraîner 
autrement une discrimination illégale. Toutes les dispositions discriminatoires figurant dans 
les  conventions  collectives  sont  nulles  et  non  avenues,  et  aucun  contrat  ne  peut  être 
soustrait  à  l’application  des  dispositions  de  la  législation  garantissant  l’égalité.  Les 
indemnisations financières sont plafonnées: dans le cadre de l’emploi, elles représentent 
deux  ans  de  salaire;  en  dehors  de  l’emploi,  l’indemnisation  maximale  est  fixée  à 
13 000 euros. 

Les lois sur l’égalité des statuts (2000-2015) prévoient également divers recours, parmi 
lesquels  des  indemnisations  et  des  ordres  aux  prestataires  de  services  de  prendre  des 
mesures  spécifiques.  Cette  législation  plafonne  également  l’indemnisation,  laquelle  est 
actuellement  limitée  à  15 000 euros.  Les  sanctions  financières  prises  en  vertu  des  deux 
séries de lois sont beaucoup plus légères que celles appliquées en cas de discrimination 
fondée sur le genre  –  ce qui conduit à penser  que les sanctions possibles pour d’autres 
motifs que le genre pourraient ne pas être efficaces, proportionnées ou dissuasives.  

Un quota de 3% s’applique à l’emploi de personnes handicapées dans la fonction publique 
et les services publics. Le gouvernement s’est engagé à augmenter progressivement cette 
proportion-cible  obligatoire  à  6 %  d’ici  2024.48  La  Higher  Education  Authority  supervise 
l’application  d’une  série  de  mesures  destinées  à  soutenir  des  catégories  déterminées 
d’étudiants  concernés  par  des  motifs  de  discrimination  (étudiants  adultes  et  étudiants 
handicapés notamment).49 Un soutien complémentaire en langue anglaise est prévu dans 
les écoles à l’intention des enfants issus de l’immigration. 

L’IHREC  est  la  principale  interface  de  dialogue  et  de  consultation  avec  les  ONG  et  les 
partenaires  sociaux.  Elle  est  dotée  d’un  large  éventail  de  compétences  et  de  fonctions 
statutaires, y compris le pouvoir d’instituer des comités consultatifs et de rédiger des codes 
de pratique. 

6. Organismes de promotion de l’égalité de traitement 

L’Equality  Authority  (Autorité  pour  l’égalité)  et  l’Irish  Human  Rights  Commission 
(Commission irlandaise des droits de l’homme) ont fusionné et forment désormais l’Irish 
Human Rights and Equality Commission ou IHREC (Commission irlandaise pour les droits 
de  l’homme  et  l’égalité).50  Cette  Commission,  instituée  le  1er novembre  2014,  est  un 
organisme indépendant chargé d’œuvrer à l’élimination de la discrimination, à la promotion 
de  l’égalité  des  chances,  à  la  fourniture  au  public  d’informations  sur  le  droit 
antidiscrimination et à l’examen de divers textes législatifs, y compris les lois primaires en 

48   Gouvernement d’Irlande (2015) Comprehensive Employment Strategy for People with Disabilities 2015-

2024, 
http://www.justice.ie/en/JELR/Comprehensive%20Employment%20Strategy%20for%20People%20with%2
0Disabilities%20-
%20FINAL.pdf/Files/Comprehensive%20Employment%20Strategy%20for%20People%20with%20Disabilitie
s%20-%20FINAL.pdf. 

49   Pour de plus amples informations, voir Higher Education Authority (2015) National Plan for Equity of Access 

to Higher Education 2015–2019, disponible sur: 
http://hea.ie/assets/uploads/2017/04/national_plan_for_equity_of_access_to_higher_education_2015-
2019_single_page_version_01.pdf. 

50   Irish Human Rights and Equality Commission Act 2004 (Loi de 2004 sur la Commission pour les droits de 

l’homme et l’égalité), http://www.irishstatutebook.ie/2014/en/act/pub/0025/print.html. 

16 

 
 
 
 
 
 
 
                                                   
matière  de  non-discrimination.  Elle  remplit  cette  mission  au  moyen  de  travaux  de 
recherche et d’actions de sensibilisation, de l’analyse de la législation et de l’élaboration 
de codes de pratique statutaires. L’IHREC est également habilitée à intenter des poursuites 
pour son propre compte  ou pour aider l’une des parties.  Elle est autorisée à mener des 
enquêtes et à procéder à des bilans en matière d’égalité. Le ministère de la Justice et de 
l’égalité, sous la direction du ministre, finance l’IHREC  – laquelle rapporte au Parlement 
irlandais.  

7. Points essentiels 

Une  innovation  intéressante  figure  à  l’article  42  de  la  loi  de  2014  sur  la  Commission 
irlandaise pour les droits de l’homme et l’égalité, qui introduit pour les organismes publics 
l’obligation  positive  de  tenir  dûment  compte  des  droits  de  l’homme  et  de  l’égalité  dans 
l’exercice  de  leurs  fonctions.  L’IHREC  aidera  les  organismes  publics  à  respecter  cette 
obligation  positive;  elle  a  produit  un  manuel  préliminaire  et  est  habilitée  à  rédiger  des 
codes de pratique. Elle a collaboré en 2017 avec plusieurs organismes du secteur public 
dans le cadre d’initiatives pilotes destinées à étayer des orientations en matière de bonnes 
pratiques.    

Des  sanctions  flexibles  sont  prévues,  ce  qui  permet  d’adapter  les  réparations  à  des 
situations particulières et de générer des effets au-delà de la seule affaire en cause. Par 
ailleurs,  les  limites  imposées  à  l’indemnisation  compromettent  sans  doute  le  respect  de 
l’exigence de sanctions «efficaces, proportionnées et dissuasives». Il n’est pas certain que 
les lois sur l’égalité des statuts couvrent la protection sociale et les prestations sociales de 
manière  adéquate,  étant  donné  notamment  la  vaste  exemption  à  l’égard  de  mesures 
exigées par la loi. Le règlement de plaintes pour discrimination en matière d’accès à des 
biens et services est entravé par une série de blocages procéduraux. Les lois sur l’égalité 
dans l’emploi pourraient poser problème en raison de leur définition étroite de la formation 
professionnelle, de leur non-couverture des convictions n’ayant pas un caractère religieux, 
et  d’une  disposition  permettant  d’appliquer  des  taux  inférieurs  de  rémunération  à  des 
personnes handicapées. 

17 

 
 
 
 
 
 
 
ZUSAMMENFASSUNG  

1. Einleitung 

Die irische Gesellschaft ist ziemlich homogen. Der Volkszählung von 201651 zufolge sind 
von  den  knapp  4,8 Millionen  Einwohnern  des  Landes  78,3  %  römisch-katholisch,  9,8  % 
nicht  religiös  (ein  Zuwachs  von  73,6 %  gegenüber  2011)  und  gehört  der  Rest 
verschiedenen anderen Glaubensrichtungen an. 82,2 % bezeichnen sich selbst als „weiße 
Iren“, 0,7 % als irische Landfahrer (Irish Travellers).52 57 850 Menschen sehen sich als 
„Schwarzafrikaner“  bzw.  „schwarze  Iren“,  9,5 %  rechnen  sich  der  Kategorie  „Sonstiger 
weißer Hintergrund“ zu. 643 131 Menschen, rund 13,5 % der Bevölkerung, gaben an, eine 
Behinderung  zu  haben.  In  Irland  leben  insgesamt  6034  gleichgeschlechtliche  Paare.  Die 
Zahl  der  ausländischen  Staatsbürger  beträgt  535 475 (11,6  %  der  Bevölkerung),  wobei 
Staatsangehörige  anderer  EU-Länder  die  fünf  größten  Nationalitätengruppen  stellen 
(Polen, Briten, Litauer, Rumänen und Letten). 

sowie  ein 

spezielles  Forum 

Die  irischen  Antidiskriminierungsgesetze  wurden  in  den  späten  1990er  Jahren  deutlich 
ausgeweitet. Das Employment Equality Act 1998 (Gesetz zur Gleichstellung im Bereich der 
Beschäftigung von 1998)53 und das Equal Status Act 2000 (Gleichbehandlungsgesetz von 
2000)54  sahen  neun  Diskriminierungsgründe  vor  und 
führten  eine  nationale 
Gleichbehandlungsstelle 
für  die  Anhörung  von 
Diskriminierungsbeschwerden, das Equality Tribunal, ein. Ab 2008 haben die aufeinander 
folgenden  Staatshaushalte  die  Finanzierung  der  Gleichstellungsinfrastruktur  stark 
eingeschränkt. Im November 2014 wurde die Irish Human Rights and Equality Commission 
(Irische  Kommission  für  Menschenrechte  und  Gleichstellung,  IHREC)55  als  Irlands 
Gleichbehandlungsstelle  etabliert.  Die  Stelle  ist  mit  den  gleichen  Befugnissen  wie  ihre 
Vorgängereinrichtung  ausgestattet  und  die  Finanzierungslage  hat  sich  verbessert.  2015 
wurde das Equality Tribunal zusammen mit verschiedenen arbeitsrechtlichen Einrichtungen 
in  die  Workplace  Relations  Commission  (Kommission  für  Arbeitsbeziehungen,  WRC) 
aufgenommen.56 
auf 
Diskriminierungsbeschwerden sind noch nicht abzusehen.  

Auswirkungen 

Veränderung 

(etwaigen) 

dieser 

Die 

Irlands  indigene  ethnische  Minderheit,  die  Gemeinschaft  der  Fahrenden  (Travelling 
Community),  leidet  unter  einem  hohen  Maß  an  relativer  sozialer  Benachteiligung  und 
Diskriminierung. Insofern war die formelle Anerkennung der Traveller als Ethnizität im März 
2017  eine  begrüßenswerte  Entwicklung.57  Neue  Rechtsvorschriften  gingen  mit  dieser 
Änderung  in  der  Regierungspolitik  zwar  nicht  einher,  die  im  Juni  2017  veröffentlichte 
National  Traveller  and  Roma  Inclusion  Strategy  2017-2021  enthält  jedoch  eine 
Verpflichtung zur Überarbeitung des Statuts, das die Bereitstellung spezieller Unterkünfte 
für Traveller regelt. 2018 soll ein Umsetzungsplan veröffentlicht werden.  Im Verlauf des 
Jahres 2017 wurden im Oireachtas (irisches Parlament) verschiedene Gesetzentwürfe zur 
Änderung  des  Antidiskriminierungsrechts  diskutiert;  keiner  davon  wurde  bis  Ende  des 
Jahres jedoch verabschiedet. In der nationalen Debatte über Gleichstellungsrechte ging es 
in  den  letzten  Jahren  unter  anderem  um  religiöse  Kriterien  in  der  Aufnahmepolitik  von 
Schulen, und 2016 wurde ein Gesetzentwurf veröffentlicht, der Recht und Praxis in diesem 
Bereich  angeblich  reformiert.  In  ihren  Kommentaren  zu  dem  Gesetzentwurf  schlägt  die 
IHREC  Änderungen  vor,  die  unter  anderem  darauf  abzielen,  die  Einhaltung  der 

51   http://www.cso.ie/en/census/census2016reports/.  
52   Es gibt keine offiziellen Statistiken zu Roma. 
53   Irland, Employment Equality Act 1998, 18.06.1998, 

http://www.irishstatutebook.ie/eli/1998/act/21/enacted/en/print.  

54   Irland, Equal Status Act 2000, 26.03.2000, http://www.irishstatutebook.ie/eli/2000/act/8/enacted/en/html.  
55   Irland, Irish Human Rights and Equality Commission Act 2014, 27.07.2014, 

http://www.irishstatutebook.ie/2014/en/act/pub/0025/print.html.  

56   Irland, Workplace Relations Act 2015, 20.05.2015, 

http://www.irishstatutebook.ie/eli/2015/act/16/enacted/en/pdf. 
57   Die Erklärung des Taoiseach (Premierminister) ist abrufbar unter: 

http://www.taoiseach.gov.ie/eng/News/Taoiseach%27s_Speeches/Statement_by_An_Taoiseach_Enda_Ken
ny_TD_on_the_recognition_of_Travellers_as_an_ethnic_group_Dail_Eireann_1_March_2017.html.  

18 

 
 
 
 
 
                                                   
 
Antirassismusrichtlinie  zu  gewährleisten.58  2018  soll  dem  Parlament  ein  grundlegend 
überarbeiteter Gesetzentwurf vorgelegt werden. 

für  Klagen  zuständig 

In  der  Rechtsprechung  von  2017  waren  keine  wesentlichen  Entwicklungen  in  den 
Antidiskriminierungsgrundsätzen zu erkennen. Im Juni 2017 legte der Supreme Court dem 
EuGH ein Ersuchen um Vorabentscheidung vor, das Gerichts- und Verwaltungsverfahren 
betrifft.59 Es geht um die Frage, ob die Workplace Relations Commission (WRC) nach dem 
EU-Recht  zwingend 
ist,  die  auf  die  Nichtanwendung 
sekundärrechtlicher  Vorschriften  abzielen,  obwohl  die  WRC  nach  nationalem  Recht  nicht 
dafür  zuständig  ist,  derartige  Verfahren  zu  eröffnen.  Ein  großer  Teil  der  Beschwerden 
gegen  Dienstleistende  wegen  Diskriminierung  aufgrund  der  Zugehörigkeit  zur 
Gemeinschaft der Fahrenden wurde abgewiesen, da die Beschwerden dem falschen Gericht 
vorgelegt  wurden –  ein  deutlicher  Hinweis  auf  die  anhaltenden  Probleme,  die  durch  die 
Übertragung der Zuständigkeit für Diskriminierung am Eingang zu Schanklokalen auf den 
District Court im Jahr 2003 entstanden sind. In einem Fall, in dem es darum ging, dass in 
einem Beschwerdeverfahren die Teilnahme eines Englisch-Dolmetschers nicht zugelassen 
wurde,  bekräftigte  der  Labour  Court  die  in  der  Rechtsprechung  zu  benachteiligten 
Migrantinnen  und  Migranten  festgelegten  Grundsätze,  wonach  aus  der  Tatsache,  dass 
unterschiedliche  Situationen  nicht  unterschiedlich  behandelt  werden,  eine  unmittelbare 
Diskriminierung resultieren kann.60 

2. Wichtigste Rechtsvorschriften 

Die  Irische  Verfassung  garantiert  die  Gleichheit  aller  Menschen  vor  dem  Gesetz,  ohne 
ausdrückliche  Diskriminierungsgründe  zu  nennen.  Sie  wird  relativ  selten  in  Anspruch 
genommen.61 

bis 

die 

die 

2000 

2015, 

Das irische Antidiskriminierungsrecht besteht aus den Employment Equality Acts von 1998 
bis 2015, die für die Bereiche Beschäftigung und Beruf gelten, und den Equal Status Acts 
Dienstleistungen, 
von 
Wohnraumversorgung/Unterbringung  und  Bildung  abdecken.  Die  Pensions  Acts 
(Rentengesetze)62  von  1990  bis  2015  gelten 
für  betriebliche  Systeme  der 
Altersversorgung.  Sie  decken  die  Diskriminierungsgründe  Geschlecht,  Alter,  Rasse, 
Religion, familiärer Status, Behinderung, zivilrechtlicher Status, sexuelle Orientierung und 
Zugehörigkeit zur Gemeinschaft der Fahrenden ab. Die Equal Status Acts wurden 2015 um 
einen  Diskriminierungsgrund  „Wohngeldbezug“  erweitert,  der  Diskriminierung  von 
Personen,  die  Sozialleistungen  wie  z. B.  Wohngeld  beziehen,  beim  Zugang  zu 
Mietwohnraum verbietet.63 

Bereiche 

Güter, 

Auch andere Gesetze enthalten Bestimmungen, die Diskriminierung verbieten, nämlich die 
Unfair  Dismissals  Acts  (Gesetze  über  rechtswidrige  Kündigungen)  von  1977  bis  2015,64, 

58   Irish Human Rights and Equality Commission (2016), Observations on the Education (Admission to Schools) 

Bill 2016, abrufbar unter: https://www.ihrec.ie/app/uploads/2016/11/Observations-on-Education-
Admission-to-Schools-Bill-2016.pdf.  

59   Supreme Court, Minister for Justice, Equality and Law Reform v The Workplace Relations Commission and 

ors. [2017] IESC 43, 15.06.2017, 
http://www.courts.ie/Judgments.nsf/bce24a8184816f1580256ef30048ca50/7b97206199a365a4802581410
04d3f72?OpenDocument. 

60   Boxmore Plastics v Zimareva, EDA 1732, 30.11.2017, 

https://www.workplacerelations.ie/en/Cases/2017/November/EDA1732.html. 

61   Dewhurst, E. (2015), „Principles of Irish Constitutional Equality Law: Recent Developments“, Bar Review 

20(4), S. 74-77, abrufbar unter: https://www.lawlibrary.ie/rss/barreview/4-2015.pdf.  

62   Irland, Pensions Act 1990, 24.07.1990, 

http://www.irishstatutebook.ie/eli/1990/act/25/enacted/en/print.html; geändert durch Art. 22 des Social 
Welfare (Miscellaneous Provisions) Act 2004, 
http://www.irishstatutebook.ie/eli/2004/act/9/section/22/enacted/en/html#sec22. 

63   Irland, Equality (Miscellaneous Provisions) Act 2015, 10.12.2015, 

http://www.irishstatutebook.ie/eli/2015/act/43/enacted/en/pdf. 

64   Irland, Unfair Dismissals Acts 1997-2015, 06.04.1997, 

http://www.lawreform.ie/_fileupload/RevisedActs/WithAnnotations/HTML/EN_ACT_1977_0010.htm. 

19 

 
 
 
 
 
 
                                                   
 
das Prohibition of Incitement to Hatred Act (Gesetz über das Verbot der Aufstachelung zum 
Hass) von 1989,65 das Hassrede unter Strafe stellt, und das Intoxicating Liquor Act (Gesetz 
über  alkoholische  Getränke)  von  2003,66  das  in  Artikel 19  die  Anwendbarkeit  des 
Diskriminierungsrechts auf konzessionierte Schankstätten regelt. 

die 

geht 

insofern  über 

irische  Antidiskriminierungsgesetzgebung 

Die 
EU-
Gleichbehandlungsrichtlinien hinaus, als der persönliche Geltungsbereich der Equal Status 
Acts 2000-2015 Diskriminierung beim Zugang zu Gütern und Dienstleistungen nicht nur 
aufgrund der Rasse und des Geschlechts, sondern auch aufgrund einer Behinderung, des 
Alters, der Religion, der sexuellen Orientierung, der Zugehörigkeit zur Gemeinschaft der 
Fahrenden, des familiären Status, des zivilrechtlichen Status und des Bezugs von Wohngeld 
verbietet.  Diskriminierung  aus  Gründen  der  Staatsangehörigkeit  ist  im  Rahmen  des 
Diskriminierungsgrunds  „Rasse“  ebenfalls  ausdrücklich  verboten.  Die  Definition  des 
Begriffs  „Behinderung“  ist  weiter  gefasst  als  im  EU-Recht,  und  für  Menschen  mit 
Behinderung  müssen  beim  Zugang  zu  Gütern  und  Dienstleistungen  angemessene 
Vorkehrungen  getroffen  werden.  Es  gibt  eine  umfangreiche  Rechtsprechung  zu  allen 
Diskriminierungsgründen, die größtenteils vom Equality Tribunal (nunmehr WRC) und vom 
Labour  Court  stammt.67  Studien 
lassen  vermuten,  dass  Untererfassung  von 
Diskriminierung  und  Untätigkeit  gegenüber  wahrgenommener  Diskriminierung  große 
Probleme darstellen.68 

Irland  hat  die  wichtigsten  Menschenrechtsinstrumente  des  Europarats  ratifiziert,  mit 
Ausnahme  des  12.  Protokolls  der  Europäischen  Menschenrechtskonvention.  Es  hat  auch 
die  meisten  grundlegenden  Instrumente  der  Vereinten  Nationen  ratifiziert.  Die 
Ratifizierung des UN-Übereinkommens über die Rechte von Menschen mit Behinderungen 
wird voraussichtlich 2018, zusammen mit der Einführung eines Gesetzes erfolgen, das in 
seiner Entwurfsform die Irische Kommission für Menschenrechte und Gleichstellung dazu 
bestimmt, als unabhängiger Mechanismus die Umsetzung des Übereinkommens zu fördern, 
zu schützen und zu überwachen.69 Irland ist ein dualistischer Staat, was so viel bedeutet, 
dass internationales Recht im irischen Rechtssystem nur dann angewendet werden kann, 
wenn es im Zuge der Gesetzgebung in nationales Recht überführt wurde. Das wichtigste 
internationale Übereinkommen, das in irisches Recht überführt wurde, ist die Europäische 
Menschenrechtskonvention, die im Zuge des  European Convention on Human Rights Act 
(Gesetz über die Europäische Menschenrechtskonvention) von 2003 übernommen wurde.70 

3. Wichtigste Grundsätze und Begriffe 

Unmittelbare  Diskriminierung  im  Sinne  der  Antidiskriminierungsgesetze  liegt  vor,  wenn 
eine  Person  aus  einem  der  Diskriminierungsgründe  eine  weniger  günstige  Behandlung 
erfährt, als eine andere Person erfährt, erfahren hat oder erfahren würde. Das Verbot gilt 
auch  für  Diskriminierung  durch  Assoziierung  und  für  Diskriminierung  aufgrund  eines 
Diskriminierungsgrundes,  der  besteht,  früher  bestanden  hat,  womöglich  bestehen  wird 
oder der betroffenen Person unterstellt wird. Mittelbare Diskriminierung wird definiert als 
Situation,  in  der  eine  dem  Anschein  nach  neutrale  Bestimmung  eine  Person,  die  einer 

65   Irland, Prohibition of Incitement to Hatred Act 1989, 29.11.1989, 
http://www.irishstatutebook.ie/eli/1989/act/19/enacted/en/html. 

66   Irland, Intoxicating Liquor Act 2003, 14.07.2003, 

http://www.irishstatutebook.ie/eli/2003/act/31/enacted/en/print#sec19.  

67   Die Entscheidungen beider Organe werden veröffentlicht unter: 

https://www.workplacerelations.ie/en/Decisions_Determinations/. 

68   Siehe z. B. Equality and Rights Alliance (2013), Access to Justice and Under-Reporting of Discrimination and 

Human Rights Abuses, abrufbar unter: 
http://www.eracampaign.org/uploads/Access%20to%20Justice%20and%20under-
reporting%20ERA%20Aug%202013.pdf; McGinnity, F., Grotti, R., Kenny, O., und Russell, H. (2017), Who 
experiences discrimination in Ireland? Evidence from the CSO Equality Modules, Dublin: ESRI, abrufbar 
unter: https://www.ihrec.ie/app/uploads/2017/11/Who-experiences-discrimination-in-Ireland-Report.pdf. 

69   Disability (Miscellaneous Provisions) Bill 2016, 

https://www.oireachtas.ie/viewdoc.asp?DocID=34322&&CatID=59. 
70   Irland, European Convention on Human Rights Act 2003, 30.06.2003, 
http://www.irishstatutebook.ie/eli/2003/act/20/enacted/en/print.html. 

20 

 
 
 
 
 
                                                   
geschützten  Gruppe  angehört,  im  Vergleich  zu  anderen  Personen  in  besonderer  Weise 
benachteiligt. Solche unterschiedlichen Auswirkungen können jedoch zulässig sein, wenn 
sie durch ein rechtmäßiges Ziel sachlich gerechtfertigt und die Mittel zur Erreichung dieses 
Ziels  angemessen  und  erforderlich  sind.  Belästigung  ist  definiert  als  unerwünschte 
Verhaltensweisen,  die  im  Zusammenhang  mit  einem  Diskriminierungsgrund  stehen  und 
bezwecken oder bewirken, dass die Würde der betreffenden Person verletzt und ein von 
Einschüchterungen,  Anfeindungen,  Erniedrigungen,  Entwürdigungen  oder  Beleidigungen 
gekennzeichnetes  Umfeld  geschaffen  wird.  Unter  solche  Verhaltensweisen 
fallen 
Handlungen,  Aufforderungen,  Aussagen,  Gesten  oder  die  Herstellung,  Darstellung  oder 
Verbreitung von Texten, Bildern oder sonstigen Materialien. Viktimisierung bezeichnet die 
Kündigung oder sonstige Benachteiligung von Personen, die wegen Diskriminierung klagen, 
ein  Verfahren  anstrengen,  eine  Klägerpartei  unterstützen,  in  einem  Verfahren  als 
Vergleichsperson  oder  als  Zeuge  auftreten,  auf  gesetzlichem  Wege  Diskriminierung 
bekämpfen  oder  ihre  Absicht,  eine  der  oben  genannten  Handlungen  vorzunehmen, 
ankündigen.  Anweisungen  zur  Diskriminierung  sind  nach  den  Employment  Equality  Acts 
ausdrücklich verboten und werden in den Equal Status Acts in gewissem Maße durch das 
Verbot des „Bewirkens“ (procurement) von Diskriminierung abgedeckt.  

Nach den Employment Equality Acts 1998-2015 gelten Menschen mit Behinderungen als 
qualifiziert,  wenn  sie  die  mit  einer  Stelle  verbundenen  Pflichten  mit  oder  ohne 
Unterstützung  durch  „geeignete  Maßnahmen“  erfüllen  können.  Der  Arbeitgeber  ist 
verpflichtet,  geeignete  Maßnahmen  zu  ergreifen,  um  einem  Menschen  mit  Behinderung 
den Zugang zur Beschäftigung, die Ausübung eines Berufes, den beruflichen Aufstieg und 
die Teilnahme an Aus- und Weiterbildungsmaßnahmen zu ermöglichen, es sei denn, diese 
Maßnahmen  würden  den  Arbeitgeber  unverhältnismäßig  stark  belasten.  Bei  der 
Entscheidung, was eine unverhältnismäßig starke Belastung darstellt, müssen die Kosten 
der  fraglichen  Maßnahme,  die  Größe  und  die  finanziellen  Mittel  des  betreffenden 
Arbeitgebers  und  die  Möglichkeit,  öffentliche  oder  sonstige  Hilfen  zu  erhalten, 
berücksichtigt werden. Nach den Equal Status Acts 2000-2015 sind Anbieter von Gütern 
oder  Dienstleistungen  verpflichtet,  alle  angemessenen  Maßnahmen  zu  treffen,  um  den 
Bedürfnissen von Personen mit Behinderungen gerecht zu werden, und dazu auch spezielle 
Verfahren  oder  Einrichtungen  bereitzustellen,  ohne  die  es  für  die  betroffene  Person 
unmöglich  oder  unverhältnismäßig  schwierig  wäre,  die  Güter  oder  Dienstleistungen  in 
Anspruch zu nehmen. Die Verpflichtung unterliegt einer nominellen Kostenobergrenze, die 
je nach Größe des Unternehmens und den ihm zur Verfügung stehenden Mitteln variiert. 

Die  Employment  Equality  Acts  enthalten  mehrere  Ausnahmen  vom  Grundsatz  der 
Gleichbehandlung, der nicht für den Zugang zu Beschäftigung in privaten Haushalten zur 
Erbringung  persönlicher  Dienstleistungen  gilt.  Ausnahmen  sind  möglich,  wenn  das 
betreffende Merkmal eine wesentliche und entscheidende berufliche Voraussetzung für die 
Stelle ist und es sich um einen rechtmäßigen Zweck und verhältnismäßige Anforderungen 
handelt.  Ausnahmen  bei  den  Diskriminierungsgründen  Alter  und  Behinderung  sind  im 
Bereich  der  Betriebsrenten  bzw.  bei  der  Vergütung  von  Menschen  mit  eingeschränkten 
Fähigkeiten möglich. Es gibt eine Ausnahme vom Verbot der Diskriminierung im Bereich 
Beschäftigung,  wenn  diese  dem  Zweck  dient,  den  religiösen  Ethos  einer  Organisation 
aufrechtzuerhalten,  wobei  die  Ungleichbehandlung  „rechtmäßig“,  „verhältnismäßig“  und 
begrenzt sein muss, sodass sie nicht zur Rechtfertigung anderer Arten von Diskriminierung 
benutzt  werden  kann.  Weitere  Ausnahmen  im  Bereich  Beschäftigung  betreffen  die 
Streitkräfte, die Garda Síochána (Polizei) und die Rettungsdienste. Auch die Equal Status 
Acts  enthalten  Ausnahmen  und  Beschränkungen  des  Diskriminierungsverbots.  Eine 
Ungleichbehandlung in Bezug auf Renten, Pensionen und Versicherungspolicen ist zulässig, 
wenn  die  Ungleichbehandlung  aus  versicherungsmathematischen  Gründen  angemessen 
ist.  Weitere  Ausnahmen  vom  Gleichbehandlungsgebot  betreffen  die  Organisation  von 
Sportveranstaltungen,  die  Authentizität  dramatischer  Darstellungen  oder  sonstiger 
Unterhaltungsevents bzw. die Bereitstellung von Dienstleistungen zu religiösen Zwecken. 
Eine weitere Ausnahme sieht vor, dass Diskriminierung bei der Bereitstellung von Gütern 
oder Dienstleistungen in Situationen nicht strafbar ist, in denen die hinreichende Gründe 

21 

 
 
 
für die Annahme vorliegen, dass ein erhebliches Risiko kriminellen oder ordnungswidrigen 
Verhaltens besteht. Die Equal Status Acts lassen außerdem im Bildungswesen bestimmte 
Ausnahmen aufgrund von Alter, Geschlecht, religiösem Ethos und Behinderung zu. 

Mehrfachdiskriminierung ist nicht ausdrücklich verboten. 

4. Sachlicher Geltungsbereich 

Die  Employment  Equality  Acts  1998-2015  gelten  für  die  Bereiche  Beschäftigung  und 
berufliche  Bildung  und  unterscheiden  nicht  zwischen  privaten  und  öffentlichen 
Arbeitgebern. Diskriminierung ist verboten beim Zugang zu Beschäftigung, in Bezug auf 
die Arbeitsbedingungen (einschließlich der Vergütung), auf Aus- und Weiterbildung für eine 
bzw.  auf  Erfahrung  in  einer  beruflichen  Tätigkeit,  auf  Beförderung,  auf  Einstufung  oder 
Neueinstufung  von  Stellen  sowie  auf  Stellenausschreibungen.  Arbeitsvermittlungen  und 
Leiharbeiternehmer/innen fallen ebenfalls in ihren Geltungsbereich. 

Die  Equal  Status  Acts  2000-2015  verbieten  Diskriminierung  in  Bezug  auf  Güter  und 
Dienstleistungen  einschließlich  Bildung  und  Wohnraumversorgung/Unterbringung. 
Staatliche  Dienstleistungen  werden  nicht  ausdrücklich  erwähnt,  werden  nach  der 
Rechtsprechung  jedoch  vom  Geltungsbereich  erfasst.  Die  wichtigste  Compliance-Frage 
stellt  sich 
jegliche  gesetzlich 
vorgeschriebene Maßnahme von der Kontrolle ausnimmt.71 

im  Zusammenhang  mit  einer  Bestimmung,  die 

5. Rechtsdurchsetzung 

Beschwerden  auf  der  Grundlage  der  Employment  Equality  Acts  1998-2015,  der  Equal 
Status  Acts  2000-2015  und  der  Pensions  Acts  1990-2015  können  bei  der  Workplace 
Relations  Commission  (WRC)  eingereicht  werden.  Die  WRC  hat  bei  der  Behandlung  von 
Beschwerden eine investigative Rolle; die Kläger können sich selbst vertreten, es können 
keiner  Partei  Kosten  zugewiesen  werden  und  das  Verfahren  ist  formlos.  Es  besteht  die 
Möglichkeit, Mediationsverfahren durchzuführen. Eine durch Mediation erreichte Einigung 
zwischen  den  Parteien  ist  rechtlich  bindend  und  kann  beim  Circuit  Court  durchgesetzt 
werden. Gegen die Entscheidungen kann Berufung eingelegt werden; Berufungsinstanz in 
Verfahren, die den Bereich der Beschäftigung betreffen, ist der Labour Court, in Verfahren 
nach dem Gleichbehandlungsgesetz der Circuit Court. Gegen Urteile des Labour Court und 
des Circuit Court kann beim High Court Kassationsbeschwerde eingelegt werden. 

Beschwerden  werden  bei  der  zuständigen  Stelle  mithilfe  von  Online-Formularen 
eingereicht.  Für  Beschwerden  aufgrund  der  Equal  Status  Acts  gilt  außerdem,  dass  dem 
Dienstleister das Vorkommnis und die Absicht der beschwerdeführenden Partei, ihre Rechte 
geltend zu machen, schriftlich mitgeteilt werden müssen. Die Verfahren vor der WRC finden 
unter  Ausschluss  der  Öffentlichkeit  statt.  Die  Entscheidungen  der  WRC  sind  öffentlich 
einsehbar, da sie auf der Webseite der WRC veröffentlicht werden. 

Seit 2003 müssen Diskriminierungsklagen, die konzessionierte Schankstätten (Pubs usw.) 
betreffen,  nicht  beim  WRC,  sondern  beim  District  Court  eingereicht  werden.  Diese 
Änderung  führt  vor  allem  zu  höheren  Kosten  und  komplizierteren  Verfahren  für  die 
Betroffenen. 

Organisationen dürfen Betroffene vor der WRC und dem Labour Court vertreten, wenn sie 
von der jeweiligen Person entsprechend bevollmächtigt sind, jedoch nicht vor dem Circuit 
Court  oder  dem  High  Court.  Gewerkschaften  vertreten  häufig 
ihre  Mitglieder. 
Organisationen  dürfen  nicht  im  eigenen  Namen  klagen,  mit  Ausnahme  der  Irish  Human 
Rights  and  Equality  Commission  (IHREC).  Die  IHREC  kann  bei  der  WRC  gegen 
diskriminierende Strukturen, diskriminierende Werbung oder den Inhalt von Tarifverträgen 
klagen. Sie kann außerdem Betroffene bei ihrer Klage unterstützen und vertreten.  Ende 

71   Art. 14 Buchst. a Pkt. i, http://www.irishstatutebook.ie/eli/2000/act/8/enacted/en/print#sec14.  

22 

 
 
 
 
 
 
 
 
 
 
                                                   
2016  leistete  die  IHREC  in  20  laufenden  antidiskriminierungsrechtlichen  Verfahren 
rechtliche Unterstützung.72 

Die Rechtsvorschriften sehen eine Verlagerung der Beweislast bei Diskriminierungsklagen 
vor,  sofern  die  vorgebrachten  Tatsachen  den  Anscheinsbeweis  für  eine  Diskriminierung 
begründen.  Die  Verwendung  statistischer  Daten  ist  zulässig,  jedoch  nicht  zwingend 
erforderlich,  um  das  Vorliegen  einer  Diskriminierung  glaubhaft  zu  machen.  Testing-
Verfahren  wurden  bisher  kaum  eingesetzt.  Es  gibt  jedoch  weder  Verfahrensvorschriften 
noch sonstige Regeln, die ihren Einsatz verbieten.  

zu 

treffen,  Weiterbeschäftigung 

Die  Employment  Equality  Acts  1998-2015 
sehen  diverse  Maßnahmen  der 
Wiedergutmachung  vor:  Entschädigung,  Auflagen  an  die  Arbeitgeber,  bestimmte 
Maßnahmen 
Alle 
Beschäftigungsverträge  enthalten  eine  Gleichbehandlungsklausel,  mit  der  sämtliche 
Bestimmungen des Vertrags aufgehoben  werden, die eine  rechtswidrige Diskriminierung 
darstellen.  Diskriminierende  Bestimmungen  in  Tarifvereinbarungen  sind  null  und  nichtig 
und 
der 
Gleichbehandlungsgesetzgebung  Verträge  abzuschließen.  Es  gibt  Obergrenzen  für 
Entschädigungssummen, die bei arbeitsrechtlichen Fällen zwei Jahresgehälter oder, wenn 
die Klägerpartei nicht beschäftigt war, 13 000 Euro betragen. 

bzw.  Wiedereinstellung. 

Bestimmungen 

außerhalb 

möglich, 

nicht 

der 

ist 

es 

Auch die Equal Status Acts 2000-2015 sehen diverse Wiedergutmachungsmaßnahmen vor, 
darunter  Schadensersatz  und  Anordnungen  an  Dienstleister,  bestimmte  Maßnahmen  zu 
ergreifen.  Für  zugesprochene  Summen  enthalten  diese  Gesetze  eine  Obergrenze  von 
derzeit 15 000 Euro. In beiden Gesetzeswerken sind die finanziellen Sanktionen wesentlich 
milder als die, die in Fällen geschlechtsbezogener Diskriminierung vorgesehen sind. Dies 
lässt  vermuten,  dass  die  Sanktionen,  die  bei  anderen  Diskriminierungsgründen  als 
Geschlecht  zur  Verfügung  stehen,  möglicherweise  nicht  wirksam,  verhältnismäßig  und 
abschreckend sind. 

Für  die  Beschäftigung  von  Menschen  mit  Behinderungen  im  staatlichen  und  öffentlichen 
Dienst  gilt  eine  Quote  von  3 Prozent.  Die  Regierung  hat  zugesagt,  die  gesetzliche 
Zielvorgabe  bis  2024  schrittweise  auf  6 Prozent  anzuheben.73  Die  Hochschulbehörde 
überwacht  eine  Reihe  von  Maßnahmen,  mit  denen  verschiedene  Gruppen  von 
Studierenden,  die  unter  die  Diskriminierungsgründe  fallen  (z. B.  ältere  Studierende  und 
Studierende  mit  Behinderungen),  unterstützt  werden.74  Für  Migrantenkinder  wird  in  den 
Schulen zusätzliche Sprachförderung in Englisch angeboten. 

Die IHREC ist das vorrangige Instrument, über das Dialog und Konsultationen mit NROs 
und Sozialpartnern stattfinden. Sie verfügt über mit einer Reihe von wichtigen gesetzlichen 
Befugnissen  und  Funktionen,  darunter  auch  die  Befugnis,  beratende  Ausschüsse 
einzurichten und Verhaltenskodexe zu erstellen. 

6. Gleichbehandlungsstellen 

72   Irish Human Rights and Equality Commission (2017) Annual Report 2016, S. 32, abrufbar unter: 

https://www.ihrec.ie/app/uploads/2017/06/IHREC-Annual-Report-2016.pdf.  

73   Regierung der Republik Irland (2015), Comprehensive Employment Strategy for People with Disabilities 

2015-2024, 
http://www.justice.ie/en/JELR/Comprehensive%20Employment%20Strategy%20for%20People%20with%2
0Disabilities%20-
%20FINAL.pdf/Files/Comprehensive%20Employment%20Strategy%20for%20People%20with%20Disabilitie
s%20-%20FINAL.pdf. 

74   Siehe dazu auch Higher Education Authority (2015), National Plan for Equity of Access to Higher Education 

2015–2019, abrufbar unter: 
http://hea.ie/assets/uploads/2017/04/national_plan_for_equity_of_access_to_higher_education_2015-
2019_single_page_version_01.pdf. 

23 

 
 
 
 
 
 
 
 
                                                   
 
Die  Equality  Authority  wurde  mit  der  Irish  Human  Rights  Commission  zur  Irish  Human 
Rights  and  Equality  Commission  (IHREC)  zusammengelegt.75  Die  IHREC,  die  am 
1. November  2014  gegründet  wurde,  ist  eine  unabhängige  Stelle  mit  der  Aufgabe, 
Diskriminierung zu bekämpfen, die Chancengleichheit zu fördern, die Öffentlichkeit über 
informieren  und  die  Umsetzung  verschiedener 
das  Antidiskriminierungsrecht  zu 
gesetzlicher  Regelungen  einschließlich  der  primären  Antidiskriminierungsgesetze  zu 
überwachen.  Zur  Erfüllung  dieser  Aufgaben  kann  sie  Forschungsprojekte  und 
Aufklärungskampagnen 
gesetzliche 
Verfahrensregeln  ausarbeiten.  Die  IHREC  ist  außerdem  berechtigt,  in  eigenem  Namen 
Klage  einzureichen  oder  Kläger  zu  unterstützen.  Sie  kann  Untersuchungen  und 
Gleichstellungskontrollen  durchführen.  Die  IHREC  wird  vom  Ministerium  für  Justiz  und 
Gleichstellung,  unter  Leitung  des  Ministers,  finanziert  und  ist  gegenüber  dem  irischen 
Parlament rechenschaftspflichtig. 

durchführen, 

überprüfen 

Gesetze 

und 

7. Zentrale Punkte 

Eine interessante Neuerung ist Artikel 42 des Gesetzes über die Irische Menschenrechts- 
und  Gleichbehandlungskommission  von  2014,  der  öffentliche  Stellen  dazu  verpflichtet, 
Menschenrechte und Gleichbehandlung bei der Wahrnehmung ihrer Aufgaben gebührend 
zu  berücksichtigen.  Die  IHREC  wird  die  öffentlichen  Stellen  darin  unterstützen,  dieser 
Pflicht  nachzukommen;  sie  hat  einen  vorläufigen  Leitfaden  erstellt  und  ist  befugt, 
Verhaltenskodexe  zu  entwickeln.  Im  Laufe  des  Jahres  2017  hat  sie  mit  zahlreichen 
öffentlichen Stellen bei Pilotinitiativen zusammengearbeitet, die Anregungen für bewährte 
Verfahren liefern werden. 

Es stehen flexible Sanktionen zur Verfügung, die es ermöglichen, den Schadensausgleich 
auf die speziellen Umstände abzustimmen, und die auch über den konkreten Fall hinaus 
erhebliche Wirkungen erzielen können. Allerdings wird die Anforderung, dass Sanktionen 
„wirksam, verhältnismäßig und abschreckend“ sein müssen, durch die Höchstgrenzen für 
Entschädigungen  wohl  untergraben.  Es  ist  zweifelhaft,  ob  die  Equal  Status  Acts 
Sozialschutz  und  soziale  Vergünstigungen  angemessen  abdecken,  was  zum  Teil  auf  die 
weit  gefasste  Ausnahme  für  gesetzlich  vorgeschriebene  Maßnahmen  zurückzuführen  ist. 
Beschwerden  wegen  Diskriminierung  beim  Zugang  zu  Gütern  und  Dienstleistungen 
nachzugehen,  wird  durch  verschiedene  verfahrenstechnische  Hindernisse  erschwert. 
Mögliche  Probleme  im  Zusammenhang  mit  den  Employment  Equality  Acts  sind  unter 
anderem  eine eng gefasste Definition der beruflichen Bildung, die Nichtberücksichtigung 
von Überzeugungen nichtreligiöser Art und eine Bestimmung, die es ermöglicht, Menschen 
mit Behinderungen geringere Vergütungen zu bezahlen. 

75   Irland, Irish Human Rights and Equality Commission Act 2004, 27.07.2014, 

http://www.irishstatutebook.ie/2014/en/act/pub/0025/print.html. 

24 

 
 
 
 
 
 
                                                   
INTRODUCTION 

The national legal system 

The basic law of Ireland is the Constitution, Bunreacht na hÉireann, 1937.  It establishes 
the State and its institutions, sets out the fundamental principles guiding the governance 
of the State and contains an entrenched bill of rights.76 The Constitution takes precedence 
over all other sources of law, subject to Article 29.4.6°, which ensures that nothing in the 
Constitution  can  invalidate  laws  enacted,  acts  done  or  measures  adopted  by  the  State 
where  these  are  necessitated  by  membership  of  the  EU.  Article  15.4  prohibits  the 
Oireachtas  (national  parliament)  from  enacting  laws  that  conflict  with  the  Constitution, 
including its human rights guarantees, while Article 34.3.2° vests in the High Court, Court 
of Appeal and Supreme Court the express power of judicial review of legislation.  

The Constitution provides that the sole law making body in the State is the Oireachtas.77 
Legislation must be passed by both houses of the Oireachtas and is then signed into law 
by the President. Legislation is the most significant source of non-discrimination measures. 

Ireland is a dualist state; ratification of an international treaty does not automatically result 
in  its  provisions  becoming  part  of  the  internal  legal  system.78  In  order  to  become 
enforceable under domestic law, a treaty must be incorporated either through an Act of 
the  Oireachtas  or  by  an  amendment  to  the  Constitution.  The  European  Convention  on 
Human Rights Act 2003 gave further effect to the provisions of the Convention under Irish 
law.79  It  places  obligations  on  organs  of  the  State  to  comply  with  the  Convention  and 
provides remedies for individuals whose rights have been infringed. 

List of main legislation transposing and implementing the directives 

Employment Equality Acts 1998-2015 (EEA)80  
Date of adoption: 18.06.1998 
Latest amendments: 10.12.2015  
Entry into force: 18.10.1999 
Grounds covered: Gender, age, race, religion, family status, disability, civil status, sexual 
orientation, membership of the Traveller community 
Material scope: Employment (including occupation and vocational training) 

Equal Status Acts 2000-2015 (ESA)81 
Date of adoption: 26.04.2000 
Latest amendments: 10.12.2015 
Entry into force: 25.10.2000 
Grounds covered: Gender, age, race, religion, family status, disability, civil status, sexual 
orientation, membership of the Traveller community, housing assistance 
Material  scope:  Access  to  goods  and  services,  housing/  accommodation,  education, 
registered clubs  

76   Ireland, Constitution of Ireland, 29.12.1937, available at: http://www.irishstatutebook.ie/eli/cons/en/html. 
77   Ireland has a bicameral system, which means that there are two houses of the Oireachtas. The first 
chamber is Dáil Éireann and the second chamber is Seanad Éireann (Senate). Legislative powers are 
granted to the two houses by virtue of Article 15.2 of the Constitution. 

78   Oireachtas Library and Research Service (2016) International human rights law: operation and impact, 

available at: 
https://www.oireachtas.ie/parliament/media/housesoftheoireachtas/libraryresearch/spotlights/20160609_in
tlHR_spotlight_095201.pdf, accessed 25.01.2018. 

79   Ireland, European Convention on Human Rights Act 2003, 30.06.2003, 
http://www.irishstatutebook.ie/eli/2003/act/20/enacted/en/print.html. 

80   Ireland, Employment Equality Acts 1998-2015, 

http://revisedacts.lawreform.ie/eli/1998/act/21/revised/en/html.  

81   Ireland, Equal Status Acts 2000-2015, http://revisedacts.lawreform.ie/eli/2000/act/8/revised/en/html.  

25 

 
 
 
 
 
 
 
 
 
                                                   
 
Pensions Acts 1990-201582 
Date of adoption: 24.07.1990 
Latest amendments: 10.12.2015 
Entry into force: 21.12.1990 
Grounds covered: Gender, age, race, religion, family status, disability, civil status, sexual 
orientation, membership of the Traveller community 
Material scope: Occupational pensions, occupational benefit schemes 

Irish Human Rights and Equality Commission Act 2014 (IHRECA)83  
Date of adoption: 27.07.2014 
Entry into force: 01.11.2014 
Latest amendments: N/a  
Grounds covered: Gender, age, race, religion, family status, disability, civil status, sexual 
orientation, membership of the Traveller community, housing assistance  
Material scope: Establishment of Irish Human Rights and Equality Commission as national 
equality body, powers and functions of IHREC 

Workplace Relations Act 201584 
Date of adoption: 20.05.2015 
Entry into force: 01.10.2015 
Latest amendments: 08.02.2016 
Grounds covered: Gender, age, race, religion, family status, disability, civil status, sexual 
orientation, membership of the Traveller community, housing assistance  
Material scope: Establishment of Workplace Relations Commission (WRC) as primary forum 
for hearing anti-discrimination complaints, powers and functions of WRC 

82   Ireland, Pensions Act 1990, 24.07.1990, 

http://www.irishstatutebook.ie/eli/1990/act/25/enacted/en/print.html; Amended by section 22 of the Social 
Welfare (Miscellaneous Provisions) Act 2004, 25.03.2004, 
http://www.irishstatutebook.ie/eli/2004/act/9/section/22/enacted/en/html#sec22. 

83   Ireland, Irish Human Rights and Equality Commission Act 2014, 27.07.2014, 

http://www.irishstatutebook.ie/eli/2014/act/25/enacted/en/html. 

84   Ireland, Workplace Relations Act 2015, 20.05.2015, 

http://www.irishstatutebook.ie/eli/2015/act/16/enacted/en/print.html. 

26 

 
 
 
 
 
 
                                                   
1 

GENERAL LEGAL FRAMEWORK  

Constitutional provisions on protection against discrimination and the promotion 
of equality 

The constitution of Ireland includes the following articles dealing with non-discrimination: 

General clause 

Article 40.1 provides: ‘All citizens shall, as human persons, be held equal before the law. 
This shall not be held to mean that the State shall not in its enactments have due regard 
to differences of capacity, physical and moral, and social function.’ 

The  grounds  covered  implicitly  by  this  provision  include  sex/gender,  race,  language, 
religious  or  political  opinions,  age,  marital  status,  pedigree,  disability  and  sexual 
orientation.85 

This provision appears to apply to all areas covered by the directives. Its material scope is 
unclear but broader than those of the directives in that it extends to access to goods and 
services on all grounds.  

Specific clauses 

Article 44.2.3º applies to the religion ground and provides that ‘the State shall not impose 
any disabilities or make any discrimination on the ground of religious profession, belief or 
status.’ With regard to education, the Constitution further provides under Article 44.2.4º 
that ‘State aid for schools shall not discriminate between schools under the management 
of different religious denominations, nor be such as to affect prejudicially the right of any 
child to attend a school receiving public money without attending religious instruction at 
that school.’ 

Article 40.6.2° requires that laws regulating the formation of associations and unions and 
the right of free assembly shall ‘contain no political, religious or class discrimination.’  

These provisions are directly applicable. 

These  provisions  cannot  be  enforced  against  private  actors  (in  addition  to  against  the 
State).  Although  the  question  requires  further  judicial  interpretation,  it  seems  that  the 
general equality clause cannot be enforced against private actors.86 Article 44.2.3º cannot 
be enforced against private actors.87 The other two provisions explicitly apply only to State 
activities.  

85   Murphy v Ireland and Others [2014] IESC 19, at 34-35; Re Article 26 and the Employment Equality Bill 
1996 [1997] 2 IR 321; An Blascaod Mór Teoranta v Commissioners of Public Works [2000] 1 IR 6; MD v 
Ireland [2012] IESC 12; DX v Buttimer [2012] IEHC 175; Minister for Justice and Equality v O'Connor 
[2017] IESC 21, at 20. 

86   High Court, Equality Authority v Portmarnock Golf Club [2005] IEHC 235, 

http://www.bailii.org/ie/cases/IEHC/2005/H235.html: O’Higgins J. found that ‘the equality guarantee does 
not impose obligations on citizens in their private relations’. The constitutional issue was not dealt with on 
appeal. 

87   McGrath and O'Ruairc v The Trustees of Maynooth College [1979] ILRM 166. 

27 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                   
2 

THE DEFINITION OF DISCRIMINATION  

2.1  Grounds of unlawful discrimination explicitly covered 

The following grounds  of discrimination are  explicitly prohibited in national  law: gender, 
age, race, religion, family status, disability, civil status, sexual orientation, membership of 
the Traveller community, housing assistance.88 

2.1.1  Definition of the grounds of unlawful discrimination within the directives 

Race and ethnic origin  

The  race  ground  under  both  the  ESA  and  EEA  covers  people  who  are  of  different  ‘race, 
colour, nationality or ethnic or national origin’.89 None of these concepts are defined.  

According  to  case  law  ‘national  origin’  is  ‘acquired  by  a  person  at  the  time  of  birth  and 
connects  that  person  with  one  or  more  groups  of  people  who  can  be  described  as  a 
"nation"’.90 ‘Nationality’ is in effect equated with citizenship.91  

Case law has not considered the meaning of ‘race’ as such.92  

Under EEA and ESA, the race ground prohibits discrimination against people who are inter 
alia  of  a  different  ‘ethnic  or  national  origin’.  According  to  the  High  Court  ‘ethnic  origin’ 
under ESA will usually refer to an immutable characteristic over which an individual has no 
control  while  recognising  there  are  ‘instances  where  an  individual  belonging  to  one 
nationality or ethnic group might elect to adhere to another.’93 The Court approved of the 
definition of ‘ethnic group’ set out by the House of Lords in Mandla v Dowell-Lee.94 In that 
case Lord Fraser found that such a group must regard itself and be regarded by others as 
a  distinct  community  by  virtue  of  certain  characteristics:  ‘(1)  a  long  shared  history,  of 
which the group is conscious as distinguishing it from other groups, and the memory of 

88   With effect from 01.01.2016, ‘housing assistance’ may be invoked as a discriminatory ground but only in the 
context of accommodation, which is covered by the Equal Status Acts. People in receipt of rent supplement, 
housing assistance payments or other social welfare payments can no longer be discriminated against in 
relation to the provision of accommodation or related services or amenities. Landlords, letting agents, and 
property advertisers are also prohibited from publishing or displaying advertisements which indicate an 
intention to discriminate on the housing assistance ground: Ireland, Equality (Miscellaneous Provisions) Act 
2015, 10.12.2015, http://www.irishstatutebook.ie/eli/2015/act/43/enacted/en/html. 

89   Section 6(2)(h) EEA, Section 3(2)(h) ESA.  
90   Equality Tribunal, Curran v The Department of Education & Science, DEC-E2009-075, 03.09.2009, at 5.5, 
https://www.workplacerelations.ie/en/Cases/2009/September/DEC-E2009-075-Full-Case-Report.html.  

91   Sabherwal v ICTS (UK) Ltd., DEC-S2008-037, 11.06.2008, 

https://www.workplacerelations.ie/en/Cases/2008/June/DEC-S2008-037-Full-Case-Report.html; Kerry 
County Council v Jurczewski, EDA1311, 15.05.2013, 
https://www.workplacerelations.ie/en/Cases/2013/May/EDA1311.html. 

92   The Labour Court conflated the terms ‘race’, ‘racial origin’ and ‘ethnic origin’ in determining that people of 
the EU Member States could not be regarded en masse as a racial or ethnic group in Dublin Institute of 
Technology v Awojuola, EDA 1335, 23.12.2013, 
https://www.workplacerelations.ie/en/Cases/2013/December/EDA1335.html. The case involved a challenge 
to the criteria used to set fees for admission to a course of education in a third level institution. Lower fee 
rates applied to EU citizens and persons who had been resident in the EU for at least three of the previous 
five years. The complainant, a Nigerian national, contended that the criteria gave rise to indirect 
discrimination on the race ground. In relation to the ‘colour’ aspect of the ground, according to the Labour 
Court it ‘could readily be accepted that substantially more white people are citizens of the EU Members 
States than black people and that fewer black people that white people meet the residency criteria for the 
EU rate of fees chargeable by the Respondent.’ However, the appropriate pool for comparison was not white 
and black people in general: ‘In order to make out a prima facie case of indirect discrimination it would be 
necessary for the Complainant to show that a significant imbalance in racial makeup defined by colour exists 
between those actually charged the EU rate of fees compared to those charged the non-EU rate. No such 
evidence was adduced and the Court could not merely assume that such an imbalance exists.’ 

93   Fitzgerald v Minister for Community, Equality and Gaeltacht Affairs [2011] IEHC 180, at 10, 

http://www.courts.ie/Judgments.nsf/0/EC76855E27F339BA802578B1004AC770. 

94   House of Lords, Mandla v Dowell Lee [1983] 2 AC 548, 24.03.1982, 

http://www.bailii.org/uk/cases/UKHL/1982/7.html. 

28 

 
 
 
 
 
 
 
 
 
                                                   
 
which it keeps alive (2) a cultural tradition of its own, including family and social customs 
and manners, often but not necessarily associated with religious observance. In addition 
to  those  two  essential  characteristics  the  following  characteristics  are,  in  my  opinion, 
relevant:  (3)  either  a  common  geographical  origin,  or  descent  from  a  small  number  of 
common  ancestors  (4)  a  common  language,  not  necessarily  peculiar  to  the  group  (5)  a 
common  literature  peculiar  to  the  group  (6)  a  common  religion  different  from  that  of 
neighbouring groups or from the general community surrounding it (7) being a minority or 
being  an  oppressed  or  a  dominant  group  within  a  larger  community...’95  Applying  this 
formula  the  High  Court  concluded  that  for  the  purposes  of  the  ESA  farmers  are  an 
occupational  group,  not  an  ethnic  group.  The  complainant  could  not,  therefore,  base  a 
discrimination complaint on his status as a member of the farming community.96 

Membership  of  the  Traveller  community  is  a  separate  ground.  ‘Traveller  community’  is 
defined as ‘the community of people commonly known and identified (both by themselves 
and others) as people with a shared history, culture and traditions including, historically a 
nomadic  way  of  life  on  the  island  of  Ireland.’97  Neither  legislation  nor  case  law  has 
definitively determined whether members of the Traveller community are a racial or ethnic 
minority for the purposes of Irish equality law. In several decisions the first instance forum 
for hearing such complaints found that Travellers could not invoke the race ground either 
because there was inadequate evidence that they constitute an ethnic group,98 or because 
it was considered that no additional protection would be afforded by advancing a complaint 
on both grounds.99 On 1 March 2017 the Taoiseach (Prime Minister) announced that the 
State  formally  recognises  Travellers  as  an  ethnic  group.100  According  to  the  Taoiseach’s 
statement,  the  policy  change  will  ‘create  no  new  individual,  constitutional  or  financial 
rights’.101  Nonetheless  this  development  should  affect  how  existing  provisions  are 
interpreted  and  in  particular  confirm  that  Travellers  constitute  an  ethnic  group  for  the 
purposes of Irish law that implements the Racial Equality Directive (and so are covered by 
the  race  ground  as  well  as  the  Traveller  community  ground  under  EEA  and  ESA).  The 
primary ESA case to reach the superior courts on appeal proceeded as a Traveller ground 
case  exclusively.102  The  Court  omitted  to  consider  the  application  of  the  Racial  Equality 
Directive,  even  though  the  amicus  submission of  the  Equality  Authority  argued  that  the 
Directive should be deployed in interpreting the ESA provisions on indirect discrimination 
as applying to the Traveller ground.103 It should now be clear that the Directive is applicable 

95   Per Lord Fraser in Mandla v Dowell Lee at p. 562. 
96   Mandla was applied by the WRC in finding that being a ‘Catholic Irish Republican’ did not constitute a 
different ethnicity in the context of the case: Cregan v Coillte Teoranta, DEC-E2016-086, 03.06.2016, 
https://www.workplacerelations.ie/en/Cases/2016/June/DEC-E2016-086.html.  

97   Section 2(1) EEA, Section 2(1) ESA. 
98   E.g. Mrs X (on behalf of her son, Mr Y) v A Post-Primary School, DEC-S2010-009, 02.02.2010, at 4.17, 

https://www.workplacerelations.ie/en/Cases/2010/February/DEC-S2010-009-Full-Case-Report.html; Mrs K 
(on behalf of her son) v A Primary School, DEC-S2011-003, 18.01.2011, at 4.15, 
https://www.workplacerelations.ie/en/Cases/2011/January/DEC-S2011-003-Full-Case-Report.html.  

99   E.g. Mrs Z (on behalf of her three children) v A National School, DEC-S2010-055, 30.12.2010, at 4.9, 
https://www.workplacerelations.ie/en/Cases/2010/December/DEC-S2010-055-Full-Case-Report.html.  

100 

http://oireachtasdebates.oireachtas.ie/debates%20authoring/debateswebpack.nsf/takes/dail201703010005
1?opendocument.  

101  The High Court considered the legal status of the policy change in a 2017 case. Justice Eagar held that the 
Taoiseach’s statement had ‘no legal effect’ and declined an application to amend the reliefs sought in a 
judicial review application to include inter alia discrimination on the basis of ethnicity. The applicant 
Traveller family had sought a series of orders directing the respondent County Council to fulfill the duties 
imposed on it under statute to provide accommodation. According to the Court, while it has been open to 
the applicants to ground their application on ethnic bias, they did not take that opportunity when applying 
for leave to apply for judicial review; the amendments sought would amount to an entirely different case to 
that which had been made by the applicants to date: Mongans v Clare County Council [2017] IEHC 709, 
27.10.2017, http://courts.ie/Judgments.nsf/0/BC93B5F638096D63802581E600315575. 

102  Stokes v Christian Brothers High School [2015] IESC 13: 

http://www.courts.ie/Judgments.nsf/597645521f07ac9a80256ef30048ca52/a09897a48211897980257df600
5a3c31?OpenDocument.  

103 

https://www.ihrec.ie/app/uploads/download/pdf/mary_stokes_v_christian_brothers_high_school_clonmel_o
rs__13_dec_2012_.pdf.  

29 

 
 
                                                   
 
in  all  cases  involving  Travellers  and  falling  within  its  material  scope.  Moreover,  the 
Workplace Relations Commission (the first instance forum for complaints under EEA and 
ESA) should reverse its stance when/if a dual ground complaint is lodged.104 It should also 
be open to members of the Traveller community to rely exclusively on the race ground.  

Religion or belief 

Under  ESA  and  EEA  the  ‘religion  ground’  applies  as  between  people  where  ‘one  has  a 
different religious belief from the other, or that one has a religious belief and the other has 
not’.105  ‘Religious  belief’  is  defined  as  ‘religious  background  or  outlook’.106  Religious 
background has been interpreted as affording protection to members of ‘a specific faith’, 
while  the  term  ‘outlook’  covers  ‘specific  attitudes  which  go  with  a  religious  belief’. 107 
National legislation does not refer to philosophical beliefs.  

According to the Labour Court protection extends to manifestations of beliefs  relating to 
religious teaching or observance. In an employment context, however, the right to engage 
in the practice or manifestation of religion could not be exercised ‘in a way that is disruptive 
of the business of the employer or constitutes an interference with the legitimate interests 
of the employer.’108 

It  appears  from  the  wording  of  the  provisions  concerning  discrimination  on  the  religion 
ground  that  the  belief in  question  must  be  a  religious  one  and  so  the  provisions  do  not 
adequately prohibit discrimination on the grounds of religion or belief. 

The Labour Court appears to accept that humanist beliefs may be covered, but apparently 
as constituting a lack of religious belief similar to atheism and not because Humanism could 
be considered a ‘religious belief’.109 In a 2016 decision the WRC rejected the complaint of 
an individual who was not permitted to wear a colander on his head for the purposes of a 
photograph  when  he  was  making  an  application  to  renew  his  driver’s  license.110  The 
complainant  argued  that  the  action  was  discriminatory  as  wearing  such  an  item  was  a 
feature of his religious beliefs as a Pastafarian and the respondent’s guidelines permitted 
individuals to wear head coverings for religious reasons. Having reviewed the definitions 
of religion and philosophical belief developed in case law under the UK Equality Act 2010 
the WRC determined that the belief system in question did not constitute a ‘religious belief’ 
for the purposes of the ESA. In reaching that conclusion the WRC referred to the fact that 
Pastafarianism uses ‘satire as an effective tool of communication’ and to the ‘occasional 
and selective nature’ of the complainant’s use of the colander. While the precise basis for 
the finding is not clear, the WRC’s reference to a definition of philosophical belief suggests 
that it may be prepared to interpret the provision broadly.  

Disability 

Under EEA and ESA the disability ground may be availed of where ‘one is a person with a 
disability and the other either is not or is a person with a different disability.’111 Disability 
is defined as: 

104  It is difficult to envisage how pursuing a dual ground complaint would materially affect a case since the 

material scope of both grounds are the same. Nonetheless it may be symbolically significant for individual 
complainants.  

105  Section 6(2)(e) EEA; Section 3(2)(e) ESA. 
106  Section 2(1) EEA; Section 2(1) ESA. 
107  Equality Tribunal, A Teacher v A National School, DEC-E2014-097, 30.12.2014, 

https://www.workplacerelations.ie/en/Cases/2014/December/DEC-E2014-097.html.  

108  Tipperary County Council v McAteer, EDA 3/2015, 30.01.2015, 

https://www.workplacerelations.ie/en/Cases/2015/January/EDA153.html. 

109  Labour Court, Department of Defence v Barrett, EET081, 20.05.2008, 
https://www.workplacerelations.ie/en/Cases/2008/May/EET081.html. 

110  Mulryan v Road Safety Authority, DEC-S2016-018, 09.03.2016, 

https://www.workplacerelations.ie/en/Cases/2016/March/DEC-S2016-018.html. 

111  Section 28(1)(f); Section 3(2)(g) ESA. 

30 

 
 
 
 
 
 
 
 
                                                   
 
‘(a) the total or partial absence of a person’s bodily or mental functions, including the 
absence of a part of a person’s body; 
(b) the presence in the body of organisms causing, or likely to cause, chronic disease 
or illness; 
(c) the malfunction, malformation or disfigurement of a part of a person’s body; 
(d) a condition or malfunction which results in a person learning differently from a 
person without the condition or malfunction; or  
(e)  a  condition,  illness  or  disease  which  affects  a  person’s  thought  processes, 
perception  of  reality,  emotions  or  judgment  or  which  results  in  disturbed 
behaviour.’112 

The definition of disability does not fully accord with the concept adopted by the CJEU in 
Skouboe Werge and Ring113 in that it does not explicitly refer to barriers that may hinder 
the  full  and  effective  societal  participation  of  a  person  with  disabilities.  In  practice, 
however,  when  applying  the  duty  to  reasonably  accommodate  adjudicators  require 
employers to comprehensively consider how work practices and the general employment 
environment  might  be  adjusted  so  as  to  eliminate  barriers  to  participation  in 
employment.114 The Irish definition of disability does not require a condition to last a long 
time in order to qualify as a disability,115 nor does it make the distinction between disability 
and  sickness/illness.116  It  covers  those  that  have  a  disability  at  present,  a  history  of  a 
disability, a future disability or an imputed disability. In accordance with the CJEU judgment 
in FOA (Kaltoft) v Billund117 ‘obesity’ is an imputed disability under the EEA.118  

Age 

The age ground is defined as referring to people of different ages,119 but in employment 
applies only in relation to persons above the maximum age at which a person is statutorily 
obliged to attend school.120 In access to goods and services it does not apply to persons 
aged under 18.121 

Sexual orientation 

This  is  defined  as  heterosexual,  homosexual  or  bisexual  orientation.122  Gay  and  lesbian 
people have pursued the vast majority of complaints on the ground under both ESA and 
EEA and the definition has not been interpreted as such. 

2.1.2  Multiple discrimination 

In Ireland, prohibition of multiple discrimination is not included in the law. 

112  Section 2(1) EEA; Section 2(1) ESA. 
113  Joined Cases C-335/11 and C-337/11. 
114  E.g. High Court, Nano Nagle School v Daly, [2015] IEHC 785, 11.12.2015, 

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/86867f31d053511280257f3000
5c002f?OpenDocument; Workplace Relations Commission, Doocey v Colso Fruit Enterprises Ltd., DEC-
E2016-109, 22.07.2016, https://www.workplacerelations.ie/en/Cases/2016/July/DEC-E2016-109.html; 
applying Skouboe Werge and Ring. 

115  See e.g. Labour Court, Cregg Labour Solutions v Cahill, EDA1634, 01.12.2016, 
http://www.workplacerelations.ie/en/Cases/2016/December/EDA1634.html. 

116  A person who has recovered from an illness and returns to employment following sick leave will not 

automatically have a disability as defined under EEA, such a finding rests on the facts: An Employee v A 
Cleaning Company, DEC-E2017-065, 04.09.2017, 
https://www.workplacerelations.ie/en/Cases/2017/September/DEC-E2017-065.html.  

117  [2014] CJEU Case C-354/13. 
118  Health Service Employee v The Health Service Executive, DEC-E2006-013, 10.04.2006, 

https://www.workplacerelations.ie/en/Cases/2006/April/DEC-E2006-013-Full-Case-Report.html. 

119  Section 6(1)(f) EEA; Section 3(2)(f) ESA. 
120  Section 6(3)(a) EEA. 
121  Section 3(3)(a) ESA. 
122  Section 2(1) EEA; Section 2(1) ESA.  

31 

 
 
 
 
 
 
 
 
 
                                                   
 
However, complaints may be referred on more than one ground. The legislation specifies 
that complaints lodged on several grounds must be investigated as a single case but that 
a decision must be made on each of the claims.123 In practice adjudicators deal with each 
ground in turn, requiring a case to be established separately on each ground.124 Even where 
a complaint succeeds on several discriminatory grounds the applicable compensation limits 
apply. 

Nonetheless,  in  a  limited  number  of  cases  adjudicators  have  recognised  multiple 
discrimination. In an equal pay case,  O’Brien v ComputerScope  Limited,125 the issues  of 
age and gender were treated together, perhaps because the actual comparators were both 
of  a  different  gender  and  a  different  age  to  the  complainant.  In  other  cases,  it  was 
determined  that  discrimination  on  one  ground  was  ‘compounded’  by  discrimination  on 
another ground.126 Lindberg v Press Photographers Association of Ireland127 is notable for 
a  finding  that  direct  discrimination  arose  from  a  combination  of  the  race  and  gender 
grounds. In the more recent case of Parris v Trinity College Dublin128 the Equality Tribunal 
accepted in principle that a prima facie case of indirect discrimination could arise from a 
combination of discriminatory grounds. However, on a request for a preliminary ruling the 
CJEU determined that where a national rule does not constitute discrimination either on 
the ground of sexual orientation or on the ground of age taken in isolation there is ‘no new 
category  of  discrimination  resulting  from  the  combination  of  more  than  one  of  those 
grounds’.129 

The  approach  to  multiple  discrimination  adopted  in  national  cases  is  exceptional  and 
arguably unlikely to be developed further absent legislative amendment. 

2.1.3  Assumed and associated discrimination 

a)  Discrimination by assumption 

In  Ireland,  the  following  national  law  (including  case  law)  prohibits  discrimination  on 
grounds  of  gender,  age,  race,  religion,  family  status,  disability,  civil  status,  sexual 
orientation, membership of the Traveller community, based on perception or assumption 
of what a person is: 

Section 6(1)(a)(iv) EEA:  

‘6(1) For the purposes of this Act and without prejudice to its provisions relating to 
discrimination occurring in particular circumstances, discrimination shall be taken to 
occur where -(a) 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  in 
subsection (2) (in this Act referred to as the ‘‘discriminatory grounds’’) which….(iv) 
is imputed to the person concerned.’ 

123  Section 79(1)(A) EEA; Section 25(1)(A) ESA. 
124  In Superquinn v Freeman (DEE0211, 14.11.2002) the Labour Court overturned an Equality Tribunal finding 
apparently on the basis that the first instance body had failed to require the complainant to establish a 
prima facie case of discrimination on each ground separately: 
https://www.workplacerelations.ie/en/Cases/2002/November/DEE0211.html. 

125  DEC-E2006-030, 01.08.2006, http://www.lrc.ie/en/Cases/2006/August/DEC-E2006-030-Full-Case-

Report.html. 

126  Luzak v Sales Placement Ltd, DEC-E2011-010, 24.01.2011, 

https://www.workplacerelations.ie/en/Cases/2011/January/DEC-E2011-010-Full-Case-Report.html; 
McDermott v Connacht Gold Cooperative Society Ltd, DEC-E2011-147, 04.08.2011, 
https://www.workplacerelations.ie/en/Cases/2011/August/DEC-E2011-147-Full-Case-Report.html.  

127  Equality Tribunal, DEC-S2011-041, 05.10.2011, 

https://www.workplacerelations.ie/en/Cases/2011/October/DEC-S2011-041-Full-Case-Report.html.  
128  DEC-P2013-004, 16.12.2013, https://www.workplacerelations.ie/en/Cases/2013/December/DEC-P2013-

004.html. 

129  Parris v Trinity College Dublin and others, [2016] EUECJ C-443/15, 24.12.2016, at 80, 

http://www.bailii.org/eu/cases/EUECJ/2016/C44315.html. 

32 

 
 
 
 
 
 
 
 
 
                                                   
 
Case law under EEA has established that people who are treated less favourably because 
of  their  body  mass  are  subjected  to  disability discrimination  by  assumption.130  Irish  law 
thereby recognises that obesity may constitute a disability, albeit in a different manner to 
the CJEU judgment in FOA (Kaltoft) v Billund.131 

Section 3(1)(iv) ESA: 

‘3(1) For the purposes of this Act, discrimination shall be taken to occur— (a) 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 in subsection (2) 
(in this Act referred to as the ‘‘discriminatory grounds’’) which … (iv) is imputed to 
the person concerned.’ 

An  Irish  citizen  who  was  born  in  Indonesia  lodged  a  successful  race  ground  complaint 
concerning correspondence issued by the Department of Social Protection.132 She was sent 
a series of letters seeking proof of her nationality in the context of accessing child benefit 
payments.  The  respondent  acknowledged  that  such  correspondence  was  issued  to  non-
Irish nationals as an anti-fraud measure. The WRC found that the Department’s practice 
was a clear form of direct discrimination in contravention of ESA and that the complainant 
was  subjected  to  less  favourable  treatment  based  on  an  assumption  as  to  her  race 
(nationality). An order for EUR 3 000 in compensation was made and the respondent was 
directed  to  review  its  fraud  detection  practices  for  the  child  benefit  scheme  to  ensure 
compliance with ESA. 

b)  Discrimination by association 

In  Ireland, the following national law (including case law) prohibits discrimination based 
on association with persons with particular characteristics: 

Section 6(1)(b) EEA: 

‘6(1) For the purposes of this Act and without prejudice to its provisions relating to 
discrimination occurring in particular circumstances, discrimination shall be taken to 
occur where  
(a)… 
(b) a person who is associated with another person  
(i) 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.’ 

Sexual orientation ground discrimination by association was established in a 2015 case.133 
The complainant teacher was discriminated against when a school principal made insulting 
comments about her son’s sexual orientation. A separate complaint of harassment on the 
religion  ground  was  also  sustained.  The  WRC  awarded  the  complainant  EUR  3  000  in 
compensation  for  the  breaches  of  the  EEA  and  also  directed  the  respondent  to  arrange 
training  for  the  school’s  board  of  management  and  all  staff  on  employment  policies, 
particularly in relation to equality, discrimination and harassment.  

Section 3(1)(b) ESA: 

‘3(1) For the purposes of this Act, discrimination shall be taken to occur 

130  Equality Tribunal, A Health Service Employee v Health Service Executive, DEC-E2006-013, 10.04.2006, 
https://www.workplacerelations.ie/en/Cases/2006/April/DEC-E2006-013-Full-Case-Report.html: The 
complainant was unlawfully denied access to a post when the respondent imputed a disability to her. 

131  [2014] CJEU Case C-354/13. 
132  Smith v Department of Social Protection, DEC-S2015-014, 20.10.2015, 

https://www.workplacerelations.ie/en/Cases/2015/October/DEC-S2015-014.html.  

133  Workplace Relations Commission, Marron v Board of Management of St Paul’s National School, DEC-E2015-
121, November 2015, https://www.workplacerelations.ie/en/Cases/2015/November/DEC-E2015-121.html. 

33 

 
 
 
 
 
 
 
 
 
 
 
                                                   
(a)… 
(b) where a person who is associated with another person 
(i) 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.’  

Several  complaints  of  discrimination  by  association  have  been  established  under  ESA, 
many on the Traveller community ground. For example in Battles v The Killarney Heights 
Hotel  the  complainant,  a  Traveller,  and  her  husband,  a  settled  person,  had  been 
discriminated  against  when  refused  service  in  a  hotel.  Mr  Battles’  claim  was  that  of 
discrimination by association under section 3(1)(b).134 Discrimination by association on the 
victimisation  ground  occurred  in  a  number  of  cases,  such  as  O’Brien  v  Dunnes  Stores, 
Tralee.135  A  man  was  refused  access  to  a  store  some  weeks  after  his  brother  had  been 
asked to leave while he was shopping there. The brother had notified the respondent in 
writing that he intended to lodge a discrimination complaint. When the complainant tried 
to  enter  the  shop  he  was  denied  access  by  a  security  guard  who  told  him  that  it  was 
because his brother “was taking a case to the court”. By suggesting that he was going to 
refer  a  complaint  the  man’s  brother  was  covered  by  the  victimisation  ground.  The 
victimisation  ground  protects  people  from  adverse  treatment  for  using  or  indicating  an 
intention  to  use  ESA.  In  being  denied  access  a  few  weeks  later  the  complainant  was 
therefore treated less favourably by virtue of his association with someone covered by a 
discriminatory ground. 

National law is in line with the judgment in Case C-303/06 Coleman v Attridge Law and 
Steve Law.136 

2.2  Direct discrimination (Article 2(2)(a)) 

a) 

Prohibition and definition of direct discrimination 

In Ireland, direct discrimination is prohibited in national law. It is defined under both the 
EEA  and  the  ESA  as  occurring  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 
discriminatory  grounds,  which  exists,  existed  but  no  longer  exists  or  may  exist  in  the 
future.137 

b) 

Justification of direct discrimination 

The law does not provide for any justification of direct discrimination. 

2.2.1  Situation testing 

a) 

Legal framework 

134  DEC-S2004-143/144, 11.10.2004, https://www.workplacerelations.ie/en/Cases/2004/October/DEC-S2004-
143-144-Full-Case-Report.html. See also Sweeney v The Ship Inn, Sligo, DEC-S2002-032; Dooley and 
Boyne v The Grand Hotel, DEC-S2002-015/016; Feighery v MacMathuna’s Pub, DEC-S2003-051; Kiernan v 
The Newbury Hotel, DEC-S2006-080; McDonagh v O’Keeffe, Ocean View Park, DEC-S2005-161/164 (all of 
which were successful claims of discrimination by association on the Traveller community ground).  

135  O’Brien v Dunnes Stores, Tralee, DEC-S2007-038, 30.03.2007, 

https://www.workplacerelations.ie/en/Cases/2007/March/DEC-S2007-038-Full-Case-Report.html. See also, 
Palmer v Connacht Hospitality (Group) Ltd. aka Connacht Accommodation Ltd t/a Active Fitness Leisure Club 
at the Connacht Hotel, DEC-S2015-009, 29.06.2015, 
https://www.workplacerelations.ie/en/Cases/2015/June/DEC-S2015-009.html.  

136  Coleman has been applied by adjudicators in several cases including: A Former Employee v A Financial 

Services Company, DEC-E2016-107, WRC, 19.07.2016, 
https://www.workplacerelations.ie/en/Cases/2016/July/DEC-E2016-107.html; A Worker v Two 
Respondents, EDA1129, 22.11.2011, Labour Court, 
https://www.workplacerelations.ie/en/Cases/2011/November/EDA1129.html. 

137  Section 6(1) EEA; Section 3(1) ESA. Both sections go on to prohibit discrimination by assumption and by 

association (see Chapter 2.1.3 of this report).  

34 

 
 
 
 
 
 
 
 
 
 
 
                                                   
 
In Ireland, situation testing is not explicitly permitted in national law. The law is silent. 

There are no procedural or other  rules prohibiting the use  of  situation testing. Situation 
testing does not occur with any regularity in the Irish context.  

Anecdotal evidence suggests that the Irish superior courts would be hostile to this form of 
evidence,  seeing  it  as  a  form  of  entrapment.138  There  is,  therefore,  a  reluctance  to  use 
situation  testing.  Thus  it  would  appear  that  for  the  present  developments  in  other 
jurisdictions are not impacting on the position in Irish courts. 

b) 

Practice 

In Ireland, situation testing is not generally used in practice. 

A  form  of  situation  testing  seems  to  have  been  used  in  an  interrelated  set  of  Equality 
Tribunal cases.139 The four complainants were members of the Traveller community and 
were refused entry to  seven different licensed premises in the course of one evening.  A 
member of the settled community accompanied them. She had instigated the night out in 
part  with  a  view  to  seeing  whether  Travellers  experienced  discrimination.  The  Equality 
Tribunal noted that she ‘played a significant role in encouraging the complainants to test 
their rights’140 but nonetheless upheld the complaint of discrimination. However, it is not 
known if such evidence would be accepted in the courts. 

Situation testing was used in one study commissioned by the Equality Authority in 2009 to 
investigate discrimination in access to employment on grounds of race or ethnic origin.141 

2.3  Indirect discrimination (Article 2(2)(b)) 

a) 

Prohibition and definition of indirect discrimination 

In Ireland, indirect discrimination is prohibited in national law (Sections 31 and 22 EEA; 
Section  3(1)(c)  ESA).  It  is  defined  as  occurring  where  an  apparently  neutral  provision 
would put a person belonging to a protected group at a particular disadvantage compared 
with other employees of their employer, or where an apparently neutral provision  would 
put a person belonging to a protected group at a particular disadvantage compared with 
other persons.  

b) 

Justification test for indirect discrimination 

Indirect  discrimination  may  be  justified  if  the  provision  is  objectively  justified  by  a 
legitimate aim and the means of achieving that aim are appropriate and necessary. The 
justification test is compatible with the directives. 

c) 

Comparison in relation to age discrimination 

The legislation simply specifies that the comparators for age ground discrimination should 
be of different ages.142  

138  This issue has yet to be addressed in a court action. 
139  Delaney v The Harp Bar, DEC-S2002-53/56; Delaney and others v The Kilford Arms, DEC-S2002-033/036; 
Delaney and others v Shems Bar, DEC-S2002-037/040; Delaney and others v Biddy Earlys, DEC-S2002-
041/044; Delaney and others v Quays Bar (River Court Hotel), DEC-S2002-045/048; Delaney and others v 
Matt the Millars, DEC-S2002-049/052; Delaney and others v Paris Texas Bar, DEC-S2002-057/060. 

140  Delaney and others v Shems Bar, DEC-S2002-037/040, at 5.4, 31.05.2002, 

http://www.lrc.ie/en/Cases/2002/May/DEC-S2002-037-040.html. 

141  Equality Authority (2009) Discrimination in Recruitment: Evidence from a Field Experiment. Available at: 

https://www.ihrec.ie/app/uploads/download/pdf/discrimination_in_recruitment.pdf. 

142  Section 6(1)(f), section 28(1)(e) EEA; Section 3(2)(f) ESA. 

35 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                   
2.3.1  Statistical evidence 

a) 

Legal framework 

In Ireland, there are national rules permitting data collection. 

In  Ireland, statistical evidence is permitted by national law in order to establish indirect 
discrimination and design positive action measures on all five grounds: Sections 19(4)(c) 
and 22(1A) EEA and Section 3(3A) ESA. It is admissible as evidence in court. Statistical 
data do not appear to be used in any coherent manner to design positive action measures, 
with  the  exception  of  the  disability  ground  in  employment143  and  in  order  to  address 
disadvantage in access to third level education.144 According to IHREC the lack of relevant 
data is an impediment to evidence-based action on equality in the workplace.145 

The  Data  Protection  Acts  1988-2003  permit  employers,  education  providers,  health 
authorities and other public bodies to keep records of their workforce in respect of their 
ethnic or racial origin, disability, religion or belief or sexual orientation of their workers.146 
Data relating to these grounds would be classified as sensitive data, and certain criteria 
apply in the processing of this form of personal data.147 The primary purpose of amending 
the Data Protection Act 1988 by means of the Data Protection (Amendment) Act 2003 was 
to give effect to the Provisions of Directive 95/46/EC of the European Parliament and of 
the  Council.148  Therefore,  European  provisions  clearly  influence  the  content  of  the  data 
protection laws. On a national level, there is a periodic census of population whereby data 
is gathered every five years. The last census took place in 2016. It collected data in respect 
of nationality, religion, age, marital status and ethnic origin, including membership of the 
Irish  Traveller  community.  A  question  on  disability  was  included.  While  there  were  no 
questions  that  directly  address  sexual  orientation,  respondents  could  designate  their 
relationship  to  other  persons  in  the  household  as  being  a  same-sex  partner.  These 
questions require the individual to self-identify their characteristics. The Central Statistics 
Office released its analyses of that data over the course of 2017.149  

b) 

Practice 

In  Ireland,  statistical  evidence  in  order  to  establish  indirect  discrimination  is  used  in 
practice. There is no reluctance to use statistical data as evidence in court150 but there has 
been a tendency to accept that it is often not necessary to use it.  

In  a  2002  decision  the  Labour  Court  emphasised  that  its  procedures  are  intended  to 
facilitate parties whether legally represented or not, and that it would be alien to the ethos 
of  the  Court  to  oblige  parties  to  undertake  the  inconvenience  and  expense  involved  in 
producing  elaborate  statistical  evidence  to  prove  matters  which  are  obvious  to  the 

143  Government of Ireland (2015) Comprehensive Employment Strategy for People with Disabilities 2015-2024, 

available at: 
http://www.justice.ie/en/JELR/Pages/Comprehensive_Employment_Strategy_for_People_with_Disabilities_(
2015_2024).  

144  Higher Education Authority (2015) National Plan for Equity of Access to Higher Education 2015–2019, 

available at: 
http://hea.ie/assets/uploads/2017/04/national_plan_for_equity_of_access_to_higher_education_2015-
2019_single_page_version_01.pdf. 

145  https://www.ihrec.ie/guides-and-tools/human-rights-and-equality-for-employers/building-a-culture-of-

human-rights-and-equality-in-the-workplace/. 

146  Ireland, Data Protection Act 1988, 13.07.1998; Ireland, Data Protection (Amendment) Act 2003, 

10.04.2003. Revised text available at: http://revisedacts.lawreform.ie/eli/1988/act/25/revised/en/html.  

147  Section 2(b) Data Protection Acts 1988-2003.  
148  Ireland, Data Protection (Amendment) Act 2003, 10.04.2003, 

http://www.irishstatutebook.ie/eli/2003/act/6/enacted/en/html.  

149  http://www.cso.ie/en/census/census2016reports/. 
150  The Labour Court has noted that statistics ‘are frequently used as an evidential tool in seeking to establish a 

prima facie case of indirect discrimination’: The Nationalist & Leinster Times Ltd v Ashmore, EDA133, 
21.01.2013, https://www.workplacerelations.ie/en/Cases/2013/January/EDA133.html. 

36 

 
 
 
 
 
 
 
 
                                                   
 
members of the Court by drawing on their own knowledge and experience.151 Adjudicators 
have consistently adopted this approach relying on matters within their specialist expertise 
to ease the evidential burden associated with indirect discrimination complaints.152  

The Labour Court emphasises that statistics are not decisive in themselves, but one factor 
that  may  be  taken  into  account  in  determining  whether  a  measure  is  indirectly 
discriminatory.153 

In  a  2015  judgment  the  Supreme  Court  considered  the  interpretation  of  indirect 
discrimination under ESA for the first time, and held that statistical analysis is required in 
order  to  establish  that  a  person  belonging  to  a  protected  group  is  at  a  ‘particular 
disadvantage’ compared with others.154 The case was taken on the Traveller community 
ground and the Court made no reference to EU law on the burden of proof. To date the 
judgment  has  not  impacted  on  decisions  issued  by  the  first  instance  forum  for 
discrimination complaints.155 It remains to be seen whether it will over time. The Equality 
(Miscellaneous Provisions) Act 2015 effected a slight change to the wording of the national 
indirect  discrimination  provisions  that  may  militate  against  a  shift  towards  ‘requiring’ 
statistical evidence.156 Formerly ESA, EEA and the Pensions Acts applied to a provision that 
‘puts’ a person at a particular disadvantage. In line with the wording of the directives the 
definitions  now  refer  to  provisions  that  ‘would put’  persons  at  a  particular  disadvantage 
compared with other persons.157  

2.4  Harassment (Article 2(3)) 

a) 

Prohibition and definition of harassment 

In Ireland, harassment is prohibited in national law. It is defined. 

Section 14(A) EEA prohibits harassment in employment on grounds of gender, age, race, 
religion, family status, disability,  civil status, sexual orientation, and membership of the 
Traveller community. It is defined as any unwanted conduct related to any discriminatory 
ground  which  has  the  purpose  or  effect  of  violating  a  person’s  dignity  and  creating  an 
intimidating,  hostile,  degrading,  humiliating  or  offensive  environment  for  the  person.158 
This conduct can include acts, requests, spoken words, gestures or the production, display 
or circulation of written words, pictures or other material.  

151  Labour Court, NBK Designs Ltd. v Inoue [2003] ELR 98, 25.11.2002, 

https://www.workplacerelations.ie/en/Cases/2002/November/EED0212.html. 

152  E.g. Equality Tribunal, Mr A v Department of Social Protection, DEC-S2013-010, 11.10.2013, 

https://www.workplacerelations.ie/en/Cases/2013/October/DEC-S2013-010.html; Workplace Relations 
Commission, An Employee v An Employer, DEC-E2016-080, May 2016, 
https://www.workplacerelations.ie/en/Cases/2016/June/DEC-E2016-080.html. 

153  The Nationalist & Leinster Times Ltd v Ashmore, EDA133, 21.01.2013, 

https://www.workplacerelations.ie/en/Cases/2013/January/EDA133.html. 

154  Supreme Court, Stokes v Christian Brothers High School, Clonmel, [2015] IESC 13, 24.02.2015, 

http://www.courts.ie/Judgments.nsf/597645521f07ac9a80256ef30048ca52/a09897a48211897980257df600
5a3c31?OpenDocument. 

155  The primary case in which Stokes appeared to affect the evidential burden is discussed in Chapter 3.2.8 - 

Education. 

156  Ireland, Equality (Miscellaneous Provisions) Act 2015, 10.12.2015, 

http://www.irishstatutebook.ie/eli/2015/act/43/enacted/en/print.html. The 2015 Act effected a number of 
changes to Irish anti-discrimination law, many of which sought to align national law with the requirements 
of the EU anti-discrimination directives. It amended the EEA by introducing an objective justification 
requirement for both mandatory retirement ages and offers of fixed term contracts to persons over the 
compulsory retirement age (see Chapter 4.7 of this report). The religious ethos exception provided for 
under Section 37 EEA was altered substantially (see Chapter 4.2 of this report). Individuals may now lodge 
EEA complaints about discriminatory advertising; formerly such cases could be taken solely by IHREC. 
Further, a new housing assistance ground was included under ESA, enabling persons in receipt of various 
social protection payments to challenge discrimination in the context of accommodation provision.  

157  Section 3(1)(c) ESA; Section 19(4)(a) and Section 22(1)(a) EEA; Section 68 Pensions Act 1990. 
158  Section 14A(7)(a) EEA. 

37 

 
 
 
 
 
 
 
 
                                                   
 
Section 11 ESA prohibits harassment in access to goods and services on grounds of gender, 
age,  race,  religion,  family  status,  disability,  civil  status,  sexual  orientation,  and 
membership of the Traveller community. It is defined as unwanted conduct related to any 
discriminatory grounds which has the purpose or effect of violating a person’s dignity and 
creating an intimidating, hostile, degrading, humiliating or offensive environment for the 
person.159  This  conduct  can  include  acts,  requests,  spoken  words,  gestures  or  the 
production, display or circulation of written words, pictures or other material. 

Various  forms  of  communication  have  been  the  subject  of  successful  harassment 
complaints  under  ESA  and  EEA,  including  ‘spoken  words’,160  text  messages161  and 
graffiti.162 In a 2017 case, disability ground harassment took place when a store manager 
recorded  and  shared,  with  other  members  of  staff,  video  footage  of  the  complainant 
carrying out his work duties. EUR 7 500 in compensation was awarded.163 A complainant 
does not need to demonstrate that she or he falls under one of the discriminatory grounds 
since it is sufficient that the impugned conduct is ‘related to’ a ground. Thus, in  Kane v 
Eirjet  Ltd.164  a  non-disabled  woman  and  her  disabled  son  were  both  subjected  to 
harassment when airline staff dealt with them in an offensive manner.  

In  Ireland,  harassment  explicitly  constitutes  a  form  of  discrimination  in  employment 
(Section 14A EEA) but does not explicitly constitute a form of discrimination in access to 
goods and services (Section 11 ESA). 

b) 

Scope of liability for harassment 

Where harassment is perpetrated by an employee, in Ireland the employer is liable. 

Section 14A EEA provides: 

‘14A(1) For the purposes of this Act, where  
(a) an employee (in this section referred to as ‘‘the victim’’) is harassed or sexually 
harassed either at a place where the employee is employed (in this section referred 
to  as  ‘‘the  workplace’’)  or  otherwise  in  the  course  of  his  or  her  employment  by  a 
person who is  
(i) employed at that place or by the same employer, (ii) the victim’s employer, or  
(iii) a client, customer,  or other business  contact of the victim’s employer and the 
circumstances  of  the  harassment  are  such  that  the  employer  ought  reasonably  to 
have taken steps to prevent it, or 

(b) without prejudice to the generality of paragraph (a)  
(i) such harassment has occurred, and (ii) either  
(I) the victim is treated differently in the workplace or otherwise in the course of his 
or her employment by reason of rejecting or accepting the harassment, or 
(II) it could reasonably be anticipated that he or she would be so treated, 
the  harassment  or  sexual  harassment  constitutes  discrimination  by  the  victim’s 
employer in relation to the victim’s conditions of employment.’ 

159  Section 11 (5)(a) ESA. 
160  E.g. Muresan v G&C Power Limited t/a Dominos Waterford, DEC-E2017-040, 31.05.2017, 

https://www.workplacerelations.ie/en/Cases/2017/May/DEC-E2017-040.html.  

161  E.g. Merriman v O'Flaherty's Ltd. t/a Reads Print Design and Photocopying Bureau, DEC-S2011-049, 

08.11.2011, https://www.workplacerelations.ie/en/Cases/2011/November/DEC-S2011-049-Full-Case-
Report.html. 

162  Labour Court, Ely Property Group Ltd. v Boyle, EDA0920, 15.10.2009, 

https://www.workplacerelations.ie/en/Cases/2009/October/EDA0920.html. 

163  An Employee v A Chain of Retail Stores, ADJ-00003084, 03.05.2017, 

https://www.workplacerelations.ie/en/Cases/2017/May/ADJ-00003084.html. 

164  DEC-S2008-026, 18.04.2008, https://www.workplacerelations.ie/en/Cases/2008/April/DEC-S2008-026-Full-

Case-Report.html.  

38 

 
 
 
 
 
 
 
 
 
                                                   
 
In a 2016 decision the Labour Court reaffirmed that the provision applies to conduct that 
occurs  outside  the  workplace.165  Moreover,  there  is  no  requirement  to  show  that  the 
perpetrator was acting in the course, or within the scope, of their employment. The proper 
test is whether the victim experienced harassment in the course of their employment. The 
conduct  in  issue  included  an  abusive  message  posted  by  an  employee  on  social  media, 
which  was  directed  at  the  complainant  in  his  capacity  as  a  worker  representative. 
Consequently, Section 14A of the Acts applied and the employer was responsible. However, 
the employer was entitled to avail of the statutory defence set out under Section 14A(2). 
The defence applies where the employer can show that it took reasonably practicable steps 
to  prevent  harassment.  Employers  must  demonstrate,  at  a  minimum,  that  an  anti-
harassment policy was in place before the harassment occurred and that the policy was 
effectively  communicated  to  all  employees.  Additionally,  managers  should  receive 
appropriate  training.166  In  the  instant  case,  such  an  approach  had  been  adopted,  an 
investigation was undertaken and a disciplinary sanction was imposed. 

An employer could not avail of the defence in a 2017 case on race-ground harassment. A 
complainant of Moldovan national origin was advised by her manager that racist comments 
made by co-workers could only be investigated on foot of a written complaint. She did not 
submit such a document. The Court found that the respondent did not have an adequate 
anti-discrimination policy and associated complaints procedure in place:  

‘It is not, in the  Court’s view, best practice for an  employer to seek to deal with 
alleged infringements of the Employment Equality Act 1998 by directing employees 
to a basic Grievance Policy or a general Bullying Policy. Furthermore, it is no defence 
for an employer who has failed to investigate complaints of the magnitude raised 
by the Complainant in this case to seek to justify their inaction on the basis that 
the complaints were not presented to them in written format. The Court expects an 
employer to be proactive and, if necessary, to take a statement of the complaint(s) 
from the alleged target of the discriminatory behaviour.’167 

Liability for the conduct of an employer’s client was established in the 2017 case of Rusu 
v  Senture  Security  Ltd.168  The  complainant,  a  Romanian  national,  was  employed  as  a 
security guard and assigned to work at a hotel that had contracted with the respondent to 
provide security services. The owner of the hotel approached the complainant one evening 
and said that ‘All Romanians are thieves and liars.’  When the complainant reported this 
incident, Senture Security instructed him to desist from work at the premises, and advised 
him that it would find another suitable work location. However, it subsequently failed to 
redeploy the complainant. The employer could not rely on the defence under section 14A(2) 
since it failed to take any steps to prevent or remedy the harassment. 

Service providers (e.g. landlords, schools, hospitals) are liable for harassment that occurs 
in the provision of the service. Under the vicarious liability principle set out under Section 
42  ESA  service  providers  are  legally  responsible  for  the  discriminatory  actions  of  their 
employees and agents. Section 11(2) ESA further obliges service providers to also protect 
people  from harassment or  sexual harassment committed by a third  party, subject to a 
defence.  This  would  include  liability  for  harassment  perpetrated  by  e.g.  other  tenants, 
clients or customers. A statutory defence is available if the service provider took such steps 
as were reasonably practicable to prevent harassment (Section 11(3)). 

165  Dublin Bus v McCamley, EDA 164, 18.02.2016, 

https://www.workplacerelations.ie/en/Cases/2016/February/EDA164.html; See further, S.I. No. 208/2012 - 
Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012, 
http://www.irishstatutebook.ie/eli/2012/si/208/made/en/print. 

166  See further, A Store v A Worker, EDA 163, 28.01.2016, 

https://www.workplacerelations.ie/en/Cases/2016/January/EDA163.html. 

167  Johnstown Garden Centre v Berghie, EDA1720, 10.07.2017, 

https://www.workplacerelations.ie/en/Cases/2017/July/EDA1720.html.  

168  Workplace Relations Commission, DEC-E2017-056, 24.07.2017, 

https://www.workplacerelations.ie/en/Cases/2017/July/DEC-E2017-056.html. 

39 

 
 
 
 
 
                                                   
The equality legislation does not provide for liability on the part of the individual harasser. 
There  is  no  specific  liability  for  trade  unions  or  professional  associations  other  than  as 
employer or service provider. 

2.5  Instructions to discriminate (Article 2(4)) 

a) 

Prohibition of instructions to discriminate 

In Ireland, instructions to discriminate are prohibited in national law. Instructions are not 
defined. 

Section  2(1)  EEA  specifies  that  ‘discrimination  includes  the  issue  of  an  instruction  to 
discriminate and, in Part V and VI, includes prohibited conduct within the meaning of the 
Equal Status Acts 2000.’ Part V and VI  EEA set out the functions  and powers of  IHREC. 
This  section  thus  ensures  that  IHREC  can  take  or  support  proceedings  involving  an 
instruction to discriminate.  

Section  14  EEA  provides  that  a  person  who  ‘procures  or  attempts  to  procure’  another 
person  to  engage  in  discrimination  or  victimisation  shall  be  guilty  of  an  offence.  This 
criminal offence, which would cover at least some forms of instruction, is actionable in the 
District Court. Proceedings may be instituted by the Workplace Relations Commission or 
by IHREC.169  

ESA does not explicitly prohibit the issuing of instructions to discriminate, although it might 
be  argued  that  the  prohibition  on  procurement  or  attempted  procurement  of  ‘prohibited 
conduct’ under Section 13 includes the issuing of instructions. ‘Prohibited conduct’ means 
discrimination against, or sexual harassment or harassment of, or permitting the sexual 
harassment  or  harassment  of  a  person  (Section  2(1)).  Section  13  is  not  confined  to 
employees of the procurer, and so it covers third parties including agents. Procurement is 
a  criminal  offence  and  proceedings  may  only  be  instigated  by  the  Workplace  Relations 
Commission or by IHREC. It appears that no such proceedings have been initiated.  

In Ireland, instructions explicitly constitute a form of discrimination under the EEA (Section 
2(1)). 

b) 

Scope of liability for instructions to discriminate 

In Ireland, the instructor is liable. 

Equality legislation does not explicitly provide for liability by the individual discriminator or 
instructed person, with the exception of Section 10 EEA and Section 12 ESA, which enable 
liability to be imposed on a person who displays or publishes discriminatory advertising. 
The  generic  provisions  on  vicarious  liability  under  EEA  and  ESA  apply  to  instructions  to 
discriminate and render employers and service providers liable for instructions issued by 
employees and agents (subject to a defence).  

Employers  and  service  providers  (e.g.  landlords,  schools,  hospitals)  are  liable  for 
discrimination, including by instruction, perpetrated by employees. The legislation specifies 
that anything done by a person in the course of his or her employment shall be treated as 
done  also  by  that  person’s  employer,  whether  or  not  it  was  done  with  the  employee’s 
knowledge or approval.170 Consequently, an employer would be liable for an instruction to 

169  Section 100 EEA. The Supreme Court concluded that the provision in the Employment Equality Bill 1996 was 
not repugnant to the Constitution. The Court noted that it would have to be proved in the ordinary way that 
the person in question had an intention to commit the offence: Article 26 of the Constitution and the 
Employment Equality Bill 1996, Re [1997] 2 IR 321 at 369. 

170  Section 15(1) EEA, section 42(1) ESA. 

40 

 
 
 
 
 
 
 
 
 
 
 
 
 
                                                   
 
discriminate issued by a manager, for example. An employer can evade liability by proving 
that it took such steps as were reasonably practicable to prevent the employee—(a) from 
doing  that  act,  or  (b)  from  doing  in  the  course  of  his  or  her  employment  acts  of  that 
description.171  

The  provisions  on  vicarious  liability  for  agents  make  it  clear  that  persons  cannot 
discriminate through an intermediary. Both ESA and EEA specify that: ‘Anything done by 
a person as agent for another person, with the authority (whether express or implied and 
whether precedent or subsequent) of that other person shall, in any proceedings brought 
under this Act, be treated for the purposes of this Act as done also by that other person.’172 
Where a principal directs or instructs an agent to engage in prohibited conduct both parties 
can potentially be found liable.  However,  since the  provisions that outlaw discrimination 
under  EEA  are  addressed  to  employers,  the  respondent  (and  hence  liable  person)  will 
generally be the employer.173 In a case the Labour Court held that where a prospective 
employer is instructed by another not to employ a particular person, and that instruction 
is tainted with discrimination, liability could not be avoided by pleading that the instruction 
was accepted without question. The Court found that under the terms of Section 8 of the 
Act,  which  provides  that  an  employer  shall  not  discriminate  against  an  employee  or 
prospective employee and that a provider of agency work shall not discriminate against an 
agency  worker,  both  the  agency  and  the  instructing  company  could  potentially  be  held 
liable as ‘concurrent wrongdoers’.174 

Under  ESA  service  providers  have  been  found  liable  for  implementing  discriminatory 
policies set by other entities such insurance underwriters, tour operators, and landlords. 
Some of the impugned measures took the form of instructions to discriminate, such as a 
landlord’s  explicit  direction  to  a  letting  agent  not  to  accept  tenants  in  receipt  of  rent 
allowance,175 and an insurance company’s instruction not to provide persons with epilepsy 
access to certain cosmetic treatments.176  

Liability may be imposed on a person for the offences of procuring or attempting to procure 
discrimination (Section 14 EEA; Section 13 ESA). In the absence of case law its parameters 
are unclear. 

2.6  Reasonable  accommodation  duties  (Article  2(2)(b)(ii)  and  Article  5 

Directive 2000/78) 

a) 

Implementation  of  the  duty  to  provide  reasonable  accommodation  for  people  with 
disabilities in the area of employment 

In Ireland, the duty on employers to provide reasonable accommodation for people with 
disabilities is included in the law. It is defined. 

Section  16(3)(a)  EEA  provides  that  ‘a  person  who  has  a  disability  is  fully  competent  to 
undertake,  and  fully  capable  of  undertaking,  any  duties  if  the  person  would  be  so  fully 
competent  and  capable  on  reasonable  accommodation  (in  this  subsection  referred  to  as 
‘appropriate  measures’)  being  provided  by  the  person’s  employer.’  Section  16(3)(b) 
specifies: 

171  Section 15(3) EEA, section 42(3) ESA. 
172  Section 15(2) EEA, Section 42(2) ESA. 
173  The WRC accepted that an equal pay case could proceed against the Department of Education and Skills 
even though it was not the complainant teachers’ employer since the Department was responsible for 
setting teachers’ remuneration: Horgan and Keegan v Department of Education and Skills and others, DEC-
E2016-041, 04.03.2016, https://www.workplacerelations.ie/en/Cases/2016/March/DEC-E2016-041.html.  

174  Labour Court, A Worker v Two Respondents, EDA1129, 22.11.2011, 

https://www.workplacerelations.ie/en/Cases/2011/November/EDA1129.html.  

175  A Service User v A Letting Agency, ADJ-00004073, 20.03.2017, 

https://www.workplacerelations.ie/en/Cases/2017/March/ADJ-00004073.html. 

176  Forde v The Body Clinic, DEC-S2007-085, 28.11.2017, 

https://www.workplacerelations.ie/en/Cases/2007/November/DEC-S2007-085-Full-Case-Report.html. 

41 

 
 
 
 
 
 
 
 
                                                   
‘The employer shall take appropriate measures, where needed in a particular case, 
to enable a person who has a disability 
(i) to have access to employment,  
(ii) to participate or advance in employment, or  
(iii) to undergo training,  
unless the measures would impose a disproportionate burden on the employer.’ 

‘Appropriate measures’ are defined under Section 16(4): 

‘(a)…effective and practical measures, where needed in a particular case, to adapt 
the employer’s place of business to the disability concerned, 
(b) without prejudice to the generality of paragraph (a), includes the adaptation of 
premises  and  equipment,  patterns  of  working  time,  distribution  of  tasks  or  the 
provision of training or integration resources, but 
(c) does not include any treatment, facility or thing that the person might ordinarily 
or reasonably provide for himself or herself.’ 

Section  16  does  not  refer  to  the  term  ‘essential  functions’  used  in  Paragraph  17  of  the 
preamble of the Employment Equality Directive. However, in practice courts do incorporate 
the  concept  of  ‘essential  functions’  into  the  obligation  to  reasonably  accommodate  as 
confirmed in a 2015 High Court judgment.177 

The requirement to provide reasonable accommodation is a specific cause of action.178 

b) 

Practice 

Under Sections 16(3)(b)-(c) EEA the employer must take appropriate measures to enable 
a  person  with  a  disability  to  have  access  to  employment,  participate  or  advance  in 
employment, or undergo training, unless the measures would impose a disproportionate 
burden  on  the  employer.  In  determining  whether  the  measures  would  impose  a 
disproportionate burden account shall be taken of the financial and other costs entailed, 
the scale and financial resources of the employer’s business, and the possibility of obtaining 
public funding or other assistance. 

Decisions  emphasise  that  the  duty  is  a  proactive  one,  which  requires  employers  to 
undertake a two-stage inquiry. They must carry out a full assessment of the employee’s 
needs  and  then  consider  the  measures  necessary  to  accommodate  them,  which  may 
include  relieving  an  employee  of  certain  tasks.179  In  the  event  that  reasonable 
accommodation cannot be devised which would render an employee fully competent and 
capable of undertaking the duties attached to a position, there is no obligation to retain or 
promote  that  individual.180  Adjudicators  routinely  have  regard  to  the  scale  and  financial 
resources of employers’ businesses in assessing the extent of the duty.  In one case, for 
example, the respondent estimated the cost of providing a disabled toilet in the store where 
the complainant worked at EUR 22 000. The Labour Court found that since the respondent 
was a large multi-national company expenditure of EUR 22 000 ‘could not by any standard 

177  High Court, Nano Nagle School v Daly, [2015] IEHC 785, 11.12.2015, 

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/86867f31d053511280257f3000
5c002f?OpenDocument. 

178  Labour Court, Wojcik v Sodexo Ireland Ltd, EDA1517, 23.11.2015, 

https://www.workplacerelations.ie:443/en/Cases/2015/November/EDA1517.html. 

179  See e.g. An Employee v A Multi-National Retailer, DEC-E2016-021, 28.01.2016, 

https://www.workplacerelations.ie/en/Cases/2016/January/DEC-E2016-021.html; Ms A v A Retail Business, 
DEC-E2017-078, 05.10.2017, https://www.workplacerelations.ie/en/Cases/2017/October/DEC-E2017-
078%20.html.  

180  Section 16(1)(b) EEA. See e.g. Iarnród Éireann v Flanagan, EDA1716, 06.06.2017, 

https://www.workplacerelations.ie/en/Cases/2017/June/EDA1716.html. 

42 

 
 
 
 
 
 
 
 
 
                                                   
 
be regarded as imposing a disproportionate burden in vindicating the complainant’s right 
to work on the same basis as others’.181  

c) 

Definition of disability and non-discrimination protection 

The  definition  of  disability  for  reasonable  accommodation  is  the  same  as  the  one  for 
claiming protection from discrimination in general. 

d)  Duties  to  provide  reasonable  accommodation  in  areas  other  than  employment  for 

people with disabilities 

In Ireland, there is a duty to provide reasonable accommodation for people with disabilities 
outside the employment field. 

Section 4 ESA provides: 

‘(1)  For  the  purposes  of  this  Act  discrimination  includes  a  refusal  or  failure  by  the 
provider  of  a  service  to  do  all  that  is  reasonable  to  accommodate  the  needs  of  a 
person  with  a  disability  by  providing  special  treatment  or  facilities,  if without  such 
special treatment or facilities it would be impossible or unduly difficult for the person 
to avail himself or herself of the service. 

(2)  A  refusal  or  failure  to  provide  the  special  treatment  or  facilities  to  which 
subsection  (1)  refers  shall  not  be  deemed  reasonable  unless  such  provision  would 
give  rise  to  a  cost,  other  than  a  nominal  cost,  to  the  provider  of  the  service  in 
question.’ 

The ‘special treatment or facilities’ which the goods or service provider must provide are 
not  defined.  Owing  to  a  Supreme  Court  judgment  the  duty  is  subject  to  a  nominal  cost 
threshold,  which  is  less  onerous  than  the  ‘disproportionate  burden’  standard  applicable 
under the EEA.182  

A  service  provider  must  ‘do  all  that  is  reasonable’  in  providing  treatment  or  facilities, 
meaning that it must address a range of options and case law establishes that in order to 
comply with its obligations the service provider must engage in a process of consultation 
with  the  disabled  person.  However,  the  term  ‘reasonable’  also  limits  the  duty,  in  that  a 
service  provider  is  not  expected  to  undertake  very  burdensome  measures.183  In  other 
words, restrictions are placed on the obligation both by the term ‘reasonable’ and by the 
nominal  cost  ceiling.  The  extent  of  a  service  provider’s  duties  depends  on  its  scale  and 
resources,  and  on  whether  grants  are  available.184  In  that  regard,  adjudicators  tend  to 
adopt a more stringent approach to the duties of public bodies such as housing authorities. 
A Complainant v A Local Authority185 addressed grant aid to fund an extension to a house 
in order to meet the needs of an autistic boy. The nominal cost defence could not avail the 
respondent because it provided no evidence as to how much the extension would cost and 
any  such  work  would  only  amount  to  a  small  proportion  of  the  overall  housing  budget 
funded by Government. In a 2017 case the WRC found that a requirement to give 24 hours 
notice in order to guarantee access to an accessible public transport bus did not contravene 
the  reasonable  accommodation  duty.  Given  the  factors  involved  in  ensuring  wheelchair 

181  Labour Court, A Multinational Employer v A Worker, EDA1435, 10.11.2014, 

https://www.workplacerelations.ie/en/Cases/2014/November/EDA1435.html. 

182  Article 26 of the Constitution and the Employment Equality Bill 1996, Re [1997] 2 IR 321, 15.05.1997. 
183  WRC, A Service User v A Forum, DEC-S2016-023, 18.04.2016, 

https://www.workplacerelations.ie/en/Cases/2016/April/DEC-S2016-023.html. 
184  E.g. A Complainant v Marks and Spencer PLC, DEC-S2009-005, 22.01.2009, at 5.6, 

https://www.workplacerelations.ie/en/Cases/2009/January/DEC-S2009-005-Full-Case-Report.html. 
185  DEC-S2007-049, https://www.workplacerelations.ie/en/Cases/2007/May/DEC-S2007-049-Full-Case-

Report.html; See also, Ms D (a tenant) v A Local Authority, DEC-S2007-057, 
https://www.workplacerelations.ie/en/Cases/2007/June/DEC-S2007-057-Full-Case-Report.html. 

43 

 
 
 
 
 
 
 
 
 
 
                                                   
 
access  (staff  training,  adaption  of  vehicles  and  ground  infrastructure)  the  notice 
requirement was reasonable and tempered by the nominal cost threshold.186 

Very  few  cases  have  failed  solely  on  the  nominal  cost  issue.  The  two  main  examples 
concern  educational  establishments.  Mrs  A  (on  behalf  of  her  son,  B)  v  A  Childcare 
Facility,187  concerned  the  admission  of  the  complainant’s  child (B)  to  a  crèche.  She  was 
informed that a place would not be available unless the boy was accompanied by a full-
time  personal  assistant,  a  requirement  which  the  respondent  maintained  was  necessary 
due a combination of factors. The respondent referred to its obligations concerning child–
staff ratios under childcare regulations and to the fact that due to a disability B was unable 
to physically move on his own without assistance. Government funding was available to 
provide five hours of assistance per week for the child and so the respondent could only 
accommodate  B  by  employing  another  childcare  worker.  The  Tribunal  accepted  that  the 
costs involved went beyond what was required under Section 4. Hiring an additional staff 
member in a private crèche that catered for some 30  children would  have amounted to 
more than a nominal cost in an organisation of that size. In Regan v Old Bawn Community 
School188 the Tribunal found that the provision of sign language interpretation facilities by 
a community college would also have exceeded the nominal cost ceiling. The respondent 
claimed that it was instructed by the Department of Education to run all of its part-time 
adult education programmes on a self-financing basis. For the year 2007/2008 a surplus 
of EUR 119.39 was generated from the entire adult education programme. Provision of a 
sign language interpreting service  would have cost between  EUR 1 300 and  EUR 1 700. 
The equality officer accepted that evidence in finding that the school did not breach Section 
4.  

e) 

Failure to meet the duty of reasonable accommodation for people with disabilities 

In Ireland, failure to meet the duty of reasonable accommodation counts as discrimination.  

If an employee would be fully competent and capable of undertaking the duties attached 
to  a  position  on  reasonable  accommodation,  an  employer  that  fails  to  provide  such 
reasonable accommodation discriminates.189 

Since failure to provide reasonable accommodation is a sui generis form of discrimination 
case law does not state whether it is a form  of direct or indirect discrimination. The full 
range of sanctions for discrimination is applicable, including awards of compensation. 

The burden of proof is reversed.190 

As  regards  justification,  Section  16(1)  EEA  offers  employers  a  defence  in  stating  that 
nothing  in  the  Act  requires  any  person  to  recruit  or  promote  an  individual,  retain  an 
individual or provide training or experience if the individual will not undertake the required 
duties  or  will  not  accept  the  conditions  under  which  those  duties  are  required  to  be 
performed, or is not (or no longer) fully competent and available to undertake, and fully 
capable of undertaking the duties attached to that position. However, EEA Section 16(3)(a) 
tempers the defence by clarifying that a person who has a disability is fully competent to 
undertake,  and  fully  capable  of  undertaking,  any  duties  if  the  person  would  be  so  fully 
competent  and  capable  on  reasonable  accommodation  being  provided  by  the  person’s 
employer. 

186  O’Doherty v Bus Éireann, DEC-S2017-016, 13.04.2017, 

https://www.workplacerelations.ie/en/Cases/2017/April/DEC-S2017-016.html. 

187  Equality Tribunal, Mrs A (on behalf of her son, B) v A Childcare Facility, DEC-S2009-041, 

https://www.workplacerelations.ie/en/Cases/2009/June/DEC-S2009-041-Full-Case-Report.html. 

188  Regan v Old Bawn Community School, DEC-S2010-043, 

https://www.workplacerelations.ie/en/Cases/2010/August/DEC-S2010-043-Full-Case-Report.html. 

189  Section 16 (1) and (3) EEA. 
190  Equality Tribunal, DEC-E2007-03, O'Keeffe v Walsh t/a By Pass Stores, 

https://www.workplacerelations.ie/en/Cases/2007/June/DEC-E2007-033-Full-Case-Report.html. 

44 

 
 
 
 
 
 
 
 
                                                   
f) 

Duties to provide reasonable accommodation in respect of other grounds 

In  Ireland,  there  is  no  duty  to  provide  reasonable  accommodation  in  respect  of  other 
grounds in the public and/or the private sector. 

However, building on EU law principles, in Ireland case law has established a modest form 
of reasonable accommodation in practice. This development stems from the principle that 
direct discrimination may arise from a failure to afford different treatment to persons who 
are differently situated.191 To date all cases appear to be on the race ground and concern 
migrant workers.192 In essence, employers may be obliged to modify certain employment 
practices to accommodate the needs  of individuals who encounter linguistic and cultural 
difficulties in the workplace. Employers have been obliged to provide translated contracts 
for foreign nationals193 and in the context of disciplinary proceedings have ‘a positive duty 
to ensure that all workers fully understand what is alleged against them, the gravity of the 
alleged  misconduct  and  their  right  to  mount  a  full  defence,  including  the  right  to 
representation.’194 In one such decision the Director of the Equality Tribunal described the 
case law as establishing a ‘duty of care to foreign employees.’195 

The  duty  to  modify  employment  practices  is  not,  however,  applicable  to  all  migrant 
workers.  Decisions  generally  emphasise  that  the  employees  must  essentially  be  in  a 
‘potentially  vulnerable  position’.196  In  assessing  whether  migrant  workers  are  in  that 
position adjudicators make reference to their capacity to understand the English language, 
their knowledge of employment rights and their ability to access support from families and 
other social networks.197  

g) 

Accessibility of services, buildings and infrastructure  

In  Ireland,  national  law  requires  services  available  to  the  public,  buildings  and 
infrastructure  to  be  designed  and  built  in  a  disability-accessible  way.  The  duties  are, 
however, qualified with reference to multiple considerations and compliance mechanisms 
are weak. 

Part  3  of  the  Disability  Act  2005  sets  out  the  accessibility  obligations  of  public  bodies 
towards people with disabilities.198 It does not apply to the private sector.199 The definition 

191  The primary decision on this matter is that of the Labour Court in Campbell Catering v Rasaq [2004] ELR 

15, applying Finanzamt Köln-Altstadt v Roland Schumacker, Case C-279/93, [1995] ECR 1-225. In a 2017 
decision the Labour Court addressed similar issues as giving rise to both direct and indirect discrimination: 
Boxmore Plastics v Zimareva, EDA 1732, 30.11.2017, 
https://www.workplacerelations.ie/en/Cases/2017/November/EDA1732.html. See discussion of this case in 
Chapter 12.2 of this report. 

192  Case law does not distinguish between EU nationals and third country nationals. 
193  Equality Tribunal, Five Complainants v Hannon’s Poultry Export Ltd., DEC–E2006–050, 18.10.2006, 
https://www.workplacerelations.ie/en/Cases/2006/October/DEC-E2006-050-Full-Case-Report.html. 

194  Workplace Relations Commission, Kostrzewski v C&F Automotive Ltd t/a Iralco, DEC-E2015-167, 

30.12.2015, at 4.4, https://www.workplacerelations.ie/en/Cases/2015/December/DEC-E2015-167.html. 

195  Mikoliuniene v Halcyon Contract Cleaners Ltd., DEC-E2015-036, 26.06.2015, 

http://www.lrc.ie/en/Cases/2015/June/DEC-E2015-036.html. 

196  Equality Tribunal, Francis v Bus Átha Cliath, DEC-E2006-046, 26.09.2006, at 4.14, 

http://www.lrc.ie/en/Cases/2006/September/DEC-E2006-046-Full-Case-Report.html. 
197  See e.g. Zaniewsha v Templemichael Enterprises Limited, DEC-E2011-166, 07.09.2011, 

http://www.lrc.ie/en/Cases/2011/September/DEC-E2011-166-Full-Case-Report.html; Mikoliuniene v 
Halcyon Contract Cleaners Ltd., DEC-E2015-036, 26.06.2015, http://www.lrc.ie/en/Cases/2015/June/DEC-
E2015-036.html; Gegeckiene v Bradbury, DEC-E-2016-009, 21.01.2016, 
http://www.lrc.ie/en/Cases/2016/January/DEC-E2016-009.html.  

198 Ireland, Disability Act 2005, 08.07.2005, 

http://www.irishstatutebook.ie/eli/2005/act/14/enacted/en/print.html. 

199  Under Section 2 of the Disability Act 2005 ‘public body’ includes government departments, local authorities 

and the Health Service Executive, as well as bodies or organisations (other than the Defence Forces) 
established by or under any enactment. The last category includes universities and a range of state and 
semi-state organisations: http://www.irishstatutebook.ie/eli/2005/act/14/section/2/enacted/en/html#sec2. 

45 

 
 
 
 
 
 
 
 
                                                   
 
of  ‘disability’  employed  is  more  restrictive  than  that  set  out  under  the  ESA  and  EEA.  It 
refers  to  ‘a  substantial reduction  in the  capacity  of  the  person  to  carry  on  a  profession, 
business or occupation in the State or to participate in social or cultural life in the State by 
reason of an enduring physical, sensory, mental health or intellectual impairment.’200 

Section  26  deals  with  access  to  services.  It  obliges  public  bodies  to  integrate,  where 
practical and appropriate, their services for people with disabilities with those provided to 
other people. Section 27 requires each public body to ensure that the goods or services 
supplied to it are accessible to people with disabilities unless it would not be practicable or 
justifiable  on  cost  grounds  or  would  result  in  an  unreasonable  delay.201  The  legislation 
covers a wide range of services and facilities provided by public bodies that are available 
to the public generally or a particular section of the public. This includes: the use of any 
place  or  amenity  owned,  managed  or  controlled  by  a  public  body;  the  provision  of 
information  or  an  information  resource  or  a  scheme  or  an  allowance  or  other  benefit 
administered by a public body; any cultural or heritage services provided by such a body; 
and any service provided by a  court or  other  tribunal.  Six government departments are 
obliged  to  prepare  ‘Sectoral  Plans’  demonstrating  how  key  accessibility  issues  are  to  be 
addressed.202  Sections  32–40  of  the  Act  supply  general  guidelines  as  to  the  areas  that 
should be dealt with under each plan, specify that an internal complaints system should be 
established by all six departments, and provide an oversight role for the Ombudsman in 
relation  to  implementation  of  the  plans  and  the  related  general  accessibility  measures 
contained in the remainder of Part 3. Access officers have been appointed in each public 
body to coordinate these arrangements. In 2006 the National Disability Authority published 
a Code of Practice on Accessibility of Public Services and Information Provided by Public 
Bodies.203 The code provides guidance on how public bodies can comply with their statutory 
duties under the 2005 Act. 

The  Irish  Sign  Language  Act  2017  recognised  Irish  Sign  Language  (ISL)  as  an  official 
language.204 Currently very few public bodies provide ISL translation for service users and 
‘only  a  very  small  fraction  of  government  information  provision  uses  Irish  Sign 
Language’.205 Section 6 is the key provision for the purposes of this report:  

‘6. (1) A public body shall do all that is reasonable to ensure that interpretation into 
Irish Sign Language is provided for a person who is competent in that language and 
cannot hear or understand English or Irish when that person is seeking to avail of 
or access statutory entitlements or services provided by or under statute by that 
public body. 

(2) The provision of interpretation shall be at no cost to the person concerned. 

(3) The Minister may by regulations— 

(a)  provide  that  where  a  person  intends  to  avail  of  Irish  Sign  Language 
services  provided  by  a  public  body,  the  person  shall  give  the  public  body 

200  http://www.irishstatutebook.ie/eli/2005/act/14/section/2/enacted/en/html#sec2. 
201  http://www.irishstatutebook.ie/eli/2005/act/14/enacted/en/html and 

http://www.irishstatutebook.ie/2006/en/si/0163.html. 

202   The six departments are: 1) Communications, Marine and Natural Resources; 2) Enterprise, Trade and 

Employment; 3) Environment and Local Government; 4) Health and Children; 5) Social and Family Affairs; 
and 6) Transport. The plans were published in July 2006 and are available for consultation on the website of 
the National Disability Authority: http://nda.ie/Disability-overview/Key-Policy-Documents/Sectoral-plans/. 

203  Available at: http://nda.ie/Good-practice/Codes-of-Practice/Code-of-Practice-on-Accessibility-of-Public-

Services-and-Information-Provided-by-Public-Bodies-/. 

204  Ireland, Irish Sign Language Act 2017, 24.12.2017, 

https://data.oireachtas.ie/ie/oireachtas/act/2017/40/eng@/a4017.pdf.  

205  Citizens Information Board (2017) Information provision and access to public and social services for the 

Deaf Community, p. 60, available at: 
http://www.citizensinformationboard.ie/downloads/social_policy/Deaf_Community_Research_Rpt_Feb2018.
pdf. 

46 

 
 
 
 
 
 
 
                                                   
 
such prior notification of his or her intention within such period as specified 
in the regulations, or 
(b) provide for the procedure in relation to the provision of such services by 
a public body…’ 

The Act is not  yet  commenced.  Its provisions must be brought into operation before 24 
December 2020.206 

Access to the built environment is mainly controlled by Part M of the Building Regulations 
(2000),  entitled  ‘Access  for  People  with  Disabilities’.207  It  does  not  apply  to  existing 
buildings unless they  are being altered  or refurbished, although under the Disability Act 
2005 public areas of public buildings  were required to comply with Part M by 2015. The 
Regulations require all buildings to have wheelchair access and in the event that they trade 
on more than one floor there must be a wheelchair-accessible lift giving access between 
the floors. In addition, if stores are providing public toilets they must include at least one 
wheelchair-accessible toilet. Section 5 of the Building Control Act 2007 effected a modest 
improvement in providing for a Disability Access Certificate, which requires building control 
authorities to certify that designs comply with Part M before work commences. 

Failure to comply with the legislation cannot be relied upon in discrimination cases under 
the legislation transposing directive 2000/78, the EEA.208 

In Ireland, national law contains general duties to provide accessibility by anticipation for 
people with disabilities, but they are limited by what is ‘practicable’ or ‘appropriate’ and in 
some instances must be triggered by an actual individual and so cannot be regarded as 
anticipatory. The provisions are set out under Part 3 of the Disability Act 2005, as outlined 
above. 

An individual with a disability can make a complaint about any failure by a public body to 
provide access under Part 3 to an inquiry officer appointed by the body under Section 39. 
If the complainant is not satisfied with the outcome of their complaint, they can appeal to 
the  Ombudsman  as  provided  under  Section  40.209  The  Ombudsman  has  consistently 
expressed  concern  about  the  apparent  lack  of  awareness  of  the  legislation;  just  five 
complaints were received in 2016, while four were lodged the previous year.210 

h) 

Accessibility of public documents 

Section 28 of the Disability Act 2005 deals with the accessibility of information provided by 
public bodies and their communications systems; again the obligations need only be met 
where practicable.211 

‘28. — (1) Where a public body communicates with one or more persons, the head 
of the body shall ensure— 

206  Section 11(2), Irish Sign Language Act 2017.  
207  Amended Regulations 2010: http://www.irishstatutebook.ie/eli/2010/si/513/made/en/print. Technical 

Guidance document: http://www.environ.ie/sites/default/files/migrated-
files/en/Publications/DevelopmentandHousing/BuildingStandards/FileDownLoad,24773,en.pdf. 
208  It is well established in case law concerning the ESA that the forums for hearing anti-discrimination 

complaints have no jurisdiction to consider compliance with the Disability Act or other legal measures on 
accessibility: e.g. Hennessy v Network Catering/Iarnród Éireann, DEC-S2009-029, at 4.19-4.21, 
https://www.workplacerelations.ie/en/Cases/2009/May/DEC-S2009-029-Full-Case-Report.html. 

209  https://www.ombudsman.gov.ie/en/About-Us/Legislation/The-Disability-Act/Making-a-complaint-to-the-

Ombudsman-under-the-Disability-Act/. 

210  Office of the Ombudsman (2017) Annual Report 2016, available at: 

https://www.ombudsman.ie/en/Publications/Annual-Reports/2016-Annual-
Report/media/ombudsman_annual_report_2016.pdf; Office of the Ombudsman (2016) Annual Report 2015, 
available at: http://www.ombudsman.gov.ie/en/Publications/Annual-Reports/2015-Annual-
Report/AnnualReport2015/media/ombudsman_annual_report_2015.pdf.  
211  http://www.irishstatutebook.ie/eli/2005/act/14/enacted/en/print#sec28. 

47 

 
 
 
 
 
 
 
 
 
 
                                                   
(a) if the communication is an oral one and the person or persons aforesaid has a 
hearing impairment and so requests, or 
(b) if the communication is a written one and the person or persons aforesaid has a 
visual impairment and so requests, 

that, as far as practicable, the contents of the communication are communicated in 
a form that is accessible to the person concerned. 

(2) Where a public body communicates in electronic form with one or more persons, 
the  head  of  the  body  shall  ensure,  that  as  far  as  practicable,  the  contents  of  the 
communication are accessible to persons with a visual impairment to whom adaptive 
technology is available. 

(3)  The  head  of  a  public  body  shall  ensure,  as  far  as  practicable,  that  information 
published  by  the  body,  which  contains  information  relevant  to  persons  with 
intellectual  disabilities,  is  in  clear  language  that  is  easily  understood  by  those 
persons.’ 

The  duty  in  Ireland  is  largely  individualised  and  so  cannot  be  said  to  be  anticipatory  in 
practice. It is only envisaged that action will be taken ‘as far as practicable’. In the absence 
of a monitoring mechanism it is difficult to assess whether the duty is implemented. The 
Ombudsman’s  annual  reports  suggest  there  is  inadequate  awareness  of  the  duty  in 
practice.212 

212  http://www.ombudsman.gov.ie/en/Publications/Annual-Reports/. 

48 

 
 
 
 
 
 
 
 
                                                   
3 

PERSONAL AND MATERIAL SCOPE  

3.1  Personal scope 

3.1.1  EU  and  non-EU  nationals  (Recital  13  and  Article  3(2)  Directive  2000/43 

and Recital 12 and Article 3(2) Directive 2000/78) 

In  Ireland,  there  are  no  residence  or  citizenship/nationality  requirements  for  protection 
under the relevant national laws transposing the directives. 

However,  although  EEA  contains  no  express  provision  concerning  employees  who  work 
outside the State, the Labour Court has found that an employee must habitually carry out 
their work in the jurisdiction to avail of its protection.213 It is also unclear whether non-
EU/EEA  nationals  working  without  an  employment  permit  can  invoke  EEA  since  their 
contract  of  employment  will  be  void  by  reason  of  illegality.214  No  such  restrictions  have 
been applied in the field of goods and services, which is governed by ESA. 

Specific exceptions relating to treatment based on nationality are provided for under both 
ESA and EEA. These are discussed in greater detail in Chapter 4.4 of this report.  

3.1.2  Natural and legal persons (Recital 16 Directive 2000/43) 

a) 

Protection against discrimination  

In  Ireland, the personal scope of anti-discrimination law covers only natural persons for 
the purpose of protection against discrimination.  

ESA and EEA do not specify which persons can avail of protection. However, an Equality 
Tribunal  decision  has  made  it  clear  that  a  legal  person  cannot  avail  of  ESA  to  claim 
protection against discrimination.215 The  complainant in the case was an  unincorporated 
body of persons in the form of a choir called ‘Gloria (Ireland’s Lesbian and Gay Choir)’. It 
referred  a  claim  of  direct  discrimination  on  the  sexual  orientation  ground  when  the 
respondent  removed  the  description  of  Gloria  as  Ireland’s  gay  and  lesbian  choir  from 
promotional material for  a  choral festival. Having considered several provisions in detail 
and various principles of interpretation, the equality officer concluded: 

‘Whilst  the  term  ‘person’  is  usually  interpreted  broadly  to  include  corporate  and 
unincorporated bodies,  I am  satisfied that a  contrary intention is evident from the 
Equal Status Acts given the manner in which the discriminatory grounds are set out 
and the particular definition of ‘person’ as contained in the Acts. I am therefore of 

213  A Retail Company v A Worker, DEE 4/2001, 05.09.2001, 

https://www.workplacerelations.ie/en/Cases/2001/September/EED014.html. 

214  An EEA complaint taken by an undocumented worker was upheld in A Domestic Worker v An Employer, 
DEC-E2011-117, https://www.workplacerelations.ie/en/Cases/2011/June/DEC-E2011-117-Full-Case-
Report.html. However, subsequently the High Court ruled that non-EU/EEA nationals who do not have an 
employment permit, contrary to the Employment Permits Act 2003, have no legal standing to rely on 
employment legislation since their “contract of employment” would be void by reason of illegality: Hussein v 
Labour Court [2012] IEHC 364, http://www.bailii.org/ie/cases/IEHC/2012/H364.html. The decision was 
reversed on appeal on technical grounds. Section 4 of the Employment Permits (Amendment) Act 2014 
modified the impact of the High Court judgment somewhat. It permits the Minister for Jobs, Enterprise and 
Innovation to take a civil claim for compensation against the employer, notwithstanding the illegality of the 
contract, where it can be proved that the worker took all reasonable steps to comply with the requirement 
to have an employment permit: http://www.irishstatutebook.ie/eli/2014/act/26/section/4/enacted/en/html. 

215  Equality Tribunal, Gloria (Ireland’s Lesbian & Gay Choir) v Cork International Choral Festival Ltd., DEC-

S2008-078, 28.10.2008, https://www.workplacerelations.ie/en/Cases/2008/October/DEC-S2008-078-Full-
Case-Report.html; applied in Cork Deaf Club v Office of Public Works, DEC-S2017-039, 10.11.2017, 
https://www.workplacerelations.ie/en/Cases/2017/November/DEC-S2017-039.html.  

49 

 
 
 
 
 
 
 
 
 
 
 
                                                   
 
the view that the legislative intent in this regard was to protect individuals and not 
bodies from discrimination.’216  

He  reasoned  that  a  body  could  not  be  of  a  particular  gender,  marital  status,  sexual 
orientation, religion and so on. In the context of identifying potential respondents under 
the  Act  ‘person’  is  defined  in  Section  2(1)  as  including  ‘an  organisation,  public  body  or 
other entity’. The Tribunal concluded that the Oireachtas (Parliament) thus intended that 
the  wider  definition  of  person  should  not  apply  to  complainants. The  net  effect  of  the 
decision  is  that  only  natural  persons  can  act  as  complainants  under  the  ESA.  The  same 
principles should apply to the EEA since the discriminatory grounds are set out in the same 
manner under both laws. Members of an association could pursue a complaint under EEA 
or ESA but it appears they would have to establish that they were discriminated against as 
individuals.217  

b) 

Liability for discrimination  

In Ireland, the personal scope of anti-discrimination law covers natural and legal persons 
for the purpose of liability for discrimination. 

Section  8(1)  EEA  prohibits  discrimination  both  by  employers  and  employment  agencies, 
i.e. it includes legal persons. Most of the prohibitions contained within the legislation are 
aimed  at  the  employer218  and  no  clear  provision  is  made  to  enable  actions  against  the 
person(s)  who  actually  discriminated,  subject  to  a  couple  of  exceptions:  Section  14 
imposes  liability  on  the  person  responsible  for  procuring  or  attempting  to  procure 
discrimination, and Section 10 imposes liability on the person who displays or publishes 
discriminatory advertising. 

Persons who are liable under ESA are defined in Section 2(1) as including organisations, 
public bodies or other entities. The terms of this Act clearly prohibit discrimination by both 
natural persons and legal persons. 

Natural persons and a ‘body corporate’ are liable to be prosecuted for offences under both 
equality laws (Section 44(2) ESA; Sections 100(5), 100(6)).  

3.1.3  Private and public sector including public bodies (Article 3(1)) 

a) 

Protection against discrimination  

In  Ireland, the personal scope  of national law covers private and public sector including 
public bodies for the purpose of protection against discrimination. 

Section 2(3) EEA indicates that employees protected by the Act include private and public 
sector employees. 

This  is  subject  to  exceptions:  access  to  employment  in  another  person’s  home  for  the 
provision  of  personal  services  where  the  services  affect  private  or  family  life;219 
employment  in  schools  or  hospitals  with  a  religious  ethos;220  employment  in  Defence 

216  Gloria (Ireland’s Lesbian & Gay Choir) v Cork International Choral Festival Ltd., DEC-S2008-078, at para 

5.5. 

217  Under Irish law the general position is that an unincorporated association lacks a legal personality and so 
cannot be the subject of legal proceedings. Such bodies may, however, be conferred with the capacity to 
sue and be sued by legislation: Sandymount and Merrion Residents Association v An Bord Pleanála [2013] 
IESC 51, 27.11.2013, http://www.courts.ie/Judgments.nsf/0/E57D6CA0F350359280257C31004816EF. In 
that case the Supreme Court held that Section 50(A) of the Planning and Development Act 2000 conferred 
legal standing on unincorporated bodies to bring judicial review proceedings. 

218  Section 15 EEA imposes vicarious liability on employers and principals for the acts of their employees and 

agents.  

219  Section 2 EEA. 
220  Section 37(1) EEA. See further Chapter 4.2. 

50 

 
 
 
 
 
 
 
 
 
 
 
 
                                                   
 
Forces,  Garda Síochána (police force), or prison service (in relation to discrimination on 
the age or disability grounds).221 The exception concerning employment in a person’s home 
appears to go beyond the provisions of the equality directives. 

b) 

Liability for discrimination  

In Ireland, the personal scope of anti-discrimination law covers private and public sector 
including public bodies for the purpose of liability for discrimination.  

Section 2(1) ESA expressly states that the persons who must not discriminate in the supply 
of goods and services includes legal persons such as organisations, public bodies or other 
entities. The scope of EEA also clearly covers the private and public sector.  

3.2  Material scope 

3.2.1  Employment, self-employment and occupation  

In Ireland, national legislation applies to all sectors of private and public employment, self-
employment and occupation, including contract work, self-employment, military service, 
and holding statutory office, for the five grounds (Sections 2(1), 2(3), 8 EEA). 

3.2.2  Conditions for access to employment, to self-employment or to occupation, 
including  selection  criteria,  recruitment  conditions  and  promotion, 
whatever  the  branch  of  activity  and  at  all  levels  of  the  professional 
hierarchy (Article 3(1)(a))  

In  Ireland,  national legislation  prohibits  discrimination in  the  following areas:  conditions 
for access to employment, to self-employment or to occupation, including selection criteria, 
recruitment conditions and promotion, whatever the branch of activity and at all levels of 
the  professional  hierarchy  for  the  five  grounds  in  both  private  and  public  sectors  as 
described in the directives (Section 8 EEA). 

The  definition  of  ‘employee’  under  Section  2(1)  EEA  excludes,  as  far  as  access  to 
employment  is  concerned,  a  person  employed  in  another  person’s  home  to  provide 
personal services such as childcare or domestic work. This may not be in compliance with 
the directives. 

3.2.3  Employment and working conditions, including pay and dismissals (Article 

3(1)(c)) 

In  Ireland,  national  legislation  prohibits  discrimination  in  the  following  areas:  working 
conditions  including  pay  and  dismissals,222  for  all  five  grounds  and  for  both  private  and 
public employment (Sections 2(1), 7, 8, 29 EEA). 

Section  35  EEA  is  a  cause  of  concern  as  it  permits  employers  to  pay  employees  with 
disabilities  different  rates  of  pay  if  they  are  restricted  in  their  capacity  to  do  the  same 
amount of work, or the same hours as a person who does not have a disability. This section 
contains only one limitation, which is that the employee should not be remunerated at a 

221  Section 37(5) EEA. 
222  Employees who are dismissed for putative discriminatory reasons may opt instead to pursue an unfair 
dismissals complaint under the Unfair Dismissals Acts 1997-2015: Ireland, Unfair Dismissals Act 1997, 
6.04.1977; Ireland, Unfair Dismissals (Amendment) Act 1993, 14.07.1993. Revised text available at: 
http://revisedacts.lawreform.ie/eli/1977/act/10/revised/en/html. Under Section 6(2) of that legislation ‘the 
dismissal of an employee shall be deemed…to be an unfair dismissal if it results wholly or mainly from one 
or more of the following: […](b) the religious or political opinions of the employee… (e) the race, colour or 
sexual orientation of the employee, (ee) the age of the employee, (eee) the employee’s membership of the 
travelling community’. 

51 

 
 
 
 
 
 
 
 
 
 
 
 
 
                                                   
 
rate below the level required by the National Minimum Wage Act 2000.223 There is nothing 
to  suggest  that  the  work  should  be  remunerated  at  a  proportionate  level  to  that  of  an 
employee without a disability. This may not comply with the directive. 

3.2.3.1  Occupational pensions constituting part of pay 

In  Ireland,  Part  VII  of  the  Pensions  Acts  1990-2015  implements  the  principle  of  equal 
treatment  with  respect  to  occupational  pensions.224  The  definition  of  remuneration  in 
Section  2(1)  EEA  specifically  excludes  pension  rights,  meaning  a  pension  or  any  other 
benefits flowing from an occupational pension scheme, from its ambit.  
The Pensions Acts cover the same nine grounds as the EEA: race, religious belief, gender, 
age,  sexual  orientation,  civil  status,  family  status,  disability  and  membership  of  the 
Traveller  community.  It  prohibits  direct  and  indirect  discrimination,  discriminatory 
instructions  and  procurement  to  discriminate,  as  well  as  victimisation,  in  respect  of 
occupational  benefit  schemes,  occupational  benefits  and  occupational  pensions.  Key 
exceptions include those  that for provide  for different treatment on the  age ground225 
and on the disability ground to take account of a lesser amount of work undertaken by 
virtue of a disability and to provide for more favourable treatment where early retirement 
arises from a disability.226  

Many of the reported cases to date concern the gender and civil status grounds, but in one 
case a complainant who had been denied admittance to an occupational pension scheme 
succeeded in his claim of discrimination on grounds of race, and the company was ordered 
to  register  him  in  the  scheme  and  to  pay  the  contributions  due.227  A  discrimination 
complaint on the age, civil status and sexual orientation grounds did not succeed before 
the Tribunal and was the subject of a reference to the CJEU.228 Mr Parris argued that the 
pension  scheme  operated  by  his  employer  was  discriminatory  as  it  provided  that  an 
employee's partner would only be entitled to a survivor's pension where the employee had 
married or entered a civil partnership before reaching the age of 60. National law prohibited 
the complainant from marrying and did not enable him to enter a civil partnership prior to 
his  60th  birthday.  It  was,  therefore,  impossible  for  him  to  comply  with  the  so-called 
survivor’s rule in the pension scheme. His complaint before the Equality Tribunal did not 
succeed.  The  Equality  Officer  concluded  that  complainant  had  established  indirect 
discrimination on the combined grounds of sexual orientation, civil status, and age:  

‘I  am  satisfied  that  the  complainant  has  established  that  the  impact  of  the 
introduction of civil partnership only in 2011, combined with the limit placed upon his 
ability to regularise his civil status as a homosexual in an ongoing relationship prior 
to that point, when further combined with the difference in treatment based on age 
carried out in relation to this pension scheme renders the complainant at a particular 
disadvantage in relation to, for example, a heterosexual man of a similar age who 
would have had the opportunity to regularise a heterosexual relationship at a younger 
age.’229  

223  Ireland, National Minimum Wage Act 2000, 31.03.2000, 

http://www.irishstatutebook.ie/eli/2000/act/5/enacted/en/html. 

224  Inserted by section 22 of the Social Welfare (Miscellaneous Provisions) Act 2004, 25.03.2004, 

http://www.irishstatutebook.ie/eli/2004/act/9/section/22/enacted/en/html#sec22. 

225  Section 72(1), Pensions Acts 1990-2015.  
226  Section 73, Pensions Acts 1990-2015.  
227  Equality Tribunal, DEC-P2011-007, Czyzycki v Fegan, 

https://www.workplacerelations.ie/en/Cases/2011/December/DEC-P2011-007-Full-Case-Report.html.  

228  Equality Tribunal, Parris v Trinity College Dublin and others, DEC-P2013-004, 16.12.2013, 

https://www.workplacerelations.ie/en/Cases/2013/December/DEC-P2013-004.html; Parris v Trinity College 
Dublin and others, [2016] EUECJ C-443/15, 24.12.2016, 
http://www.bailii.org/eu/cases/EUECJ/2016/C44315.html. 

229  Parris v Trinity College Dublin and others, DEC-P2013-004, at 4.15. 

52 

 
 
 
 
 
 
                                                   
 
He  could not find in the complainant’s favour,  however, because to do so would convey 
retrospective  effect  on  the  Civil  Partnership  and  Certain  Rights  and  Obligations  of 
Cohabitants Act 2010. 

On  appeal  the  Labour  Court  referred  three  questions  to  the  CJEU:  whether  the  survivor 
rule was directly or indirectly discriminatory under Directive 2000/78/EC on grounds of: 
(1) sexual orientation, (2) age, or (3) if neither age nor sexual orientation in isolation, the 
combined effect  of both. Each question was answered in the negative, leaving Dr Parris 
and others in his position, without a remedy under either domestic or EU law.230 

3.2.4  Access  to  all  types  and  to  all  levels  of  vocational  guidance,  vocational 
training,  advanced  vocational  training  and  retraining,  including  practical 
work experience (Article 3(1)(b)) 

In  Ireland,  national  legislation  applies  to  vocational  training  outside  the  employment 
relationship,  such  as  adult  lifelong  learning  courses  or  vocational  training  provided  by 
technical  schools  or  universities.  Discrimination  in  these  areas  is  prohibited  under  nine 
grounds:  age,  civil  status,  disability,  family  status,  gender,  race,  religious  belief,  sexual 
orientation, and membership of the Traveller community. 

Sections 8(1) and 8(7) EEA prohibit discrimination in relation to training or experience for 
or in relation to employment. The employer is not permitted to refuse or not to afford the 
employee the same opportunities on any of the discriminatory grounds when it comes to 
‘employment counselling, training (whether on or off the job) and work experience.’  

This  provision  is  further  reinforced  by  Section  12,  which  prohibits  discrimination  in 
vocational training on the nine discriminatory grounds. It is not permissible to discriminate 
in the provision of vocational training in relation to the terms on which the course or facility 
is offered, by refusing or omitting to afford access to any such course or facility, or in the 
manner in which any such course or facility is provided.231 

Vocational training is defined, in Section 12(2), as: 

‘…  any  system  of  instruction  which  enables  a  person  being  instructed  to  acquire, 
maintain, bring up to date or perfect the knowledge or technical capacity required for 
the  carrying  on  of  an  occupational  activity  and  which  may  be  considered  as 
exclusively concerned with training for such an activity.’ 

This  definition  ensures  that  where  a  course  is  one  that  is  exclusively  concerned  with 
training  for  an  occupational  activity  it is  covered  by  the  Act.232  According  to  the  Labour 
Court233 the definition may not align with the meaning of vocational training adopted by 
the CJEU in cases  such as Case C-293/83,  Gravier  v City  of  Liege234 and Case C-24/86, 
Blaizot v University of Liege.235 It noted, however, that both judgments concerned the free 
movement principle in Regulation 1612/68 and  it could not be assumed that a ‘similarly 

230  Parris v Trinity College Dublin and others, [2016] EUECJ C-443/15, 24.12.2016, 

http://www.bailii.org/eu/cases/EUECJ/2016/C44315.html. 

231  Section 12(1) EEA. 
232  Training to become a member of the volunteer Garda Reserve was not covered by Section 12 EEA since the 
Garda Reserve is not an occupational activity: High Court, An Garda Síochána v Oberoi [2013] IEHC 267, 
http://www.courts.ie/Judgments.nsf/0/53FE83D658C8C00480257B9600322FCD; A Masters in Social 
Science degree programme that comprised 50 % academic and 50 % practical work was not vocational 
training according to the Equality Tribunal ‘as it was not exclusively concerned with perfecting the 
knowledge or technical capacity to carry out an occupational activity’: Kelly v University College Dublin, 
DEC-S2006–076, https://www.workplacerelations.ie/en/Cases/2006/November/DEC-S2006-076-Full-Case-
Report.html.  

233  Dublin Institute of Technology v Awojuola, EDA 1335, 23.12.2013, 

https://www.workplacerelations.ie/en/Cases/2013/December/EDA1335.html. 

234  [1985] E.C.R. 593. 
235  [1988] E.C.R 379. 

53 

 
 
 
 
 
 
 
 
 
                                                   
 
expansive  interpretation’  of  the  term  would  be  taken  for  the  purpose  of  Directive 
2000/43/EC.  Other  education  and  training  courses  are  subject  instead  to  the  anti-
discrimination  provisions  of  the  Equal  Status  Acts  2000-2015.236  Cumulatively  the 
provisions of both Acts cover the vocational programmes and work experience referred to 
under Article 3(1)(b). However, the narrow definition of vocational training under the EEA 
may give rise to a compliance issue since the duty to provide reasonable accommodation 
on the disability ground under the ESA is less extensive than that required under Directive 
2000/78.  

An exception concerning the religion ground may raise compliance issues. Subsections 3-
5 of Section 12 empower the relevant Minister, with the consent of the Minister for Justice 
and Equality, to make an order reserving places on programmes of training for nurses and 
primary school teachers to persons of a certain religion. The exemption may be applied for 
by an educational or training body ‘[f]or the purposes of ensuring the availability of nurses 
to hospitals and teachers to primary schools which are under the direction or control of a 
body  established  for  religious  purposes  or  whose  objectives  include  the  provision  of 
services  in  an  environment  which  promotes  certain  religious  values,  and  in  order  to 
maintain the religious ethos of the hospitals or primary schools.’237 Pursuant to that section, 
the Employment Equality Act 1998 (section 12) (Church of Ireland College of Education) 
Order  2013  (S.I.  No.  288  of  2013)  reserves  32  places  in  the  College  of  Education  for 
students who are members of the Church of Ireland or who belong to the broad Protestant 
tradition.238 This provision may be too broad to comply with the terms of Article 4(2) since 
there is no requirement to demonstrate that the group of prospective teachers’ religious 
beliefs constitute a genuine, legitimate and justified occupational requirement. 

3.2.5  Membership  of,  and  involvement  in,  an  organisation  of  workers  or 
employers,  or  any  organisation  whose  members  carry  on  a  particular 
profession,  including  the  benefits  provided  for  by  such  organisations 
(Article 3(1)(d)) 

In Ireland, national legislation prohibits discrimination in the following areas: membership 
of, and involvement in workers or employers’ organisations as formulated in the directives 
for all five grounds and for both private and public employment. This covers trade unions 
and employers' organisations. 

Section  13(1)  EEA  prohibits  discrimination  on  all  five  grounds  in  relation  to  a  body  that 
controls entry to or the carrying on of a profession, vocation or occupation.  

This provision relates both to membership of the body in question as well as to any benefits 
provided by that body, with the exception of pension rights, which fall instead under the 
ambit  of  Part  VII  of  the  Pensions  Acts  1990-2015.  Section  13(2)  outlaws  discriminatory 
advertising  by  such  bodies.  Section  13A  prohibits  discrimination  in  respect  of  business 
partnerships. 

3.2.6  Social protection, including social security and healthcare (Article 3(1)(e) 

Directive 2000/43) 

In  Ireland,  national  legislation  prohibits  discrimination  in  the  followings  areas:  social 
protection,  including  social  security  and  healthcare  as  formulated  in  the  Racial  Equality 
Directive. 

236  Section 7 ESA. See Chapter 3.2.8 for more on this provision.  
237  Section 12(4) EEA. 
238  http://www.irishstatutebook.ie/eli/2013/si/288/made/en/print?q=college+of+education; see further, 

O’Kelly, E. (2016) ‘Religion, nursing and teacher training - what's the connection?’, RTÉ News, 24.08.2016, 
https://www.rte.ie/news/2016/0822/811138-nursing-teacher-training/. 

54 

 
 
 
 
 
 
 
 
 
                                                   
ESA prohibits discrimination in relation to goods and services on all EU grounds and also 
on the grounds of civil status, family status, and membership of the Traveller community 
(which overlaps with the race ground).  

Under Section 5(1) ESA: ‘A person shall not discriminate in disposing of goods to the public 
generally  or  a  section  of  the  public  or  in  providing  a  service,  whether  the  disposal  or 
provision is for consideration or otherwise and whether the service provided can be availed 
of only by a section of the public.’ ‘Service’ means a service or facility of any nature, which 
is available to the public generally or a section of the public (Section 2(1)). The legislation 
does not refer specifically to social protection, healthcare or social security. However, the 
first instance forum, the Equality Tribunal (now the Workplace Relations Commission) has 
interpreted  the  definition  of  ‘service’  to  include  social  protection  from  the  outset.239  For 
example, cases have upheld discrimination in relation to social welfare payments such as 
rent  supplement240  and  established  that  allowances  for  people  with  disabilities  are 
‘services’.241 Healthcare is also covered.242  

The main compliance  concern in this regard  concerns the  exemption  provided  for under 
Section 14(1) ESA which provides: 

‘Nothing in this Act shall be construed as prohibiting— 
(a) the taking of any action that is required by or under— 
(i) any enactment or order of a court, 
(ii) any act done or measure adopted by the European Union, by the European 
Communities  or  institutions  thereof  or  by  bodies  competent  under  the  Treaties 
establishing the European Communities, or 
(iii) any convention or other instrument imposing an international obligation on the 
State,…’ 

The  word  ‘enactment’  is  not  defined  in  the  ESA.  It  covers  Acts  of  the  Oireachtas  and 
instruments,243  but  not  government  Department  circulars  and  other 
statutory 
administrative rules.244 Where some element of discretion exists in relation to the grant of 
a benefit, other good or service the statutory exemption is inapplicable since it relates only 
to discriminatory treatment required by law.245 However, where the putative discriminatory 
treatment is required by law Section 14(1)(a) operates to remove the measure from the 
ambit  of  the  ESA.  Several  challenges  to  social  protection  provisions  have  failed  on  that 
basis.246  In  2016,  for  example,  the  WRC  determined  that  it  did  not  have  jurisdiction  to 

239  The foundational case is: Equality Tribunal, Donovan v Donnellan DEC-S2001-011, 17.10.2001 

http://www.equalitytribunal.ie/en/Cases/2001/October/DEC-S2001-011.html; Applied in e.g. McQuaid v 
Department of Social Protection, DEC-S2014-015, 02.10.2014, 
https://www.workplacerelations.ie/en/Cases/2014/October/DEC-S2014-015.html.  
240  Equality Tribunal, Mr A v Department of Social Protection, DEC-S2013-010, 11.10.2013, 

https://www.workplacerelations.ie/en/Cases/2013/October/DEC-S2013-010.html. 

241  Mrs X (on behalf of her daughter, Ms Y) v The Minister for Social and Family Affairs, DEC-S2009-039, 

10.06.2009, at 5.1-5.2, https://www.workplacerelations.ie/en/Cases/2009/June/DEC-S2009-039-Full-Case-
Report.html. 

242  A person detained in a mental health institution can avail of the ESA to contest the nature of the facilities 

provided there: A Patient v Health Service Provider and A Hospital, DEC-S2010-053, 01.12.2010, 
https://www.workplacerelations.ie/en/Cases/2010/December/DEC-S2010-053-Full-Case-Report.html. 
243  Secondary legislation is covered by the term ‘enactment’ in Section 14(1)(a)(i). Following the entry into 

force of the Equal Status Act 2000 Section 2(1) of the Interpretation Act 2005 defined ‘enactment’ to mean 
‘an Act or statutory instrument or any portion of an Act or statutory instrument’. The Interpretation Act was 
applied by the Equality Tribunal in finding that tax regulations were enactments and so immune from 
challenge under the ESA: Dowd v Minister for Finance, DEC-S2011-061, 15.11.2011, 
https://www.workplacerelations.ie/en/Cases/2011/December/DEC-S2011-061-Full-Case-Report.html. 

244  See, for example, Health Service Executive v Quigley (Circuit Court Dublin, Linnane J., unreported, 

26.04.2010). 

245  Equality Tribunal, Mr A v Department of Social Protection, DEC-S2013-010, 11.10.2013, 

https://www.workplacerelations.ie/en/Cases/2013/October/DEC-S2013-010.html. 

246  In A Complainant v Department of Social and Family Affairs, DEC-S2008-013, 19.02.2008, 

https://www.workplacerelations.ie/en/Cases/2008/February/DEC-S2008-013-Full-Case-Report.html, the 
equality officer found that the ESA could not be used to challenge the method of calculating Pay Related 

55 

 
 
 
 
 
                                                   
 
assess a discrimination complaint about eligibility for a medical card because the criteria 
are set out in legislation.247  

Since  the  Racial  Equality  Directive  does  not  envisage  any  blanket  exemption  for 
discriminatory  measures  required  by  law,  it  is  questionable  whether  Section  14(1)(a) 
conforms to its terms. 

Judicial  interpretation  at  the  level  of  the  courts  will  be  crucial  in  determining  whether 
Ireland  is  in  compliance  with  Directive  2000/43/EC.  Pending  such  interpretation  of  the 
various  provisions,  it  is  not  possible  to  say  definitively  whether  Ireland  is  or  is  not  in 
compliance with the Racial Equality Directive. 

3.2.6.1  Article 3.3 exception (Directive 2000/78) 

Irish law does not rely on the exception in Article 3.3 of the Employment Equality Directive 
in relation to religion or belief, age, disability and sexual orientation. 

3.2.7  Social advantages (Article 3(1)(f) Directive 2000/43) 

In  Ireland,  national  legislation  does  not  expressly  prohibit  discrimination  in  social 
advantages as formulated in the Racial Equality Directive. 

The term ‘social advantage’ is not expressly referred to under ESA. Section 2(1) defines 
‘service’  as  including  ‘facilities  for  —  (i)  banking,  insurance,  grants,  loans,  credit  or 
financing,  (ii)  entertainment,  recreation  or  refreshment,  (iii)  cultural  activities,  or  (iv) 
transport or travel…’. Case law establishes that ‘service’ encompasses a broad category of 
benefits  provided  by  public  and  private  actors  such  as  free  travel  passes  on  public 
transport,248  maintenance  grants  for  third  level  students,249  and  sports  scholarships.250 
However, a Circuit Court judgment concerning an ex gratia payment scheme set up by the 
Irish government to compensate people affected by the liberalisation of the taxi industry 
has  cast  some  doubt  on  the  applicability  of  anti-discrimination  law  to  social  advantages 
provided by the public sector.251 The Court found that ‘the Tribunal had no jurisdiction to 
entertain the complaint because to do so was “in effect, to purport to review a decision of 
the Government, which… falls outside the scope of the powers conferred on it by the 2000 
Act”’.252 

In  Ireland,  the  lack  of  a  definition  of  social  advantages  raises  concerns  in  relation  to 
determining the material scope of the ESA for the purposes of compliance with the Racial 
Equality Directive. 

3.2.8  Education (Article 3(1)(g) Directive 2000/43) 

Social Insurance (PRSI) contributions for the purposes of the Old Age Contributory Pension. The scheme in 
question is governed by statute: Section 108 of the Social Welfare Consolidation Act 2005 (as amended by 
Section 8 of the Social Welfare Law Reform and Pensions Act 2006). See also A Complainant v Department 
of Social Protection, DEC-S2011-053, 18.11.2011, 
https://www.workplacerelations.ie/en/Cases/2011/November/DEC-S2011-053-Full-Case-Report.html. 

247  Donaghy v Department of Health, DEC-S2016-024, 19.04.2016, 

https://www.workplacerelations.ie/en/Cases/2016/April/DEC-S2016-024.html. 
248  Equality Tribunal, Thompson v Iarnród Éireann, DEC-S2009-015, 02.03.2009, 

https://www.workplacerelations.ie/en/Cases/2009/March/DEC-S2009-015-Full-Case-Report.html. 
249  Equality Tribunal, Two Complainants v Department of Education and Science, DEC-S2003-042/043, 

28.05.2003, https://www.workplacerelations.ie/en/Cases/2003/May/DEC-S2003-042-
043_Full_Case_Report.html. 

250  Equality Tribunal, MacMahon v Department of Physical Education and Sport, University College Cork, DEC-
S2009-014, 02.03.2009, https://www.workplacerelations.ie/en/Cases/2009/March/DEC-S2009-014-Full-
Case-Report.html. 

251  Circuit Court, Pobal v Hoey, unreported judgment, 14.04.2011. 
252  Fennelly, D. (2012) Selected Issues in Irish Equality Case Law 2008 – 2011, at p.91, available at: 

https://www.ihrec.ie/download/pdf/20150602161702.pdf. 

56 

 
 
 
 
 
 
 
 
 
 
 
                                                   
 
In Ireland, national legislation prohibits discrimination in the following areas: education as 
formulated in the Racial Equality Directive. 

Section  7  ESA  covers  educational  establishments.  ‘Educational  establishment’  is  broadly 
defined, covering pre-school services through to higher-level institutions, whether or not 
they  are  supported  by  public  funds.  Public  and  private  establishments  providing 
educational services are therefore covered. Discrimination on nine grounds is prohibited in 
respect of: admission to the terms or conditions of admission of a person as a student to 
the establishment; the access of a student to any course, facility or benefit provided by 
the establishment; any other term or condition of participation in the establishment by a 
student, or the expulsion of a student from the establishment or any other sanction against 
the student. The grounds covered are gender, age, race, religion, family status, disability, 
civil status, sexual orientation, and membership of the Traveller Community.253 

Section 7 only refers to students or prospective students. But other people, such as parents 
of pupils, can refer cases against schools or other educational establishments under Section 
5 (provided they are accessing a service, good or facility).254 The Department of Education 
and Skills is not an ‘educational establishment’ but may be regarded as providing goods 
and services under Section 5, as may other entities involved in providing facilities or setting 
policies in the area of education.255  

Case law has dealt with the accommodation of disabled students256 and broader questions 
of access across all levels of the education system.257 In a 2015 race ground case a criterion 
in  a  school  admissions  policy  contravened  the  indirect  discrimination  prohibition.  The 
criterion accorded priority to prospective students based  on  the date  of application. The 
complainant as an adopted child of Chinese national and ethnic origins was not in a position 
to submit her application as early applicants of Irish national origins who are not adopted. 
Her mother was unable to apply for a place close to the complainant’s birth date due to 
the fact that the adoption process was not concluded until the complainant was 16 months 
old.  Evidence  was  presented  to  the  effect  that  82%  of  non-family  adoptions  involved 
children of a non-Irish  national origin and that such  adoptions took between  six and 24 
months to complete. The Tribunal found that the provision put the complainant and foreign 
adopted  children  generally  at  a  particular  disadvantage  compared  with  Irish  born 
children.258 It concluded that while the admission criterion pursued the legitimate aim of 
operating a fair and reasonable admissions policy, the  respondent did not establish that 
the provision was necessary to achieve that aim.  

253  Section 29 of the Education Act 1998 provides for a general complaints mechanism in relation to enrolment, 

suspension or exclusion of students from schools: Ireland, Education Act 1998, 23.12.1998, 
http://www.irishstatutebook.ie/eli/1998/act/51/section/29/enacted/en/html.  

254  See, for example, A Separated Father v A Community School, DEC-S2010-049, 05.11.2010, 

https://www.workplacerelations.ie/en/Cases/2010/November/DEC-S2010-049-Full-Case-Report.html: 
access to students’ records was a service provided to parents having regard to both ESA and the Education 
Act 1998. 

255  For example, Two Named Complainants v Minister for Education and Science, DEC-S2006-077, 03.11.2006, 
https://www.workplacerelations.ie/en/Cases/2006/November/DEC-S2006-077-Full-Case-Report.html, and A 
Mother on behalf of her Son v Department of Education & Skills/State Examinations Commission, DEC-
S2016-040, 09.06.2016, https://www.workplacerelations.ie/en/Cases/2016/June/DEC-S2016-040.html.  

256  See for example, A mother on behalf of her son v The Board of Management of a National School, DEC-
S2016-048, 18.07.2016, https://www.workplacerelations.ie/en/Cases/2016/July/DEC-S2016-048.html 
(failure to permit assistance dog to accompany student to school contravened reasonable accommodation 
duty).  

257  See, for example, Mr X and Ms Y (on behalf of their daughter Z) v A Boys National School, DEC-S2009-017, 

13.03.2009, https://www.workplacerelations.ie/en/Cases/2009/March/DEC-S2009-017-Full-Case-
Report.html (gender ground); Faulkner v St Ita’s & St Joseph’s School, Tralee, DEC-S2006-037, 
24.06.2006, https://www.workplacerelations.ie/en/Cases/2006/May/DEC-S2006-037-Full-Case-Report.html 
(Traveller community ground); and Lyamina v The Department of Education and Science, DEC-S2009-016, 
06.03.2009, https://www.workplacerelations.ie/en/Cases/2009/March/DEC-S2009-016-Full-Case-
Report.html (race ground). 

258  Ms. A (on behalf of her daughter, B) v A Girls Secondary School, DEC-S2015-001, 06.02.2015, 

https://www.workplacerelations.ie/en/Cases/2015/February/DEC-S2015-001.html. 

57 

 
 
 
 
 
                                                   
 
The  primary  compliance  issue  concerns  access  to  schools.  In  a  high-profile  case,  the 
Supreme  Court  overturned  an  earlier  decision  of  the  Equality  Tribunal  and  ruled  that  a 
school admission policy that prioritised former pupils’ children did not constitute indirect 
discrimination  against  Travellers.259  It  determined  that  the  evidence  presented  by  the 
complainant did not demonstrate that the school’s policy placed Travellers in a situation of 
particular disadvantage. In effect the Court held that statistical evidence was required to 
establish a prima facie case; it did not consider EU law in assessing the ESA prohibition on 
indirect discrimination. In its amicus curiae submission the Equality Authority argued that 
the indirect discrimination test should conform to that of the Racial Equality Directive. 260 
The Supreme Court, however, applied a test formulated with reference to the provisions 
of the domestic statute (ESA) and did not consider whether Travellers constitute an ethnic 
group for the purposes of EU law.  

School  admissions  criteria  are  also  liable  to  place  migrant  children  at  a  particular 
disadvantage  given  that  many  of  them  will  have  not  been  resident  in  the  country  for 
equivalent periods of time to their  Irish national counterparts. For instance, preferences 
for applicants with parents or other relatives who attended the school (as in Stokes) or a 
requirement that one has been resident in the local area for a certain period261 could have 
an exclusionary effect on migrants.  

The  Equality  Tribunal  applied  the  Stokes  judgment  in  a  2015  case,  which  challenged  a 
criterion that allocated school places according to the date of application from those living 
in the school’s catchment area.262 The complainant, a British national who had migrated to 
Ireland  in  2002,  claimed  that  the  provision  was  indirectly  discriminatory  on  the  race 
ground. He maintained that the school’s policy was intrinsically liable to disadvantage the 
children of migrants,  since they  would move into the catchment area of the school at a 
later date than  indigenous children. The Director  of the  Equality Tribunal noted that the 
absence of statistical evidence was ‘not necessarily fatal’ to the complainant’s case, which 
appears to be a less stringent evidential burden than that applied in Stokes. Nevertheless, 
the Tribunal was ‘unwilling, in the absence of hard evidence on the demographics of the 
catchment  and  movements  into it in  the  relevant  time  period,  to  assume  that  non-Irish 
children  are  put  at  a  particular  disadvantage.’  The  decision  illustrates  the  significant 
obstacles to be overcome by complainants in some indirect discrimination cases and the 
need for greater access to equality data. 

National data suggests that migrant children are more likely than Irish national children to 
experience bullying at school.263 

A religious ethos exception also raises compliance concerns. Denominational schools are 
permitted  to  distinguish  between  prospective  students  on  the  basis  of  their  religious 
background.  They  are  also  entitled  to  refuse  admission  to  a  child  who  is  not  of  that 
denomination  where  it  is  essential  to  maintain  the  ethos  of  the  school.264  Religion  and 

259  Supreme Court, Stokes v Christian Brothers' High School Clonmel, [2015] IESC 13, 24.02.2015, 

http://www.courts.ie/Judgments.nsf/597645521f07ac9a80256ef30048ca52/a09897a48211897980257df600
5a3c31?OpenDocument. 

260 

https://www.ihrec.ie/download/pdf/mary_stokes_v_christian_brothers_high_school_clonmel_ors__13_dec_
2012_.pdf. 

261  Data suggests that migrant children are adversely affected by criteria that favour settlement in the area 

Darmody, M., McGinnity, F. and Kingston, G. (2016) ‘The Experiences of Migrant Children in Ireland’ in 
Williams, J., Nixon, E., Smyth, E. and Watson, D. (eds.), Cherishing All the Children Equally? Children in 
Ireland 100 Years on from the Easter Rising, pp. 175-193, at p. 181, Available at: 
https://www.esri.ie/pubs/CB201609.pdf.  

262  A Father on behalf of his son v A second level school, DEC-S2015-008, 26.06.2015, 
https://www.workplacerelations.ie/en/Cases/2015/June/DEC-S2015-008.html. 

263  Department of Children and Youth Affairs (2016) State of the Nation’s Children: Ireland 2016. Dublin: 

Government Publications, available at: 
https://www.dcya.gov.ie/documents/stateofthenationschildren/20170302SOTNCReport2016.pdf.  
264  Section 7(3)(c) ESA. This position is reinforced by Section 15(2)(b) of the Education Act 1998 which 

requires the school management board to uphold the ‘characteristic spirit’ of the school as established by its 

58 

 
 
 
 
 
                                                   
 
ethnicity are closely intertwined for some groups such as Sikhs and Jews. And so, a decision 
to refuse admission to, for example, a Jewish child could amount to direct discrimination 
on both the race and religion grounds. With respect to migrants the provision could give 
rise to indirect discrimination on the race ground. The 2011 Census found that 89.8% of 
Irish nationals were Roman Catholics compared with 52% of nationals of all other countries 
resident in Ireland.265 The exemption was the subject of extensive media commentary in 
August and September of 2007, when a large number of migrant children could not secure 
primary  school  places  in  Balbriggan,  Co.  Dublin.  An  ‘emergency  school’  was  opened  by 
Educate Together, a non-denominational education provider, to accommodate the children 
who  could  not  access  any  local  Catholic  schools  as  they  did  not  possess  the  required 
Catholic baptismal certificate.266 

Several  international  human  rights  bodies  have  called  on  the  Government  to  revise  the 
legislative exception, especially in light of the dominance of Catholic schools in education 
provision at primary level.267 In July 2016 the Education (Admission to Schools) Bill 2016 
was  published.268  According  to  IHREC  the  Bill  doesn’t  adequately  address  the  religious 
ethos exception in light of inter alia the Racial Equality Directive.269 A substantially revised 
bill  was  in  the  process  of  being  drafted  at  the  end  of  2017  and  will  be  put  before  the 
Oireachtas in 2018.270 

The Directive does not cover difference  of treatment based on nationality (Article 3(2)). 
ESA provides for such difference in treatment in the education field as between EU citizens, 
Swiss or EEA nationals, and nationals of other countries. Different treatment is permissible 
with  respect  to  fees  or  allocation  of  places  for  vocational  or  training  courses,  adult, 
continuing or further education or attendance at a university or other third-level institution 
(Section  12(7)  EEA;  Section  7(3)(d)  ESA).  Section  7(5)(b)  ESA  further  allows  different 
treatment  on  the  basis  of  nationality  in  the  provision  of  educational  grants.  The  latter 
exception was introduced in 2004 overturning an Equality Tribunal finding that confining 
eligibility for grants to EU nationals would amount to unlawful discrimination.271 The Irish 
Human Rights Commission objected to the change arguing that it would be likely to have 
a  ‘serious  detrimental  effect’  on  access  to  education,  which  in  turn  would  impact  on 
employment  prospects  and  wider  economic,  social  and  cultural  rights.272  While  these 

‘cultural educational, moral, religious, social, linguistic and spiritual values and traditions’. Boards must also 
‘have respect and promote respect for the diversity of values, beliefs, traditions, languages and ways of life 
in society’ (Section 15(2)(e). The exemption was applied in Ms A (on behalf of her son X, A Minor) v A 
Secondary School, DEC-S2014-010, 12.08.2014, http://www.lrc.ie/en/Cases/2014/August/DEC-S2014-
010.html. 

265  http://www.cso.ie/en/census/census2011reports/census2011profile6migrationanddiversity-

aprofileofdiversityinireland/. 

266  Boland, R. (2007) ‘Faith before Fairness’ Irish Times. 08.09.2007, http://www.irishtimes.com/news/faith-

before-fairness-1.960595; Irish Times (2007) ‘Catholic schools say enrolment policy not illegal’, Irish Times, 
28.09.2007, http://www.irishtimes.com/news/catholic-schools-say-enrolment-policy-not-illegal-1.967071. 

267  See e.g. UN Committee on the Rights of the Child (2016) Concluding observations on the combined third 

and fourth periodic reports of Ireland, at 64(a), 29.01.2016, CRC/C/IRL/CO/3-4, available at: 
http://www.refworld.org/docid/56c17f574.html; UN Committee on Elimination of Racial Discrimination 
(2011) Concluding observation of the Committee on the Elimination of Racial Discrimination: Ireland, 
CERD/C/IRL/CO/3-4, at 26, available at: 
http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fPPRiCAqhKb7yhsl%2fyrM1B9TT0
oGmEKg0FjIGMDN9GaDxXjccJrXyrYl%2f%2fcNOv7wnHIb0L7jDoxEB0Xhj6wo%2f5mWhBPgF7MFyODF2Qj0z
gpRtrVm9esS4KT3%2ft. 

268  https://www.oireachtas.ie/viewdoc.asp?DocID=33318&&CatID=59. 
269  Irish Human Rights and Equality Commission (2016) Observations on the Education (Admission to Schools) 

Bill 2016, at p.5, available at https://www.ihrec.ie/app/uploads/2016/11/Observations-on-Education-
Admission-to-Schools-Bill-2016.pdf.  

270 

https://www.taoiseach.gov.ie/eng/Taoiseach_and_Government/Government_Legislation_Programme/State_
of_Play_of_Bills_before_the_D%C3%A1il/. 

271  Equality Tribunal, Two Complainants v Department of Education and Science, DEC-S2003-042/043, 

28.05.2003, https://www.workplacerelations.ie/en/Cases/2003/May/DEC-S2003-042-
043_Full_Case_Report.html. 

272  Irish Human Rights Commission (2004) Observations on the Equality Bill, Dublin, IHRC, pp.8-9, available at: 

https://www.ihrec.ie/documents/observations-on-the-equality-bill-2004/.  

59 

 
 
 
                                                   
 
exceptions constitute barriers for migrants seeking access to education they would appear 
to comply with the Racial Equality Directive.  

The Intercultural Education Strategy 2010 – 2015 is the primary policy that aims to address 
discrimination against migrants in the education system (see further Chapter 3.2.8.b). It 
was developed by the Department of Education and Skills and the Office of the Minister for 
Integration, aiming to ensure that: 

- 

- 

all  students  experience  an  education  that  ‘respects  the  diversity  of  values,  belief, 
languages and traditions in Irish society and is conducted in a spirit of partnership’; 
all education providers are assisted with ensuring that inclusion and integration within 
an intercultural learning environment.273 

However, implementation of the strategy has not been monitored in part due to the closure 
of the Integration Unit within the Department of Education and Skills.  

a) 

Pupils with disabilities 

In  Ireland,  the  general  approach  to  education  for  pupils  with  disabilities  does  not  raise 
problems. 

The  legislative  approach  favours  inclusive  education,  that  is,  education  of  children  with 
disabilities in ‘mainstream’ schools.274 The National Council for Special Education (NCSE) 
was  established  in  2003  to  improve  the  delivery  of  education  services  to  persons  with 
special educational needs arising from disabilities with particular emphasis on children.275 
However,  insufficient  national  funding  has  been  allocated  to  provide  the  necessary 
support/accommodations  to  enable  disabled  children  to  participate  in  mainstream 
education.  This  is  exemplified  by  the  fact  that  the  Education  for  Persons  with  Special 
Educational Needs Act 2004 has not yet been fully commenced. Specifically, the provisions 
that provide for individual education plans are not in operation. International human rights 
bodies have raised concerns about the inadequacy of educational supports, an incoherent 
approach  to  reasonable  accommodation  for  state  examinations,  and  the  over-
concentration of pupils with disabilities in schools that are designated as disadvantaged.276 
In this regard the adoption of a new model for allocating teaching resources in September 
2017 is a positive development. Under the previous system resources were contingent on 
medical diagnoses, which resulted in delays and disadvantaged pupils who couldn’t afford 
to  have  their  needs  assessed.277  The  new  model  allocates  funds  based  on  the  school’s 
profile  and  also  provides  baseline  funding  for  each  school.278  Moreover,  Budget  2018 
provides  an  additional  EUR  30  million  to  enable  recruitment  of  a  further  1  000  Special 

273  Department of Education and Skills and Office of the Minister for Integration (2010) Intercultural Education 

Strategy, 2010–2015, available at: https://www.education.ie/en/Schools-
Colleges/Information/Intercultural-Education-Strategy/mig_intercultural_education_strategy.pdf.  
274  Section 2 of the Education for Persons with Special Educational Needs Act 2004 establishes in law the 

principle of inclusive education for students with special educational needs: Ireland, Education for Persons 
with Special Educational Needs Act 2004, 19.07.2004, 
http://www.irishstatutebook.ie/eli/2004/act/30/enacted/en/html.  

275  See generally: http://ncse.ie/. 
276  UN Committee on the Rights of the Child (2016) Concluding observations on the combined third and fourth 

periodic reports of Ireland, at 48, 29.01.2016, CRC/C/IRL/CO/3-4, available at: 
http://www.refworld.org/docid/56c17f574.html; UN Committee on Economic, Social and Cultural Rights 
(2015) Concluding observations on the third periodic report of Ireland E/C.12/IRL/CO/3, 08.07.2015, at 31-
32, available at: https://documents-dds-
ny.un.org/doc/UNDOC/GEN/G15/150/67/PDF/G1515067.pdf?OpenElement. 

277  National Council for Special Education (2013) Supporting Children with Special Educational Needs in 

Schools. NCSE Policy Advice Paper No. 4, available at: http://ncse.ie/wp-
content/uploads/2014/09/Supporting_14_05_13_web.pdf.  

278  Department of Education and Skills (2017) Circular 0013/2017, available at: 

https://www.education.ie/en/Circulars-and-Forms/Active-Circulars/cl0013_2017.pdf. 

60 

 
 
 
 
 
 
 
                                                   
 
Needs Assistants (SNAs) in 2018. SNAs are allocated to schools to provide non-teaching 
care support to children.279 

b) 

Trends and patterns regarding Roma pupils 

In  Ireland,  no  data  is  available  as  to  whether  there  are  specific  patterns  existing  in 
education regarding Roma pupils such as segregation. 

In 2017 data was published for the first time on the number of Roma children attending 
primary schools. The figure was 1 323 pupils in 2016.280 The Irish education system has 
yet  to  develop  a  culturally  appropriate  response  to  specific  issues  relating  to  Roma.  No 
reference  is  made  to  Roma  in  the  main  policy  document,  the  Intercultural  Education 
Strategy 2010 – 2015.281  

Training in the area of intercultural education is not compulsory for qualified teachers and 
there remains an absence of curriculum-linked resources that explore Traveller and Roma 
language and culture.282 Researchers have criticised the failure to address racism in school 
curricula more generally.283 A large quantitative study canvassing the attitudes of 4 970 
Irish  national  post-primary  students  concluded  that  the  ‘levels  of  reported  negativity 
towards Irish Travellers are disturbing and need to be urgently addressed by our education 
system.’284 National data suggests that migrant and Traveller children are more likely to 
experience bullying in school.285 Anti-bullying procedures were published in 2013, which 
include  a  template  for  schools  to  record  incidents.286  ‘However  the  completion  of  this 
template is not compulsory and there does not appear to be any intention to inspect these 
reports as part of the whole school evaluation process. This makes it all but impossible for 
the State to monitor in any real way the incident of identity based bullying in schools.’ 287 
The National Traveller and Roma Inclusion Strategy 2017–2021, published in June 2017, 
contains  commitments  to  reviewing  the  effectiveness  of  the  anti-bullying  guidelines  and 
teacher education.288 An implementation plan will be published in 2018. 

3.2.9  Access  to  and  supply  of  goods  and  services  which  are  available  to  the 

public (Article 3(1)(h) Directive 2000/43) 

279  See further, https://www.education.ie/en/Press-Events/Press-Releases/2017-Press-Releases/PR2017-06-

12.html. 

280  https://www.education.ie/en/Publications/Statistics/Primary-Online-Database-POD-/POD-Interesting-Facts-

First-Look-at-Data-from-POD-2016-2017.pdf. 

281  Department of Education and Skills and Office of the Minister for Integration (2010) Intercultural Education 

Strategy, 2010–2015, available at: https://www.education.ie/en/Schools-
Colleges/Information/Intercultural-Education-Strategy/mig_intercultural_education_strategy.pdf.  
282  Pavee Point Traveller and Roma Centre (2015) Convention on the Rights of the Child Shadow Report, 

available at: http://www.paveepoint.ie/convention-on-the-rights-of-the-child-shadow-report/. 

283  See e.g. Bryan, A. (2012) ‘”You’ve got to teach people that racism is wrong and then they won’t be racist”: 
Curricular representations and young people’s understandings of ‘race’ and racism’, Journal of Curriculum 
Studies, 44(5), 599-629, available at: http://doras.dcu.ie/21468/1/10_SCAN.pdf; Kitching, K., and Curtin, 
A. (2012) Addressing the concept and evidence of institutional racism in Irish education. Cork, School of 
Education, University College Cork; Institute for Social Sciences in the 21st Century, available at: 
https://cora.ucc.ie/handle/10468/816. 

284  Tormey, R., and Gleeson, J. (2012) ‘Irish post-primary students' attitudes towards ethnic minorities’ Irish 

Educational Studies, 31(2), 157-173, at 170. 

285  Department of Children and Youth Affairs (2016) State of the Nation’s Children: Ireland 2016. Dublin: 

Government Publications, available at: 
https://www.dcya.gov.ie/documents/stateofthenationschildren/20170302SOTNCReport2016.pdf. 

286  See further: http://www.education.ie/en/Schools-Colleges/Information/Bullying/Anti-Bullying-Procedures-

in-Schools.html. 

287  Pavee Point Traveller and Roma Centre (2015) Convention on the Rights of the Child Shadow Report, at 
p.19, available at: http://www.paveepoint.ie/convention-on-the-rights-of-the-child-shadow-report/. 

288  Department of Justice and Equality (2017) The National Traveller and Roma Inclusion Strategy 2017–2021, 

p.26, available at: 
http://www.justice.ie/en/JELR/National%20Traveller%20and%20Roma%20Inclusion%20Strategy,%202017
-2021.pdf/Files/National%20Traveller%20and%20Roma%20Inclusion%20Strategy,%202017-2021.pdf.  

61 

 
 
 
 
 
 
 
                                                   
 
In Ireland, national legislation prohibits discrimination in the following areas: access to and 
supply of goods and services as formulated in the Racial Equality Directive. 

Section 5(1) ESA provides:  

‘A  person  shall  not  discriminate  in  disposing  of  goods  to  the  public  generally  or  a 
section of the public or in providing a service, whether the disposal or provision is for 
consideration or otherwise and whether the service provided can be availed of only 
by a section of the public.’ 

Gender,  age,  race,  religion,  family  status,  disability,  civil  status,  sexual  orientation,  and 
membership of the Traveller Community are covered. 

‘Goods’ are defined in Section 2(1) as ‘any articles of movable property’ (i.e. property apart 
from land) and has not been contentious in the case law to date. 

In  Two  Complainants  v  Department  of  Education  and  Science289  the  Equality  Officer 
considered  what  was  covered  by  the  definition  of  service  provision.  This  related  to  the 
provision of maintenance grants payable to adults on further education courses. The then 
non-statutory  rules  provided  that  these  grants  were  only  available  to  EU  nationals  or 
persons  with  official  refugee  status.  The  Department  had  refused  the  complainants’ 
applications for the grants. The question before the Tribunal was whether a maintenance 
grant was covered by the Act. Section 2(1) of the Act defines a  service  as  ‘a  service or 
facility of any nature which is available to the public generally or a section of the public.’ 
The Equality Officer held that a maintenance grant was a ‘facility’ covered by the Act. 

3.2.9.1  Distinction between goods and services available publicly or privately 

In Ireland, national law does not distinguish between goods and services that are available 
to the public (e.g. in shops,  restaurants, banks) and those only available privately (e.g. 
limited to members of a private association).  

However, distinct provisions govern registered clubs, which are bodies that have applied 
for or hold a certificate of registration under the Registration of Clubs Acts 1904–1999.290 
Registration enables clubs to sell alcohol to members and certain visitors. Clubs that do 
not hold a liquor licence are governed instead by the general prohibition on discrimination 
set out under Section 5 ESA. Sections 8 to 10 ESA apply exclusively to registered clubs. 
The provisions only relate to matters concerning membership of clubs and cases must be 
taken before the District Court. Clubs which have the principal purpose of catering for the 
needs of persons who are members of the Traveller community or people of a particular 
gender, sexual orientation, religious belief (or persons of no religious belief), family status, 
civil  status,  age,  disability,  or  nationality  or  ethnic  or  national  origin  can  restrict 
membership to people from those groups (Section 9). The ‘race’ and ‘colour’ aspects of the 
race ground are not exempt. Further, the Traveller community exception is asymmetrical. 
It remains to be seen whether these provisions comply with the Racial Equality Directive. 
Recital 17 envisages the establishment of ‘organisations of persons of a particular racial or 
ethnic origin where their main object is the promotion of the special needs of those persons’ 
as positive action measures. However, the Irish Superior Courts have not taken account of 
disadvantage  or  substantive  equality  of  opportunity  principles  in  construing  relevant 
provisions of the ESA. The High Court interpreted Section 9 of that Act as permitting male-

289  Equality Tribunal, DEC-S2003-042/043, 28.05.2003, 

http://www.equalitytribunal.ie/en/Cases/2003/May/DEC-S2003-042-043_Full_Case_Report.html. 

290  Ireland, Registration of Clubs (Ireland) Act 1904, 15.08.1904, 

http://www.irishstatutebook.ie/eli/1904/act/9/enacted/en/print.html. 

62 

 
 
 
 
 
 
 
 
 
                                                   
 
only membership in golf clubs, holding that the principal purpose of such clubs is to cater 
for the needs of men.291 The Supreme Court upheld the decision on 4 November 2009.292 

3.2.10  Housing (Article 3(1)(h) Directive 2000/43) 

In Ireland, national legislation prohibits discrimination in the following areas: housing as 
formulated in the Racial Equality Directive.  

Section 6(1) ESA prohibits discrimination in disposing of any estate or interest in premises, 
in  terminating  any  tenancy  or  other  interest  in  premises,  or  in  the  provision  of 
accommodation  and  related  services  and  amenities.  Gender,  age,  race,  religion,  family 
status,  disability,  civil  status,  sexual  orientation,  and  membership  of  the  Traveller 
community  are  covered.  The  Equality  (Miscellaneous  Provisions)  Act  2015  introduced 
‘housing  assistance’  as  a  new  ground  to  protect  against  discrimination  in  the 
accommodation context.293 As of 1 January 2016, people in receipt of housing assistance, 
rent  supplement  or  other  social  welfare  payments  cannot  be  discriminated  against  in 
relation to the provision of accommodation and related service and amenities. 

There are several exceptions.  

For example, the prohibition on discrimination does not apply to accommodation that is 
provided in a person’s home, ‘or where the provision of accommodation affects the person’s 
private  or  family  life  or  that  of  any  other  person  residing  in  the  home.’294  Section  6(5) 
permits reservation of housing for use by particular categories of people such as a home 
for people with disabilities, or as a retirement or nursing home for older people. 

Housing authorities may provide different treatment in respect of housing accommodation 
to persons based on family size, family status, civil status, disability, age or membership 
of  the  Traveller  community  (Section  6(6)  ESA).  The  Circuit  Court  has  clarified  that  this 
exception cannot result in less favourable treatment in the provision of housing.295  

Section  6(7)  allows  the  Minister  to  apply  differential  treatment  in  housing  provision  to 
persons  on  the  basis  of  their  nationality,  gender,  family  size,  family  status,  civil  status, 
disability,  age  or  membership  of  the  Traveller  community.296  Any  such  difference  in 
treatment  is  not  permitted  to  amount  to  a  derogation  from  the  obligations  of  the  State 
under EU law. There is no case law on the provision to date.  

This nationality aspect of the exception coupled with the exemption for measures required 
by  law  (Section  14(1)(a))  means  that  migrants  are  unable  to  challenge  many  forms  of 
potential discrimination in public sector housing using ESA. For instance, eligibility for social 
housing and some forms of housing assistance payments are contingent on one’s residence 
status in the State.297  

There is no major anti-discrimination case law in the field of housing involving migrants. 
Available data, in the form of experience of perceived discrimination, suggests that Black 
non-Irish  nationals  are  a  high-risk  group  for  encountering  discriminatory  practices  in 

291  Equality Authority v Portmarnock Golf Club, [2005] IEHC 235, 10.06.2005, 

http://www.bailii.org/ie/cases/IEHC/2005/H235.html.  

292  Equality Authority v Portmarnock Golf Club, [2009] IESC 73, 04.11.2009, 

http://www.bailii.org/ie/cases/IESC/2009/S73.html. 

293  http://www.irishstatutebook.ie/eli/2015/act/43/enacted/en/print.html. 
294  Section 6(2)(d) ESA. 
295  Dublin City Council v Deans (Circuit Court Dublin, Hunt J., unreported, 15.04.2008), at p. 29.  
296  No reference is made in this section to the ground of race or sexual orientation. 
297  See generally: http://www.integration.ie/website/omi/omiwebv6.nsf/page/infoformigrants-Housing-

LocalAuthority-SocialHousing-en. 

63 

 
 
 
 
 
 
 
 
 
 
                                                   
 
accessing  accommodation,298  while  a  2014  survey  found  that  95  %  of  landlords  who 
responded  would  rent  to  non-Irish  nationals  (400  interviews  were  conducted  with 
landlords).299 There is an identified need for further research in this area300 and no major 
policies  that  address  discrimination  against  migrants  in  accommodation  provision.  The 
Migrant Integration Strategy, which was published in February 2017 and runs from 2017 
to 2020 contains no such measures.301  

3.2.10.1  Trends and patterns regarding housing segregation for Roma 

There  is  no  specific  information  about  patterns  of  segregation  affecting  the  Roma 
Community  in  Ireland  because  of  the  absence  of  relevant  Government  data.302  An 
estimated  3  000  to  5  000  Roma  people  live  in  Ireland.303  According  to  a  civil  society 
organisation,  many  Roma  families  and  children  are  living  in  extremely  poor  and  often 
dangerous  living  conditions  without  access  to  basic  facilities.304  The  UN  Committee  on 
Economic,  Social  and  Cultural  Rights  has  recommended  the  State  address  the  lack  of 
culturally  appropriate  accommodation  provided  to  Roma  and  Travellers.305  Pavee  Point 
Traveller and Roma Centre reports that many  issues concerning patterns of segregation 
that are known to affect the Traveller Community also affect the Roma Community. Major 
issues common issues ‘include discrimination in accessing accommodation, racism, lack of 
access to social housing and rent allowance, a lack of security of tenure and substandard 
conditions.’306 The findings of a small-scale study on Experiences of Travellers in the Private 
Rented Sector, published in 2017, suggest that Travellers experience discrimination on the 
part  of  landlords  and  settled  neighbours.307  Landlords  believed  that  discrimination  had 
diminished  in  recent  years  due  to  compliance  with  legislation.  However,  a  2014  survey 
conducted on behalf of the Residential Tenancies Board found that 82% of those landlords 
who responded were unwilling to rent property to members of the Travelling community 
(400 interviews were conducted with landlords).308 

The  European  Committee  of  Social  Rights  upheld  a  complaint  against  Ireland  in  2015, 
finding that  a shortfall in sufficient  accommodation for  Travellers, as  well as  inadequate 

298  McGinnity, F., Grotti, R., Kenny, O., and Russell, H. (2017) Who experiences discrimination in Ireland? 

Evidence from the CSO Equality Modules, Dublin: ESRI, available at: 
https://www.ihrec.ie/app/uploads/2017/11/Who-experiences-discrimination-in-Ireland-Report.pdf.  
299  DKM Consultants (2014) Private Rented Sector Survey Findings: Tenants, Landlords & Estate Agents, 

Dublin, DKM, available at: https://onestopshop.rtb.ie/images/uploads/general/DKM_2014-10-prs-survey-
findings-for-prtb-report-final.pdf.  

300  Barrett, A., McGinnity, F., and Quinn, E. (eds.) (2017) Annual Monitoring Report on Integration 2016, 

Dublin, ESRI, p. 57, available at: https://www.esri.ie/publications/monitoring-report-on-integration-2016/. 

301  Department of Justice and Equality (2017) The Migrant Integration Strategy – A Blueprint for the Future, 

available at: 
http://www.justice.ie/en/JELR/Migrant_Integration_Strategy_English.pdf/Files/Migrant_Integration_Strateg
y_English.pdf.  

302  Pavee Point Traveller and Roma Centre (2016) Policy and practice in ethnic data collection and monitoring, 

available at: http://www.paveepoint.ie/wp-content/uploads/2016/04/Counting-Us-In-A4_WEB.pdf. 

303  Department of Justice and Equality (2017) National Traveller and Roma Inclusion Strategy, 2017 – 2021, 

p.15, available at: 
http://www.justice.ie/en/JELR/National%20Traveller%20and%20Roma%20Inclusion%20Strategy,%202017
-2021.pdf/Files/National%20Traveller%20and%20Roma%20Inclusion%20Strategy,%202017-2021.pdf.  
304  Pavee Point Traveller and Roma Centre (2016) Presentation to the Oireachtas Committee on Housing and 
Homelessness, 19.05.2016, available at: http://www.paveepoint.ie/wp-content/uploads/2015/04/PP-Final-
Traveller-Accomodation-Presentation-to-Oireachtas_RF-4.pdf.  

305  UN Committee on Economic, Social and Cultural Rights (2015) Concluding observations on the third periodic 

report of Ireland E/C.12/IRL/CO/3, 08.07.2015, at 26-17, available at: https://documents-dds-
ny.un.org/doc/UNDOC/GEN/G15/150/67/PDF/G1515067.pdf?OpenElement. 

306  Pavee Point Traveller and Roma Centre (2016) Presentation to the Oireachtas Committee on Housing and 

Homelessness, 19.05.2016, at p. 8, available at: http://www.paveepoint.ie/wp-
content/uploads/2015/04/PP-Final-Traveller-Accomodation-Presentation-to-Oireachtas_RF-4.pdf. 

307  RSM PACEC Ltd. (2017) Experiences of Travellers in the Private Rented Sector, Dublin, Housing Agency, 
available at: https://onestopshop.rtb.ie/images/uploads/general/experiences-of-travellers-in-the-private-
rented-sector-on-the-web.pdf.  

308  DKM Consultants (2014) Private Rented Sector Survey Findings: Tenants, Landlords & Estate Agents, 

Dublin, DKM, available at: https://onestopshop.rtb.ie/images/uploads/general/DKM_2014-10-prs-survey-
findings-for-prtb-report-final.pdf.  

64 

 
 
 
 
                                                   
 
site  conditions,  violated  Article  16  of  the  European  Social  Charter.309  Underlying  factors 
include a disinvestment in Traveller accommodation since 2008 coupled with the failure of 
local  authorities  to  access  available  funds.  The  Housing  (Traveller  Accommodation)  Act 
1998  obliges  each  local  authority  to  prepare,  adopt  and  implement  a  five-year  rolling 
accommodation programme to meet the existing and projected accommodation needs of 
Travellers  in  their  areas.310  All  local  authorities  have  adopted  Traveller  Accommodation 
Programs  for  the  period  2014-2018.  Capital  funding  of  EUR  9  million  was  provided  for 
Traveller-specific  accommodation 
increase  of  64%  on  the  2016 
in  2017,  an 
allocation. Budget 2018 allocated EUR 12 million for Traveller-specific accommodation, an 
increase of EUR 3 million on the previous year. However, this falls far short of the EUR 40 
million provided in 2008. In 2016, local authorities spent EUR 4.2 million of the EUR 5.5 
million  allocated  for  the  purpose  of  providing  accommodation  for  Travellers.311  In  2017, 
local authorities drew down just EUR 4.835 million of the EUR 9 million allocation for that 
year.312 The situation is exacerbated by both the enabling legal provisions and the practice 
of evictions, in violation of the European Social Charter.313 

An Oireachtas Committee on Housing and Homelessness issued several recommendations 
in 2016 including a ban on evictions where alternative accommodation is unavailable and 
a mechanism for enforcing local authorities’ duties under the 1998 Act.314 In 2016 the UN 
Committee  on  the  Rights  of  the  Child  called  for  increased  funding  for  accommodation 
facilities that address the needs of Traveller and Roma children and their families and the 
amendment or repeal of legislation that criminalises nomadism.315  

To date, the Government has not implemented the bulk of those recommendations. There 
are no plans to reform the laws that enable evictions. However, the National Traveller and 
Roma Inclusion Strategy 2017–2021, published in June 2017, does contain a commitment 
to  a  review  of  the  1998  Act.316  An  Expert  Group  is  to  be  established  to  carry  out  that 
review.317 The review will be informed by the findings of an independent research report 
that  the  provision  of  Traveller-specific  accommodation  under  the  1998  Act  from  2000-
2016.318 Published in June 2017, the Report found that an average of 376 Traveller-specific 
homes were provided per year. This was below the targets set, which if achieved would 

309  European Committee of Social Rights (2016) European Roma Rights Centre (ERRC) v Ireland, Complaint No. 

100/2013, available at http://hudoc.esc.coe.int/eng/?i=cc-100-2013-dmerits-en. 

310  Ireland, Housing (Traveller Accommodation) Act 1998, 13.07.1998, 
http://www.irishstatutebook.ie/eli/1998/act/33/enacted/en/html.  

311  Minister of State with responsibility for Urban Planning and Housing, Damien English TD, Written Answers, 

Traveller Accommodation, 21 November 2017, Dáil Éireann Debate Vol. 961 No. 7, [49197/17], 
http://oireachtasdebates.oireachtas.ie/Debates%20Authoring/DebatesWebPack.nsf/takes/dail20171121000
93?opendocument&highlight=%22Traveller%20accommodation%22%20Damien%20English#WRFF05100.  

312  Minister of State at the Department of Housing, Planning, Community and Local Government, Damien 

English TD, Written Answers, Traveller Accommodation, 27 February 2018, Dáil Éireann Debate Vol. 961 No. 
7, [10173/18], 
http://oireachtasdebates.oireachtas.ie/Debates%20Authoring/DebatesWebPack.nsf/takes/dail20180227001
12?opendocument&highlight=%22Traveller%20accommodation%22%20Damien%20English#WREEE00600.  
313  European Committee of Social Rights (2016) European Roma Rights Centre (ERRC) v Ireland, Complaint No. 

100/2013, available at http://hudoc.esc.coe.int/eng/?i=cc-100-2013-dmerits-en.  

314  Houses of the Oireachtas (2016) Report of the Committee on Housing and Homelessness, available at: 
http://www.oireachtas.ie/parliament/media/committees/32housingandhomelessness/Final-Report-.pdf. 
315  UN Committee on the Rights of the Child (2016) Concluding observations on the combined third and fourth 

periodic reports of Ireland, 29.01.2016, CRC/C/IRL/CO/3-4, at 17, available at: 
http://www.refworld.org/docid/56c17f574.html. 

316  Department of Justice and Equality (2017) The National Traveller and Roma Inclusion Strategy 2017–2021, 

p.41, available at: 
http://www.justice.ie/en/JELR/National%20Traveller%20and%20Roma%20Inclusion%20Strategy,%202017
-2021.pdf/Files/National%20Traveller%20and%20Roma%20Inclusion%20Strategy,%202017-2021.pdf.  
317  Minister of State with responsibility for Urban Planning and Housing, Damien English TD, Written Answers, 

Traveller Accommodation, 28 November 2017 [50489/17], 
https://beta.oireachtas.ie/en/debates/debate/dail/2017-11-15/29/.  

318  RSM PACEC Ltd (2017) Research Report: Review of Funding for Traveller-Specific Accommodation and the 

Implementation of Traveller Accommodation Programmes, Dublin, Housing Agency, available at: 
https://www.housingagency.ie/getattachment/Our-Publications/Housing-Management/17-11-21-
Independent-Review-of-Funding-for-Traveller-Specific-Accommodation.pdf.  

65 

 
 
 
                                                   
 
have  seen  an  average  of  494  Traveller-specific  homes  provided  per  annum.  The  Report 
highlights  planning  issues  as  a  key  challenge  to  the  delivery  of  Traveller-specific 
accommodation, in particular opposition to planning applications by settled residents and 
elected representatives. According to the national and local Traveller representative groups 
consulted  for  the  report  believe  accommodation  is  of  poor  quality  with  overcrowding 
mentioned as a major factor.319 Data collected by local authorities reinforces the need for 
Traveller-specific accommodation: 536 Traveller families were living on unauthorised sites 
in 2016.320  

319  RSM PACEC Ltd (2017) Research Report: Review of Funding for Traveller-Specific Accommodation and the 

Implementation of Traveller Accommodation Programmes, pp.34-35. 

320  Department of Housing, Planning and Local Government (2017) Annual Count of Traveller Families in 2016 

in LA and LA Assisted Accommodation and on Unauthorised Halting Sites, 
https://www.housing.gov.ie/sites/default/files/publications/files/annual_count_of_traveller_families_in_201
6_in_la_and_la_assisted_accommodation_and_on_unauthorised_halting_sites.pdf.  

66 

 
 
 
 
                                                   
4 

EXCEPTIONS 

4.1  Genuine and determining occupational requirements (Article 4) 

In  Ireland,  national  legislation  provides  for  an  exception  for  genuine  and  determining 
occupational requirements. 

Under Section 37(2) EEA:  

‘[A] difference of treatment which is based on a characteristic related to any of the 
discriminatory  grounds  (..)  shall  not  constitute  discrimination  where,  by  reason  of 
the particular occupational activities concerned or of the context in which they are 
carried out - 
(a)  the  characteristic  constitutes  a  genuine  and  determining  occupational 
requirement, and  
(b) the objective is legitimate and the requirement proportionate.’  

To date this provision has been considered exclusively in age ground case law concerning 
compulsory retirement.321 Since the decisions largely rested on analyses of the provision 
that permits employers to set retirement ages (section 34(4) EEA), the precise ambit of 
this  exception  is  as  yet  unclear.  The  main  precedent  is  Saunders  v  CHC  Ireland  Ltd.  in 
which a retirement age of 55 for a category of emergency services personnel (helicopter 
winch operators) was justified under section 37(2) and section 34(4).322 Applying the Wolf 
judgment the adjudicator accepted that the possession of a high physical capacity was a 
genuine and determining occupational requirement for the role and that this standard of 
capacity diminishes with age.323  

Under  Section  5(2)(i)  ESA  the  prohibition  on  discrimination  in  disposing  of  goods  or  in 
providing a service does not apply in the case of ‘differences in the treatment of persons 
on the gender, age or disability ground or on the ground of race, reasonably required for 
reasons  of  authenticity,  aesthetics,  tradition  or  custom  in  connection  with  a  dramatic 
performance  or  other  entertainment.’  To  date  there  is  no  case  law  on  this  exception.  It 
would presumably allow the selection of a person of a particular ethnicity, for example, to 
play a role where being of that ethnicity was reasonably required. 

4.2  Employers with an ethos based on religion or belief (Article 4(2) Directive 

2000/78) 

In Ireland, national law provides for an exception for employers with an ethos based on 
religion or belief.  

Section 37(1) EEA provides:  

‘Subject 
to subsections  (1A) and (1B),  a  religious,  educational  or  medical 
institution which is under the direction or control of a body established for religious 
purposes  or  whose  objectives  include  the  provision  of  services  in  an  environment 

321  A parallel provision that applies to the gender ground only, section 25 EEA, has been applied in a number of 

cases. See e.g. A Prospective Employee v A Company, DEC-E2015-101, 07.10.2015, 
https://www.workplacerelations.ie/en/Cases/2015/October/DEC-E2015-101.html. 

322  DEC-E2011-142, 19.07.2011, https://www.workplacerelations.ie/en/Cases/2011/July/DEC-E2011-142-Full-

Case-Report.html. See also McPhilips v Monaghan County Council, DEC-E2011-257, 22.11.2011, 
https://www.workplacerelations.ie/en/Cases/2011/December/DEC-E2011-257-Full-Case-Report.html; 
Transdev Light Rail Limited v Chrzanowski, EDA1632, 29.11.2016,   
https://www.workplacerelations.ie/en/Cases/2016/November/EDA1632.html; A Worker v A Healthcare 
Provider, ADJ-00003418, 20.01.2017, https://www.workplacerelations.ie/en/Cases/2017/January/ADJ-
00003418.html. 

323  Wolf v Stadt Frankfurt Am Main, Case C-229/08 ECJ, 12.01.2010, 

http://curia.europa.eu/juris/liste.jsf?num=C-229/08.  

67 

 
 
 
 
 
 
 
 
 
 
 
                                                   
 
which promotes certain religious values shall not be taken to discriminate against a 
person… if— 
(a) it gives more favourable treatment, on the religion ground, to an employee or a 
prospective employee over that person where it is reasonable to do  so in order to 
maintain the religious ethos of the institution, or 
(b) it  takes  action  which  is  reasonably  necessary  to  prevent  an  employee  or  a 
prospective employee from undermining the religious ethos of the institution.’324  

Further sub-sections ensure that state funded entities may only avail of the exception in 
circumstances that cohere with Article 4(2) Directive 2000/78: 

‘(1A)  Where  an  educational  or  medical  institution  referred  to  in subsection  (1) is 
maintained,  in  whole  or  in  part,  by  monies  provided  by  the  Oireachtas  more 
favourable  treatment  on  the  religion  ground  referred  to  in paragraph  (a) of  that 
subsection shall be taken to be discrimination unless — 
(a)  that  treatment  does  not  constitute  discrimination  on  any  of  the  other 
discriminatory grounds, and 
(b) by reason of the nature of the institution’ s activities or the context in which the 
activities are being carried out, the religion or belief of the employee or prospective 
employee  constitutes  a  genuine,  legitimate  and  justified  occupational  requirement 
having regard to the institution’ s ethos.  
(1B)  Where  an  educational  or  medical  institution  referred  to subsection  (1) is 
maintained, in whole or in part, by monies provided by the Oireachtas, action of the 
type  referred  to  in paragraph  (b) of  that  subsection  shall  be  taken  to  be 
discrimination unless by reason of the nature of the employment concerned or the 
context in which it is carried out — 
(a)  the  action  is  objectively  justified  by  the  institution’s  aim  of  preventing  the 
undermining of the religious ethos of the institution, and 
(b) the means of achieving that aim are appropriate and necessary. 
(1C)  An  action  referred  to  in subsection  (1B) shall  not  be  objectively  justified  in 
accordance  with paragraph  (a) of  that  subsection,  or  appropriate  and  necessary  in 
accordance with paragraph (b) of that subsection, unless the action of the institution 
is — 
(a) rationally and strictly related to the institution’s religious ethos, 
(b) a response to conduct of the employee or prospective employee undermining the 
religious  ethos  of  the  institution  rather  than  a  response  to  that  employee’s,  or 
prospective employee’ s, gender, civil status, family status, sexual orientation, age, 
disability, race or membership of the Traveller community, and 
(c)  proportionate  to  the  conduct  of  the  employee  or  prospective  employee,  as  the 
case may be, having due regard to — 
(i) any other action the employer may take in the circumstances, 
(ii) the consequences of that action for that employee or prospective employee, 
(iii) the employee’s or prospective employee’s right to privacy, and 
(iv) the actual damage caused to the religious ethos of the institution by the conduct 
of that employee or prospective employee.’  

The  exception  was  inserted  by  the  Equality  (Miscellaneous  Provisions)  Act  2015,  which 
came into force on 1 January 2016 and has yet to be considered in case law. It replaced a 
provision  that  did  not  appear  to  comply  with  Article  4(2)  since  inter  alia  there  was  no 
requirement that differential treatment should be ‘legitimate’ or ‘proportionate’, nor did it 
explicitly provide that the exception could not be used to justify discrimination on another 
ground.  

The previous provision, although never fully tested in legal proceedings (see below) was 
controversial at the national level. Teachers’ unions opposed the exemption from the outset 

324  http://revisedacts.lawreform.ie/eli/1998/act/21/revised/en/html#SEC37. 

68 

 
 
 
 
 
                                                   
 
arguing,  in  particular,  that  it  would  impact  lesbian,  gay  and  bisexual  staff.325  Those 
concerns were reinforced by a small-scale research study, which found that the exemption 
caused considered anxiety on the part of such teachers affecting their ability to ‘come out’ 
at work.326 The Equality Authority and the Irish Human Rights Commission had also called 
for its amendment.327  

The former provision was considered in one case in which a primary school discriminated 
against a teacher on the grounds of religion and age in respect of promotion to the position 
of principal.328 In the course of an interview the complainant had been questioned about 
her views on religious patronage of schools and pluralism in education. The Labour Court 
found that the questioning amounted to discrimination on the religion ground. The Court 
rejected the respondent’s contention that Section 37 allowed the interview panel to do so 
without  infringing  the  principle  of  equal  treatment  on  grounds  of  religion.  Noting  that 
Section 37 must be interpreted and applied in conformity with Directive 2000/78/EC and 
‘ascribed  a  narrow  ambit’  as  an  exception  to  the  general  prohibition  of  discrimination  it 
reasoned as follows: 

‘The question of whether the preferment of candidates by reference to their religious 
belief is justified in a particular case is a matter of evidence to be adduced by the 
person seeking to rely on the exception that the statute provides. In the instant case 
the  Respondent  did  not  adduce  any  evidence  on  which  it  could  be  held  that  the 
canvassing of the private views of candidates for the post in issue on the question of 
religious patronage and pluralism was reasonable or necessary in order to maintain 
the  religious  ethos  of  the  school.  Nor  was  there  any  evidence  to  suggest  that 
whatever views the Complainant had on that topic would impact on her capacity to 
act in good faith and with loyalty to the school’s Catholic ethos.’ 

The  Labour  Court’s  approach  suggests  that  the  previous  provision  would  have  been 
interpreted narrowly. Nonetheless, the revised section brings national law into alignment 
with the exception as framed under Article 4(2). 

4.3  Armed  forces  and  other  specific  occupations  (Article  3(4)  and  Recital  18 

Directive 2000/78) 

In Ireland, national legislation provides for an exception for the armed forces in relation to 
age or disability discrimination (Article 3(4), Directive 2000/78).  

Section 37(5) EEA provides that the prohibition on discrimination on the age and disability 
grounds does not apply in relation to employment in the armed forces.329 

In  relation  to  other  specific  occupations,  under  Section  37(3)  EEA  it  is  an  occupational 
requirement that those employed in the police, prison service or any emergency service 

325  See e.g. various submissions of the Irish National Teachers’ Organisation: 

http://www.into.ie/lgbt/NewsArchive/Section371/. 

326  Walsh, J., Conlon, C., Fitzpatrick, B., and Hansson, U. (2007) Enabling lesbian, gay and bisexual individuals 

to access their rights under equality law, Dublin, Equality Authority, pp. 61-63, available at: 
https://www.ihrec.ie/download/pdf/enabling_lesbian_gay_and_bisexual_individuals_to_access_their_rights_
under_equality_law.pdf. 

327  See e.g. IHREC (2014) IHREC Designate Report on Ireland’s 4th Periodic Review by the UN Human Rights 

Committee on the ICCPR, available at: 
https://www.ihrec.ie/app/uploads/download/pdf/20140616113130.pdf. 

328  A National School v A Worker, EDA1515, 05.10.2015, 

https://www.workplacerelations.ie/en/Cases/2015/October/EDA1515.html; on appeal from the Equality 
Tribunal’s decision in, A Teacher and A National School, DEC-E2014-097, 30.12.2014, 
http://www.workplacerelations.ie/en/Cases/2014/December/DEC-E2014-097.html. Prior to its enactment, 
the Supreme Court found that the religious ethos exemption was compatible with the Irish Constitution in 
Re Article 26 and the Employment Equality Bill 1996 [1997] 2 IR 321. 

329  The High Court has confirmed that the provision exempts use of an age restriction in respect of persons 

seeking to join the Defence Forces: Smyth v Minister for Justice Equality & Defence & ors, [2013] IEHC 110, 
02.01.2013.  

69 

 
 
 
 
 
 
 
 
                                                   
 
are fully competent, available and capable of undertaking the range of functions associated 
with  such  positions  so  that  the  operational  capacity  of  the  services  concerned  may  be 
preserved.  Although  not  directed  at  employees  with  disabilities  ‘the  clear  implication  on 
reading the section is that it is’.330 This provision reflects the wording of Recital 18 and was 
applied by the Labour Court in a case concerning a prison officer.331 It was accepted that 
the  complainant  was  unable  to  carry  out  the  full  range  of  duties  attached  to  his  post 
because of a medical condition called ‘benign essential hypertension’. The respondent did 
not  breach  its  duty  to  provide  reasonable  accommodation  under  Section  16  when  it 
declined  to  provide  the  officer  with  alternative  employment  outside  of  any  contact  with 
prisoners: 

‘Once  the  Complainant cannot  carry  out  the  full  range  of  duties  due  to  an  alleged 
disability  and  no  reasonable  accommodation  can  enable  him  to  do  so  then  the 
Respondent  is  entitled  to  rely  on  the  provision  of  Section  37(3)  of  the  Acts  as  a 
complete defence to a complaint that they failed to provide appropriate measures to 
accommodate his disability within the meaning of Section 16(3).’ 

In  effect  the  exception  provided  for  under  Section  37(3)  qualifies  the  duty  to  provide 
reasonable accommodation for employees in specific occupations since the usual obligation 
to  consider  alternative  duties  under  Section  16  is  subject  to  preserving  the  operational 
capacity of the services listed.  

4.4  Nationality discrimination (Article 3(2)) 

a)  Discrimination on the ground of nationality 

In Ireland, national law includes exceptions relating to difference of treatment based on 
nationality.  

Under Section 6(2)(h) EEA and Section 3(2)(h) ESA the race ground includes nationality, 
or ethnic or national origin.  

Section  12(7)  EEA  allows  different  treatment  on  the  basis  of  nationality  in  relation  to 
admission or attendance fees or allocation of places at any vocational or training course, 
between nationals of other countries and citizens of Ireland, Swiss and EEA nationals, or 
nationals of another Member State of the European Union. This exception would appear to 
comply with the provisions of Racial Equality Directive 3(2).  

Section 17(2) EEA provides that in relation to  discrimination on the basis of nationality, 
nothing  in  the  Act  shall  render  unlawful  any  action  taken  in  accordance  with  the 
Employment Permits Acts 2003-2006.332  

Section 7(5)(b) ESA permits the Minister for Education and Science to differentiate between 
Irish and EU nationals, Swiss and EEA nationals  on the one hand and nationals  of other 
countries on the other, in relation to the provision of educational grants. 

Section  14(1)(aa)  ESA  provides  that  distinctions  based  on  nationality  are  allowed  in 
relation  to  enforcement  of  the  Immigration  Act  2004,  or  in  respect  of  other  residency 

330  Per Bolger, M., Bruton C., and Kimber, C. (2012) Employment Equality Law, Dublin, Thomson Reuters, p. 

373. 

331  Department of Justice, Equality and Law Reform v Kavanagh, EDA1120, 14.06.2011, 

https://www.workplacerelations.ie/en/Cases/2011/June/EDA1120.html.  

332  Ireland, Employment Permits Act 2003, 10.04.2003, 

http://www.irishstatutebook.ie/eli/2003/act/7/enacted/en/html; Ireland, Employment Permits Act 2006, 
23.06.2006, http://www.irishstatutebook.ie/eli/2006/act/16/enacted/en/index.html.  

70 

 
 
 
 
 
 
 
 
 
 
 
                                                   
 
requirements.333  This  exception  comes  within  the  provisions  contained  in  the  Racial 
Equality Directive. 

Section 6(7) ESA permits differential treatment of persons  on the basis of nationality in 
relation to housing or accommodation provided by or on behalf of the Minister.  

Section 5(2)(f) ESA permits a difference in treatment of persons on the basis of nationality 
in relation to the provision or organisation of a sporting facility or event to the extent that 
the differences are reasonably necessary having regard to the nature of the facility or event 
and are relevant to the purpose of the facility or event.  

A club will not be a discriminating club if it excludes membership by reason that its principal 
purpose is to cater for the needs of a particular nationality under Section 9 ESA. 

In Ireland, nationality (as in citizenship) is explicitly mentioned as a protected ground in 
national anti-discrimination law.334  

b) 

Relationship between nationality and ‘race or ethnic origin’ 

Under Section 6(2)(h) EEA and Section 3(2)(h) ESA the race ground includes nationality, 
or ethnic or national origin.  

There is no definition of nationality, nor any case law which would shed light on any overlap 
with ethnicity, nor whether or not statelessness is covered.  

4.5  Work-related family benefits (Recital 22 Directive 2000/78) 

a) 

Benefits for married employees 

In Ireland, it does not constitute unlawful discrimination in national law if an employer only 
provides benefits to those employees who are married or in a civil partnership.  

The Marriage Act 2015 removed the bar on marriage between persons of the same sex.335 
Prior to its enactment partners  of the  same sex could only enter into a civil partnership 
under the terms of the Civil Partnership and Certain Rights and Obligations of Cohabitants 
Act 2010.336  

Section 34(1) EEA provides an exception from the ban on discrimination where an employer 
provides  a  benefit  to  an  employee  in  respect  of  events  related  to  members  of  the 
employee’s family, a benefit to or in respect of a person as a member of an employee’s 
family, or a benefit to an employee on or by reference to an event occasioning a change 
in the civil status of the employee. Under Section 2(1) EEA:  

‘”member of the family”, in relation to any person, means— 
(a) that person's spouse [or civil partner within the meaning of the Civil Partnership 
and Certain Rights and Obligations of Cohabitants Act 2010], or 
(b) a brother, sister, uncle, aunt, nephew, niece, lineal ancestor or lineal descendant 
of that person or that person's spouse [or civil partner within the meaning of the Civil 
Partnership and Certain Rights and Obligations of Cohabitants Act 2010].’ 

333  Ireland, Immigration Act 2004, 13.02.2004, 

http://www.irishstatutebook.ie/eli/2004/act/1/enacted/en/index.html.  

334  ‘Nationality’ was equated with ‘citizenship’ in Sabherwal v ICTS (UK) Ltd., DEC-S2008-037, 11.06.2008, 

https://www.workplacerelations.ie/en/Cases/2008/June/DEC-S2008-037-Full-Case-Report.html. 

335  Ireland, Marriage Act 2015, 29.10.2015, http://www.irishstatutebook.ie/eli/2015/act/35/enacted/en/html. 
336  Ireland, Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, 19.07.2010, 

http://www.irishstatutebook.ie/eli/2010/act/24/enacted/en/html. 

71 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                   
 
Case law has established that it is not unlawful for an employer to provide a benefit (the 
payment of allowances in respect of children) to a person as a member of an employee's 
family which includes certain persons whilst at the same time excluding others (children of 
a cohabiting partner) who are not included in the definition of ‘member of the family’ in 
Section 2(1) of the Act.337 

b) 

Benefits for employees with opposite-sex partners 

In Ireland, it would constitute unlawful discrimination in national law if an employer only 
provides benefits to those employees with opposite-sex partners.  

However, the Parris case on occupational pensions illustrates that the unequal treatment 
of  opposite-sex  partners  prior  to  the  introduction  of  civil  partnership and  then  marriage 
may have a continuing impact (see Chapter 3.2.3.1).338  

4.6  Health and safety (Article 7(2) Directive 2000/78) 

In Ireland, there are exceptions in relation to disability and health and safety  as allowed 
under Article 7(2) of the Employment Equality Directive. 

Section  33  EEA  provides  that  nothing  will  render  unlawful  measures  that  have  been 
adopted  with  a  view  to  ensuring  equality  in  practice  between  employees  to  protect  the 
health and safety at work of persons with a disability, or to create or maintain facilities for 
safeguarding or promoting the integration of such persons into the working environment.  

There  are  no  specific  exemptions  in  relation  to  any  of  the  other  protected  grounds,  but 
issues such as dress codes are currently dictated by the policy of the individual employer. 
For example, employers who operate manufacturing processes that require a clean room 
environment generally impose very strict regulations in respect of attire. Case law suggests 
that adjudicators will scrutinise dress codes for discriminatory impacts. In one case a male 
retail worker was dismissed for not wearing a facemask after he refused to shave off his 
beard. The Labour Court found that the requirement to wear a facemask or remove facial 
hair  was  not  motivated  by  considerations  of  hygiene  or  food  safety.  The  dress  code 
operated  in  a  way  that  restricted  the  complainant’s  freedom  to  determine  his  own 
appearance  to  a  significantly  greater  degree  than  it  did  in  the  case  of  women.  As  a 
consequence the dismissal was discriminatory on the gender ground.339 

4.7  Exceptions related to discrimination on the ground of age (Article 6 Directive 

2000/78) 

4.7.1  Direct discrimination 

In Ireland, national law provides an exception for direct discrimination on the age ground.  

Section 34(4) EEA permits an employer to set retirement ages (voluntary or compulsory) 
for employees, or categories of employees. Section 6(3)(c) EEA permits employers to offer 
fixed term contracts to persons over the compulsory retirement age for that employment. 
Both  provisions  are  subject  to  the  objective  justification  requirement  described 
immediately below. 

337  McGrane v Department of Finance, DEC-E2005-011, 25.02.2005, 

https://www.workplacerelations.ie/en/Cases/2005/February/DEC-E2005-011_Full_Case_Report.html.  

338  Equality Tribunal, Parris v Trinity College Dublin and others, DEC-P2013-004, 16.12.2013, 

https://www.workplacerelations.ie/en/Cases/2013/December/DEC-P2013-004.html; Parris v Trinity College 
Dublin and others, [2016] EUECJ C-443/15, 24.12.2016, at 80, 
http://www.bailii.org/eu/cases/EUECJ/2016/C44315.html. 
339  Labour Court, Dunnes Stores v O’Byrne, EED0314, 28.10.2003, 

https://www.workplacerelations.ie/en/Cases/2003/October/EED0314.html. 

72 

 
 
 
 
 
 
 
 
 
 
 
 
 
                                                   
A maximum age for recruitment may be set if an employer can show that there will not be 
a  reasonable  return  on  the  investment  needed  to  train  a  new  recruit  to  the  necessary 
standard prior to retirement age (Section 34(5) EEA). 

a) 

Justification of direct discrimination on the ground of age 

In Ireland, it is possible, in specified circumstances, to justify direct discrimination on the 
ground of age. 

The  Equality  (Miscellaneous  Provisions)  Act  2015  amended  the  statutory  provisions  on 
retirement ages and fixed term contracts to explicitly provide that such measures must be 
objectively justified. In essence the 2015 Act codified principles set out in case law, which 
had sought to align domestic law with the requirements of Directive 2000/78.340 The test 
is now compliant with EU law.  

b) 

Permitted differences of treatment based on age 

In Ireland, national law permits differences of treatment based on age for any activities 
within the material scope of Directive 2000/78/EC.  

Section 34(5) EEA permits employers to set a maximum age for recruitment which takes 
account of the cost or period of time involved in training a recruit to a standard at which 
the recruit will be effective in that job, and the need for there to be a reasonable period of 
time prior to retirement age during which the recruit will be effective in that job. There is 
no  case  law  interpreting  this  exception.  It  is  availed  of  by  the  armed  forces  and  by  the 
police service (see further Chapter 4.7.3). 

c) 

Fixing  of  ages  for  admission  or  entitlements  to  benefits  of  occupational  pension 
schemes 

In Ireland, national law allows occupational pension schemes to fix ages for admission to 
the  scheme  or  entitlement  to  benefits,  taking  up  the  possibility  provided  for  by  Article 
6(2).341 

Section 34(3) EEA provides that it does not amount to discrimination on the age ground 
for  an  employer  to  fix  ages  for  admission  to  an  occupational  benefits  scheme  or  for 
entitlement  to  benefits  under  it;  to  fix  different  ages  for  all  employees  or  a  category  of 
employees; to use, in the context of such a scheme, age criteria in actuarial calculations; 
to provide different rates for severance payment for different employees these rates being 
based  on  or  taking  into  account  the  period  between  the  age  of  an  employee  on  leaving 
employment  and  his  or  her  compulsory  retirement  age  –  provided  that  none  of  these 
measures constitute discrimination on the gender ground. Occupational benefit schemes 
are defined as schemes which provide for benefits to employees or categories of employees 
on their becoming ‘ill, incapacitated or  redundant but does not include any occupational 

340  In Donnellan v The Minister for Justice, Equality and Law Reform [2008] IEHC 467 the High Court held that: 
‘[N]ational measures relating to retirement ages are not excluded from consideration under [the Framework 
Directive]. Any discrimination with regards to age must, as put by that Directive serve a legitimate aim or 
purpose and the means taken to achieve that purpose be appropriate…’ Donnellan was routinely cited by 
adjudicators prior to the changes effected by the 2015 Act in requiring objective justification of retirement 
ages. See further, O’Mahony v Southwest Doctors On Call Ltd., DEC-E2014-031, 14.05.2014, 
https://www.workplacerelations.ie/en/Cases/2014/May/DEC-E2014-031.html. 

341  Section 72(1) Pensions Acts 1990-2015. Applied in e.g. Charlton v Bus Éireann, DEC-P2011-004, 

16.11.2011, http://www.workplacerelations.ie/en/Cases/2011/November/DEC-P2011-004-Full-Case-
Report.html; Kelly v Iarnród Éireann, DEC-P2013-001, 11.11.2013, 
https://www.workplacerelations.ie:443/en/Cases/2013/November/DEC-P2013-001.html; Grey v Local 
Government Computer Services Board, DEC-P2010-004, 26.08.2010, 
https://www.workplacerelations.ie:443/en/Cases/2010/August/DEC-P2010-004-Full-Case-Report.html. 

73 

 
 
 
 
 
 
 
 
 
 
                                                   
 
pension  scheme  providing  for  pensions,  gratuities  or  other  allowances  payable  on 
retirement or death.’342  

4.7.2  Special conditions for young people, older workers and persons with caring 

responsibilities  

In Ireland, there are special conditions set by law for older or younger workers in order to 
promote their vocational integration, or for persons with caring responsibilities to ensure 
their protection.  

The Protection of Young Persons (Employment) Act 1996343 limits the employment of young 
persons  (young  persons  are  over  16  but  not  yet  18).  In  general  the  Act  prohibits  the 
employment  of  children,  that  is,  persons  under  16  years  of  age  (Section  3).  However, 
children over the age of 14 may be employed to undertake light work: during the school 
holidays, provided there is a minimum three weeks break from work during the summer; 
part-time during the school term (over 15 years old only, and for a maximum of 8 hours 
in the week); as part of an approved work experience or education programme where the 
work is not harmful to their safety, health or development (Section 3). Where licensed by 
the  Minister  for  Enterprise  and  Employment  children  may  also  be  employed  in  cultural, 
artistic, sports or advertising work which does not interfere with their attendance at school, 
vocational  guidance  or  training  programmes  or  capacity  to  benefit  from  the  instruction 
received. 

Employers  that  hire  children  or  young  persons  must  comply  with  several  requirements 
including maintaining a register of such workers, which should set out the hours worked, 
the rate of pay and the total amount in wages paid. Before employing a child, the employer 
must obtain written permission from their parent or guardian (Section 5). 

A second provision aimed at protecting young workers is the Safety, Health and Welfare 
at  Work  (Children  and  Young  Persons)  Regulations  1998.344  Under  these  regulations  an 
employer must carry out a risk assessment, assessing the risks to the child or young person 
by the type of employment required. This assessment should consider the safety and health 
of the child or young person and consideration should also be given to their physical and 
mental growth. Where the assessment shows that the employment could cause harm to 
the child or young person then they may not be employed in that employment. Where the 
assessment shows a risk to the mental and physical growth of the child then the employer 
must make health surveillance available to them. Parents or guardians should be informed 
of the outcome of the assessments, and the precautions and preventative measures being 
put in place to protect the child or young person.  

EEA prohibits discrimination on the grounds of age for everyone above 16, but employers 
are still allowed to set minimum recruitment ages of 18.  

EEA protects persons with caring responsibilities by prohibiting discrimination on the family 
status  ground  (Section  6(2)(c)).  This  covers  a  parent  or  a  person  in  loco  parentis  to  a 
person who has yet to attain the age of 18. It also applies to a parent or resident primary 
carer to a person who has a disability of such a nature as to give rise to the need for care 
or  support  on  a  continuing,  regular  or  frequent  basis  (covering  some  but  not  all  carers 
because of the residence requirement). All of the protections granted by EEA are provided 
for those with a family status as defined by the Act.  

342  Section 34(3A) EEA. 
343  Ireland, Protection of Young Persons (Employment) Act 1996, 26.06.1996, 

http://www.irishstatutebook.ie/eli/1996/act/16/enacted/en/html. 

344  Ireland, Safety, Health and Welfare at Work (Children and Young Persons) Regulations 1998, 18.12.1998, 

http://www.irishstatutebook.ie/eli/1998/si/504/made/en/print#.  

74 

 
 
 
 
 
 
 
 
 
                                                   
 
The Carer’s Leave Act 2001 entitles employees to unpaid leave to provide full time care for 
a  dependant.345  The  maximum  leave  entitlement  is  104  weeks  and  the  minimum  is  13 
weeks. Carer’s Benefit is payable for up to  104 weeks for a  carer who takes leave from 
work under the Act.  

4.7.3  Minimum and maximum age requirements 

In Ireland, there are exceptions permitting minimum and/or maximum age requirements 
in relation to access to employment (notably in the public sector) and training. 

As noted in the previous section, the Protection of Young Persons (Employment) Act 1996 
in  effect  prohibits  the  employment  of  children  aged  under  14,  while  imposing  various 
restrictions and conditions on the employment of children (14-15) and young persons (16-
18).  

Section 6(3)(a) EEA prohibits discrimination on the grounds of age for persons above 16. 
Under Section 6(3)(b) an employer may set a minimum recruitment age of 18.  

Section 34(5) EEA provides that it does not constitute discrimination on the age ground to 
set, in relation to any job, a maximum age for recruitment which takes account of –  

‘(a) any cost or period of time involved in training a recruit to a standard at which 
the recruit will be effective in that job, and  
(b) the need for there to be a reasonable period of time prior to retirement age during 
which the recruit will be effective in that job.’  

There is no case law addressing the parameters of this exception.346 In practice it seems 
the exception is primarily used to set maximum age requirements for recruitment to posts 
in the police347 and armed forces.348 Age limits include the following: 

- 
- 
- 
- 

Army and Air Corps under 25 at time of enlistment; 
Naval Service under 27 at time of enlistment; 
Air Corp Apprenticeship under 19 at time of apprenticeship; 
Police under 35 to commence training. 

4.7.4  Retirement  

a) 

State pension age 

In Ireland, there is no state pension age, at which individuals must begin to collect their 
state pensions.  

If the person wishes to work longer, their pension can be deferred. An individual can collect 
a pension and still work.  

The  State  Pension  (Contributory)  is  paid  to  people  from  the  age  of  66  who  made  have 
adequate  social  insurance  contributions.  It  is  not  means-tested  and  persons  can  derive 

345  Ireland, Carer’s Leave Act 2001, 2.07.2001, 

http://www.irishstatutebook.ie/eli/2001/act/19/enacted/en/html. 

346  A complaint that sought to challenge the maximum age for entry to training in the police service was 

referred to the Equality Tribunal in 2006. The hearing did not proceed because the respondent successfully 
challenged the Tribunal’s jurisdiction to investigate the claim on the basis that the contested provision was 
set down in a statutory instrument: High Court, Minister for Justice, Equality and Law Reform and anor. v 
Director of the Equality Tribunal and ors. [2009] IEHC 72, 17.02.2009, 
http://www.courts.ie/Judgments.nsf/0/56ED2DFBACF3ABA28025757600581C87. On appeal the Supreme 
Court sought a preliminary ruling from the CJEU. The case is discussed at Chapter 12.2.  
347  Ireland, S.I. No. 470/2013 Garda Síochána (Admission and Appointments) Regulations 2013, 

http://www.irishstatutebook.ie/eli/2013/si/470/made/en/print.  

348  Age limits for recruitment to the Defence Forces are also covered by Section 37(5) EEA.  

75 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                   
 
income from other sources while in receipt of the pension. The pension is subject to tax. 
Persons aged 66 and over who do not qualify for the contributory pension are entitled to 
the means-tested State Pension (Non-Contributory). It is also subject to tax.349 The state 
pension age applies equally to men and women.  

The qualifying age for both forms of pension will rise to 67 in 2021 and 68 in 2028.350 

b)  Occupational pension schemes 

In  Ireland,  there  is  no  single  age  when  people  can  begin  to  receive  payments  from 
occupational pension schemes and other employer-funded pension arrangements.  

This is subject to individual contract and deferral of pension is also subject to the terms of 
the employment contract. 

c) 

State imposed mandatory retirement ages 

In Ireland, there is no state-imposed mandatory retirement age(s) in private employment. 
There is a statutory retirement age for some public servants, which is dependent on the 
date of recruitment. For people who joined the public service before 1 April 2004 this is 
generally  65.  In  December  2017,  the  Government  announced  that  it  plans  to  introduce 
legislation that will increase the compulsory retirement age to 70 for that group. 351 Public 
servants recruited between April 2004 and December 2012 have no compulsory retirement 
age. Those who took up posts since 1 January 2013 have a retirement age of 70.352 Distinct 
compulsory  retirement  ages  are  set  for  members  of  An  Garda  Siochána  (police),  the 
Defence Force, firefighters and prison officers.353 

d) 

Retirement ages imposed by employers 

In Ireland, national law permits employers to set retirement ages (or ages at which the 
termination of an employment contract is possible) by contract or collective bargaining or 
unilaterally.  

Section 34(4) EEA permits employers to fix different ages for the retirement of employees 
whether  voluntary  or  compulsory,  within  the  terms  of  the  contract  of  employment, 
provided that (a) it is objectively and reasonably justified by a legitimate aim, and (b) the 
means of achieving that aim are appropriate and necessary. 

The  objective  justification  requirement  was  expressly  provided  for  under  the  Equality 
(Miscellaneous)  Provisions  Act  2015.354  The  amendment  is  welcome  since  prior  to  its 
enactment  case law was inconsistent on the application of the requirement. This was in 
part attributable to a High Court judgment, which found that the Equality Tribunal (now 
the WRC) could not issue a ruling that sought to align domestic law with EU law where to 
do so would contravene the express terms of a national legal provision.355  

349  https://www.welfare.ie/en/Pages/a-retired-or-an-older-person.aspx. 
350  Section 7, Social Welfare and Pensions Act 2011, 

http://www.irishstatutebook.ie/eli/2011/act/9/section/7/enacted/en/html#sec7. 

351  See further: http://www.per.gov.ie/en/minister-donohoe-secures-cabinet-approval-to-increase-compulsory-

retirement-age-for-public-service-workers/.  

352  See further, Department of Public Expenditure and Reform (2017) Review of Barriers to Extended 

Participation in Public Service Workforce, available at: http://www.per.gov.ie/wp-content/uploads/Report-
of-Review-re-Compulsory-Retirement-Age-in-Public-Service-Nov-2017.pdf. 

353  The WRC has confirmed that civilian employees within the Defence Force are not subject to the mandatory 

retirement age: Devereux v Permanent Defence Force Other Ranks Representative Association, ADJ-
00007926, 17.11.2017, https://www.workplacerelations.ie/en/Cases/2017/November/%20ADJ-
00007926.html.  

354  http://www.irishstatutebook.ie/eli/2015/act/43/section/10/enacted/en/html#sec10. 
355  High Court, Minister for Justice, Equality and Law Reform and anor. v Director of the Equality Tribunal and 

ors. [2009] IEHC 72, 17.02.2009, 

76 

 
 
 
 
 
 
 
 
 
 
 
                                                   
 
A Code of Practice on Longer Working was adopted in December 2017.356 Reflecting the 
explicit  requirement  now  set  out  under  section  34(4)  EEA,  as  well  as  decisions  of  the 
Equality  Tribunal  that  pre-date  the  legislative  change,  the  Code  advises  employers  that 
any  mandatory  retirement  age  must  be  capable  of  objective  justification  both  by  the 
existence  of  a  legitimate  aim  and  evidence  that  the  means  of  achieving  that  aim  is 
appropriate and necessary.357 It sets out the following examples of what may constitute a 
legitimate aim: 

- 
- 
- 
- 
- 

- 

Intergenerational fairness (allowing younger workers to progress); 
Motivation and dynamism through the increased prospect of promotion; 
Health and Safety (generally in more safety critical occupations);358 
Creation of a balanced age structure in the workforce;359 
Personal and professional dignity (avoiding capability issues with older employees); 
or 
Succession planning. 

Case law has established that reducing financial costs is not in and of itself a legitimate 
aim.360 

e) 

Employment rights applicable to all workers irrespective of age 

To  be  covered  by  the  Unfair  Dismissals  Acts  1977-2015361  employees  must  not  have 
reached  the  normal  retirement  age  for  ‘employees  of  the  same  employer  in  similar 
employment.’362 It is, however, possible for an employee to contest their dismissal in the 
form of compulsory retirement under the legislation by, for example, establishing that the 
employer  did  not  have  a  normal  retirement  age  in  place  or  that  it  was  inconsistently 
applied.363 Employees contesting age-based discrimination (or discrimination or any other 
ground) may avail of their rights under EEA, which are not subject to an upper age limit.  

f) 

Compliance of national law with CJEU case law 

In  Ireland,  national  legislation  is  in  line  with  the  CJEU  case  law  on  age  regarding 
compulsory retirement. 

http://www.courts.ie/Judgments.nsf/0/56ED2DFBACF3ABA28025757600581C87. Applied in e.g. Goss v 
Ryanair, DEC-E2015-138, December 2014, 
https://www.workplacerelations.ie/en/Cases/2015/December/DEC-E2015-138.html. The principles set out 
in that High Court judgment are the subject of a preliminary reference by the Supreme Court to the CJEU 
(see further Chapter 12.2 of this report). 

356  Ireland, S.I. No. 600/2017 - Industrial Relations Act 1990 (Code of Practice on Longer Working) 

(Declaration) Order 2017, 20.12.2017, http://www.irishstatutebook.ie/eli/2017/si/600/made/en/print.  
357  The primary precedent on objective justification prior to the 2015 Act changes is: Doyle v ESB International, 
DEC-E2012-086, 27.06.2012, http://www.equalitytribunal.ie/en/Cases/2012/June/DEC-E2012-086-Full-
Case-Report.html. 

358  See e.g. Transdev Light Rail Limited v Chrzanowski, EDA1632, 29.11.2016,   

https://www.workplacerelations.ie/en/Cases/2016/November/EDA1632.html.  

359  See e.g. A Worker v A Healthcare Provider, ADJ-00003418, 20.01.2017, 

https://www.workplacerelations.ie/en/Cases/2017/January/ADJ-00003418.html.  

360  See e.g. Devereux v Permanent Defence Force Other Ranks Representative Association, ADJ-00007926, 
17.11.2017, https://www.workplacerelations.ie/en/Cases/2017/November/%20ADJ-00007926.html.  

361  Ireland, Unfair Dismissals Act 1997, 06.04.1977; Ireland, Unfair Dismissals (Amendment) Act 1993, 

14.07.1993. Revised text available at: 
http://www.lawreform.ie/_fileupload/RevisedActs/WithAnnotations/HTML/EN_ACT_1977_0010.htm.  

362  Section 2(1)(b), Unfair Dismissals Acts 1977-2015. Under the Equality Act 2004 the automatic exclusion of 
employees over the statutory retirement age under the Redundancy Payments legislation (i.e. 66 years or 
over) from bringing an unfair dismissal claim was removed. 
363  See e.g. Flynn v Se Quirk Limited, UD295/2015, May 2016, 

http://www.lrc.ie/en/Cases/2016/May/UD295_2015.html, in which the Employment Appeals Tribunal upheld 
a complaint of unfair dismissal based on the employee’s age since the ‘claimant did not have a written 
contact of employment and there was no written or verbal agreement or understanding between the parties 
as to retirement age’. 

77 

 
 
 
 
 
 
 
 
                                                   
 
Section 34(4) EEA was amended in 2015 to provide that while employers may fix different 
retirement  ages  for  employees,  such  a  provision  must  be  objectively  and  reasonably 
justified by a legitimate aim, and the means of achieving that aim must be appropriate and 
necessary. 

4.7.5  Redundancy 

a) 

Age and seniority taken into account for redundancy selection 

In  Ireland,  national  law  does  not  permit  age  or  seniority  to  be  taken  into  account  in 
selecting workers for redundancy.  

Section 8(6)(c) EEA provides that employers will discriminate on any of the nine grounds, 
including  age,  if  they  do  not  afford  employees  the  same  treatment  in  relation  to 
redundancies.364  

b) 

Age taken into account for redundancy compensation 

In Ireland, national law provides compensation for redundancy. Such compensation may 
be affected by the age of the worker.  

The  Redundancy  Payments  Acts  1967-2014  provide  for  a  minimum  entitlement  to  a 
redundancy payment for employees who have a set period of service with the employer.365 
In  order  to  qualify  for  a  payment,  employees  must  be  aged  over  16  and  have  worked 
continuously for the employer for at least 104 weeks over the age of 16. There is no upper 
age limit.  

Employers may agree a redundancy payment above the statutory minimum, and in such 
circumstances, compensation may be affected by the age of the worker. Section 34(3)(d) 
EEA provides: ‘In an occupational benefits scheme it shall not constitute discrimination on 
the  age  ground  for  an  employer…  to  provide  different  rates  of  severance  payment  for 
different 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 the employment and 
his or her compulsory retirement age, provided that that does not constitute discrimination 
on  the  gender  ground.’  Occupational  benefits  schemes  include  benefits  payable  on 
redundancy.  

The Labour Court interpreted the exception in a 2013 case.366 The complainants had been 
employed for periods ranging from 16-25 years and were offered redundancy terms that 
provided  for  a  payment  of  five  weeks  pay  per  year  of  service  in  addition  to  statutory 
redundancy  payments.  However,  employees  who  were  close  to  retirement  age  would 
receive either the terms of the agreed package or the amount of salary that they would 
have  earned  had  they  remained  in  employment  until  the  normal  retirement  age  of  65, 
whichever was the lesser. Each complainant would receive less than the amount paid to 
younger workers. According to the Court, Directive 2000/78 provides that Member States, 
as opposed to individual employers, can provide for differences in treatment on grounds 
of age where those differences can be objectively justified by a legitimate aim. The Court 
found that the Oireachtas had made express provision for differences in treatment based 
on  age  in  respect  of  severance  payments  through  Section  34(3)(d).  It  stated  that  ‘the 

364  Applied in e.g. O’Farrell v Mercury Engineering, DEC-E2012-096, 24.07.2012, 

https://www.workplacerelations.ie/en/Cases/2012/July/DEC-E2012-096-Full-Case-Report.html. Selection 
for redundancy on the basis of age may also constitute unfair dismissal under Section 6(3) of the Unfair 
Dismissals Acts 1997-2015. 

365  Ireland, Redundancy Payment Act 1967. 18.12.1967, 

http://www.irishstatutebook.ie/eli/1967/act/21/enacted/en/html. A revised text is available here: 
http://revisedacts.lawreform.ie/eli/1967/act/21/revised/en/html. 

366  Hospira v Roper, EDA 1315, 29.04.2013, 

https://www.workplacerelations.ie/en/Cases/2013/April/EDA1315.html. 

78 

 
 
 
 
 
 
 
 
 
 
                                                   
 
underlying  rationale  for  this  provision  is  that  workers  close  to  retirement  are  in  a 
substantially  different  position  than  those  who  have  longer  periods  in  which  they  could 
have  expected  to  remain  in  the  active  labour  force  and  that,  as  a  matter  of  social  and 
labour  market  policy,  this  difference  can  be  legitimately  reflected  in  constructing 
redundancy packages... Against this backdrop, it appears that the Oireachtas considered 
it reasonably and objectively justifiable, within the meaning of Article 6(1) of the Directive, 
to provide for the differences in treatment allowed for by s.34(3)(d) of the Act.’ The Labour 
Court found that the method of calculating the redundancy packages was permitted under 
the EEA. Its decision was distinguished in a 2017 case that upheld a complaint of indirect 
discrimination  on  the  age  ground  with  respect  to  redundancy  compensation.367  The 
impugned provision (a cap limiting payment to 1.25 times an employee’s salary) was not 
saved  by  section  34(3)(d)  since  it  was  not  directly  linked  to  proximity  to  retirement. 
Application  of  the  cap  resulted  in  the  two  complainants  receiving  proportionately  less 
compensation per year of service compared with younger workers (years of service being 
inextricably linked with age). The WRC found that the established disadvantage was not 
objectively  justified.  While  the  respondent’s  aim  was  legitimate,  ensuring  an  equitable 
distribution  amongst  the  respondent’s  workforce,  it  did  not  provide  any  evidence  at  the 
time  of  applying  the  provision  that  it  had  considered  whether  there  were  other  less 
discriminatory ways of achieving the aim.  

4.8  Public  security,  public  order,  criminal  offences,  protection  of  health, 
protection  of  the  rights  and  freedoms  of  others  (Article  2(5),  Directive 
2000/78) 

In  Ireland,  national  law  includes  exceptions  that  seek  to  rely  on  Article  2(5)  of  the 
Employment Equality Directive. 

Sections  16  (5)  and  (6)  EEA  state  that  an  employer  is  not  required  to  recruit,  retain  or 
promote a person if they are aware on the basis of a criminal conviction or other reliable 
information  that  the  individual  engages  or  has  a  propensity  to  engage  in  any  form  of 
unlawful sexual activity, particularly where the employment involves access to minors or 
other vulnerable persons. 

4.9  Any other exceptions 

In  Ireland, other exceptions to the prohibition of discrimination provided in national law 
are the following:  

Under  Section  36  EEA  it  is  permissible  to  impose  requirements  in  relation  to  residence, 
citizenship and proficiency in the Irish language, for the following public service jobs: officer 
holders in the service of the state, including the police service (Garda Síochána), Defence 
Forces,  civil  servants,  officers  of  local  authorities,  harbour  authorities,  health  boards  or 
vocational education committees. While such requirements are permitted, not all of these 
positions  impose  such  restrictions.  The  police  service  has  removed  the  requirement  for 
proficiency in the Irish language, requiring only proficiency in two languages at least one 
of which is Irish or English, and employment is open to EU and EEA nationals, nationals 
from  Switzerland,  refugees  under  the  Refugee  Act  1996;368  or  persons  with  one  year’s 
continuous legal residence in the state, and a total legal residence amounting to four years 
in  the  preceding  eight years  (the  asylum  process  does  not  count  towards  the  qualifying 
five  year  period).369  It  is  also  permissible  under  the  Act  to  require  Irish-language 
proficiency from teachers in both primary and post primary schools. Finally, this section 

367  2 Named Complainants v A Catering Company, DEC-E2017-054, 18.07.2017, 

https://www.workplacerelations.ie/en/Cases/2017/July/DEC-E2017-054.html.  

368  Ireland, Refugee Act 1996, 26.06.1996, http://www.irishstatutebook.ie/eli/1996/act/17/enacted/en/html. 
369  Ireland, S.I. No. 470/2013 Garda Síochána (Admission and Appointments) Regulations 2013, 

http://www.irishstatutebook.ie/eli/2013/si/470/made/en/print. 

79 

 
 
 
 
 
 
 
                                                   
permits the imposition of certain educational requirements for certain posts, professions, 
or vocations.  

Section 35(1) EEA provides that it is not discriminatory to pay a disabled person a lesser 
rate  of  remuneration  if  their  output  is  less  than  a  non-disabled  person.  This  seems  to 
contravene the principle of equal pay where disabled employees are concerned. 

ESA’s  principal  and  most  problematic  exception  is  contained  in  Section  14(1)(a)  which 
provides that nothing in the Act can be construed as prohibiting the taking of any action 
required by any enactment, order of a court, any measure adopted by the European Union, 
or any international convention.  

ESA contains a number of exceptions to the prohibition on discrimination in the supply of 
goods and services, including: 

- 

- 

- 

- 
- 

Differences in treatment are permitted in relation to ‘annuities, pensions, insurance 
policies’  or  other  matters  related  to  the  assessment  of  risk.  The  difference  in 
treatment should relate to actuarial or statistical data or other relevant underwriting 
or commercial factor and should be reasonable.370  
Difference in the treatment of persons on the religion ground in relation to goods or 
services provided for a religious purpose.371 
Difference in treatment of persons on the gender, age or disability ground or on the 
basis of nationality or national origin in the organisation of sporting events.372 
Having an age requirement for persons to be either an adoptive or foster parent.373 
Differences in the treatment not otherwise specifically provided for in the treatment, 
which can reasonably be regarded as goods or a service suitable only to the needs of 
certain persons.374 

Section 46 ESA provides that the provisions of this Act apply in respect of ships and aircraft 
registered  in  the  State,  but  that  actions  done  in  respect  of  such  a  ship  or  aircraft  while 
subject to the jurisdiction of a country outside of the State and that is required by the law 
of that State shall not constitute discrimination.  

Section 7(3)(e) ESA provides that it will not amount to age discrimination to allocate places 
at third level institutes for mature students (over 23). 

Section 16 ESA permits the imposition or maintenance of preferential fee charges in respect 
of  goods  or  services  being  offered  in  respect  of  persons  with  children,  married  couples, 
persons  in  a  specific  age  group,  or  persons  with  a  disability.  The  section  also  permits 
different treatment where a person is treated differently solely in the exercise of a clinical 
judgment in connection with the diagnosis of illness or his or her medical treatment, or is 
incapable of entering into an enforceable contract or of giving an informed consent and for 
that reason the treatment is reasonable in the particular case.375 

Section 15(1) ESA stipulates that a person who provides goods or services is not required 
to deal with a customer in circumstances which would lead a reasonable individual having 
the responsibility, knowledge and experience of the person to the belief, on grounds other 
than discriminatory grounds, that to deal with the customer would produce a substantial 
risk  of  criminal  or  disorderly  conduct  or  behaviour  or  damage  to  property  at  or  in  the 

370  Section 5(2)(d) ESA. 
371  Section 5(2)(e) ESA. 
372  Section 5(2)(f) ESA. 
373  Section 5(2)(k) ESA. 
374  Section 5(2)(j) ESA. 
375  Section 16(2)(a) and (b) ESA. 

80 

 
 
 
 
 
 
 
 
 
                                                   
 
vicinity of the place in which the goods or services or the premises or accommodation are 
located.376  

Actions taken in good faith by owners of licensed premises  for the purpose of complying 
with  the  Licensing  Acts  do  not  constitute  discrimination  (Section  15(2)  ESA).  Case  law 
establishes that ‘in good faith’ means that the actions must be done honestly and without 
prejudice.377 In Conroy v Costello the Equality Officer stated that in ‘order to take an action 
in  good  faith  it  has  to  be  free  from  any  discriminatory  motivation.’378  Any  action  taken 
should be for the sole purpose of ensuring compliance with the provisions of the Licensing 
Acts.379  

376  Applied in e.g. McDonagh and Stokes v City Cinemas Limited, DEC-S2017-024, 21.07.2017, 

https://www.workplacerelations.ie/en/Cases/2017/July/DEC-S2017-024.html: denial of access to cinema 
was not due to complainants’ membership of the Traveller community but resulted from ‘their threatening 
and abusive behaviour on the night previous to the incident’.  

377  Equality Tribunal, Delaney v The Harp Bar, DEC-S2002-53/56, 31.05.2002, 

https://www.workplacerelations.ie/en/Cases/2002/May/DEC-S2002-053-056.html. 

378  Equality Tribunal, Conroy v Costello, DEC-S2001-014, November 2001, 

https://www.workplacerelations.ie/en/Cases/2001/November/DEC-S2001-014.html. 

379  Equality Tribunal, Mongan and Ors v The Waterside Hotel, DEC-S2003-008/014, 25.02.2003, 

https://www.workplacerelations.ie/en/Cases/2003/February/DEC-S2003-008-014_Full_Case_Report.html. 

81 

 
 
 
 
 
                                                   
5 

POSITIVE ACTION (Article 5 Directive 2000/43, Article 7 Directive 2000/78) 

a) 

Scope for positive action measures 

In Ireland, positive action in respect of racial or ethnic origin, religion or belief, disability, 
age or sexual orientation is permitted in national law.  

Section  33  EEA  states  that  nothing  in  the  Act  shall  render  unlawful  measures  that  are 
maintained or adopted with a view to ensuring full equality in practice between employees. 
Those measures should aim to prevent or compensate for disadvantages linked to any of 
the discriminatory grounds; to protect the health and safety at work  of a person with a 
disability; to create or maintain facilities for safeguarding or promoting the integration of 
such persons into the working environment. This provision has yet to be litigated. 

Several ESA provisions permit positive action. Section 14(1)(b) ESA provides that nothing 
in the Act shall prohibit preferential treatment or the taking of positive measures that are 
bona fide intended to:  

- 

- 

promote  equality  of  opportunity  for  persons  who  are,  in  relation  to  other  persons, 
disadvantaged or likely to be unable to avail themselves of the same opportunities 
as those other persons; or  

to cater for the special needs  of persons,  or  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.  

A compensation scheme for disabled taxi drivers came within the terms of Section 14(1)(b) 
since it was based on evidence that such persons experienced particular financial hardship 
when the industry was liberalised.380  

Section 5(2)(h) allows differences in treatment in relation to services that are provided for 
the principal purpose of promoting the special interests of people in a ‘category of persons’. 
Any difference in treatment of people in that category must be  reasonably necessary to 
promote  their  special  interests  and  be  undertaken  in  a  bona  fide  manner.  The  term 
‘category’ is not defined, but seems to be used throughout ESA to denote a sub-group of 
people  falling  under  one  of  the  discriminatory  grounds  e.g.  persons  with  a  particular 
disability  or  of  a  specific  nationality  or  age.  The  Equality  Tribunal  has  noted  that  the 
meaning of Section 5(2)(h) is ambiguous and commented: ‘On the basis that the treatment 
must flow from the promotion of the special interests of persons in the category…this sub-
section of the Equal Status Act, 2000 will normally, if not always, relate to the justification 
of  more  favourable  treatment  of  a  particular  category  of  persons’.381  In  Keane  v  World 
Travel Centre382 a company that offered reduced fares on flights only to Filipino nationals 
could not justify its policy under Section 5(2)(h). World Travel Centre maintained that it 
was engaging in ‘positive discrimination’. The Equality Officer disagreed and found that it 
did  not  meet  any  of  ‘the  strict  and  comprehensive  criteria  required  by  Section  5(2)(h)’ 
(5.5).  The  sole  purpose  of  the  special  offer  was  to  gain  a  commercial  advantage  over 
competitors and not to advance the special interests of the Filipino community.  

Section 6(6) ESA permits different treatment by housing authorities and voluntary housing 
associations in the provision of accommodation on the basis of family size, family status, 
civil status, disability, age or membership of the Traveller community (race and ethnicity 
are not mentioned in this section).  

380  McCall v Area Development Management Ltd., DEC-S2007-058, 

https://www.workplacerelations.ie/en/Cases/2007/July/DEC-S2007-058-Full-Case-Report.html.  

381  Shanahan v One Pico Restaurant, DEC-S2003-056, 30.06.2003, at 7.2, 

https://www.workplacerelations.ie/en/Cases/2003/June/DEC-S2003-056-Full-Case-Report.html. 

382  Equality Tribunal, DEC-S2011-035, 15.08.2011, 

https://www.workplacerelations.ie/en/Cases/2011/August/DEC-S2011-035-Full-Case-Report.html. 

82 

 
 
 
 
 
 
 
 
 
 
                                                   
Section 16(1) ESA also permits preferential fee charges in respect of goods and services 
in respect of persons with a disability or in specific age groups. 

b)  Main positive action measures in place on national level 

A limited range of positive action measures  is in place for Ireland’s migrant community, 
which  are  underpinned  by  the  Migrant  Integration  Strategy,  which  runs  from  2017  to 
2020.383 These include training in English for work, interview skills, living and working in 
Ireland  and  information  technology,  under  the  Employment  of  People  from  Immigrant 
Communities  (EPIC)  programme.384  English  language  tuition  is  provided  to  migrant 
children at school. In 2017, the system for allocating additional resources for ‘English as 
an Additional Language’ (EAL) students was reformed.385 The government acknowledges 
that  improved  data  is  required  to  assess  the  effectiveness  of  EAL  provision  and  has 
undertaken to monitor its impact.386  

Quotas 

The attainment of a 3% quota for  the employment of people with disabilities in the civil 
and public service is a long-standing government policy. The National Disability Authority 
monitors the implementation of this process but there are no sanctions for not achieving 
it.  The  target  was  met  in  2011  and  has  been  slightly  exceeded  since  then.387  The 
Government has undertaken to progressively increase the statutory target towards 6% by 
2024.388 

Broad social policy measures 

The Department of Social Protection administers an extensive number of schemes that are 
aimed at addressing economic disadvantage linked to the discriminatory grounds, such as 
household allowances for older people389 and free travel passes.390  

Preferential treatment narrowly tailored 

The Higher Education Authority391 oversees a range of measures that provide support to 
distinct categories of third level students covered by the discriminatory grounds including 
mature  students  and  students  with  disabilities.  Travellers  are  the  only  ethnic  minority 

383  Department of Justice and Equality (2017) The Migrant Integration Strategy – A Blueprint for the Future, 

available at: 
http://www.justice.ie/en/JELR/Migrant_Integration_Strategy_English.pdf/Files/Migrant_Integration_Strateg
y_English.pdf.  

384  See further: https://www.bitc.ie/business-action-programmes/business-action-on-employment/are-you-a-

jobseeker/  

385  Department of Education and Skills (2017) Circular No 0014/2017: Special Education Teaching Allocation, 
https://www.education.ie/en/Circulars-and-Forms/Active-Circulars/cl0014_2017.pdf; Department of 
Education and Skills (2017) Circular No 0013/2017: Circular to the Management Authorities of all 
Mainstream Primary Schools, Special Education Teaching Allocation, https://www.education.ie/en/Circulars-
and-Forms/Active-Circulars/cl0013_2017.pdf.  

386  Department of Education and Skills (2017) DEIS Plan 2017: Delivering Equality of Opportunity in Schools, 

p.26, https://www.education.ie/en/Publications/Policy-Reports/DEIS-Plan-2017.pdf.  

387  See further: http://nda.ie/Publications/Employment/Employment-of-people-with-disabilities-in-the-public-

service/Reports-on-compliance-with-public-sector-jobs-target/. 

388  Government of Ireland (2015) Comprehensive Employment Strategy for People with Disabilities 2015-2024, 

http://www.justice.ie/en/JELR/Comprehensive%20Employment%20Strategy%20for%20People%20with%2
0Disabilities%20-
%20FINAL.pdf/Files/Comprehensive%20Employment%20Strategy%20for%20People%20with%20Disabilitie
s%20-%20FINAL.pdf. 

389  https://www.welfare.ie/en/Pages/Household-Benefits.aspx.  
390  https://www.welfare.ie/en/Pages/204_Free-Travel.aspx. 
391  http://www.hea.ie/. 

83 

 
 
 
 
 
 
 
 
 
                                                   
 
group targeted under the main policy on equality in higher education, the National Plan for 
Equity of Access to Higher Education 2015-2019.392 The Plan does not address migrants.  

392  See further, Higher Education Authority (2015) National Plan for Equity of Access to Higher Education 2015–

2019, available at: 
http://hea.ie/assets/uploads/2017/04/national_plan_for_equity_of_access_to_higher_education_2015-
2019_single_page_version_01.pdf.  

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6 

REMEDIES AND ENFORCEMENT  

6.1  Judicial  and/or  administrative  procedures  (Article  7  Directive  2000/43, 

Article 9 Directive 2000/78) 

a) 

Available procedures for enforcing the principle of equal treatment 

In Ireland, the following procedures exist for enforcing the principle of equal treatment:  

The  Workplace  Relations  Commission  (WRC)  is  the  primary  first  instance  forum  for 
complaints under EEA, ESA and the Pensions Acts.393 It operates as a quasi-judicial body. 
The Director of the WRC assigns an adjudication officer to investigate complaints received. 
Complainants may represent themselves, costs may not be awarded against either party, 
and the procedure is informal. Provided both parties consent, complaints may be referred 
instead to the WRC’s mediation service.394 Mediation is held in private and the agreement 
is not published. 

An appeal lies to the Labour Court for EEA and Pensions Acts cases, while ESA appeals are 
heard by the Circuit Court. Appeals entail a re-hearing of all matters of fact and law.395 The 
Labour  Court  is  a  quasi-judicial  statutory  tribunal,  which  following  the  enactment  of 
Workplace  Relations  Act  2015  became  the  only  appellate  tribunal  in  employment  rights 
disputes. The Circuit Court is a court of local and limited jurisdiction.  

Gender  ground  complaints  under  EEA  and  ESA  may  be  referred  instead  directly  to  the 
Circuit Court.396 

In relation to access to goods and services, the Intoxicating Liquor Act 2003 transferred 
jurisdiction  for  cases  alleging  discrimination  ‘…on  or  at  the  point  of  entry  to,  licensed 
premises’ to the District Court, a court of local and limited jurisdiction with jurisdiction over 
a range of criminal and civil matters.397  

Determinations of the WRC and Labour Court, as well as mediated settlements, are legally 
binding.398  In  the  event  of  non-compliance,  the  complainant  may  bring  enforcement 
proceedings.399 IHREC may provide assistance in the enforcement procedures.400 

The  procedures  apply  to  employment  in  the  private  and  public  sectors,  subject  to  two 
exceptions.  Members  of  the  Defence  Forces  must  address  their  complaint  first  to  the 
authorities  before  they  can  have  access  to  the  WRC.401  Complaints  of  discrimination  in 
relation to the recruitment processes for certain public sector positions must be referred in 
the first instance to internal complaints procedures.402  

Discrimination  claims  are  brought  before  the  WRC  by  way  of  application  using  online 
forms.403 No fees are payable and hearings are conducted in private.404 The Director of the 

393  The WRC assumed the functions of the Equality Tribunal on 01.10.2015 under the terms of the Workplace 

Relations Act 2015: Ireland, Workplace Relations Act 2015, 20.05.2015, 
http://www.irishstatutebook.ie/eli/2015/act/16/enacted/en/print.html.  
394  Section 39 Workplace Relations Act 2015; Section 78 EEA; Section 24 ESA. 
395  Affirmed by the Labour Court in Public Appointments Service v Flynn, EDA1637, 07.12.2016, 

https://www.workplacerelations.ie/en/Cases/2016/December/EDA1637.html. 

396  Section 21(1A) ESA, Section 77(3) EEA.  
397  Ireland, Intoxicating Liquor Act 2003, 14.07.2003, 

http://www.irishstatutebook.ie/eli/2003/act/31/section/19/enacted/en/html#sec19. 

398  Section 91(2) EEA. 
399  Section 31 ESA; Section 91 EEA. 
400  Section 40 IHRECA. 
401  Sections 77(9)-(10) and 104 EEA. 
402  Section 77(7)-(8) EEA. 
403  http://www.workplacerelations.ie/en/Complaints_Disputes/Refer_a_Dispute_Make_a_Complaint/.  
404  Section 79(2) EEA, Section 25(2) ESA. 

85 

 
 
 
 
 
 
 
 
 
 
 
                                                   
 
WRC is required to publish decisions under ESA and EEA ‘on the internet in such form and 
in  such  manner’  as  they  consider  appropriate.405  Pursuant  to  that  requirement,  the 
decisions of both the WRC and Labour Court are available for public inspection as they are 
published  on  the  Workplace  Relations  Commission  website.406  In  many  instances  the 
parties’  identities  are  concealed  in  published  decisions.  This  practice  stems  from  the 
Director’s  discretion  to  publish  decisions  in  such  form  and  manner  as  they  consider 
appropriate, which discretion is delegated to the individual adjudication officers that hear 
complaints.407  It  is  at  the  officer’s  discretion  whether  or  to  not  anonymise  one  or  both 
parties in a case and it should be open to the parties to make representations on the matter 
to the WRC.408 Indeed, an ex tempore judgment of the High Court suggests that the WRC 
is  obliged  to  elicit  the  views  of  the  parties.409  The  discretion  to  anonymise  is  generally 
exercised  in  sexual  harassment  complaints  and  many  of  those  concerning  the  disability 
and sexual orientation grounds, unless the complainant requests otherwise.410 Where the 
complainant is a child, the names of the parties to the case are also frequently recorded 
by the use of random initials. Anonymity has been applied in other sensitive cases, such 
as those involving criminal matters.411 Outside of those situations, however,  the precise 
rationale  for  concealing  names  is  unclear  since  it is  often  not  set  out  in  WRC  decisions. 
IHREC ‘is of the view that, where an adjudication officer has found that a respondent has 
engaged  in  discrimination,  the  principle  of  effectiveness  will  normally  require  that  the 
decision of the adjudication officer be published in a manner that identifies the employer 
or service provider concerned.’412 It remains to be seen whether EU law principles will affect 
decisions in future cases.  

405  Section 89(1) EEA; Section 30(1) ESA. 
406  https:/www.workplacerelations.ie/en/Decisions_Determinations/. 
407  As discussed in Chapter 7.f.iii of this report, IHREC issued an information note about this issue in April 2017 
that led to discontinuance of a routine practice of anonymising the names of parties to WRC equality law 
proceedings. The WRC issued a guide to its procedures in October 2015, which specified that all parties and 
witnesses would be anonymised: Workplace Relations Commission (2015) Procedures in the Investigation 
and Adjudication of Employment and Equality Complaints, available at: 
http://www.workplacerelations.ie/en/Publications_Forms/Procedures_Employment_and_Equality_Complaint
s.pdf. Following IHREC’s intervention a further note was published in August 2017, which states that ‘parties 
will be named on the version uploaded to the website unless the Adjudication Officer decides there is a 
reason to anonymise the parties’: WRC (2017) Guidance Note for a WRC Adjudication Hearing, available at: 
http://www.workplacerelations.ie/en/Publications_Forms/Guides_Booklets/Guidance_Note_for_a_WRC_Adju
dication_Hearing.pdf.  

408  It appears that for a time officers were directed to exercise their discretion without eliciting the parties’ 

views but that this practice changed following the intervention of IHREC. In a 2017 case the adjudication 
officer stated that: ‘As this case was heard before the most recent WRC direction on naming parties in 
Employment Equality Cases, I have used my discretion and anonymised the parties for the purposes of this 
decision as I did not have an opportunity to canvas their views on this recent development at the time of 
the hearing.’: A Prospective Employee v A Company, ADJ-00004761, 12.06.2017, 
https://www.workplacerelations.ie/en/Cases/2017/June/ADJ-00004761.html. The applicable ‘Frequently 
Asked Questions’ page of the WRC’s website states that ‘in certain sensitive cases, the parties may ask to 
have their names withheld’: 
https://www.workplacerelations.ie/en/Frequently_Asked_Questions/Employment_Equality_and_Equal_Statu
s/. The Equality Tribunal denied the complainant’s request for anonymity in Lavery v Health Service 
Executive (Mid-Western Region), DEC-E2008-046, 01.09.2008, 
https://www.workplacerelations.ie/en/Cases/2008/September/DEC-E2008-046-Full-Case-Report.html.  
409  The text of the High Court judgment in question is not available: Sheehan v Director of Equality Tribunal, 

unreported, High Court, ex tempore, Kearns P., 11.06.2012. According to the authors of the main book on 
EEA, the Court ‘granted a declaration that the Equality Tribunal is not entitled to unilaterally censor the 
names of parties and witnesses in a complaint under the Employment Equality Acts’: Bolger, M., Bruton C., 
and Kimber, C. (2012) Employment Equality Law, Dublin, Thomson Reuters, p. 750. The High Court 
judgment is referred to in a few 2013 decisions of the Equality Tribunal; see e.g. Nayaranasami v Sheldon 
Park Hotel, DEC-E2013-199, 30.12.2013, 
https://www.workplacerelations.ie/en/Cases/2013/December/DEC-E2013-199.html. 
410  See e.g. A Sales Representative v A Books Wholesaler, DEC-E2016-131, 20.09.2016, 

https://www.workplacerelations.ie/en/Cases/2016/September/DEC-E2016-131.html. The adjudication 
officer states, at 1.1: ‘It is the policy of the Equality Tribunal (now Workplace Relations Commission) to 
anonymise decisions in the case of disability unless specifically requested by the complainant otherwise.’  

411  See e.g. A Nigerian National v A Financial Institution, DEC-S2005-114, 19.08.2005, 

https://www.workplacerelations.ie/en/Cases/2005/August/DEC-S2005-114-Full-Case-Report.html.  

412  Logan, E. (2017) ‘Restrictions on identifying the parties involved in disputes do not apply to decisions under 

the equality legislation’, Law Society of Ireland Gazette, 111(4), at p.27, available at: 
https://www.lawsociety.ie/globalassets/documents/gazette/gazette-2017/may-2017-gazette.pdf.  

86 

 
                                                   
 
Both District Court and Circuit Court cases are heard in public; it is exceptionally rare for 
decisions of either court to be published. 

Further  avenues  of  redress  for  discrimination  are  provided  for  under  other  legislative 
provisions.  For  instance,  complaints  of  dismissal  due  to  discrimination  may  instead  be 
brought under the Unfair Dismissals Acts 1977-2015. Under those Acts the dismissal of an 
employee  is  deemed  to  be  an  unfair  dismissal  if  it  results  wholly  or  mainly  from  the 
employee’s  age,  race,  colour  or  sexual  orientation,  religious  or  political  opinions,  or 
membership of the Travelling community.413 The WRC is also the first instance forum under 
that legislation.  

Discrimination encountered in the course of accessing many public services can be directed 
to  the  Office  of  the  Ombudsman,414  which  oversees  an  administrative  process  that 
examines  complaints  about  decisions,  refusals  to  take  action  and  procedures  of  public 
bodies.415  Bodies  within  the  remit  of  the  Ombudsman  include  government  departments 
and offices, local authorities, the Health Service Executive (HSE), voluntary hospitals and 
voluntary agencies that provide services on behalf of the HSE, and third level colleges and 
universities. The Ombudsman can examine a complaint about an action taken by one of 
those bodies if someone has been adversely affected and the action was: taken without 
proper  authority;  taken  on  irrelevant  grounds;  the  result  of  negligence  or  carelessness; 
based  on  incorrect  or  incomplete  information;  improperly  discriminatory;  based  on  an 
undesirable administrative practice; otherwise contrary to fair or sound administration.416 
The complaints process is conciliatory in nature and no fees are payable. Many complaints 
are resolved informally and do result in a written report; an investigation report is drawn 
up and published in respect of some complaints that are especially complex or have broad 
implications  for  public  policy.  Following  an  investigation,  the  Ombudsman  may  make  a 
general recommendation to the body concerned. Recommendations issued are not legally 
binding,  however.  Where  it  appears  to  the  Ombudsman  that  the  response  to  a 
recommendation is not satisfactory they may make a special report on the matter to the 
Oireachtas.417 Two such reports were issued on compliance with provisions of ESA.418 

b) 

Barriers and other deterrents faced by litigants seeking redress 

EEA,  ESA  and  the  Pensions  Acts  impose  a  restrictive  six-month  time  limit  for  bringing 
complaints  to  the  appropriate  body.  Additionally  ESA  requires  a  complainant  to  initiate 
his/her complaint by notifying, in writing, the respondent within two months of the date of 
the occurrence (or the date of the last occurrence if relevant) of the nature of the complaint 
and  the  intention  to  seek  redress  under  ESA.419  This  may  present  difficulties  for 
complainants.420 For example, a complainant who has been the victim of harassment may 

413  Section 6(2) Unfair Dismissals Acts 1977-2015. 
414  Ireland, Ombudsman Act 1980, 14.07.1980, 

http://www.irishstatutebook.ie/eli/1980/act/26/enacted/en/html.  

415  See generally: http://ombudsman.gov.ie/en/. 
416  Section 4(2), Ombudsman Act 1980. 
417  Section 6(7), Ombudsman Act 1980. 
418  The reports can be viewed here: http://www.ombudsman.ie/en/publications/investigation-

reports/government-departments-other-public-bodies/motorised-transport-grant-report-to-dáil-and-
seanad/; http://www.ombudsman.ie/en/Publications/Investigation-Reports/government-departments-other-
public-bodies/Too-Old-to-be-Equal-–-A-Follow-up/. 

419  Section 21(2) ESA. 
420  A significant number of complaints are dismissed annually at the hearing stage for failure to comply with the 
notification requirement. With respect to 2017 see, for example, 2 Complainants v A Limerick Spar Shop, 
DEC-S2017-027, 11.08.2017, https://www.workplacerelations.ie/en/Cases/2017/August/DEC-S2017-
027.html; Sfar v Abbey Court Hotel, DEC-S2017-029, 15.09.2017, 
https://www.workplacerelations.ie/en/Cases/2017/September/DEC-S2017-029.html; Applicant D v A 
Property Letting Company, ADJ-00005541, 27.07.2017, 
https://www.workplacerelations.ie/en/Cases/2017/July/ADJ-00005541.html; Applicant B v A Property 
Letting Company, ADJ-00005546, 27.07.2017, https://www.workplacerelations.ie/en/Cases/2017/July/ADJ-
00005546.html; A Reader v A Local Newspaper, ADJ-00006129, 11.04.2017, 
https://www.workplacerelations.ie/en/Cases/2017/July/%20ADJ-00006129.html; A Passenger v An Airline, 
ADJ-00004893, 05.02.2017, https://www.workplacerelations.ie/en/Cases/2017/July/%20ADJ-

87 

 
 
 
 
 
 
                                                   
 
be  concerned  about  commencing  his/her  complaint  with  an  initial  notice  to  the  alleged 
perpetrator. There are also very real concerns in respect of people with literacy difficulties, 
and  individuals  who  may  not  have  an  adequate  command  of  the  English  language.  The 
notification period may be extended for a further two months, if the WRC is satisfied that 
reasonable  cause  prevented  the  complainant  from  sending  the  notification  within  the 
normal time period. ‘Exceptionally’ the notification requirement may be dis-applied.421  

Complaints of discrimination occurring ‘…on or at the point of entry to, licensed premises’ 
must  be  brought  to  the  District  Court  instead  of  the  WRC.  The  major  impact  of  this 
amendment  is  the  cost  implications  for  complainants  as  well  as  the  complexity  of  legal 
proceedings.422 Under the WRC system it is possible to represent oneself and costs cannot 
be awarded against either complainant or respondent; this is not the case at the District 
Court.  Moreover,  it  generates  confusion  in  practice;  several  complaints  have  been,  and 
continue to be, lodged before the incorrect forum.423 Consequently, the number of cases 
taken against such service providers has dropped significantly. The European Commission 
against  Racism  and  Intolerance  notes  ‘that  in  particular  members  of  the  Traveller 
Community are often affected by discrimination in the provision of goods and services in 
licensed premises.’424  

While there is no potential for awards of costs against either party in the WRC, this is not 
the position with regard to appeals in the District Court,425 or the Circuit Court.426  

A further issue relates to concerns about the right to privacy; cases in the WRC are heard 
in private, whereas hearings in the District and Circuit Court are in public. This may be of 
particular importance for the grounds of sexual orientation and disability.  

There  is  no  provision  under  the  legislation  for  a  body  (other  than  IHREC)  to  instigate 
complaints, which limits the potential of the equality legislation. 

c) 

Number of discrimination cases brought to justice 

In Ireland, there are no available statistics on the number of cases related to discrimination 
brought to justice in the civil courts.  

The  Equality  Tribunal,  which  operated  as  the  primary  forum  of  redress  prior  to  the 
establishment of the WRC on 1 October 2015, provided extensive details of the cases it 
determined in its annual reports.  Its annual legal review provided figures  on complaints 
received and decisions reached under each ground, a summary of every decision issued 
and also assessed patterns in case law.  The  WRC’s annual report, which covers a much 
broader mandate, does not supply such detailed information and analysis.427 It provides 

00004893.html; A Complainant v A Public House, ADJ-00001493, 27.02.2017, 
https://www.workplacerelations.ie/en/Cases/2017/January/ADJ-00001493.html; A Member of the Travelling 
Community v A Hotel, ADJ-00001811, 14.06.2017, 
https://www.workplacerelations.ie/en/Cases/2017/June/%20ADJ-00001811.html. No data is available about 
complaints that were not pursued when prospective complainants became aware of the notification 
requirement.  
421  Section 21(3) ESA. 
422  Fennelly, D. (2012) Selected Issues in Irish Equality Case Law 2008 – 2011, at pp. 106-7, available at: 

https://www.ihrec.ie/download/pdf/20150602161702.pdf. 

423  See further Chapter 7(f)(iii) of this report.  
424  European Commission against Racism and Intolerance (ECRI) (2016) ECRI conclusions on the 

implementation of the recommendations in respect of Ireland subject to interim follow-up (adopted on 
11.12.2015), CRI (2016)4, at p. 5, available at: http://www.coe.int/t/dghl/monitoring/ecri/Country-by-
country/Ireland/IRL-IFU-IV-2016-004-ENG.pdf. 

425  Equal Status cases under the Intoxicating Liquor Act, 2003 go to the District Court at first instance. 
426  Appeals from the Labour Court, gender ground cases and enforcement orders may be heard in the Circuit 

Court. 

427  Workplace Relations Commission (2017) Annual Report 2016, available at: 

https://www.workplacerelations.ie/en/Publications_Forms/WRC_Annual_Report_2016.pdf; Workplace 
Relations Commission (2016) Annual Report 2015, available at: 
https://www.workplacerelations.ie/en/Publications_Forms/WRC-Annual-Report-2015-English.pdf. 

88 

 
 
 
 
 
 
 
 
                                                   
overall figures for the number of ‘Complaint Applications’ it receives (the cases referred to 
it) and further breaks this down into the number of ‘Specific Complaints’ lodged (separate 
legislative breaches asserted within each complaint application). In 2016 there were 131 
ESA Complaint Applications, comprising 658 Specific Complaints. The grounds specified in 
the  ESA Specific Complaints were:  Age 13; Civil Status 12; Disability 75; Family Status 
15;  Gender  20;  Membership  of  the  Traveller  Community  416;  Race  462;  Religion  25; 
Sexual Orientation 7; Housing Assistance 43. 340 Complaint Applications, comprising 691 
Specific Complaints were referred to the WRC in 2016. The grounds indicated in the 691 
Specific  Complaints  under  EEA  were:  Age  161;  Civil  Status  52;  Disability  204;  Family 
Status 114; Gender 353; Membership of the Traveller Community 7; Race 189; Religion 
9; Sexual Orientation 24. In 2016, there were two Complaint Applications comprising nine 
Specific  Complaints  under  the  Pensions  Acts.  The  grounds  specified  were:  Age  5;  Civil 
Status 0; Disability 4; Family Status 1; Gender 3; Membership of the Traveller Community 
1; Race 1; Religion 0; Sexual Orientation 3. Of the 14 004 Specific Complaints received by 
the  WRC  across  its  entire  mandate,  1  537  (11  %)  concerned  anti-discrimination  law.  A 
total of 1 232 decisions were issued across the WRC’s remit in 2016; data is not provided 
on  the  proportion  that  pertain  to  anti-discrimination  law.  The  Labour  Court  provides  a 
breakdown of the number of EEA appeals heard each year; these were classified according 
to ground in 2015 but not in the 2016 data.428 Annual reports are published on the WRC’s 
website and so are available to the public.  

d) 

Registration of discrimination cases by national courts 

In Ireland, discrimination cases are not registered as such by national courts.  

Many  judgments  of  the  superior  courts  (the  High  Court,  the  Court  of  Appeal  and  the 
Supreme Court) are published, but are not always. Discrimination cases in the civil courts 
are not registered as such nor are data generally available to the public. 

6.2  Legal standing and associations (Article 7(2) Directive 2000/43, Article 9(2) 

Directive 2000/78) 

a) 

Engaging on behalf of victims of discrimination (representing them) 

In  Ireland, associations, organisations, and trade unions are  entitled to act on behalf of 
victims  of  discrimination,  but  only  in  the  Workplace  Relations  Commission  (WRC)  and 
Labour Court. 

Organisations, trade unions or associations may act on behalf of a claimant before the WRC 
and  Labour  Court  (as  may  any  person  authorised  by  the  complainant),429  but  are  not 
entitled to do so in civil courts and may do so only at discretion of those civil courts.430  

b) 

Engaging in support of victims of discrimination 

In  Ireland, associations, organisations and trade unions are  entitled to act in support  of 
victims of discrimination, but only before the WRC and Labour Court, not before the civil 
courts. 

National law does not distinguish between actions of associations on behalf and in support 
of victims of discrimination. 

c) 

Actio popularis 

428  Labour Court (2017) Annual Report 2016, pp. 12-14, 22, available at: 

http://www.workplacerelations.ie/en/Publications_Forms/Labour_Court_Annual_Report_2016_Englsh.pdf; 
Labour Court (2016) Annual Report 2015, available at: 
https://www.workplacerelations.ie/en/Publications_Forms/Labour_Court_Annual_Report_2015.pdf.  

429  Section 77 (11) EEA and Section 25A ESA. 
430  Court rules: http://www.courts.ie/rules.nsf/LookupPageLink/index?OpenDocument. 

89 

 
 
 
 
 
 
 
 
 
 
 
 
                                                   
In Ireland, national law does not allow associations, organisations or trade unions to act in 
the public interest on their own behalf, without a specific victim to support or represent 
(actio popularis). 

Civil society organisation such as the  Equality and Rights Alliance, have  long sought the 
extension of standing under EEA and ESA to NGOs and trade unions.431 The matter has not 
been considered by parliament, however. 

In the fields of constitutional law  and judicial review  courts have developed the  general 
principles on legal standing significantly over the past decades. However, just one case to 
date  recognises  an  organisation’s  right  to  bring  an  actio  popularis.432  In  Digital  Rights 
Ireland Ltd. v Minister for Communications433 the High Court held that an NGO, which was 
incorporated as a limited company, had locus standi to assert its own rights and also to 
bring an actio popularis in challenging legislation on data retention that could potentially 
affect the entire population. Standing was granted on the basis that inter alia ‘it would be 
an effective way to bring the action – individuals owners of mobile phones would be unlikely 
to litigate the matter’.  

d) 

Class action 

In Ireland, national law does not allow associations, organisations or trade unions to act in 
the interest of more than one individual victim (class action) for claims arising from the 
same event.  

When the WRC receives multiple complaints under either EEA or ESA arising from the same 
event  it  may  convene  a  meeting  with  the  parties  prior  to  the  hearing  with  a  view  to 
investigating the claims as a single grouped case.434 This practice is adopted as a matter 
of administrative convenience and is not a class action.435 In a grouped case each person 
involved must refer a complaint and a decision is issued in respect of every complaint.436 

6.3  Burden of proof (Article 8 Directive 2000/43, Article 10 Directive 2000/78) 

In Ireland, national law requires a shift of the burden of proof from the complainant to the 
respondent. 

Section 85(A)(1) EEA provides: ‘Where in any proceedings facts are established by or on 
behalf of a complainant from which it may be presumed that there has been discrimination 
in  relation  to  him  or  her,  it  is  for  the  respondent  to  prove  the  contrary.’  An  identical 
provision governs cases under the ESA (Section 38(A)(1)).  

This also applies to cases brought by IHREC (Section 85(A)(3) EEA; Section 38(A)(2) ESA).  

The  EEA  provision  expressly  includes  proceedings  relating  to  indirect  discrimination, 
victimisation  and  harassment,  but  not  reasonable  accommodation.  However,  in  practice 

431  See e.g. Crowley, N. (2011) A Roadmap to a Strengthened Equality and Human Rights Infrastructure in 

Ireland, Dublin, Equality and Rights Alliance, available at: 
http://www.eracampaign.org/uploads/ERA%20Roadmap%202011.pdf. 

432  See further, Whyte, G. (2015) Social Inclusion and the Legal System: Public Interest Law in Ireland, Dublin, 

Institute of Public Administration, pp. 121-152.  

433  [2010] IEHC 221, 05.05.2010, at 91. 
434  See, for example, McCann, Collins and 31 others v Eircom Ltd., DEC-S2003-076/108, 

https://www.workplacerelations.ie/en/Cases/2003/September/DEC-S2003-076-108_Full_Case_Report.html; 
Johnson and sixty-five others v Tesco Ireland Limited, DEC-E2001-024, 10.08.2001, 
https://www.workplacerelations.ie/en/Cases/2001/August/DEC-E2001-024.html. 

435  The High Court ruled out use of class actions in the employment case of Verbatim Ltd. v Duffy and others 

[1994] ELR 159. 

436  See e.g. 58 Named Complainants v Goode Concrete Limited, DEC-E2008-020, 30.04.2008, 

http://www.lrc.ie/en/Cases/2008/April/DEC-E2008-020-Full-Case-Report.html. 

90 

 
 
 
 
 
 
 
 
 
 
 
 
                                                   
 
adjudicators shift the burden of proof once a prima facie case has been established.437  

The Labour Court has held that a requirement to be competent in a particular language is 
prima facie indirectly discriminatory on grounds of race as it is likely to place persons whose 
native language is other than the required language at a disadvantage relative to persons 
whose native language is the required language.438 

6.4  Victimisation (Article 9 Directive 2000/43, Article 11 Directive 2000/78) 

In Ireland, there are legal measures of protection against victimisation. 

Section  14  EEA  prohibits  victimisation,  which  is  deemed  to  occur  where  a  person  is 
dismissed or any other adverse treatment occurs because they have involved themselves 
in  any  of  the  following  activities:  made  a  complaint  of  discrimination,  been  involved  in 
proceedings  by  a  complainant,  been  an  employee  having  represented  or  otherwise 
supported a complainant, been a comparator in an equality action, been a witness under 
either  Equality Acts, having opposed by lawful means a discriminatory act,  or stated an 
intention  to  take  any  of  the  preceding  activities.439  In  two  instances  victimisation  may 
amount to a criminal offence: where a person procures another to do anything that could 
be  considered  victimisation  or  discrimination440  or  where  the  victimisation  amounts  to 
dismissal.441 The form of redress available is the same as that for discrimination claims, 
being  a  compensation  award  or  an  order  that  the  employer  take  a  specified  course  of 
action.442  Adjudicators  consistently  reiterate  that  victimisation  is  a  serious  matter  and 
successful cases tend to result in significant compensation awards.443 

Complaints  of  victimisation  must  be  brought  within  six  months  of  the  most  recent 
occurrence of the act.444 This may be extended to a maximum of twelve months in certain 
circumstances.445 

Victimisation  is  also  prohibited  under  the  ESA.  As  with  the  EEA,  protection  extends  to 
people  other  than  the  complainant.  Section  3(2)(j)  applies  where  a  person  has  in  good 
faith applied for redress under the Act, has been a witness, has given evidence in criminal 
proceedings under the Act, has opposed by lawful means discriminatory acts, or has given 
notice of an intention to take any of the preceding actions.446  

6.5  Sanctions and remedies (Article 15 Directive 2000/43, Article 17 Directive 

2000/78) 

a) 

Applicable sanctions in cases of discrimination – in law and in practice 

437  See e.g. Labour Court, Public Appointments Service v Flynn, EDA1637, 07.12.2016, 

https://www.workplacerelations.ie/en/Cases/2016/December/EDA1637.html.  

438  Noonan Services Ltd. v A Worker, EDA1126, 29.07.2011, 

https://www.workplacerelations.ie/en/Cases/2011/July/EDA1126.html; Aer Lingus v Kacmarek, Turczyk and 
Wilczkiew, EDA1712, 08.05.2017, https://www.workplacerelations.ie/en/Cases/2017/May/EDA1712.html. 

439  Section 74(2) EEA. 
440  Section 14 EEA. 
441  Section 98 EEA. 
442  Section 82 EEA. 
443  The claimant was awarded two years’ salary (EUR 117 362) for victimisation by the Equality Tribunal in 
McGinn v St Anthony’s BNS, DEC-E2004-032, http://www.equalitytribunal.ie/en/Cases/2004/June/DEC-
E2004-032-Full-Case-Report.html; EUR 75 000 (18 months' salary) was awarded in A Female Teacher v 
Board of Management of a Secondary School, DEC-E2012-103, 03.08.2012. Victimisation that occurred as a 
reaction to a previous complaint to the Tribunal attracted a EUR 48 750 award in Higgins v Permanent TSB 
Plc, DEC-E2016-037, 25.02.2016, https://www.workplacerelations.ie/en/Cases/2016/February/DEC-E2016-
037.html.  

444  Section 77(5) EEA. 
445  Section 77(6)(a) EEA. 
446  See e.g. Salmon v Para Equestrian Ireland, Equality Tribunal, DEC-S2004-002, 09.01.2004, 

http://www.equalitytribunal.ie/en/Cases/2004/January/DEC-2004-002-Full-Case-Report.html. 

91 

 
 
 
 
 
 
 
 
 
 
                                                   
 
Section  82  EEA  provides  for  a  broad  range  of  remedies  that  are  equally  applicable  with 
respect to private and public employment: compensation awards, orders for employers to 
take specific courses of action, an order for equal treatment in whatever respect is relevant 
to the case, and re-instatement or re-engagement.  

In  the  area  of  goods  and  services,  Section  27  ESA  provides  for  the  remedies  of 
compensation  and  orders  that  a  certain  course  of  action  be  followed.  A  successful 
discrimination case taken against licensed premises before the District Court may attract 
a compensation award. The judge may also order the licensee to take ‘a course of action’ 
and  has  an  additional  power  not  enjoyed  by  the  WRC  to  make  an  order  for  temporary 
closure of the premises.447  

A limited range of criminal sanctions can be imposed under EEA and ESA: Where a person 
procures another to do anything that could be considered victimisation or discrimination,448 
where  victimisation  amounts  to  dismissal,449  or  in  a  range  of  circumstances  concerning 
obstruction of the Workplace Relations Commission or of IHREC in conducting inquiries.450  

b) 

Ceiling and amount of compensation 

There are maximum limits on financial awards by the Workplace Relations Commission and 
the Labour Court. In the context of employment the limits are a maximum of two years' 
pay,  calculated  on  the  basis  of  the  complainant’s  weekly  pay  at  the  time  the  case  was 
referred.451 Where the complainant was not an employee (in the case of a discriminatory 
interview,  for  example)  the  maximum  award  is  EUR  13  000.452  In  unequal  pay  cases, 
compensation in the mode of arrears of pay may be awarded, up to a maximum of three 
years prior to the referral of the case.453 There is no provision for the payment of interest.454  

ESA also has maximum award limits, which are linked to limits set on the jurisdiction of 
the District Court and currently set at EUR 15 000.455  

A successful discrimination case taken against licensed premises before the District Court 
may attract a maximum award of EUR 15 000.456  

c) 

Assessment of the sanctions 

The primary compliance issue pertains to the limits set on compensation. Claims under the 
gender ground are treated exceptionally; they can be taken  directly to the Circuit Court 
and  can  attract  higher  compensation  awards  since  no  monetary  limit  is  applicable.  It  is 
questionable  whether  the  remedies  available  in  the  context  of  non-gender  ground 
discrimination  could  generally  be  described  as  ‘effective,  proportionate  and  dissuasive’ 
sanctions. As noted above, a cap of EUR 13 000 applies at the access or recruitment stage. 
The  ceiling  of  EUR  15  000  under  ESA  may  be  inadequate  for  particularly  egregious 

447  Section 19(3), Intoxicating Liquor Act 2003. Where an order has been made under Subsection (3) any 

person may make an objection, related to the prohibited conduct concerned, to the renewal of the licence: 
Section 19(10) Intoxicating Liquor Act 2003. 

448  Section 14 EEA; Section 13 ESA. 
449  Section 98 EEA. 
450  See e.g. Section 60(3) EEA, Section 37(1) ESA. 
451  Section 82(4) EEA. 
452  Section 82(4)(b) EEA. 
453  Section 82(1)(a) EEA. 
454  Interest may be awarded only in gender ground cases as provided for under section 82(5) EEA; applied in 

O’Brien v Persian Properties, DEC-E2012-010, 06.02.2012, 
https://www.workplacerelations.ie/en/Cases/2012/February/DEC-E2012-010-Full-Case-Report.html.  

455  Section 27(2) ESA; the limit was raised from EUR 6 348.69 with effect from 04.02.2014 under section 15 of 

the Courts and Civil Law (Miscellaneous Provisions) Act 2013, 24.07.2013, 
http://www.irishstatutebook.ie/eli/2013/act/32/section/15/enacted/en/html#sec15. 

456  Section 19(4), Intoxicating Liquor Act 2003 

92 

 
 
 
 
 
 
 
 
 
                                                   
 
violations of the law in situations such as discriminatory denial of access to education.457 
Interest  is  not  payable  on  compensation  awards  under  ESA  and  for  non-gender  ground 
EEA  cases.  Moreover,  the  general  compensation  limits  apply  even  where  a  case  of 
discrimination  has  been  made  out  on  several  grounds  or  in  cases  of  established 
discrimination as well as harassment.458  

IHREC is the only independent body permitted to instigate litigation under the Acts 459 but 
compensation orders may not be made in its favour.460 This arguably raises a compliance 
issue since the CJEU has found that national rules on sanctions implementing the Racial 
Equality Directive must be effective, proportionate and dissuasive even where there is no 
identifiable victim.461 

It seems that the offence provisions of the Acts have never been invoked. 

Equality  laws  also  provide  for  non-financial  sanctions,  which  bolster  their  effectiveness 
since  the  remedy  can  be  tailored  to  the  particular  circumstances  and  can  also  generate 
significant  effects  beyond  the  immediate  case.462  Adjudicators  have  used  this  power  to 
order  persons  to  take  a  specified  course  of  action463  as  a  means  of  ensuring  that 
respondents create an equal opportunities policy,464 re-train staff,465 and that employers 
review recruitment466 or other employment procedures.467 

457  In a 2017 housing assistance ground case the adjudication officer commented as follows: ‘I am constrained 
by the maximum award of €15,000 which by virtue of Section 27(2) is fixed at the maximum District Court 
civil jurisdiction, and in my view does not reflect the seriousness of the discrimination’: Tenant C v A 
Landlord, ADJ-00004705, 09.08.2017, https://www.workplacerelations.ie/en/Cases/2017/August/ADJ-
00004705.html.  

458  Section 27(3) ESA; Section 82(6)(a) EEA. 
459  Section 85 EEA; Section 82(6)(7) EEA. 
460  Section 27(4) ESA.  
461  Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV, Case C-54/07, [2008] 

ECR 1-1587.  

462  Fennelly, D. (2012) Selected Issues in Irish Equality Case Law 2008 – 2011, at pp.27-29, available at: 

https://www.ihrec.ie/download/pdf/20150602161702.pdf. 

463  Section 82(1)(e) EEA; Section 27(1)(b) ESA.  
464  See e.g. Nevin v Plaza Hotel, DEC-E2001-033, 07.11.2011, 

http://www.lrc.ie/en/Cases/2001/November/DEC-E2001-033.html. 

465  See e.g. Marron v Board of Management of St Paul’s National School, DEC-E2015-121, November 2015, 

https://www.workplacerelations.ie/en/Cases/2015/November/DEC-E2015-121.html. 

466  See e.g. A Prospective Employee v A Company, ADJ-00004761, 12.06.2017, 
https://www.workplacerelations.ie/en/Cases/2017/June/ADJ-00004761.html. 

467  See e.g. Kako v Rosderra Irish Meats Group, DEC-E2017-081, 21.11.2017, 

https://www.workplacerelations.ie/en/Cases/2017/November/DEC-E2017-081.html.  

93 

 
 
 
 
 
 
 
                                                   
7 

a) 

BODIES FOR THE PROMOTION OF EQUAL TREATMENT (Article 13 Directive 
2000/43) 

Body/bodies  designated  for  the  promotion  of  equal  treatment  irrespective  of 
racial/ethnic origin according to Article 13 of the Racial Equality Directive 

The Irish Human Rights and Equality Commission (IHREC) is Ireland’s designated body for 
the promotion of equal treatment irrespective of racial or ethnic origin. Its mandate also 
extends  to  the  other  discriminatory  grounds  set  out  under  domestic  anti-discrimination 
law:  age,  civil  status,  disability,  family  status  gender,  housing  assistance,  religion,  and 
sexual orientation.  

It was established on 1 November 2014, replacing the Equality Authority as the country’s 
specialised  equality  body  and  the  Irish  Human  Rights  Commission  as  Ireland’s  national 
human rights institution.468  

b) 

Political, economic and social context for the designated body 

The  political,  economic  and  social  context  in  which  IHREC  operates  has  been  relatively 
positive  since  its  establishment  in  November  2014.  There  is  evidence  of  recent  political 
support  for  the  Commission:  the  Minister  for  Justice  and  Equality  acknowledged  the 
‘important  work’  of  the  body  in  sanctioning  increased  funding  to  provide  for  the 
appointment of additional staff in 2017469 and the government is supportive of a private 
member’s bill that purports to confer an additional monitoring function on the Commission 
with  respect  to  reporting  on  the  gender  pay  gap.470  This  compares  favourably  with  the 
experience of its predecessor equality body, the Equality Authority. The Authority’s budget 
was drastically cut in Budget 2009 from approximately EUR 5.9 million to EUR 3.3 million, 
which represented a 43 % reduction. The Equality Authority’s capacity to carry out the full 
range of its functions was severely compromised as a result.471  

The  2016  financial  allocation  for  the  Commission  was  EUR  6.31  million,  which  was 
increased by EUR 300 000 in 2017 to provide for additional staff.472 Its budget for 2018 is 
EUR 6.7 million, representing an increase of 1 % from the previous year.473 Nonetheless, 
spending on IHREC remains below what the combined budgets for the Equality Authority 
and  Irish  Human  Rights  Commission  were  in  2007,  prior  to  a  series  of  cuts  (Equality 
Authority EUR 5.459 million and Irish Human Rights Commission EUR 2.342 million). 

Popular  debate  on  equality  and  diversity  has  been  dominated  in  recent  years  by  the 
successful  referendum  on  marriage  equality  in  2015  and  a  forthcoming  referendum  on 
repealing a provision in the Constitution, which in effect prohibits abortion. The referenda 

468  Ireland, Irish Human Rights and Equality Commission Act 2014, 27.07.2014, 

http://www.irishstatutebook.ie/eli/2014/act/25/enacted/en/html; Irish Human Rights and Equality 
Commission Act 2014 (Establishment Day) Order 2014 (S.I. No. 450 of 2014). 
http://www.irishstatutebook.ie/eli/2014/si/450/made/en/print.  

469  Select Committee on Justice and Equality, Vote 25 - Irish Human Rights and Equality Commission (Revised), 

12 April 2017, 
http://oireachtasdebates.oireachtas.ie/debates%20authoring/debateswebpack.nsf/committeetakes/JUS2017
041200002.  

470  Irish Human Rights and Equality Commission (Gender Pay Gap Information) Bill 2017, 

http://www.oireachtas.ie/viewdoc.asp?DocID=35183.  

471  Free Legal Advice Centres (2014) Our Voice, Our Rights: A Parallel Report in response to Ireland’s Third 

Report under the International Covenant on Economic, Social and Cultural Rights, pp. 19-22, 
https://www.ourvoiceourrights.ie/download/pdf/our_voice_our_rights.pdf; Harvey, B. and Walsh, K. (2009) 
Downgrading Equality and Human Rights: Assessing the Impact, 
http://www.eracampaign.org/uploads/Downgrading%20Equality%20&%20Human%20Right%20Assessing%
20the%20Impact.pdf.  

472  Government of Ireland (2016) Revised Estimates for Public Services 2017, www.per.gov.ie/wp-

content/uploads/RevisedEstimatesforPublicServices2017.pdf; See further: 
http://www.justice.ie/en/JELR/Pages/PR16000284.  

473  Government of Ireland (2017) Revised Estimates for Public Services 2018, http://www.per.gov.ie/en/rev/.  

94 

 
 
 
 
 
 
 
 
                                                   
 
along with a wider range of social justice issues have been the subject of deliberations by 
the  Convention  on  the  Constitution474  and  the  Citizens’  Assembly475  respectively.  The 
positions  adopted  at  both  forums  could  be  regarded  as  pro-equality;  the  Convention 
supported marriage equality and explicit constitutional protection of socio-economic rights, 
while  the  Assembly  supported  abolishing  mandatory  retirement  based  on  age  and 
liberalisation of abortion law.  

A  nationwide  survey  of  public  awareness  of  and  attitudes  towards  human  rights  and 
equality was commissioned by IHREC in 2015. Based on a sample of 1 000 individuals, it 
found that overall people express positive views on human rights and equality issues, with 
the  more  negative  attitudes  directed  toward  ethnic  minorities.  The  survey  uncovered 
‘almost universal endorsement of the general importance of equality and human rights’.476 
There is no robust evidence of popular debate that is either supportive of or hostile to the 
Commission.  

c) 

Institutional architecture 

IHREC has a dual status as Ireland’s national human rights institution and equality body. 
It  is  also  the  body  designated  for  the  purposes  of  Directive  2014/54/EU  on  measures 
facilitating  the  exercise  of  rights  conferred  on  workers  in  the  context  of  freedom  of 
movement  for  workers.477  The  Commission  is  charged  with:  protecting  and  promoting 
human rights and equality; encouraging the development of a culture of respect for human 
rights, equality and intercultural understanding; promoting understanding and awareness 
of the importance of human rights and equality; encouraging good practice in intercultural 
relations, promoting tolerance and acceptance of diversity and respect for the freedom and 
dignity  of  each  person;  and  working  towards  the  elimination  of  human  rights  abuses, 
discrimination and prohibited conduct.478  

The human rights and equality functions of the body are integrated. In other words, the 
equality and non-discrimination mandate is not structured separately within the body, nor 
is  a  percentage  of  staff  resources  and  budget  dedicated  to  the  equality  mandate.  Along 
with the Director, staff assigned to each of the Commission’s five sections work across the 
body’s mandate: Legal and Information; Public Engagement; Policy and Review; Research; 
Corporate Services.479 

At this juncture it is difficult to appraise the level of attention accorded to the equality/anti-
discrimination mandate of IHREC. Data relating to exercise of the Commission’s functions 
is primarily contained in the two annual reports issued since its establishment in November 
2014.480 As outlined below, some of its compliance and enforcement powers have yet to 
be invoked. This position should change as the Commission moves out of its establishment 
phase, which has involved the recruitment of a significant number of staff, as well as the 
establishment  of  new  offices.  As  to  the  nature  of  the  attention  accorded  to  the 
equality/anti-discrimination mandate, in the author’s assessment greater attention could 
be paid to exercise of certain powers that pertain specifically to the anti-discrimination laws 
that give effect to the EU equality directives. Two of those functions in particular could be 
further utilised: the provision of legal assistance to victims of discrimination and the power 
to conduct equality reviews and prepare equality action plans. The latter power has yet to 
be deployed (see further Chapter 7.f.iv). It’s difficult to assess the Commission’s exercise 

474  See further: https://www.constitution.ie/.  
475  See further: https://www.citizensassembly.ie/en/.  
476  IHREC (2015) Awareness and Attitudes Research, p. 23, 

https://www.ihrec.ie/download/pdf/ihrec_awareness_and_attitudes_research_2015.pdf.  

477  Section 10(2)(i) IHRECA. 
478  Section 10(1) IHRECA, http://www.irishstatutebook.ie/2014/en/act/pub/0025/sec0010.html - sec10. 
479  IHREC (2017) Annual Report 2016, Appendix 4, https://www.ihrec.ie/app/uploads/2017/06/IHREC-Annual-

Report-2016.pdf. 

480  IHREC (2016) Annual Report 2015, https://www.ihrec.ie/documents/annual-report-2015/; IHREC (2017) 

Annual Report 2016, https://www.ihrec.ie/app/uploads/2017/06/IHREC-Annual-Report-2016.pdf. 

95 

 
 
 
 
 
 
                                                   
 
of its legal assistance function given the limited nature of the data that is publicly available. 
Nevertheless the number of equality cases supported appears to be significantly lower than 
the average number supported by the Equality Authority (see further Chapter 7.f.i).  

In  the  author’s  assessment  the  level  of  visibility  achieved  for  the  equality  mandate  (as 
understood  with  reference  to  EU  law)  is  satisfactory.481  An  awareness-raising  campaign 
concerning the new housing assistance ground conducted in 2016 brought a welcome focus 
on  ESA  more  generally.482  Research  conducted  by  IHREC  in  2015  suggests  that  public 
awareness and understanding of ESA is lower than that of EEA and human rights laws.483  

d) 

Status of the designated body/bodies – general independence 

i) 

Status of the body 

IHREC  was  established  as  a  body  corporate  with  perpetual  succession  under 
the Irish Human Rights and Equality Commission Act 2014.484 It was accredited 
as an A status national human rights institution in November 2015.485 

Sections  12-13  IHRECA  provide  for  membership  and  appointment  of  the 
Commission.  The  Minister  for  Justice  agrees  with  the  Public  Appointments 
Service the selection criteria and process to be implemented in respect of filling 
vacancies.  The  Service  puts  in  place  an  independent  selection  panel  with 
prescribed relevant experience and including one nominee of the Director of the 
European  Union  Agency 
for  Fundamental  Rights.  Following  an  open 
competition,  the  panel  recommends  people  for  appointment.  The  legislation 
specifies  that  the  ‘Government  shall  accept  that  recommendation’  save  in 
defined ‘exceptional circumstances’486 and that the members shall be appointed 
by  the  President  on  the  advice  of  Government,  following  a  resolution  of 
Oireachtas (parliament). While the appointments process contains checks and 
balances that secure its independence from Government, greater transparency 
could perhaps be secured by according the Oireachtas an oversight role in the 
appointment of the selection panel.  

In terms of qualifying criteria for membership of the Commission, the Service 
and the Government must have regard to the need to ensure that the members 
‘broadly  reflect  the  nature  of  Irish  society’  and  possess  knowledge  of,  or 
experience in matters connected with human rights and matters connected with 
persons  or  classes  of  persons  who  are  disadvantaged  by  reference  to  the 
discriminatory grounds.487 There must be gender balance in the composition of 
the 12-15 members. Members serve a term of three or five years. One of the 
members  acts  as  the  Chief  Commissioner  and  chairs  Commission  meetings, 
which must take place at least every three months.488  

481  It should be noted that the Commission’s equality mandate is considerably broader than the coverage of the 
EU equality directives e.g. high-profile activities such as its work on human rights and equality proofing of 
budgets fall outside the material scope of the directives but aim to advance equality of opportunity and 
eliminate discrimination.  

482  IHREC (2017) Annual Report 2016, p. 30; See further: https://www.ihrec.ie/ihrec-alerts-landlords-tenants-
and-accommodation-advertisers-to-new-equality-law/; https://www.ihrec.ie/irish-human-rights-equality-
commission-welcomes-myhome-ies-procedures-property-advertisements/.  

483  IHREC (2015) Awareness and Attitudes Research, 

https://www.ihrec.ie/download/pdf/ihrec_awareness_and_attitudes_research_2015.pdf.  
484  Section 9 IHRECA, http://www.irishstatutebook.ie/2014/en/act/pub/0025/print.html - sec9. 
485  International Coordinating Committee of National Human Rights Institutions (2015) Report and 

Recommendations of the Session of the Sub-Committee on Accreditation (SCA) Geneva, 16-20 November 
2015, 
https://nhri.ohchr.org/EN/AboutUs/GANHRIAccreditation/Documents/SCA%20FINAL%20REPORT%20-
%20NOVEMBER%202015-English.pdf. 

486  Sections 13(11)-(12) IHRECA.  
487  Section 13(13) IHRECA. 
488  Section 16 IHRECA. 

96 

 
 
 
 
 
 
 
                                                   
 
The  Commission’s  annual  grant  is  a  sum  that  the  Minister  for  Justice  and 
Equality,  after  consultation  with  the  Commission,  considers  to  be  reasonably 
sufficient for the Commission in the performance of its functions.489 Concerns 
about this provision were raised by the Sub-Committee on Accreditation of the 
UN’s Global Alliance of National Human Rights Institutions, which pointed out 
that  ‘the  Minister  for  Justice  and  Equality  has  significant  discretion  over  the 
allocation of funds to the IHREC, and that this has the potential to impact on 
its effectiveness and independence.’490 

The  Commission  appoints  its  own  staff  with  the  consent  of  the  Minister  for 
Justice  and  Equality  as  approved  by  the  Minister  for  Public  Expenditure  and 
Reform.491 They may also be seconded from other bodies at the Commission’s 
discretion.  Staff  are  civil  servants  of  the  state,  a  status  which  requires 
independence from Government. The Director of the Commission manages its 
administration  and  is  accountable  to  parliament  for  financial  and  other 
operational  matters.492  The  Director  holds  office  under  a  written  contract  of 
service  the  terms  of  which,  including  its  duration,  are  determined  by  the 
Commission  with  the  approval  of  the  Minister  for  Justice  and  Equality.  At  31 
December 2016, the Commission had 41 staff, up from 33 at the end of 2015.493 
With recruitment ongoing, five  of the 46 posts sanctioned for 2016  were not 
filled by the end of that year.494 

The  Commission  is  accountable  to  parliament;  it  must  lay  its  strategy 
statement495  and  annual  report496  before  the  Oireachtas.  The  Director  is 
accountable  to  the  parliamentary  public  accounts  committee  for  financial 
transactions and effective use of resources497 and may be requested to account 
for administrative matters before other Oireachtas committees.498 

ii) 

Independence of the body 

Legislation  stipulates  that  the  Commission  shall  be  independent  in  the 
performance of its functions.499 In the author’s assessment, the Commission’s 
functions  are  exercised  in  an  independent  manner  in  practice.  However,  as 
noted  above,  the  role  of  the  Minister  for  Justice  and  Equality  in  setting  the 
Commission’s budget is problematic. Submissions concerning the establishment 
of  IHREC  suggested  that  its  budget  could  be  attached  to  a  more  ‘neutral’ 
department  such  as  the  Department  of  the  Taoiseach.500  The  process  for 
appointing Commission members could also be rendered more transparent by, 
for instance, according the Oireachtas an oversight role in the appointment of 
the selection panel.  

489  Section 26 IHRECA, http://www.irishstatutebook.ie/2014/en/act/pub/0025/print.html - sec26. 
490  International Coordinating Committee of National Human Rights Institutions (2015) Report and 

Recommendations of the Session of the Sub-Committee on Accreditation (SCA) Geneva, 16-20 November 
2015, p.10, 
https://nhri.ohchr.org/EN/AboutUs/GANHRIAccreditation/Documents/SCA%20FINAL%20REPORT%20-
%20NOVEMBER%202015-English.pdf. 

491  Section 24 IHRECA, http://www.irishstatutebook.ie/eli/2014/act/25/section/24/enacted/en/html#sec24.  
492  Sections 20-23 IHRECA. 
493  IHREC (2017) Annual Report 2016, p. 43. 
494  Office of the Comptroller and Auditor General (2017) Appropriation Account 2016: Vote 25 Irish Human 

Rights and Equality Commission, 
http://www.audgen.gov.ie/documents/annualreports/2016/appacc/en/vote%2025.pdf. 

495  Section 25 IHRECA, http://www.irishstatutebook.ie/eli/2014/act/25/section/25/enacted/en/html#sec25.  
496  Section 28 IHRECA, http://www.irishstatutebook.ie/eli/2014/act/25/section/28/enacted/en/html#sec28.  
497  Section 22 IHRECA, http://www.irishstatutebook.ie/eli/2014/act/25/section/22/enacted/en/html#sec22.  
498  Section 23 IHRECA, http://www.irishstatutebook.ie/eli/2014/act/25/section/23/enacted/en/html#sec23.  
499  Section 9(2) IHRECA, http://www.irishstatutebook.ie/2014/en/act/pub/0025/print.html - sec9. 
500  See further: Pegram, T. (2013) Bridging the Divide: The Merger of the Irish Equality Authority and Human 

Rights Commission, https://www.tcd.ie/policy-institute/assets/pdf/Studies_Policy_29_web.pdf. 

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e)  Grounds covered by the designated body/bodies 

IHREC has a mandate to deal with the following grounds under  Irish  anti-discrimination 
law: gender, age, race, religion, family status, disability, civil status, sexual orientation, 
membership of the Traveller community, and housing assistance. It does not prioritise any 
of the grounds as such. No information is in the public domain as to how the Commission 
ensures that adequate  and appropriate expertise and attention is given to each ground. 
Staff  work  across  all  of  the  grounds  and  the  human  rights  mandate  in  each  of  the 
Commission’s  functional  divisions  (Chapter  7.c).  The  Commission’s  Strategy  Statement 
2016-2018 adopts a holistic approach to the grounds, save that it refers specifically to the 
UN Convention on the Rights of Persons with Disabilities in the context of ensuring robust 
implementation of human rights and equality standards.501 Ireland is expected to ratify the 
Convention in 2018.502 In the author’s assessment each ground is accorded an appropriate 
level of attention by the Commission. It has addressed the intersection between grounds 
in  various  submissions  and  has  called  for  the  introduction  of  a  provision  on  multiple 
discrimination  under  anti-discrimination  law.503  According  to  the  minutes  of  the 
Commission’s  plenary  meeting  held  in  April  2017,  it  has  agreed  to  give  further 
consideration  to  ‘how  to  adequately  capture  queries  relating  to  multiple  grounds/ 
intersectionality in reporting on the handling of public information queries.’504 

IHREC does not treat migrants as a priority issue. It is the body designated for the purposes 
of  Directive  2014/54/EU  on  measures  facilitating  the  exercise  of  rights  conferred  on 
workers in the context of freedom of movement for workers.505 In practice the Commission 
deals with discrimination against migrants across all its major functions, principally under 
the rubric of its human rights mandate. It has also highlighted indirect discrimination liable 
to  affect  migrants  in  commentary  on  anti-discrimination  law.506  A  team  from  the 
Commission’s  information  service  hosted  a  stand  at  the  International  Organization  for 
Migration’s  information  fair  for  migrants  in  November  2016,  providing  information  to 
migrants about their rights under equality and human rights law. In 2016 it reported on 
the  outcome  of  a  case  in  which it  provided  legal  assistance  to  ‘an  EU  national  who  was 
subject  to  severe  labour  exploitation  at  a  family-run  bed  and  breakfast.  This  included 
claims for non-payment of wages, holidays, rest breaks and overtime, as well as alleged 
discrimination on grounds of race, disability, gender and civil status.’ The case was settled 
prior to hearing on terms that included the payment of EUR 20 000 and an undertaking on 
the  employer’s  part  to  respect  their  obligations  under  employment  legislation  in  the 
future.507 That year the Commission acted as amicus curiae in a case concerning the human 
rights  compatibility  of  the  decision-making  process  on  immigration  status of  non-EEA 
nationals, which is currently under appeal to the Supreme Court.508 IHREC has supported 
several  educational  and  research  projects  aimed  concerning  migrants’  rights,  such  as  a 
project on the employment of migrants in the home care sector conducted by the Migrant 

501  IHREC (2016) Strategy Statement 2016-2018, https://www.ihrec.ie/download/pdf/strategystatement.pdf. 
502  http://www.justice.ie/en/JELR/Pages/PR18000033.  
503  See e.g. IHREC (2017) Submission to the United Nations Committee on the Elimination of Discrimination 

Against Women on Ireland’s Combined Sixth and Seventh Periodic Reports, 
https://www.ihrec.ie/app/uploads/2017/02/Ireland-and-the-Convention-on-the-Elimation-of-All-Forms-of-
Discrimination-Against-Women.pdf. 

504  https://www.ihrec.ie/app/uploads/2017/12/Minutes-of-18th-Ordinary-Plenary-Meeting-11.04.2017-

APPROVED.pdf.  

505  Section 10(2)(i) IHRECA. 
506  See e.g. IHREC (2016) Observations on the Education (Admission to Schools) Bill 2016, 

https://www.ihrec.ie/app/uploads/2016/11/Observations-on-Education-Admission-to-Schools-Bill-2016.pdf; 
IHREC (2017) Submission to the United Nations Committee on the Elimination of Discrimination Against 
Women on Ireland’s Combined Sixth and Seventh Periodic Reports, pp.15, 86, 91, 
https://www.ihrec.ie/app/uploads/2017/02/Ireland-and-the-Convention-on-the-Elimation-of-All-Forms-of-
Discrimination-Against-Women.pdf.  
507  IHREC (2017) Annual Report 2016, p.34. 
508  See further: https://www.ihrec.ie/human-rights-equality-commission-appears-supreme-court-right-private-

family-life-cases/; https://www.ihrec.ie/documents/luximon-v-minister-justice-equality-balchand-v-
minister-justice-equality-november-2017/.  

98 

 
 
 
 
                                                   
 
Rights  Centre  Ireland  in  conjunction  with  the  Services,  Industrial,  Professional  and 
Technical  Union  (SIPTU) and  the  Carers  Association.  The  project  published  employment 
guidelines for the home care sector in 2015 and was part-funded by the European Social 
Fund.509 Researchers based at Maynooth University conducted an audit and evaluation of 
the integration policies of public bodies under the auspices of a scheme operated by the 
Commission. The project report, published in November 2017, also devises a model of best 
practice for integration policy.510 

f) 

Competences of the designated body and their independent and effective exercise  

i) 

Independent assistance to victims 

In  Ireland,  IHREC  has  the  competence  to  provide  independent  assistance  to 
victims.511 It does so in two primary ways: by providing general information on 
anti-discrimination law and through the provision of legal assistance in a limited 
number of cases. 

IHREC  is  required  to  ‘provide  information  to  the  public’  on  the  Employment 
Equality  Acts  1998-2015  (EEA),  the  Equal  Status  Acts  2000-2015  (ESA)  and 
Section 19 of the Intoxicating Liquor Act 2003.512 On its website IHREC provides 
an  accessible  overview  of  those  laws  aimed  at  the  general  public  as  well  as 
organisations and businesses.513 It published detailed guides to EEA and ESA in 
2015514 and produced a video on ESA in 2017. The Commission also operates 
a Public Information Service that individuals may avail of to obtain information 
on  their  rights  to  protection  against  discrimination.515  It  processed  3  953 
queries  from members  of the public between  November 2014 and December 
2016. 

Legal  assistance  can  take  the  form  of  the  provision,  or  the  arranging for  the 
provision of, legal advice to the applicant; the provision, or the arranging for 
the  provision  of,  legal  representation  to  the  applicant;  the  provision  of  such 
other assistance to the applicant as the Commission deems appropriate in the 
circumstances.516  Such  assistance  is  available  for  inter  alia  references  of 
discrimination  complaints  under  ESA,  EEA  and  section  19  of  the  Intoxicating 
Liquor Act 2003, as well as for appellate or enforcement517 proceedings under 
those statutes.  

At 31st December 2016, IHREC was providing legal assistance in 30 cases, nine 
of which concerned ESA with 11 relating to EEA (the remaining ten related to 

509  https://www.mrci.ie/resources/publications/ihrec-home-care-project/.  
510  Murphy, C., Caulfield, L. and Gilmartin, M. (2017) Developing Integration Policy in the Public Sector: A 

Human Rights Approach, Maynooth University, 
https://www.maynoothuniversity.ie/sites/default/files/assets/document/MU%20Developing%20Integration
%20Policy%20in%20the%20Public%20Sector%20FOR%20WEB_0.pdf.  

511  Section 10(2)(f) and section 40 IHRECA. See further: https://www.ihrec.ie/our-work/legal-activity/legal-

assistance/.  

512  Sections 10(2)(a) and 30 IHRECA: 

http://www.irishstatutebook.ie/eli/2014/act/25/section/10/enacted/en/html#sec10; 
http://www.irishstatutebook.ie/eli/2014/act/25/enacted/en/print#sec30. 

513  https://www.ihrec.ie/guides-and-tools/. 
514  https://www.ihrec.ie/app/uploads/download/pdf/ihrec_equal_status_rights_explained.pdf. 
515  See further: https://www.ihrec.ie/your-rights/can-we-help/. 
516  Section 40(10) IHRECA.  
517  In a number of cases, the WRC has issued orders directing the respondent to report to the Commission on 
compliance within a given time frame, underlining that IHREC could thereafter commence enforcement 
proceedings with the complainant’s consent: Sheehy Skeffington v National University of Ireland, Galway, 
DEC-E2014-078, 13 November 2014, https://www.workplacerelations.ie/en/Cases/2014/November/DEC-
E2014-078.html; Clavin v Marks and Spencers Ireland Ltd., DEC-S2015-055, 28 July 2015, 
https://www.workplacerelations.ie/en/Cases/2015/July/DEC-E2015-055.html; A mother (on behalf of her 
son) v The Board of Management of a National School, DEC-S2016-048, 18 July 2016, 
https://www.workplacerelations.ie/en/Cases/2016/July/DEC-S2016-048.html.  

99 

 
 
 
 
 
 
 
                                                   
 
human rights). It granted assistance to 17 new clients that year.518 Available 
data suggests that IHREC is supporting fewer equality cases than the Equality 
Authority  was  prior  to  the  drastic  cuts  to  its  budget  in  2009.519  In  2008,  the 
Authority granted legal assistance in 68 cases, this dropped to 21 in 2009 and 
to 15 the following year.  

Independence:  

In  the  author’s  assessment,  decisions  on  granting  legal  assistance  are 
exercised in an independent manner. Safeguards include the publication 
of the applicable criteria, the provision of a reasoned decision to applicants 
in writing, and the delegation of decision-making to the Head of Legal who 
is a civil servant of the state. 

The Commission published revised guidelines for deciding on applications 
for  assistance  in  April  2017.520  Section  40(4)  IHRECA  underpins  the 
guidelines; it stipulates that the Commission may grant assistance on the 
following  criteria:  ‘(a)  the  matter  to  which  the  proceedings  concerned 
relate  raises  a  question  of  principle;  (b)  it  would  be  unreasonable  to 
expect  the  person  to  deal  with  the  matter  to  which  the  proceedings 
concerned relate without assistance because of its complexity or for any 
other  reason;  (c)  there  are  other  special  circumstances  which  make  it 
appropriate for the Commission to grant such assistance.’ It has delegated 
the function of deciding on applications for assistance to staff: the Head 
of Legal decides whether to grant assistance, subject to an appeal to the 
Director.521  

Effectiveness:  

It  is  difficult  to  assess  the  effectiveness  of  the  Commission’s  legal 
assistance  activity  for  two  reasons:  The  Commission  has  been  in  a 
development  phase  until  recently  and  it  provides  limited  data  on  the 
exercise of this competence. A significant number of new employees have 
been recruited since IHREC’s establishment; 41 of the 48 sanctioned staff 
positions had been filled at end December 2016. Further, it appears that 
the Commission’s approach to the exercise of this function was not fully 
clarified  until  April  2017  when  it  endorsed  a  Strategic  Litigation  and 
Enforcement Plan.522 IHREC provides limited information to the public on 
how this function is exercised. Its annual reports set out the number of 
open  case  files,  providing  basic  information  on  the  legislative  base 
involved and the applicable discriminatory grounds (see further Chapter 
7.h). Brief accounts of  case outcomes are set  out in the annual reports 
and are publicised in media work and on the Commission’s website. It is 
evident from these accounts that IHREC has supported multiple significant 
cases, such as proceedings before the High Court concerning the ambit of 
ESA523 and before the Supreme Court on reasonable accommodation for 

518  IHREC (2017) Annual Report 2016, p.32. 
519  Free Legal Advice Centres (2014) Our Voice, Our Rights: A Parallel Report in response to Ireland’s Third 

Report under the International Covenant on Economic, Social and Cultural Rights, pp. 19-22, 
https://www.ourvoiceourrights.ie/download/pdf/our_voice_our_rights.pdf.  

520  IHREC (2017) Guidelines on Applications for Legal Assistance, 

https://www.ihrec.ie/app/uploads/2017/06/Guidelines-on-applications-for-legal-assistance-April-2017-
3.pdf.  

521  Under section 10(6) IHRECA the Commission may authorise its staff to perform any of its functions. 
522  https://www.ihrec.ie/app/uploads/2017/12/Minutes-of-18th-Ordinary-Plenary-Meeting-11.04.2017-

APPROVED.pdf.  

523  IHREC supported the complainant in a 2015 case in which the High Court held that a mother could not rely 
on ESA to argue that the social welfare code discriminated unlawfully against her on the disability and 
gender grounds by not providing her with maternity benefit when she had a child through a surrogacy 

100 

 
 
 
  
 
 
                                                   
 
findings  suggesting 

students  sitting  state  examinations.524  However,  in  contrast  to  the 
Equality  Authority,  the  Commission  does  not  provide  information  on 
overarching patterns as to the reasons for  declining / deciding to grant 
assistance.525 It is thus unclear what informs the Commission’s strategic 
that 
approach,  such  as  perhaps,  research 
discrimination in a given area is endemic and persistent over time. Nor it 
is clear at this juncture whether IHREC supports a ‘critical mass of cases’ 
as  recommended  by  the  Council  of  Europe’s  Commissioner  for  Human 
Rights.526 Without such data it is difficult to appraise the effectiveness of 
its work and the Commission risks reinforcing concerns that its approach 
to legal assistance is more restrictive or less well resourced than that of 
the Equality Authority. The Equality Authority’s legal assistance work was 
widely  regarded  as  being  effective  in  driving  compliance  with  anti-
discrimination law and its depletion was a major concern of civil society 
organisations  when  the  body  was  merged  with  the  Irish  Human  Rights 
Commission.527  

In the author’s assessment, the profile of IHREC’s anti-discrimination case 
work has been impacted by factors outside its control. At 31st December 
2017, there were five reported cases in which IHREC has provided legal 
assistance before the WRC or the Labour Court.528 In two of these cases 
IHREC’s  role  is  not  mentioned  in  the  published  decisions.  This  is 
regrettable since it impacts the visibility of the Commission’s legal work.  

Resources: 

Information  is  not  available  as  to  the  amount  or  proportion  of  the 
Commission’s  budget  allocated  to  the  legal  assistance  function.  At  end 
December 2016, 11 of the Commission’s 41 full-time equivalent staff were 
team.529  This  appears 
assigned 
proportionate. 

the  Legal  and  Information 

to 

ii) 

Independent surveys and reports 

arrangement: G v Department of Social Protection [2015] IEHC 419, 07.07.2015, 
http://www.courts.ie/Judgments.nsf/0/CE885D9FE65B899B80257E7E00504287.  

524  IHREC provided legal representation before the Supreme Court to a woman who challenged the Department 
of Education’s policy of annotating the examination transcripts of students who had been granted a spelling 
and grammar waiver. The Court found that the practice did not amount to disability ground discrimination: 
Cahill v Minister for Education and Science [2017] IESC 29, 24.05.2017, 
http://www.courts.ie/Judgments.nsf/bce24a8184816f1580256ef30048ca50/37599fdc9c7e6c3c8025812b00
421aa8?OpenDocument; See further: https://www.ihrec.ie/supreme-court-clarifies-duties-towards-
students-disability-discrimination-case/.  

525  Individual applicants who are refused legal assistance are informed of the reasons in writing: IHREC (2017) 

Guidelines on Applications for Legal Assistance, para 27. 

526  Commissioner for Human Rights (2011) Opinion of the Commissioner for Human Rights on National 

Structures for Promoting Equality, CommDH(2011)2, p. 21, https://rm.coe.int/16806da939.  

527  See further, Pegram, T. (2013) Bridging the Divide: The Merger of the Irish Equality Authority and Human 
Rights Commission, https://www.tcd.ie/policy-institute/assets/pdf/Studies_Policy_29_web.pdf; Free Legal 
Advice Centres (2014) Our Voice, Our Rights: A Parallel Report in response to Ireland’s Third Report under 
the International Covenant on Economic, Social and Cultural Rights, pp. 19-22, 
https://www.ourvoiceourrights.ie/download/pdf/our_voice_our_rights.pdf.  

528  Calor Teoranta v Brierton, EDA 1510, 26.06.2015, 

https://www.workplacerelations.ie/en/Cases/2015/June/EDA1510.html;  
Brady v Cavan VEC and Virginia College, DEC-E2016-048, 10.03.2016, 
https://www.workplacerelations.ie/en/Cases/2016/March/DEC-E2016-048.html; Ms A (on behalf of her 
daughter B) v A Girls Secondary School, DEC-S2015-001, 06.02.2015, 
https://www.workplacerelations.ie/en/Cases/2015/February/DEC-S2015-001.html; A Prison Officer v The 
Minister for Justice and Equality, DEC-E2017-045, 07.06.2017, 
https://www.workplacerelations.ie/en/Cases/2017/June/DEC-E2017-045.html; A Tenant v A Landlord, 
ADJ00002629, 7 November 2017, http://www.workplacerelations.ie/en/Cases/2017/November/ADJ-
00002629.html. 

529  IHREC (2017) Annual Report 2016, Appendix 4. 

101 

 
 
 
 
 
                                                   
 
In  Ireland,  IHREC  has  the  competence  to  conduct  independent  surveys  and 
publish  independent  reports.  It  is  empowered  to  undertake,  sponsor, 
commission  or  provide  financial  or  other  assistance  for  research530  and  to 
prepare and publish, in such manner as it sees fit, reports including research 
reports.531  

Independence: 

In  the  author’s  assessment  this  competence  is  exercised  in  an 
independent  manner  in  practice.  The  research  reports  produced  were 
almost  exclusively  commissioned  by  IHREC  and  so  carried  out  by 
independent  actors;  many  positions  advanced  within  the  reports  are 
critical of the status quo. 

Effectiveness:  

In  the  author’s  assessment  the  activities  carried  out  under  this 
competence  are  of  an  excellent  quality.  Carrying  on  the  work  of  the 
Equality Authority, the Commission produced a significant report in 2017 
which  analyses  data  on  the  experience  of  inequality  derived  from  the 
equality module of the 2014 Quarterly National Household Survey, carried 
out by the Central Statistics Office.532 In 2015, the Commission undertook 
a national survey about awareness of and attitudes towards human rights 
and  equality  in  the  general  population.533  It  has  further  commissioned 
research  reports  on  aspects  of  Irish  compliance  with  two  UN 
conventions.534  The  Commission  has  also  sponsored  several  research 
projects conducted by universities and by civil society bodies through its 
‘Human Rights and Equality Grants Scheme’ (see further Chapter 7.f.iv).  

Resources: 

It is difficult to assess the scale of activity at this juncture given the time 
frames  involved  in  producing  research  and  since  the  Commission’s 
Research team expanded significantly in 2016 from a  staff  allocation of 
four to seven in the latter half of 2016.535 No information is available as 
to the amount or proportion of the Commission’s budget allocated to the 
research function. 

iii) 

Independent recommendations 

In Ireland, IHREC has the competence to issue independent recommendations 
on  discrimination  issues.  Statutory  provisions  empower  the  Commission  to: 
keep under review the adequacy and effectiveness of equality law and practice 
in the State;536 examine  any legislative proposal and report its views  on any 

530  Section 10(2)(j) IHRECA. 
531  Section 10(2)(p) IHRECA. 
532  McGinnity, F., Grotti, R., Kenny, O. and Russell, H. (2017) Who experiences discrimination in Ireland?: 

Evidence from the QNHS Equality Modules, available at: 
https://www.ihrec.ie/documents/who-experiences-discrimination-in-ireland-evidence-from-the-qnhs-
equality-modules/.  

533  IHREC (2015) Awareness and Attitudes Research, 

https://www.ihrec.ie/download/pdf/ihrec_awareness_and_attitudes_research_2015.pdf. 

534  See further: https://www.ihrec.ie/our-work/research-reports/.  
535  IHREC (2017) Annual Report 2016, Appendix 4. 
536  Sections 10(2)(b) and 30 IHRECA: 

http://www.irishstatutebook.ie/eli/2014/act/25/section/10/enacted/en/html#sec10; 
http://www.irishstatutebook.ie/eli/2014/act/25/section/30/enacted/en/html#sec30. 

102 

 
 
 
 
 
 
 
 
 
 
                                                   
 
implications for equality;537 and make recommendations to the Government on 
measures which should be taken to strengthen, protect and uphold equality in 
the State.538 These powers may be exercised on the Commission’s own initiative 
or triggered by government ministers.  

IHREC  has  deployed  its  function  to  keep  under  review  the  adequacy  and 
effectiveness of equality law and practice, through various channels including 
in submissions made to international treaty monitoring bodies. On occasion the 
Commission has issued recommendations on foot of its legal assistance work. 
For instance, it highlighted the need to amend ESA following an  unsuccessful 
challenge to the exclusion from maternity benefits of a woman who had a child 
by means of a surrogacy arrangement.539  

Independence:  

In  the  author’s  assessment  this  competence  is  exercised  in  an 
independent  manner  in  practice.  Many  of  the  recommendations  put 
forward  by  the  Commission  to  date  have  been  openly  critical  of 
Government.  

Effectiveness: 

In  the  author’s  assessment  the  Commission’s  activities  under  this 
competence are of an excellent quality; written submissions draw on an 
extensive range  of  sources including empirical studies and international 
best practice. 

The Commission made a significant intervention in 2017 with respect to 
its  function  to  keep  under  review  the  adequacy  and  effectiveness  of 
equality  law  and  practice.  IHREC  issued  an  information  note,  which 
pointed out that the practice of automatically anonymising the names of 
parties  to  proceedings  before  the  WRC  ran  counter  to  the  legislative 
framework.540 In response to the Commission’s concerns the Director of 
the WRC said that a note would be circulated to all adjudication officers 
setting  out  the  parameters  under  which  they  might  want  to  consider 
publication of the names in equality cases.541 

IHREC has examined ten legislative proposals since its establishment in 
November  2014;  four  of  these  pertain  to  discrimination  law.542  It  is 
difficult to assess the impact of its discrimination law submissions, since 
at the time of writing all legislative proposals are yet to be finalised and 
debated  before  parliament.  Two  of  the  Commission’s  observations 
concern the Disability (Miscellaneous Provisions) Bill 2016, which purports 
to  amend  Irish  law  to  enable  ratification  of  the  UNCRPD  and  to  add  a 
gender  identity  and  expression  ground  to  anti-discrimination  law  more 

537  Section 10(2)(c) IHRECA: 

http://www.irishstatutebook.ie/eli/2014/act/25/section/10/enacted/en/html#sec10. 

538  Section 10(2)(d) IHRECA: 

http://www.irishstatutebook.ie/eli/2014/act/25/section/10/enacted/en/html#sec10 

539  https://www.ihrec.ie/ihrec-recommends-changes-to-equal-status-acts-following-high-court-decision-on-

maternity-benefit-claim/.  

540  https://www.ihrec.ie/app/uploads/2017/04/Publication-of-Decisions-by-the-Workplace-Relations-

Commission-Under-the-EEA-and-ESA-3.pdf.  

541  Gartland, F. (2017) Private dispute system better for workers, says WRC head, Irish Times, 22 May 2017, 
https://www.irishtimes.com/news/ireland/irish-news/private-dispute-system-better-for-workers-says-wrc-
head-1.3091046.  

542  The Commission’s legislative observations are available here: https://www.ihrec.ie/legislative-

observations/.  

103 

 
 
 
 
 
 
 
 
                                                   
 
generally.543  A  third  submission  undertakes  a  detailed  analysis  of  the 
Education  (Admission  to  Schools)  Bill  2016,544  highlighting  inter  alia 
conformity  with  the  Racial  Equality  Directive.545  A  recent  legislative 
observation,  issued  in  December  2017,  welcomes  the  publication  of  a 
private  member’s  bill  that  seeks  to  add  ‘disadvantaged  socio-economic 
status’ as a ground under national discrimination law.546  

To  date  the  Commission  has  largely  exercised  its  powers  in  a  reactive 
manner. It has not conducted a review of the principal anti-discrimination 
statutes. Arguably a strong case could be made for undertaking a review 
of section 19 of the Intoxicating Liquor Act 2003. The 2003 Act transferred 
jurisdiction for cases alleging discrimination ‘…on or at the point of entry 
to,  licensed  premises’  to  the  District  Court,  a  court  of  local  and  limited 
jurisdiction with jurisdiction over a range of criminal and civil matters.547 
The  major  impact  of  this  amendment  is  the  cost  implications  for 
complainants as well as the complexity of legal proceedings.548 Under the 
WRC  system  it  is  possible  to  represent  oneself  and  costs  cannot  be 
awarded against either complainant or respondent; this is not the case at 
the District Court. Consequently, the number of cases taken against such 
service  providers  has  dropped  significantly.  Moreover,  it  generates 
confusion in practice; several complaints have been, and continue to be, 
lodged  before  the  incorrect  forum.  The  European  Commission  against 
Racism and Intolerance notes ‘that in particular members of the Traveller 
Community are often affected by discrimination in the provision of goods 
and services in licensed premises.’549 Five complaints, all on the Traveller 
community ground, were dismissed by the WRC in 2017 since it did not 
have jurisdiction to hear the cases.550 

Resources: 

The scale of activities appears reasonable. No information is available as 
to the amount or proportion of the Commission’s budget allocated to this 
function.  

543  https://www.oireachtas.ie/viewdoc.asp?DocID=34322; IHREC (2016) Observations on the General Scheme 

of the Equality /Disability (Miscellaneous Provisions) Bill, 
https://www.ihrec.ie/app/uploads/2016/11/Observations-on-the-General-Scheme-Equality-Disability-
Miscellaneous-Provisions-Bill.pdf; IHREC (2017) Supplementary Observations on the Disability 
(Miscellaneous Provisions) Bill 2016, https://www.ihrec.ie/app/uploads/2017/01/Supplementary-
Observations-on-Disability-Miscellaneous-Provisions-Bill-2016.pdf.  
544  https://www.oireachtas.ie/viewdoc.asp?DocID=33318&&CatID=59. 
545  IHREC (2016) Observations on the Education (Admission to Schools) Bill 2016, at p.5, available at 

https://www.ihrec.ie/app/uploads/2016/11/Observations-on-Education-Admission-to-Schools-Bill-2016.pdf.  

546  IHREC (2017) Observations on the Equality (Miscellaneous Provisions) Bill 2017, 

https://www.ihrec.ie/documents/observations-equality-miscellaneous-provisions-bill-2017/.  

547  Ireland, Intoxicating Liquor Act 2003, 14.07.2003, 

http://www.irishstatutebook.ie/eli/2003/act/31/section/19/enacted/en/html#sec19. 

548  Fennelly, D. (2012) Selected Issues in Irish Equality Case Law 2008 – 2011, Dublin, Equality Authority, pp. 

106-7, https://www.ihrec.ie/download/pdf/20150602161702.pdf. 

549  European Commission against Racism and Intolerance (ECRI) (2016) ECRI conclusions on the 

implementation of the recommendations in respect of Ireland subject to interim follow-up (adopted on 11 
.12.2015), CRI (2016)4, at p. 5, available at: http://www.coe.int/t/dghl/monitoring/ecri/Country-by-
country/Ireland/IRL-IFU-IV-2016-004-ENG.pdf. 

550  A Customer v An Off Licence, ADJ 00005652, 

https://www.workplacerelations.ie/en/Cases/2017/June/%20ADJ-00005652.html; Mongan v Donal & 
Martha Duffy Limited t/a SuperValu Edgeworthstown, DEC-2017-044, 
https://www.workplacerelations.ie/en/Cases/2017/November/DEC-S2017-044.html; A Customer v A Hotel, 
ADJ-00004878, https://www.workplacerelations.ie:443/en/Cases/2017/March/ADJ-00004878.html; A 
member of the Travelling community v A Hotel, ADJ-00004874, 
https://www.workplacerelations.ie:443/en/Cases/2017/March/ADJ-00004874.html; A Member of the 
Travelling Community v A Public House, ADJ-0001389, 
https://www.workplacerelations.ie:443/en/Cases/2017/January/ADJ-00001389.html. 

104 

 
 
 
 
 
                                                   
 
iv)  Other competences 

IHREC is empowered to prepare draft codes of practice in furtherance of inter 
alia  the  elimination  of  discrimination  and  the  promotion  of  equality  of 
opportunity.551 It is obliged to do so if requested by the Minister for Justice and 
Equality. In drafting codes of practice IHREC is mandated to consult with such 
other  Minister  of  the  Government  or  such  other  person  or  body  as  the 
Commission considers appropriate, or as the Minister may recommend. If the 
Minister approves a code of practice it becomes admissible in evidence in legal 
proceedings.552  To  date  IHREC  has  not  produced  a  code.  In  June  2016  the 
Commission  initiated  engagement  with  the  Minister  for  Justice  and  Equality 
concerning  preparation  of  a  draft  code  of  practice  in  the  area  of  age 
discrimination  and  retirement.553  Two  months  later,  the  Report  of  the 
Interdepartmental Working Group on Fuller Working Lives554 recommended that 
the Workplace Relations Commission (WRC) be requested to prepare a code of 
practice around the issue of longer working, and that IHREC be requested to 
issue  guidance  in  relation  to  the  use  of  fixed-term  contracts  beyond  normal 
retirement age. On foot of this report IHREC engaged with the WRC to ensure 
that there was no unnecessary overlap between the work of the two bodies.555 
The  WRC  code  of  practice  received  Ministerial approval  and  was  published  in 
December  2017.556  At  its  May  2017  meeting  the  Commission  endorsed  a 
memorandum  submitted  by  the  Head  of  Legal  that  guidance  be  prepared  in 
relation to the use of fixed term contracts after the normal retirement age and 
that  this  be  reviewed  at  IHREC’s  next  meeting.557  This  guidance  should  be 
issued in 2018.558  

IHREC may conduct equality reviews and prepare equality action plans, or invite 
others to do so.559 An equality review comprises an audit of the level of equal 
opportunity within an organisation/s and an examination of an organisation/s’ 
practices,  procedures  and  other  relevant  factors  (including  the  working 
environment).560  An  equality  action  plan  is  a  programme  of  actions  to  be 
implemented to further the promotion of equality of opportunity.561 A review or 
plan may relate to equality of opportunity generally or to a particular aspect of 
discrimination.  The  Commission  has  the  power  to  invite  a  particular 
undertaking, group of undertakings or the undertakings making up a particular 
industry  or  sector  thereof  to  conduct  a  review  or  prepare  and  implement  an 
action  plan,  or  both.  In  the  case  of  firms  with  more  than  50  employees  the 
Commission may instigate a review or prepare an action without such invitation. 
An  ‘undertaking’  for  these  purposes  includes  ‘an  activity  giving  rise  to 
employment, whether or not in the industrial or commercial sector and whether 
or not with a view to profit’, as well as providers of goods and services regulated 

551  Section 31 IHRECA, http://www.irishstatutebook.ie/eli/2014/act/25/enacted/en/print#sec31. 
552  A code of practice concerning Sexual Harassment and Harassment at Work was produced by the Equality 

Authority and is referred to extensively in legal proceedings: S.I. No. 208/2012 - Employment Equality Act 
1998 (Code of Practice) (Harassment) Order 2012: 
http://www.irishstatutebook.ie/eli/2012/si/208/made/en/print. 

553  IHREC (2017) Annual Report 2016, p.21. 
554  Department of Public Expenditure and Report (2016) Report of the Interdepartmental Working Group on 
Fuller Working Lives, http://www.per.gov.ie/en/report-of-the-interdepartmental-group-on-fuller-working-
lives/.  

555  IHREC (2017) Annual Report 2016, p.21. 
556  S.I. No. 600/2017 - Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 

2017, http://www.irishstatutebook.ie/eli/2017/si/600/made/en/print.  

557  https://www.ihrec.ie/app/uploads/2017/12/Minutes-of-19th-Ordinary-Plenary-Meeting-17.05.2017-

APPROVED.pdf.  

558  https://www.ihrec.ie/app/uploads/2017/12/Minutes-of-20th-Ordinary-Plenary-Meeting-28.06.2017-

APPROVED.pdf.  

559  Section 32 IHRECA, http://www.irishstatutebook.ie/eli/2014/act/25/enacted/en/print#sec32. 
560  Section 29 IHRECA, http://www.irishstatutebook.ie/eli/2014/act/25/enacted/en/print#sec29.  
561  Section 29 IHRECA. 

105 

 
 
 
                                                   
 
by  the  ESA,  which  includes  educational  establishments,  accommodation 
providers  and  public  sectors  bodies.562  The  Commission  may  require  an 
undertaking, which has fifty or more employees, to supply information for the 
purpose of an equality review or an equality action plan. It may also serve a 
substantive notice on an undertaking seeking compliance with the terms of an 
equality  action  plan.563  This  is  a  potentially  valuable  mechanism  in  securing 
compliance with equality law but it has not been employed by IHREC to date.564 
In April 2017 the Commission authorised the Head of Legal, in consultation with 
the Director, to exercise this function since it would allow for ‘a more responsive 
and agile approach’.565  

IHREC  is  conferred  with  a  number  of  statutory  powers  with  respect  to 
awareness  raising,  training  and  education.  It  is  empowered  to  undertake, 
sponsor,  commission  or  provide  financial  or  other  assistance  for  educational 
activities566 and to provide or assist in the provision of  education and training 
on equality issues.567 Further, either of its own volition or at the request of the 
Minister, it may undertake, sponsor, commission, or provide financial or other 
assistance  for  programmes  of  activities  and  projects  for  the  promotion  of 
integration  of  migrants  and  other  minorities,  equality  (including  gender 
equality) and respect for diversity and cultural difference.568 The ‘Human Rights 
and  Equality  Grants  Scheme’  is  one  of  the  vehicles  through  which  the 
Commission  exercises  these  interrelated  functions.  In  2016,  EUR  250  000  in 
grant  funding  was  provided  to  25  successful  applicant  organisations  to  carry 
out  activities  to  promote  human  rights  and  equality  across  the  themes  of 
‘Collaboration  and  Dissemination’, 
‘Project 
Implementation.569  One  of  the  funded  projects  resulted  in  a  guide  for  trade 
unions to taking employment equality cases produced by the Irish Congress of 
Trade Unions.570 32 organisations were awarded funding for projects under the 
Commission’s  2017  Scheme  under  the  themes  of  activities  ‘Intercultural 
Understanding  and  Diversity’  and  ‘Supporting  Implementation  of  the  Public 
Sector  Equality  and  Human  Rights  Duty’.571  In  2016  the  Commission 
established  a  Professional  Diploma  in  Human  Rights  and  Equality,  which  was 
developed  in  collaboration  with  the  Institute  of  Public  Administration  and  is 
accredited by University College Dublin.572 IHREC has also sought to increase 
awareness  of  equality  issues  in  schools.  The  main  tool  is  a  training  manual 
designed  to  provide  teachers  with  equality-based  teaching  resources  for  use 
across  the  curriculum  to  encourage  pupils  to  take  action  on  equality,  human 
rights and social justice issues in the classroom, at school or within their wider 
community.573 

‘Capacity  Building’  and 

562  Section 29 IHRECA. Matters concerning members and access to membership of registered clubs are exempt 

from equality reviews: Section 69(7) EEA. 

563  Section 33 IHRECA. 
564  In 2015 Dublin Simon Community was supported to carry out a voluntary equality review of its workplace 
policies and practices. This was one of the final projects supported under an equality mainstreaming 
programme run by the Equality Authority: IHREC (2016) Annual Report 2015, p.35.  

565  https://www.ihrec.ie/app/uploads/2017/12/Minutes-of-18th-Ordinary-Plenary-Meeting-11.04.2017-

APPROVED.pdf.  

566  Section 10(2)(j) IHRECA. 
567  Section 10(2)(k) IHRECA. 
568  Section 10(2)(l), IHRECA. 
569  See further: https://www.ihrec.ie/our-work/grant-awardees/.  
570  Duffy, K. (2017) Employment Equality Acts 1998 – 2015: A Guide For Trade Unions, Dublin, Irish Congress 

of Trade Unions, https://www.ictu.ie/download/pdf/employment_equality_guide.pdf.  

571  See further: https://www.ihrec.ie/our-work/human-rights-equality-grant-awardees-2017/.  
572  See further: https://www.ihrec.ie/inaugural-human-rights-equality-professional-diploma-underpins-role-

public-sector-duty/.  

573  See further, IHREC (2016) Annual Report 2015, p. 38. 

106 

 
 
 
                                                   
 
Section 35 IHRECA  equips IHREC with the power to conduct inquiries.574 The 
threshold  is  relatively  high:  the  Commission  may  conduct  an  inquiry  if  it 
considers that— 

‘(a) there is, in any body (whether public or otherwise) institution, sector of 
society, or geographical area, evidence of— 
(i) a serious violation of human rights or equality of treatment obligations in 
respect of a person or a class of persons, or 
(ii) a systemic failure to comply with human rights or equality of treatment 
obligations, 
and 
(b) the matter is of grave public concern, and 
(c) it is in the circumstances necessary and appropriate so to do.’575 

A  number  of  measures  must  be  undertaken  prior  to  the  conduct  of  an 
inquiry. The Commission must draw up terms of reference and an outline of 
the procedures to be followed, and then lay these before parliament. Notice 
of intention to conduct the inquiry should then be published. This power has 
not been deployed to date. IHREC took decisions with respect to 23 requests 
to conduct an inquiry in 2015 and 2016, declining each one. According to its 
2017 annual report the ‘majority of requests did not meet the threshold for 
intervention by the Irish Human Rights and Equality Commission as set out 
in  section  35’.576  In  May  2016,  the  Commission  adopted  a  resolution  on 
requests  for  inquiries,  which  underscores  that  only  the  Minister  has  the 
statutory right to seek an inquiry and that it will not in general conduct an 
assessment of the merits or otherwise of requests that it conduct an inquiry 
made  by  persons  other  than  the  Minister.577  Inclusion  Ireland578  has 
criticised  IHREC’s  failure  to  conduct  an 
inquiry  into  the  ongoing 
institutionalisation of thousands of persons with an intellectual disability, as 
well as the process by which the Commission dealt with its request for an 
inquiry.579  

The  Commission  is  empowered  to  consult  with  such  national,  European 
Union or international bodies or agencies having a knowledge or expertise 
in the field of human rights or equality as it sees fit.580 

Finally,  a  residual  provision  under  IHRECA  provides  that  the  Commission 
shall have all such powers as are necessary or expedient for the performance 
of its functions.581 IHREC has invoked this subsection in issuing resolutions 
on its approach to its statutory functions.582 

v) 

Positive duties 

Section  42  of  the  Irish  Human  Rights  and  Equality  Commission  Act  2014 
introduced a positive duty on public bodies in exercising their functions to have 

574  http://www.irishstatutebook.ie/eli/2014/act/25/enacted/en/print#sec35.  
575  Section 35(1) IHRECA.  
576  IHREC (2017) Annual Report 2016, p. 16.  
577  https://www.ihrec.ie/app/uploads/2016/12/IHREC-Policy-on-Requests-for-Inquiries.pdf.  
578  Inclusion Ireland is a national rights-based advocacy organisation that works to promote the rights of people 

with an intellectual disability and their families. See further: http://www.inclusionireland.ie/.  

579  Inclusion Ireland (2018) Deinstitutionalisation in Ireland; a failure to act, 

http://www.inclusionireland.ie/sites/default/files/attach/basic-page/1655/deinstitutionalisation-ireland-
failure-act.pdf; Edwards, E. (2016) ‘Call for inquiry into use of outdated institutions’, Irish Times, 26 
January 2016, https://www.irishtimes.com/news/social-affairs/call-for-inquiry-into-use-of-outdated-
institutions-1.2511336;  
580  Section 10(2)(h) IHRECA. 
581  Section 10(5) IHRECA, http://www.irishstatutebook.ie/eli/2014/act/25/section/10/enacted/en/html#sec10.  
582  See e.g. https://www.ihrec.ie/app/uploads/2016/12/IHREC-Policy-on-Requests-for-Inquiries.pdf.  

107 

 
 
 
 
 
 
 
                                                   
 
due regard to the need to: ‘(a) eliminate discrimination, (b) promote equality 
of opportunity and treatment of its staff and the persons to whom it provides 
services, and (c) protect the human rights of its members, staff and the persons 
to  whom  it  provides  services’.583  A  public  body  is  obliged  to  demonstrate 
compliance with the duty by including in its strategic plans an assessment of 
the human rights and equality issues it believes to be relevant to the functions 
and purpose of the body and the policies, plans and actions in place or proposed 
to be put in place to address those issues. They are further required to report 
on  developments  and  achievements  on  in  their  annual  reports.584  IHREC  is 
charged  with  assisting  public  bodies  to  comply  with  the  positive  duty,  which 
may include producing guidelines and preparing codes of practice.585 In 2016 it 
published a booklet, which outlines the core elements of the duty586 and a range 
of pilot measures are currently underway.587 Where the Commission considers 
that there is evidence of a failure by a public body to perform its functions in a 
manner  consistent  with  the  duty  and  that  it  is  appropriate  in  all  the 
circumstances to do so, it may invite the public body to carry out a review or 
an  action  plan,  or  both.  The  review  or  action  plan  may  relate  to  equality  of 
opportunity or human rights generally or a particular aspect of human rights or 
discrimination.588 The body must accept the Commission’s invitation to trigger 
the  review/action  plan;  there  are  no  powers  to  compel  engagement  or 
ultimately to secure compliance with an action plan. Failure to comply with the 
duty is not otherwise actionable.589 The Commission may, and if requested by 
the Minister must, carry out a review of the operation of duty.590  

g) 

Legal standing of the designated body/bodies 

In Ireland, IHREC has legal standing to:  

• 
• 
• 
• 

Bring discrimination complaints (on behalf of identified victims) to court 
Bring discrimination complaints (on behalf of non-identified victims) to court 
Bring discrimination complaints ex officio to court 
Intervene in legal cases concerning discrimination 

Section 85 EEA empowers IHREC to refer certain cases to the WRC, which are dealt with 
as if they had been referred by an individual complainant. IHREC may instigate complaints 
with  respect  to  discriminatory  advertising  or  the  procurement  of  victimisation  or 
discrimination (Section 85(d)-(f)). In such cases there may be no actual victim. IHREC is 
also  empowered,  under  Section  85  (a)-(c),  to  refer  a  complaint  to  the  WRC  where  it 
appears to the Commission: 

- 

- 

- 

that  discrimination  or  victimisation  is  being  generally  practised  against  persons  or 
that an employer has applied or operated discriminatory rules or instructions.  
that discrimination or victimisation has occurred in relation to a particular person who 
has not made a reference to the WRC and that it is not  reasonable to  expect that 
person to make such a reference. 
that  there  is  a  failure  to  comply  with  an  equal  remuneration  term  or  an  equality 
clause either generally in a business or in relation to a particular person who has not 
made a reference and it is not reasonable to expect them to make such a reference. 

583  Section 42(1) IHRECA, http://www.irishstatutebook.ie/eli/2014/act/25/enacted/en/print#sec42.  
584  Section 42(2) IHRECA. 
585  Section 10(2)(n), Section 42(3), Section 42(4) IHRECA. 
586  IHREC (2016) The Public Sector Duty, https://www.ihrec.ie/download/pdf/ihrec_public_duty_booklet.pdf. 
587  IHREC (2017) Annual Report 2016, p.13; https://www.ihrec.ie/app/uploads/2017/12/Minutes-of-19th-

Ordinary-Plenary-Meeting-17.05.2017-APPROVED.pdf.  

588  Section 42(5), section 42(6) IHRECA. 
589  Section 42(11) IHRECA. 
590  Sections 42(7)-(10) IHRECA. 

108 

 
 
 
 
 
 
 
                                                   
Under  Section  86  EEA  IHREC  may  refer  a  collective  agreement  to  the  WRC  where  it  is 
considered that any provision of the agreement is discriminatory. The legislation does not 
specify whether the consent of persons affected by the purported discrimination must be 
obtained by IHREC. 

Similar provisions enable IHREC to refer cases under ESA to the WRC (Section 23 ESA). It 
may  also  apply  to  the  District  Court  for  a  determination  as  to  whether  a  club  is  a 
discriminating club under Section 8(3) ESA.  

To date the Commission has referred two cases to the WRC. Both involve discriminatory 
advertising  complaints  taken  against  companies  under  section  23  ESA  on  the  housing 
assistance, family and age grounds.591 The minutes of the Commission’s plenary meeting 
held  in  June  2017  record  that  one  case  was  settled  prior  to  hearing;592  presumably  the 
other case is pending before the WRC.  

Section  100(3)  EEA  and  Section  41(1)  ESA  empower  IHREC  to  institute  summary 
proceedings for an offence under any provision of that legislation. It seems that this power 
has not been deployed to date.  

Section 41(1) IHRECA empowers the Commission to ‘institute proceedings in any court of 
competent jurisdiction for the purpose of obtaining relief of a declaratory or other nature 
in respect of any matter concerning the human rights of any person or class of persons.’ 
Declarations  of  unconstitutionality  are  expressly  envisaged  under  Section  42(2).  The 
reference  to  relief  of  another  nature  should  ensure  that  a  court  could  award  a  range  of 
remedies such as damages and injunctions depending on the legal basis of the proceedings. 
‘Human  rights’  for  this  purpose  are  defined  as  those  guaranteed  under  the  Irish 
Constitution,  the  European  Convention  on  Human  Rights  Act  2003  or  under  ‘any 
agreement, treaty or convention to which the State is a party and which has been given 
the force of law in the State…’ (Section 29 IHRECA). This definition should be broad enough 
to enable IHREC to litigate on compliance with EU equality provisions. However, because 
Section 41 has not been invoked to date its parameters are unclear. In particular it remains 
to be seen whether the reference to a ‘class of persons’ will enable IHREC to bring an actio 
popularis or whether a court will require identifiable victims. A provision in the Heads of 
Bill  had  clarified  it  would  not  ‘be  necessary  for  the  Commission  to  name  or  identify  the 
class of persons individually and a class of persons shall be constituted by more than one 
person  in  relation  to  whom  the  same  relief  is  sought.’593  However,  this  provision  was 
omitted from the legislation passed by the Oireachtas.  

IHREC  can  intervene  in  legal  cases  concerning  discrimination.  But  its  express  power  to 
apply for liberty to appear as amicus curiae is confined to proceedings before the Superior 
Courts (the High Court, the Supreme Court and the Court of Appeal).594 The vast bulk of 
discrimination cases are litigated at the Workplace Relations Commission and the Labour 
Court, while several significant cases come before courts of local and limited jurisdiction. 
The  express  power  to  intervene  in  those  forums  would,  therefore,  be  useful  and  enable 
IHREC to contribute to the development of discrimination law principles without having to 
instigate  or  fund  litigation.  In  October  2006,  the  Supreme  Court  held  that  the  Equality 
Authority had an implied power to apply to court to act as amicus in proceedings relating 

591  IHREC (2017) Annual Report 2016, p.16. 
592  https://www.ihrec.ie/app/uploads/2017/12/Minutes-of-20th-Ordinary-Plenary-Meeting-28.06.2017-

APPROVED.pdf.  

593  Department of Justice (2012) Heads of Irish Human Rights and Equality Commission Bill 2012, at p. 57, 
http://www.justice.ie/en/JELR/20120605HeadsOfIHRECBill.pdf/Files/20120605HeadsOfIHRECBill.pdf.  

594  Under Section 10(e) IHRECA may apply to the High Court or the Supreme Court for liberty to appear before 
that court as amicus curiae in proceedings that involve or are concerned with the human rights or equality 
rights of any person. IHREC may also apply to the Court of Appeal for liberty to appear before it as amicus 
curiae: Section 44(1) IHRECA transferred the power set out under Section 8(h) of the Human Rights 
Commission Act 2000 to IHREC.  

594  https://www.ihrec.ie/app/uploads/2016/12/IHREC-Amicus-Curiae-Guidelines.pdf. 

109 

 
 
 
 
 
 
                                                   
 
to its statutory functions.595 It would, therefore, seem that IHREC could seek to assert a 
similar power with respect to legal proceedings before any tribunal or court. With respect 
to WRC proceedings, IHREC may be able to intervene by way of a generic provision under 
Irish anti-discrimination law, which stipulates that in the course of an investigation if the 
Director  of  the  WRC  considers  it  appropriate,  they  may  ‘hear  persons  appearing  to  the 
Director to be interested’.596 The provision has been used, albeit rarely, to introduce third 
party expert testimony in first instance discrimination law proceedings but it seems that it 
has never been invoked by IHREC or by its predecessor equality body.597 In order to ensure 
that the provision could be activated by IHREC in practice, a procedure for notifying it of 
discrimination law proceedings should be put in place.598  

On  foot  of  its  express  statutory  power,  IHREC  has  acted  as  amicus  curiae  before  the 
Superior Courts in numerous cases since its establishment.599 Liberty to appear is at the 
discretion of the court.  IHREC published revised guidelines to the exercise of its amicus 
curiae function in 2016.600 According to its 2015 annual report the Commission acted as 
amicus curiae in five cases that reached outcomes since its establishment and applied to 
be  joined  in  relation  to  two  new  legal  proceedings.  The  2016  annual  report  notes  a 
‘significant increase in amicus curiae activity’, with five of the seven applications made that 
year granted by the Superior Courts.601 The bulk of the Commission’s amicus curiae work 
falls  under  the  rubric  of  its  human  rights  mandate.  The  main  cases  concerning 
discrimination in which IHREC has intervened are the following: 

- 

- 

In a case concerning whether a school admissions policy gave rise to discrimination 
on the Traveller community ground, the amicus curiae submission of IHREC argued 
that the indirect discrimination test under ESA should conform to that of the Racial 
Equality  Directive.602  The  Supreme  Court,  however,  applied  a  test  formulated  with 
reference  solely  to  the  provisions  of  the  domestic  statute  and  did  not  consider 
whether Travellers constitute an ethnic group for the purposes of EU law.603 
Culkin v Sligo County Council604 addressed whether an individual can simultaneously 
pursue  both  a  discrimination  complaint  under  EEA  before  the  Workplace  Relations 
Commission, and a personal injuries claim before the courts, where the claims arise 
from  the  same  set  of  facts.  IHREC’s  submission  contended  that  the  statutory 
provision  in  question,  section  101  EEA,  should  be  given  a  liberal  and  purposive 
interpretation in light of EU law, and in particular the requirements of effectiveness 
and  equivalence.605  The  Court  of  Appeal  found  that  the  provision  does  not  bar 
subsequent  personal  injuries  claims per  se where  an  earlier  discrimination  claim 
before the WRC has failed. 

595  Doherty v South Dublin County Council [2006] IESC 57, 31 October 2006, 

http://www.courts.ie/Judgments.nsf/WebJudgmentsByYearAll/8D5ED1E371F88CBE80257219004955BD?ope
ndocument.  

596  Section 25(1) ESA; Section 79(1) EEA. It should also be noted that under IHRECA the Commission ‘shall 

have all such powers as are necessary or expedient for the performance of its functions’: Section 10(5) 
IHRECA, http://www.irishstatutebook.ie/eli/2014/act/25/section/10/enacted/en/html#sec10.  

597  See further Walsh, J. (2012) Equal Status Acts 2000-2011: Discrimination in the Provision of Goods and 

Services, Dublin, Blackhall Press, at Ch. 10.4. 

598  IHREC is given notice of proceedings in which a declaration of incompatibility is sought pursuant to section 6 

of the European Convention on Human Rights Act 2003 and 2014, 
http://www.irishstatutebook.ie/eli/2003/act/20/section/6/enacted/en/html.  
599  See further: https://www.ihrec.ie/our-work/legal-activity/amicus-curiae-power/ 
600  https://www.ihrec.ie/app/uploads/2016/12/IHREC-Amicus-Curiae-Guidelines.pdf. 
601  IHREC (2017) Annual Report 2016, p.4, pp.14-17. 
602  The brief submitted by IHREC was originally drafted by the Equality Authority and is available here: 

https://www.ihrec.ie/download/pdf/mary_stokes_v_christian_brothers_high_school_clonmel_ors__13_dec_
2012_.pdf. 

603  Supreme Court, Stokes v Christian Brothers' High School Clonmel, [2015] IESC 13, 24.02.2015, 

http://www.courts.ie/Judgments.nsf/597645521f07ac9a80256ef30048ca52/a09897a48211897980257df600
5a3c31?OpenDocument. 

604  Court of Appeal, Culkin v Sligo County Council & Anor, [2017] IECA 104, 29.03.2017, 
http://www.courts.ie/Judgments.nsf/0/A4341EEA5E39DC55802580F800354B47.  

605  https://www.ihrec.ie/app/uploads/2017/03/Culkin-v-Sligo-County-Council-March-2017.pdf.  

110 

 
 
 
 
                                                   
 
g)  Quasi-judicial competences 

In Ireland, IHREC is not a quasi-judicial institution. 

h) 

Registration by the body/bodies of complaints and decisions 

In Ireland IHREC registers the number of inquiries received, complaints of discrimination 
made,  and  decisions  (by  ground,  field,  type  of  discrimination,  etc.).  It  only  registers 
inquiries it has received and those complaints and decisions in which it has acted. These 
data are published in its annual report and are available to the public; the Commission’s 
annual reports are available on its website.606 

The Commission’s first annual report, which was published in June 2016, covers the period 
November 2014 to December 2015. IHREC processed 2 173 public queries over that period, 
a substantial proportion of which related to anti-discrimination law: 491 concerned ESA, 
459  EEA,  12  the  Intoxicating  Liquor  Act  2003,  while  25  related  to  discriminatory 
advertising.607 The breakdown of the grounds for all anti-discrimination legislation queries 
is as follows: Age 140; Civil Status 25; Disability 264; Family Status 82; Gender 112; Race 
140;  Religion  40;  Sexual  Orientation  31;  Traveller  Community  26;  Victimisation  4;  no 
ground  stated  266.  In  the  2016  calendar  year  1  780  queries  were  handled.  Again  a 
substantial number pertained to anti-discrimination law with 510 on ESA, 26 concerning 
the  Intoxicating  Liquor  Act  2003,  and  368  related  to  EEA.608  The  Commission’s  annual 
report  for  that  year  does  not  supply  the  precise  number  of  queries  on  each  ground  but 
rather sets out the most frequently arising grounds and themes as follows:  

- 
- 

- 
- 

- 

ESA: 30 % housing assistance; 22 % disability; 16% race 
45 % goods and services providers; 40 % accommodation service providers; 12 % 
educational establishments 
EEA: 25 % disability; 22 % family status; 17 % race  
44 % terms and conditions; 28 % access to employment; 11 % sexual harassment 
and harassment 
Section 19, Intoxicating Liquor Act: 31 % Traveller community; 15 % race 
According to the minutes of the Commission’s plenary meeting held in April 2017, it 
has  agreed  to  give  further  consideration  to  ‘how  to  adequately  capture  queries 
relating to multiple grounds/ intersectionality in reporting on the handling of public 
information queries.’609 

The  Commission  received  32  applications  for  legal  assistance  in  2015.  It  decided  not  to 
grant legal assistance for 26 applications and a further 29 applications were pending by 
the  end  of  2015.  At  the  conclusion  of  2015,  45  cases  were  ongoing.  40  of  these  were 
carried over from the casework of IHREC’s predecessor bodies, the Equality Authority and 
the Irish Human Rights Commission. IHREC granted legal assistance in five ‘new’ cases. 
26 of the 45 cases were under ESA, with 15 relating to EEA (the other four cases concerned 
general  human  rights  protection).  The  breakdown  of  the  discriminatory  grounds  is  as 
follows: 

- 

29  grounds  were  invoked  in  the  26  ESA  cases  (there  were  three  multiple  ground 
cases): Religion 16; Disability 7; Family Status 2; Race 2; Gender 2; Civil Status 1. 

606  IHREC (2016) Annual Report 2015, available at: https://www.ihrec.ie/documents/annual-report-2015/; 

IHREC (2017) Annual Report 2016, available at: https://www.ihrec.ie/app/uploads/2017/06/IHREC-Annual-
Report-2016.pdf.  

607  398 queries processed related to other human rights protections and 788 were referred to another 

information or recourse service. 

608  210 queries pertained to human rights issues, 12 concerned IHRECA, while 654 related to referrals to other 

information or recourse service. 

609  https://www.ihrec.ie/app/uploads/2017/12/Minutes-of-18th-Ordinary-Plenary-Meeting-11.04.2017-

APPROVED.pdf.  

111 

 
 
 
 
 
 
 
 
                                                   
 
- 

17 grounds were invoked in the 15 EEA cases (there were two multiple ground cases): 
Age  8;  Gender  4;  Sexual  Orientation  1;  Family  Status  1;  Religion  1;  Disability  1; 
Race 1. 

During 2016, decisions were made on 43 requests for legal assistance. 29 decisions were 
pending at year end and the Commission had 30 legal assistance client files open, of which 
17 were new clients. Nine of the 30 ongoing cases concerned ESA, with 11 relating to EEA 
(the  remaining  ten  related  to  human  rights).610  The  Commission  does  not  provide 
information on the grounds invoked for that year. 

Data  from  1st  January  2017  to  31st  December  are  not  available  since  the  Commission’s 
annual report for 2017 will not be published until the summer of 2018.  

j) 

Planning 

The Commission has a strategic plan, which was launched in January 2016 and covers the 
period  2016–2018.611  An  extensive  consultation  process,  conducted  in  2015  with  the 
general public and NGOs, informed the plan.612 IHREC has an annual work plan; it is an 
internal document and so is not published. Its annual report for 2015 notes that over the 
course of the year the ‘Commission’s Legal Team engaged in detailed scoping and analysis’ 
of its compliance and enforcement functions ‘in order to strategically plan their longer term 
potential impact.’613 The Commission endorsed a Strategic Litigation and Enforcement Plan 
in April 2017.614 It is an internal document and so is not published.  

IHREC has an annual report as required by legislation.615 It is obliged to present the annual 
report to Parliament and to subsequently publish it. 

It appears that the Commission has not conducted an evaluation of its first strategic plan, 
which runs until the end of 2018. 

It is not possible at this juncture to evaluate the quality of the planning cycle implemented 
by IHREC: Implementation of the Commission’s first strategic plan is still underway and it 
has published just two annual reports. 

k) 

Stakeholder engagement  

IHREC engages with a broad range of stakeholders in implementing its mandate, including 
civil  society  associations,  business/  employer/  service  provider  networks  and 
organisations,  public  bodies,  local  government  entities,  trade  unions  and  the  general 
public. Engagement is  underpinned by several  statutory provisions that direct  or  enable 
IHREC to consult with ‘relevant agencies and civil society.’616 An overarching obligation to 
engage with stakeholders is set out under section 18(1) IHRECA, which provides: 

610  IHREC (2017) Annual Report 2016, p.32. 
611  IHREC (2016) Strategy Statement 2016-2018, available at: 
https://www.ihrec.ie/download/pdf/strategystatement.pdf. 

612  IHREC (2016) Feedback report on the public consultation process 2015, 

https://www.ihrec.ie/download/pdf/ihrec_consultation_full_feedback_report.pdf.  

613  IHREC (2016) Annual Report 2015, p.5. 
614  https://www.ihrec.ie/app/uploads/2017/12/Minutes-of-18th-Ordinary-Plenary-Meeting-11.04.2017-

APPROVED.pdf.  

615  Section 28, IHRECA: http://www.irishstatutebook.ie/eli/2014/act/25/enacted/en/print#sec28.  
616  Section 2(2) IHRECA defines ‘relevant agencies and civil society’ as including ‘(a) non-governmental 
organisations concerned with the promotion or protection of human rights or equality, including 
organisations specialising in the promotion of economic and social development,  

(b) trade unions and other business, professional and social organisations,  
(c) third level institutions and other experts in education,  
(d) religious bodies, secular bodies (within the meaning of the Civil Registration (Amendment) Act 2012) or 

other groups that are representative of religious thought and beliefs or philosophical beliefs, and  

(e) public bodies.’ 

112 

 
 
 
 
 
 
 
 
 
 
 
                                                   
 
‘The Commission shall, for the purpose of establishing and maintaining effective co-
operation with representatives of relevant agencies and civil society— 
(a) appoint such and so many advisory committees as it thinks fit to assist and advise 
it on matters relating to its functions, and 
(b) support, establish or participate in such networks, public consultation processes 
or public forums, as it sees appropriate.’617 

To date the Commission has undertaken extensive public consultations with NGOs and the 
general public on various facets of its work, including the formulation of its strategic plan.618  

A high level of engagement with public bodies and local government entities has occurred 
in  the  context  of  assisting  compliance  with  the  public  sector  equality  and  human  rights 
duty set out under section 42 IHRECA. A number of such stakeholders have agreed to act 
as  pilot  sites  for  testing  implementation  of  the  duty  in  practice.619  For  example,  in 
partnership with the Local Government Management Agency, the Commission commenced 
work  in  2016  with  one  urban  and  one  rural  local  authority  to  act  as  pilot  sites  to  trial 
guidance and identify good practices in the local authority setting.620 

Establishing advisory committees, in accordance with Section 18(1)(a) IHRECA, is one of 
the  primary  formal  mechanisms  for  securing  stakeholder  engagement.  IHREC  has 
appointed two such advisory committees. The first meeting of the Worker and Employer 
Advisory  Committee took  place  on  30  March  2017.  It  comprises  four  worker  and  four 
employer representatives nominated by the Irish Congress of Trade Unions (ICTU) and by 
the  Irish  Business  and  Employers’  Confederation  (IBEC),  as  well  as  two  Commission 
members. The Committee advises IHREC on employment equality and workplace issues; 
equal  status  in  service  provision;  human  rights  in  the  workplace  and  service  provision; 
diversity  and  interculturalism;  and  such  other  matters  as  are  referred  to  it  by  the 
Commission.621  A  research  advisory  committee  has  also  been  established  but  no 
information is publicly available as to its composition, terms of reference and so on.  

In the author’s assessment the level and nature of engagement with stakeholders is very 
good overall. IHREC places a strong emphasis on its work being informed by those who 
have  experienced  inequality  and  human  rights  violations.  Greater  use  could  perhaps  be 
made of the power to establish advisory committees since it provides a structured means 
of  incorporating  external  expertise.  Establishment  of  the  Worker  and  Employer Advisory 
Committee is a welcome vehicle for building engagement on equality issues in employment 
and should help to offset the loss of such expertise from the board of the former Equality 
Authority.  

l) 

Accessibility  

IHREC has an accessible and publicly visible office located in Dublin city centre. In terms 
of disability access, universal design principles and ‘optimal accessibility’ were central to 
the refurbishment of the Commission’s premises in 2016.622 Two accessible parking bays 
are located directly outside the offices. In addition, the public at large can use a changing 
and  toilet  facility  in  the  Commission’s  premises,  which  provides  adequate  space  and 

617  http://www.irishstatutebook.ie/eli/2014/act/25/section/18/enacted/en/html#sec18. 
618  IHREC is obliged to consult stakeholders on the formulation of its strategic plan in accordance with Section 

25(3) IHRECA, http://www.irishstatutebook.ie/eli/2014/act/25/enacted/en/print#sec25. See further, IHREC 
(2016) Feedback report on the public consultation process 2015, 
https://www.ihrec.ie/download/pdf/ihrec_consultation_full_feedback_report.pdf.  

619  See further: https://www.ihrec.ie/our-work/public-sector-duty/.  
620  IHREC (2017) Annual Report 2016, p.13; https://www.ihrec.ie/app/uploads/2017/12/Minutes-of-19th-

Ordinary-Plenary-Meeting-17.05.2017-APPROVED.pdf.  

621  https://www.ihrec.ie/worker-employer-advisory-committee-hold-inaugural-meeting/.  
622  IHREC (2017) Annual Report 2016, p.46. 

113 

 
 
 
 
 
 
 
                                                   
 
appropriate equipment for people with disabilities, such as a hoist and a height-adjustable 
changing bench.623  

IHREC does not have local or regional offices.  

The Commission regularly conducts outreach actions to local areas and communities. These 
have largely taken the form of consultations, which are used to inform IHREC’s assessment 
of human rights and equality issues. A video on ESA was launched at the National Ploughing 
Championships in 2017; the Commission has operated an information stand at the annual 
event twice.624  

Procedures  are  in  place  to  identify  and  respond  to  the  access  needs  of  people  with 
disabilities; no information is publicly available with respect to other groups.625 As required 
under section 26 of the Disability Act 2005, IHREC has nominated a member of staff as the 
organisation’s access officer.626 The access officer is charged with providing or arranging 
for  and  coordinating  assistance  and  guidance  to  persons  with  disabilities  accessing  the 
body’s  services.  The  Commission  has  published  ‘easy  to  read’  versions  of  some  key 
publications.627 

In the author’s assessment the Commission has a clear process in place for responding to 
and accommodating the access needs of people with disabilities but appears to have no 
systematic approach to addressing other access needs.  

m)  Roma and Travellers 

IHREC does not treat Roma and Travellers as a priority issue.628 To date the Commission 
has adopted a holistic approach to the discriminatory grounds. 

623  https://www.ihrec.ie/changing-places.  
624  https://www.ihrec.ie/newsletter/human-rights-equality-update-issue-3-2017/?frame=0#anchor7.  
625  The Commission’s Strategy Statement and annual reports refer to some measures taken to secure the 

participation of marginalised groups in Commission activities but the author could not find information on a 
systematic approach. 

626  https://www.ihrec.ie/access-officer/.  
627  See e.g. IHREC (2017) An easy-to-read guide to Country report on Torture in Ireland, 

 https://www.ihrec.ie/app/uploads/2017/07/Easy-to-Read-guide-to-IHRECs-CAT-Report.pdf.  

628  IHREC (2016) Strategy Statement 2016-2018, available at: 
https://www.ihrec.ie/download/pdf/strategystatement.pdf. 

114 

 
 
 
 
 
 
 
 
 
 
                                                   
8 

IMPLEMENTATION ISSUES 

8.1  Dissemination  of  information,  dialogue  with  NGOs  and  between  social 

partners 

The Irish Human Rights and Equality Commission (IHREC) is the primary vehicle through 
which Ireland implements non-discrimination law. IHREC has several statutory powers and 
functions  pertaining  to  dissemination  of  information  about  legal  protection  against 
discrimination, and as to dialogue between the social partners and with NGOs.  

a)  Dissemination of legal protection against discrimination 

IHREC  is  required  to  ‘provide  information  to  the  public’  and  to  keep  under  review  the 
effectiveness of the working of the Employment Equality Acts 1998-2015, the Equal Status 
Acts 2000-2015 and Section 19 of the Intoxicating Liquor Act 2003.629 On its website IHREC 
provides  an  accessible  overview  of  those  laws  aimed  at  the  general  public  as  well  as 
organisations and businesses.630 It published detailed guides to EEA and ESA in 2015.631 
Its  predecessor  equality  body,  the  Equality  Authority,  did  not  have  a  statutory  duty  to 
provide information to the public on Section 19, which relates to discrimination in licensed 
premises.  The  Commission  provides  some  basic  information  on  the  operation  of 
discrimination  law  in  that  context  but  little  information  on  the  operation  of  the  District 
Court.632 It remains to be seen whether IHREC will further develop its information function 
in that regard. 

The Commission also operates a Public Information Service that individuals may avail of to 
obtain  information  on  their  rights  to  protection  against  discrimination.633  It  processed  3 
953  queries  from  members  of  the  public  between  November  2014  and  December  2016 
(see further Chapter 7.i).  

b)  Dialogue with NGOs 

IHREC fosters dialogue with NGOs with in implementing its mandate, which is underpinned 
by  several  statutory  provisions  that  direct  or  enable  IHREC  to  consult  with  ‘relevant 
agencies  and  civil  society’  (see  further  Chapter  7(k)  of  this  report).  An  overarching 
obligation  to  engage  with  stakeholders  is  set  out  under  section  18(1)  IHRECA,  which 
provides: 

‘The Commission shall, for the purpose of establishing and maintaining effective co-
operation with representatives of relevant agencies and civil society— 
(a) appoint such and so many advisory committees as it thinks fit to assist and advise 
it on matters relating to its functions, and 
(b) support, establish or participate in such networks, public consultation processes 
or public forums, as it sees appropriate.’634 

The  Government, principally through the Department  of Justice and  Equality,  frequently 
establishes  consultation  mechanisms  to  receive  input  from  civil  society  organisations  on 
major law reform initiatives in the field of equality.  

c) 

Promotion of dialogue between social partners 

629  Section 30 IHRECA: http://www.irishstatutebook.ie/eli/2014/act/25/enacted/en/print#sec30. 
630  https://www.ihrec.ie/guides-and-tools/. 
631  https://www.ihrec.ie/app/uploads/download/pdf/ihrec_equal_status_rights_explained.pdf. 
632  https://www.ihrec.ie/your-rights/i-have-an-issue-with-a-service/i-have-an-issue-about-a-pub-nightclub-or-

other-place-which-sells-alcohol/. 

633  See https://www.ihrec.ie/your-rights/can-we-help/. 
634  http://www.irishstatutebook.ie/eli/2014/act/25/section/18/enacted/en/html#sec18. 

115 

 
 
 
 
 
 
 
 
 
 
 
 
                                                   
 
Pursuant to Section 18 IHRECA, the Commission established an advisory comprising social 
partners in 2017 (see Chapter 7(k) of this report). 

IHREC  is  empowered  to  prepare  codes  of  practice  in  furtherance  of  the  elimination  of 
discrimination and the promotion of equality of opportunity (see further Chapter 7(f)(iv) of 
this  report).In  drafting  codes  of  practice  IHREC  is  mandated  to  consult  with  such  other 
persons or bodies as it considers appropriate.635 To date the only code of practice produced 
by an Irish equality body is that concerning Sexual Harassment and Harassment at Work.636 
It  was  produced  after  consultation  with the  Irish  Business  and  Employers  Confederation 
(IBEC), ICTU and other relevant organisations representing equality interests.  

d) 

Addressing the situation of Roma and Travellers 

The  Traveller  and  Roma  Inclusion  Unit  within  the  Department  of  Justice  and  Equality 
coordinates policy in this area and acts as Ireland’s National Contact Point  under the EU 
Framework  for  National  Roma  Integration  Strategies.637  A  revised  Traveller  and  Roma 
inclusion strategy was published in 2017.638 It sets out a range of measures to be taken in 
fields  such  as  education,  housing  and  employment.  An  implementation  plan  will  be 
published in 2018. 

8.2  Compliance (Article 14 Directive 2000/43, Article 16 Directive 2000/78) 

a)  Mechanisms 

IHREC may conduct equality reviews and prepare equality action plans. This is a potentially 
valuable mechanism in securing compliance with equality law but it has not been employed 
by IHREC to date (see further Chapter 7(f)(iv) of this report).  

Under  Section  30  EEA  all  employment  contracts  are  deemed  to  have  an  equality  clause 
that transforms any provisions of the contracts that would otherwise give rise to unlawful 
discrimination.639  All  discriminatory  provisions  in  collective  agreements  are  deemed  null 
and void; it is not possible to contract out of the terms of the equality legislation.640 IHREC 
or a person who is affected by a collective agreement may refer it to the WRC.641 

b) 

Rules contrary to the principle of equality 

While it is the  case that discriminatory clauses are not  valid, the reality is that this fact 
may  only  be  established  through  litigation.  Where  an  adjudicator  determines  that  the 
clause 
legislation  that  part  of  the  collective 
is  contrary  to  the 
agreement/contract cannot be enforced and must be modified.642  

in  question 

It  appears  there  are  no  specific  laws  or  regulations  in  force  that  are  contrary  to  the 
directives. There are however, a number equality legislation provisions that may not be in 
compliance with the directives. 

635  Section 31 IHRECA, http://www.irishstatutebook.ie/eli/2014/act/25/enacted/en/print#sec31. 
636  S.I. No. 208/2012 - Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012: 

http://www.irishstatutebook.ie/eli/2012/si/208/made/en/print. 

637  http://www.travellerinclusion.ie/website/TravPolicy/travinclusionweb.nsf/page/index-en. 
638  Department of Justice and Equality (2017) National Traveller and Roma Inclusion Strategy, 2017 – 2021, 

http://www.justice.ie/en/JELR/National%20Traveller%20and%20Roma%20Inclusion%20Strategy,%202017
-2021.pdf/Files/National%20Traveller%20and%20Roma%20Inclusion%20Strategy,%202017-2021.pdf.  
639  With respect to occupational pensions and benefit schemes the equivalent provision is section 81 Pensions 

Acts 1990-2015. 

640  Section 9 EEA. 
641  Sections 86-87 EEA. 
642  See e.g. A Customer Assistant v a Grocery Retailer, ADJ-00005316, 21.07.2017, 

https://www.workplacerelations.ie/en/Cases/2017/July/%20ADJ-00005316.html.  

116 

 
 
 
 
 
 
 
 
 
 
  
 
                                                   
 
The major concern remains Section 14(1)(a) ESA, which provides that nothing in that Act 
will prohibit any action required under any enactment.643 In effect this provision ensures 
that ESA remains subordinate to other legislation. The Racial Equality Directive does not 
envisage any blanket exemption for discriminatory measures required by law. 

In  relation  to  entitlement  to  leave  in  respect  of  public  holidays,  the  entitlement  of  an 
employer  under  the  Organisation  of  Working  Time  Act  1997  to  substitute  a  Christian  or 
Roman  Catholic  Church  holiday  for  a  public  holiday  may  be  contrary  to  the  principle  of 
equal treatment.644 

A further overarching concern relates to the ability of the WRC and the Labour Court to 
interpret and apply EU law principles that conflict with domestic law. The High Court has 
found that such bodies cannot issue a ruling that seeks to align domestic law with EU law 
where  to  do  so  would  contravene  the  express  terms  of  a  national legal  provision.645  On 
appeal,  the  Supreme  Court  upheld  the  reasoning  with  respect  to  domestic  law  but 
employed the preliminary reference procedure  to ascertain whether the limits placed on 
the jurisdiction of the WRC and Labour Court are compatible with Directive 2000/78 (see 
further Chapter 12.2 of this report).646 A procedure is available under Section 90(2) EEA, 
which enables the Labour Court to refer a question of law for determination by the High 
Court. However, no such mechanism is available before the WRC as the first instance forum 
for cases under both ESA and EEA.647 Parties to the case may also appeal a finding of the 
(appellate) Labour Court to the High Court on a point of law under Section 90(1) EEA and 
of the (appellate) Circuit Court under Section 28 ESA. 

643  See further Chapter 3.2.6 Social protection. 
644  Ireland, Organisation of Working Time Act 1997, 07.05.1997, 

http://www.irishstatutebook.ie/eli/1997/act/20/enacted/en/html?q=Organisation+of+Working+Time+Act&y
ears=1997. 

645  High Court, Minister for Justice, Equality and Law Reform and anor. v Director of the Equality Tribunal and 

ors. [2009] IEHC 72, 17.02.2009, 
http://www.courts.ie/Judgments.nsf/0/56ED2DFBACF3ABA28025757600581C87. 

646  Supreme Court, Minister for Justice, Equality and Law Reform v The Workplace Relations Commission and 

ors. [2017] IESC 43, 15.06.2017, 
http://www.courts.ie/Judgments.nsf/bce24a8184816f1580256ef30048ca50/7b97206199a365a4802581410
04d3f72?OpenDocument.  

647  Section 79(5A) EEA had provided for such a procedure in respect of EEA cases but it was deleted under 

Section 83(1)(f) of the Workplace Relations Act 2015: 
http://www.irishstatutebook.ie/eli/2015/act/16/enacted/en/print#sec83. 

117 

 
 
 
 
 
 
                                                   
9 

COORDINATION AT NATIONAL LEVEL 

The Department of Justice and Equality coordinates issues regarding anti-discrimination on 
the grounds covered. 

Several  units  under  the  auspices  of  the  Department  are  charged  with  overseeing 
implementation  of  given  strategies  and  policies.  The  Traveller  and  Roma  Inclusion  Unit 
within the Department of Justice and Equality coordinates policy in this area and acts as 
Ireland’s  National Contact Point  under the EU  Framework for National Roma  Integration 
Strategies.648  The  Department’s  Office  for  the  Promotion  of  Migrant  Integration  co-
ordinates migrant integration policy across other Government Departments, agencies and 
services.  Its  functions  include  the  promotion  of  migrant  integration,  the  coordination  of 
Ireland’s international reporting requirements relating to racism and integration and the 
administration of funding from national and EU sources to promote integration.649 

There is currently no national action plan or strategy against racism or discrimination. The 
National Action Plan against Racism 2005-2008650 has not been renewed since its expiry 
contrary  to  the  recommendations  of  several  international human  rights  bodies.651  There 
are,  however,  several  national  plans  that  deal  with  discrete  groups  who  experience 
discrimination such as the Migrant Integration Strategy,652 the National Traveller and Roma 
Inclusion  Strategy  2017–2021,653  and  the  National  Disability  Inclusion  Strategy  2017  – 
2021.654  

648  http://www.travellerinclusion.ie/website/TravPolicy/travinclusionweb.nsf/page/index-en. 
649  http://www.integration.ie/website/omi/omiwebv6.nsf/page/index-en. 
650  Department of Justice, Equality and Law Reform (2008) Planning for Diversity: The National Action Plan 

Against Racism 2005-2008, available at: 
http://www.integration.ie/website/omi/omiwebv6.nsf/page/Racism-npar-en. 

651  UN Committee on the Rights of the Child (2016) Concluding observations on the combined third and fourth 

periodic reports of Ireland, 29.01.2016, CRC/C/IRL/CO/3-4, available at: 
http://www.refworld.org/docid/56c17f574.html; Council of Europe: European Commission Against Racism 
and Intolerance (ECRI) (2013) ECRI Report on Ireland (fourth monitoring cycle), Strasbourg: Council of 
Europe, at 115, available at: https://www.coe.int/t/dghl/monitoring/ecri/Country-by-country/Ireland/IRL-
CbC-IV-2013-001-ENG.pdf.  

652  Department of Justice and Equality (2017) The Migrant Integration Strategy – A Blueprint for the Future, 

available at: 
http://www.justice.ie/en/JELR/Migrant_Integration_Strategy_English.pdf/Files/Migrant_Integration_Strateg
y_English.pdf.  

653  Department of Justice and Equality (2017) The National Traveller and Roma Inclusion Strategy 2017–2021, 

p.41, available at: 
http://www.justice.ie/en/JELR/National%20Traveller%20and%20Roma%20Inclusion%20Strategy,%202017
-2021.pdf/Files/National%20Traveller%20and%20Roma%20Inclusion%20Strategy,%202017-2021.pdf.  
654  Department of Justice and Equality (2017) National Disability Inclusion Strategy 2017 – 2021, available at: 

http://www.justice.ie/en/JELR/dept-justice-ndi-inclusion-stratgey-booklet.pdf/Files/dept-justice-ndi-
inclusion-stratgey-booklet.pdf.  

118 

 
 
 
 
 
 
 
                                                   
10  CURRENT BEST PRACTICES 

 

 

 

 

 

Section 42 of the Irish Human Rights and Equality Commission Act 2014 introduced 
a positive duty on public bodies to have due regard to human rights and equality in 
exercising their functions. IHREC will assist public bodies to comply with the positive 
duty, including by producing guidelines and codes of practice. In 2016 it published a 
booklet, which outlines the core elements of the duty and a range of pilot measures 
are currently underway (see further Chapter 7(f)(v) of this report). 

IHREC  operates  a  human  rights  and  equality  grants  scheme,  which  provides 
opportunities for funded research, education and training projects to be conducted 
by  civil  society  organisations  and  universities  (see  further  Chapter  7  f  (iv)  of  this 
report).  

The WRC and Labour Court have interpreted the prohibition of direct discrimination 
on the race ground as requiring different treatment to take account of linguistic and 
cultural barriers experienced by potentially vulnerable migrant workers.655 

No fees are payable by complainants before the first instance forum for discrimination 
law cases under the ESA and EEA.656 

The  availability  of  non-financial  sanctions  as  redress  under  EEA  and  ESA  enables 
remedies  to  have  an  impact  beyond  the  parties  to  the  case  since  they  may  entail 
changes to respondents’ practices and procedures.657 

655  See Chapter 2.6.f Duties to provide reasonable accommodation in respect of other grounds. 
656  See Chapter 6.1.a Available procedures for enforcing the principle of equal treatment. 
657  See Chapter 6.5 Sanctions and remedies. 

119 

 
 
 
 
 
 
 
 
 
                                                   
11  SENSITIVE OR CONTROVERSIAL ISSUES 

11.1 Potential breaches of the directives (if any) 

Both acts:  

- 

- 

- 

In  a  2015  judgment  the  Supreme  Court  considered  the  interpretation  of  indirect 
discrimination  under  ESA  for  the  first  time,  and  held  that  statistical  analysis  is 
required in order to  establish that a person belonging to a protected group is at a 
‘particular disadvantage’ compared with others.658 This appears to be more restrictive 
than the concept of indirect discrimination in the directives.659  
Maximum  levels  of  compensation  and  failure  to  provide  for  payment  of  interest 
arguably not in compliance with directives.660 
The  capacity  of  the  WRC  and  the  Labour  Court  to  interpret  and  apply  EU  law  is 
hampered  by  their  limited  jurisdiction  under  Irish  law  (preliminary  ruling  from  the 
CJEU is pending).661 

Employment Equality Acts 1998-2015  

- 

- 
- 

- 
- 

It  appears  from  the  wording  of  the  provisions  concerning  discrimination  on  the 
religion  ground  that  the  belief  in  question  must  be  a  religious  one  and  so  the 
provisions may not adequately prohibit discrimination on the grounds of religion or 
belief.662  
Associations do not have standing in discrimination cases in civil courts.663 
Exclusion of ‘persons employed in another person’s home for the provision of personal 
services’ from protection against discrimination in regard to access to employment.664 
The definition of ‘vocational training’ may be too restrictive.665 
It is not discriminatory to pay a disabled person a lesser rate of remuneration.666 

Equal Status Acts 2000-2015 

- 

- 

- 

- 

Complaints must be instigated within two months of the discriminatory act by sending 
a written notification to the alleged discriminator.667 
Uncertain that the scope of ESA covers fully social protection and social advantages; 
also anything required to be done under another statute is not in breach of ESA.668  
Denominational  schools  are  permitted  to  distinguish  between  prospective  students 
on the basis of their religious background raising possible compliance issues with the 
Racial Equality Directive.669  
Transfer of jurisdiction regarding discrimination in access to premises licensed for the 
sale of alcohol from the Equality Tribunal to the District Court under the Intoxicating 
Liquor Act 2003 raises compliance issues with the non-regression provisions of Article 
15 of the Racial Equality Directive, due to the prohibitive cost and relative complexity 
of court proceedings.670 

658  Stokes v Christian Brothers High School, Clonmel, [2015] IESC 13, 24.02.2015, 

http://www.courts.ie/Judgments.nsf/597645521f07ac9a80256ef30048ca52/a09897a48211897980257df600
5a3c31?OpenDocument. 

659  See 3.2.8 Education; 3.2.1.b Statistical evidence.  
660  See 6.5 Sanctions and remedies. 
661  See 8.2.b Compliance.  
662  See 2.2.1 Definitions. 
663  See 6.2 Legal Standing and Associations. 
664  See 3.2.2 Material scope, Conditions for access to employment. 
665  See 3.2.4 Access to vocational training.  
666  See 4.9 Any other exceptions. 
667  See 6.1.b Remedies and Enforcement, Barriers and other deterrents. 
668  See 3.2.6 Social Protection. 
669  See 3.2.8 Education.  
670  See 6.1.b Barriers and other deterrents faced by litigants seeking redress. 

120 

 
 
 
 
 
 
 
 
                                                   
 
- 

Where a registered club is set up to cater for the needs of members of a particular 
ground it can exclude persons who do not fall under that ground from membership.671 

11.2 Other issues of concern 

Failure  to  renew  the  National  Action  Plan  Against  Racism,  which  had  provided  strategic 
direction to combating racism and to promoting a more inclusive, intercultural society in 
Ireland.672 

Research  on  people’s  experiences  of  discrimination  suggests  that  high  levels  of 
discrimination are experienced by certain sectors of Irish society. For instance, Travellers 
reported being over 22 times more likely to encounter discrimination in access to private 
services.  than  those  who  identified  as  ‘White  Irish’.  Skin  colour  rather  than  nationality 
appears to increase the likelihood of adverse treatment in the workplace and in accessing 
services, with Black respondents reporting significantly higher levels of discrimination that 
their White counterparts of any nationality. People with disabilities are twice as likely as 
non-disabled  people  to  experience  discrimination  in  all  domains.  The  report  is  based  on 
data generated from the responses of 15 000 adults collected for the Equality Module of 
the 2014 Quarterly National Household Survey, carried out by the Central Statistics Office. 
Survey  participants  were  asked  if,  in  the  previous  two  years,  they  had  experienced 
discrimination in the workplace, while seeking work, in accessing public or private sector 
services.673 

671  See 3.2.9 Access to and supply of goods and services.  
672  See 9 Coordination at national level. 
673  McGinnity, F., Grotti, R., Kenny, O., and Russell, H. (2017) Who experiences discrimination in Ireland? 

Evidence from the CSO Equality Modules, Dublin: ESRI, available at: 
https://www.ihrec.ie/app/uploads/2017/11/Who-experiences-discrimination-in-Ireland-Report.pdf.  

121 

 
 
 
 
 
 
 
                                                   
12  LATEST DEVELOPMENTS IN 2017 

12.1 Legislative amendments 

There were no amendments to anti-discrimination laws in 2017. 

12.2 Case law 

Age  

Name of the court: Workplace Relations Commission 
Date of decision: 5 July 2017 
Name of the parties: A Job Applicant v A Sporting Organisation 
Reference number: ADJ-00005822 
Address of the webpage: https://www.workplacerelations.ie/en/Cases/2017/July/ADJ-
00005822.html  
Brief summary:  
The  complainant  referred  an  age  discrimination  complaint  when  he  was  unsuccessful  in 
applying for the post of Chief Executive Officer with a national sporting organisation. He 
contended  that  his  experience  as  a  former  professional  in  the  sport  coupled  with  an 
extensive career in sports administration, including a senior international role, made him 
vastly more qualified than the successful candidate. The complainant asserted that his age 
was the reason he was not appointed; he was 58 years of age at the time of application 
and the comparator was approximately 44 years of age. The WRC applied the principle set 
out in a High Court judgment to the effect that a prima facie case of direct discrimination 
could  be  established  where  the  facts  disclosed  a  significant  difference  between  the 
qualifications of the candidate and a valid comparator under a discriminatory ground (Davis 
v  Dublin  Institute  of  Technology,  High  Court,  Quirke  J.  unreported,  23.06.2000).  In  the 
instant  case  these  conditions  were  met:  the  successful  candidate  was  significantly  less 
qualified than the complainant and this combined with an age difference of about 14 years 
established  facts  from  which  age  discrimination  could  be  inferred.  While  the  respondent 
argued that the successful applicant had demonstrated a better ‘fit’ with the job criteria 
the  WRC  concluded  it  was  ‘clear  that  the  chosen  criteria  were  applied  inconsistently 
between  candidates,  as  well  as  the  complainant  being  better  qualified:  Both  candidates 
had qualifications and experience which enabled to them to meet the respondent’s stated 
priorities, and the complainant was significantly better qualified and had all his professional 
experience in the sport which the respondent represents.’ Consequently it found that the 
respondent failed to rebut the prima facie case and ordered the respondent to pay EUR 6 
500 in compensation for the effects of the discrimination.  

Disability 

of 

Name of the court: Labour Court 
Date of decision: 06 June 2017  
Name of the parties: Iarnród Éireann v Flanagan 
Reference number: EDA1716 
Address 
https://www.workplacerelations.ie/en/Cases/2017/June/EDA1716.html  
Brief summary:  
On  appeal  the  Labour  Court  reversed  a  finding  of  the  WRC  to  the  effect  that  the 
complainant’s  employer  did  not  afford  him  reasonable  accommodation.  Mr  Flanagan 
worked as a rail-crossing keeper with the respondent since 2004. When he became ill and 
was  unable  to  work  for  a  period  of  time  in  2015,  he  was  referred  to  the  respondent’s 
medical advisors for an assessment of his medical condition and its effect on his capacity 
to  work.  In  the  course  of  that  assessment  the  complainant  revealed  that  he  had  been 
diagnosed with epilepsy in 1997, that the condition was managed with medication and that 
he had not had a seizure since 2001. The respondent’s medical advisors concluded that Mr 

webpage: 

the 

122 

 
 
 
 
 
 
 
 
Flanagan could not be deployed in the safety critical role for which he had been employed. 
It did, however, find that he was fit to work in other positions. The respondent activated 
its  applicable  policy  where  an  employee  acquires  a  disability,  which  entails  a  company-
wide search for a suitable role into which it might redeploy such an employee. However, it 
could not identify any suitable positions for the complainant and he was placed on ill health 
retirement  under  the  terms  of  its  superannuation  scheme.  The  Court  found  that  no 
accommodation,  including  a  rearrangement  of  tasks  in  accordance  with  established 
jurisprudence, could render the complainant capable of undertaking the work for which he 
had  been  employed  or  any  other  safety  critical  role.  On  that  basis  the  respondent  was 
entitled to avail of the defence in 16(1) EEA which specifies that employers are not required 
to inter alia retain an individual who is not (or no longer) fully competent and available to 
undertake, and fully capable of undertaking the duties attached to that position.  

Name of the court: Workplace Relations Commission 
Date of decision: 12 June 2017 
Name of the parties: A Prospective Employee v A Company 
Reference number: ADJ-00004761 
Address of the webpage:  
https://www.workplacerelations.ie/en/Cases/2017/June/ADJ-00004761.html  
Brief summary:  
In this case the WRC upheld a complaint of direct discrimination on the disability ground 
in access to employment. The complainant applied for a position with the respondent, a 
charity operating in the disability sector, and was not called for interview. His application 
included information about his status as a disabled person. The complainant subsequently 
sought an explanation as to why he had not been interviewed and was informed that an 
error had been  made in the  short-listing process. Specifically, some  of his qualifications 
were overlooked. The complainant then availed of the statutory mechanism that enables 
persons  to  seek  ‘material  information’  from  employers  in  advance  of  referring  an  EEA 
complaint. In accordance with section 76 EEA such information is sought using a document 
known  as  an  ‘EE2  form’.  The  respondent  maintained  that  ‘human  error’  resulted  in  the 
complainant’s  unwarranted  exclusion  and  that  it  was  not  linked  to  the  complainant’s 
disability. The WRC found that the selection process was ‘bereft of transparency’. It was 
concerned by a number of erasures and revisions on the final marking sheet for applications 
and found that the complainant’s application had been treated inconsistently  to those of 
the  other  applicants.  The  adjudicator  noted  that  the  respondent  was  on  notice  of  the 
complainant’s disability because that information was explicitly included in his application. 
The adjudicator was satisfied that these factors gave rise to an inference of discrimination 
on the disability ground, which the respondent failed to rebut. An award of EUR 8 000 was 
made along with an order that the respondent review its recruitment processes to ensure 
that those involved in short listing candidates were trained in equality and  a direction to 
issue a formal letter of apology to the complainant. 

Race/ ethnic origin 

Name of the court: Labour Court 
Date of decision: 30 November 2017 
Name of the parties: Boxmore Plastics v Zimareva 
Reference number: EDA 1732 
Address 
of 
https://www.workplacerelations.ie/en/Cases/2017/November/EDA1732.html  
Brief summary:  
In this appeal the Labour Court upheld a finding of race discrimination (nationality element 
of the ground). The complainant, a Latvian national, sought to use  an English language 
interpreter  in  meetings  with  the  respondent  when  she  invoked  the  company's  internal 
grievance procedure. Her employer continually denied her request; it maintained that the 
complainant  had  a  sufficient  command  of  the  English  language  to  proceed  without  an 
interpreter. The Court reiterated the principles established in previous case law to the effect 

webpage: 

the 

123 

 
 
 
 
that direct discrimination could result from a failure to treat different situations differently 
(see  Chapter  2.6.f  of  this  report),  and  found  on  the  facts  that  the  respondent  had 
discriminated  against  Ms  Zimareva  as  she  could  not  fully  participate  in  the  grievance 
process. The Court also considered whether the respondent’s practice amounted to indirect 
discrimination.  It  found  that  the  ‘prohibition  on  the  attendance  of  an  interpreter  in  a 
grievance investigation is a provision, criterion or practice in relation to employment, which 
puts  persons  whose  proficiency  in  English  is  limited,  at  a  disadvantage.  It  is  also  self-
evident that persons who are not nationals of an English-speaking country are significantly 
more likely to have limited proficiency in English than those of a nationality where English 
is their first language.’ Given the manner and frequency with which the complainant raised 
the issue, the Court concluded that Ms Zimareva was disadvantaged by the application of 
the  practice.  It  then  assessed  whether  the  practice  was  objectively  justified.  The 
respondent advanced the need to preserve the integrity of its agreed grievance procedure 
as the basis for refusing to allow an interpreter to be present during the process. The Court 
could not ‘accept that any procedures could be so inflexible as not to allow for translation 
services where they may be required.’ It found that the respondent’s practice was wholly 
disproportionate  to  any  perceived  need  to  adhere  strictly  to  the  agreed  procedures  and 
was not therefore objectively justified. The complainant was awarded compensation of EUR 
8 000. 

Name of the court: Workplace Relations Commission  
Date of decision: 7 June 2017 
Name of the parties: A Prison Officer v Minister for Justice and Equality 
Reference number: DEC-E2017-045 
Address of the webpage: https://www.workplacerelations.ie/en/Cases/2017/June/DEC-
E2017-045.html  
Brief summary:  
The  complainant  in  this  case  was  one  of  two  Black  prison  officers  working  for  the 
respondent. In the course of his employment he was subjected to multiple, severe incidents 
of  racist  harassment  perpetrated  by  prisoners,  which  he  duly  reported  to  the  prison 
authorities. He claimed that the respondent has taken inadequate measures to deal with 
the prisoners’ conduct and was thus liable for harassment on the race ground, had further 
discriminated against him in terms of how the harassment complaints were dealt with, and 
had victimised him for lodging those complaints. The respondent successfully defended the 
complaint before the WRC.  

With respect to the harassment claim, the WRC decided that the respondent could avail of 
the defence set out under section 14(2) EEA, which applies where an employer can show 
that  it  took  reasonably  practicable  steps  to  prevent  the  harassment  and  to  reverse  its 
effects.  Harassment  by  prisoners  was  dealt  with  under  prison  disciplinary  procedures, 
which  are  governed  by  Part  3  of  the  Prisons  Act  2007  and  the  Irish  Prison  Rules  2007. 
These provisions specified that racial harassment constituted a breach of prison discipline 
and set out a range of sanctions. The adjudication officer considered that the respondent’s 
reactions to the complaints were not ‘perfect’ and that it could improve its overall approach 
to raising awareness of and tackling racism. Nonetheless, it did take reasonable steps to 
prevent the harassment of the complainant by prisoners and to reverse the effects of such 
harassment:  The  respondent  had  a  procedure  in  place  for  investigating  incidents  of 
harassment,  the  incidents  reported  by  the  complainant  were  investigated  and  sanctions 
applied  to  the  perpetrators.  When  the  complainant  returned  from  sick  leave,  which  was 
due to stress caused by the harassment, the respondent offered him ‘low conflict’ duties 
in an attempt to remove him from contact with the perpetrators of the racist abuse.  

The complainant submitted that he was assigned to ‘low conflict’ duties in retaliation for 
his  having  made  a  complaint  of  discrimination  and  harassment  against  the  respondent. 
However, the WRC was ‘satisfied that it would not be possible or practical to remove the 
individual harassers from the situation in this case as they are prisoners incarcerated on 
foot of a court order’ [8.20]. It concluded that the victimisation claim was not made out 

124 

 
 
 
 
because the placing of the complainant on low conflict duties did not amount to adverse 
treatment.  A  direct  discrimination  complaint  did  not  succeed  either.  In  essence,  the 
employee  argued  that  the  sanctions  applied  were  not  adequate  or  severe  enough. 
According  to  the  WRC  it  was  clear  that  the  sanctions  applied  were  within  the  range  of 
sanctions provided for in the Prison Rules and it was satisfied that the complainant was not 
treated less favourably on grounds of his race in respect of the procedures applied or the 
sanctions applied.  

Race/ ethnic origin (Traveller community ground) 

of 

the 

webpage: 

Name of the court: Workplace Relations Commission  
Date of decision: 1 February 2017 
Name of the parties: A Customer v A Leisure Centre 
Reference number: ADJ-00005248 
Address 
https://www.workplacerelations.ie/en/Cases/2017/February/ADJ-00005248.html  
Brief summary:  
On  seeking  to  become  a  member  of  a  leisure  club  the  complainant,  a  member  of  the 
Traveller community, was provided with a list of rules, one of which stipulated that no more 
than  three  persons  could  enter  the  premises  at  any  given  time.  When  he  asked  a  staff 
member what this rule was about and whether it was a policy of the respondent, she said 
that the rule only applied to Travellers. The respondent  did not attend the WRC hearing 
and  so  the  adjudication  officer  reached  his  decision  on  the  basis  of  the  complainant’s 
testimony and the membership documentation. He noted that the impugned ‘rule is not 
practicable or workable as it would, if effected, exclude’ families, groups of friends, work 
colleagues, school groups and so on. Such groups are very frequent users of leisure centres 
and  it  is  ‘impossible  to  accept  that  such  groups  could  or  would  be  barred  from  using  a 
leisure centre.’  On that basis the WRC found that the  respondent had engaged in direct 
discrimination on the Traveller community ground. It awarded EUR 7 000 in compensation 
and ordered the respondent to remove the discriminatory rule. 

of 

the 

webpage: 

Name of the court: Workplace Relations Commission  
Date of decision: 15 March 2017 
Name of the parties: Berry v Dublin City Council  
Reference number: DEC-S2017-012 
Address 
https://www.workplacerelations.ie/en/Cases/2017/March/DEC-S2017-012.html  
Brief summary:  
The complainant referred a case of direct discrimination on the Traveller community ground 
following a significant delay by Dublin City Council in providing a service. In late January 
2015  a  fire  damaged  a  sanitation  unit  adjacent  to  the  complainant’s  home.  The  unit 
comprised basic kitchen, shower and toilet facilities and the respondent was under contract 
to maintain it. On reporting the damage, Mrs Berry was refused maintenance services due 
to an alleged previous incident of anti-social behaviour by other persons on site. The unit 
was refurbished some six months after Mrs Berry alerted the respondent. Mrs Berry claimed 
that  in  failing,  refusing  or  neglecting  to  provide  a  maintenance  service,  the  respondent 
contravened  section  5  ESA,  which  outlaws  discrimination  in  access  to  services.  The 
respondent denied that it had engaged in discrimination, arguing that the delay was due 
to  concerns  about  the  health  and  safety  of  its  staff.  It  further  said  that  emergency 
accommodation and use of an alternative sanitation unit on the site had been offered to 
but  declined  by  the  complainant.  The  WRC  considered  that  the  Council’s  response  was 
neither reasonable nor adequate and found that the delay in providing proper access to a 
sanitation unit was discriminatory since it would not have occurred in similar circumstances 
for a person from the settled community. EUR 6 000 in compensation was awarded for the 
distress caused. 

Judicial and administrative procedures 

125 

 
 
 
 
 
of 

the 

webpage: 

Name of the court: Supreme Court 
Date of decision: 15 June 2017 
Name of the parties: Minister for Justice, Equality and Law Reform & ors v The Workplace 
Relations Commission & ors 
Reference number: [2017] IESC 43 
Address 
http://www.courts.ie/Judgments.nsf/bce24a8184816f1580256ef30048ca50/7b97206199
a365a480258141004d3f72?OpenDocument  
Brief summary:  
This case was the culmination of lengthy legal proceedings concerning the jurisdiction of 
the  first  instance  forum  that  hears  discrimination  law  complaints.  Between  2005-2007 
three  individuals  were  refused  entry  to  train  as  members  of  the  police  force  (An  Garda 
Síochána)  because  they  were  outside  the  upper  age  limit  of  35  set  out  in  the  Garda 
Síochána  (Admissions  and  Appointments)  (Amendment)  Regulations,  2014.  They 
subsequently  lodged  EEA  age  discrimination  complaints  with  the  Equality  Tribunal.  The 
Minister  sought  to  have  the  Tribunal’s  jurisdiction  to  disapply  a  statutory  instrument 
determined as a preliminary issue, but the Tribunal declined to do so and set a date for 
hearing in 2008. The Minister issued judicial review proceedings before the High Court. The 
High Court found that the Tribunal, a body created by statute, did not have jurisdiction to 
disapply the legislation and therefore lacked jurisdiction to hear the complaint (Minister for 
Justice, Equality and Law Reform & anor v Director of the Equality Tribunal & ors [2009] 
IEHC 72). The Tribunal appealed that decision to the Supreme Court. 

The judgment of Justice Clarke for the Supreme Court pointed out that the jurisdiction of 
tribunals,  including  the  Equality  Tribunal  (now  the  Workplace  Relations  Commission)  is 
derived from Article 37.1 of the Constitution. In accordance with that provision, the powers 
and functions, which can  be conferred on a tribunal  or a body that  is not a court in the 
constitutional  sense  must  be  limited.  A  significant  power  to  disapply  duly  enacted 
legislation could not be described as a limited power and so as a matter of national law the 
Equality Tribunal could not exercise such a power.  

Both the High Court and Supreme Court acknowledged that for the purposes of ensuring 
conformity between domestic law and EU law a national mechanism must be available to 
assess the compatibility of legislation with EU norms. The appropriate mechanism would 
be instituting proceedings before the High Court. However, EEA cases, other than gender 
discrimination claims, must be heard by the WRC at first instance. Further, as discussed in 
Chapter 8.2.b of this report, there is no statutory mechanism for referring a case to the 
High  Court  from  that  forum  and  an  appeal  to  the  High  Court  on  a  point  of  law  is  only 
available  from  the  appellate  Labour  Court.  Justice  Clarke’s  judgment  addresses  this 
procedural obstacle in the following terms: ‘While it would, ordinarily, be the case that the 
High Court could not embark on a hearing dealing with an ordinary employment equality 
case  (for  the  jurisdiction  in  that  regard  is,  ordinarily,  conferred  on  the  Tribunal),  in 
circumstances where the complaint, if it is to be upheld and if the rights of the persons 
making the complaint are to be vindicated, would require the disapplication of a measure 
of  national  legislation,  then  it  would  be  necessary  to  disapply  any  rules  of  national  law 
which stood in the way of the High Court exercising the full powers which would ordinarily 
be enjoyed by the Tribunal in order that the Union law rights of the complainant concerned 
be fully vindicated’ [5.13].  

Having assessed the position under national law, the Supreme Court  decided to make a 
reference to the Court of Justice of the European Union under Article 267 of the Treaty on 
the Functioning of the European Union. The question relates to whether EU law requires 
that the Workplace Relations Commission must have jurisdiction to hear a complaint where 
the  remedy  sought  is  the  disapplication  of  secondary  legislation  but  where  the  Tribunal 
does not have jurisdiction to commence such proceedings under national law. 

126 

 
 
 
 
 
There are no accurate figures available on cases brought by Roma and Travellers in 2017. 
To  the  author’s  knowledge,  15  complaints  on  the  Traveller  community  ground  were 
determined  by  the  WRC’s  adjudication  service  in  2017,  with  no  cases  involving  Roma 
heard.  14  of  those  complaints  concerned  direct  discrimination  in  access  to  goods  and 
services provided by private sector bodies such as shops, restaurants and hotels. Five of 
the 15 complaints concerned access to licenced premises and were accordingly dismissed 
by  the  WRC  since  the  District  Court  has  jurisdiction  to  hear  such  cases  at  first  instance 
(see further Chapter 7(f)(iii)). A successful case was taken against a local authority with 
respect to accommodation provision (see discussion of Berry v Dublin City Council above).  

127 

 
 
 
ANNEX 1: TABLE OF KEY NATIONAL ANTI-DISCRIMINATION LEGISLATION 

The  main  transposition  and  anti-discrimination  legislation  at  both  federal  and 
federated/provincial level. 

Country: 
Date:   

Ireland 
1 January 2018 

Title of 
legislation  
(including 
amending 
legislation) 

Title of 
legislation  
(including 
amending 
legislation)  

Title of 
legislation  
(including 
amending 
legislation)  

Title of the law: Employment Equality Acts 1998-2015 
Abbreviation: EEA 
Date of adoption: 18.06.1998 
Latest amendments: 10.12.2015 
Entry into force: 18.10.1999 
Web link: 
http://revisedacts.lawreform.ie/eli/1998/act/21/revised/en/html. 
Grounds covered: Gender, age, race, religion, family status, disability, 
civil status, sexual orientation, membership of the Traveller Community 
Civil/administrative/criminal law: Civil  
Material  scope:  public  employment,  private  employment,  vocational 
education 
Principal  content:  prohibition  of  direct  and  indirect  discrimination, 
harassment, instruction to discriminate 
Title of the law: Equal Status Acts 2000-2015 
Abbreviation: ESA 
Date of adoption: 26.4.2000 
Latest amendments: 10.12.2015 
Entry into force: 10.12.2015 
Web link: 
http://revisedacts.lawreform.ie/eli/2000/act/8/revised/en/html. 
Grounds covered: Gender, age, race, religion, family status, disability, 
civil status, sexual orientation, membership of the Traveller Community, 
housing assistance 
Civil/administrative/criminal law: Civil 
Material scope: access  to goods or services (including housing), social 
protection, social advantages, education. 
Principal  content:  prohibition  of  direct  and  indirect  discrimination, 
harassment, instruction to discriminate  
Title of the law: Pensions Acts 1990-2015  
Abbreviation: PA 
Date of adoption: 24.07.1990 
Latest amendments: 10.12.2015 
Entry into force: 21.12.1990 
Web link: 
http://www.irishstatutebook.ie/eli/1990/act/25/enacted/en/print.html; 
http://www.irishstatutebook.ie/eli/2004/act/9/section/22/enacted/en/h
tml#sec22. 
Grounds covered: Gender, age, race, religion, family status, disability, 
civil status, sexual orientation, membership of the Traveller Community 
Civil/administrative/criminal law: Civil 
Material scope: Pensions including occupational pensions 
Principal content: Pension provisions and prohibition on discrimination  

128 

 
 
 
 
 
 
 
 
ANNEX 2: TABLE OF INTERNATIONAL INSTRUMENTS 

Country:  
Date:   

Ireland  
1 January 2018 

Date of 
signature  
(if not 
signed 
please 
indicate) 
Dd/mm/ 
Yyyy 

04.11.1950 

Date of 
ratificatio
n  
(if not 
ratified 
please 
indicate) 
Dd/mm/ 
Yyyy 
25.02.1953 

Derogations/ 
reservations 
relevant to 
equality and 
non-
discrimination 

Right of 
individual 
petition 
accepted? 

No 

Yes 

Instrument 

European 
Convention on 
Human Rights 
(ECHR) 

Protocol 
ECHR 

12, 

04.11.2000  No 

No 

No 

Can this 
instrument 
be directly 
relied upon 
in domestic 
courts by 
individuals? 

Yes, in an 
interpretativ
e sense, as a 
result of the 
passage of 
the 
European 
Convention 
on Human 
Rights Act 
2003 
No 

Revised 
European 
Social Charter 

04.11.2000  

04.11.2000  

Article 
Article 
Article 
(2) and (3). 

8(3), 
21, 
31(1), 

Ratified 
collective 
complaints 
protocol? 
Yes 
(internation
al 
NGOs 
only) 
Yes 

No 

No 

International 
Covenant on 
Civil and 
Political Rights 
Framework 
Convention 
for the 
Protection of 
National 
Minorities 
International 
Covenant on 
Economic, 
Social and 
Cultural 
Rights 

01.10.1973 

08.12.1989  Article 10(2) 

01.02.1995 

07.05.1999 

No 

N/A 

No 

01.10.1973  08.12.1989 

No 

No 

A reservation 
applies with 
respect to 
article 2(2). In 
order to 
promote use of 
the Irish 
language 
knowledge of 
Irish may be 
required or 

129 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Instrument 

Date of 
signature  
(if not 
signed 
please 
indicate) 
Dd/mm/ 
Yyyy 

Date of 
ratificatio
n  
(if not 
ratified 
please 
indicate) 
Dd/mm/ 
Yyyy 

Derogations/ 
reservations 
relevant to 
equality and 
non-
discrimination 

Right of 
individual 
petition 
accepted? 

Can this 
instrument 
be directly 
relied upon 
in domestic 
courts by 
individuals? 

given 
favourable 
consideration 
for certain 
occupations. 

21.03.1968  29.12.2000  No 

Yes 

No 

23.12.1985  23.12.1985  Articles 11(1), 

Yes 

No 

13(a); 
16(1)(d); 
16(1)(f)  

22.04.1999 

No 

No 

No 

Signed (no 
dates 
available) 

30.09.1990 

28.09.1992 

No 

30.03.2007  No 

No 

Yes 

No 

No 

No 

Convention on 
the 
Elimination of 
All Forms of 
Racial 
Discrimination 
Convention on 
the 
Elimination of 
Discrimination 
Against 
Women 
ILO 
Convention 
No. 111 on 
Discrimination 
Convention on 
the Rights of 
the Child 
Convention on 
the Rights of 
Persons with 
Disabilities  

130 

 
 
 
 
 
 
 
 
 
 
 
 
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