Exemptions to the Employment Equality Acts

General exemptions

When the Employment Equality Acts do not apply

There are some general exemptions that apply to all types of employment and there are also exemptions that apply to certain kinds of employment. In other words, some differences of treatment are not regarded as amounting to discrimination under the Acts.

Exemptions that apply to all types of employment

Capacity and competence – This means that an employer is not obliged to hire someone who is unable to do the job properly. However, if someone with a disability would be able to do the job if reasonable adjustments were made to the workplace, the employer should make the adjustments.

Example A person with a physical disability might be able to take on a driving job if a company vehicle was modified to suit them.

Educational, technical or professional qualifications – Under the Acts, employers are allowed to reject job applicants who do not hold the qualifications that are generally accepted as being necessary for the job.

Benefits in respect of an employee’s family – The Acts allow employers to provide certain benefits to employees who have families.

Example Providing childcare facilities, holding family events and so on is permitted.

What are the exemptions in relation to certain kinds of employment?

Officers or servants (employees) of the State – Under the Acts, it is not discrimination if some employees in these categories are required to fulfil special requirements, for example, they might have to:

• hold Irish citizenship;
• live in a particular area; or
• be proficient in the Irish language.

Examples of civil and public servants:

• members of An Garda Síochána;
• members of the Defence Forces and Civil Servants
• local authority employees;
• health service employees; and
• employees of further education and training institutions, etc.

Primary and post-primary teachers – The Acts allow employers to require that teachers have a proficiency in the Irish language.

Defence Forces –Under the Acts, the Defence Forces are allowed to treat employees differently on grounds of age and disability.

Employment in another person’s home – This relates to workers providing a personal service in a person’s private home, for example, childminding, care services and so on, where the employment affects the private or personal life of those residing in that home. The person employing the worker is not subject to the Employment Equality Acts when recruiting such an employee.

Example A woman might prefer to have a woman in a personal caregiving role in her home and this is allowed under the Acts. Once the person is employed, though, they are entitled to regular terms and conditions of employment and may not be discriminated against.

An Garda Síochána and the Prison Service – Both the Gardaí and the Prison Service can assign certain tasks to either men only or women only. These tasks relate to privacy issues (such as body-searching), controlling violent individuals or crowds and rescuing hostages.

These services are also allowed to have a minimum height requirement that is different for men than for women. They are allowed to recruit more employees of one gender than the other if more employees of that gender are needed in the service at that time.

Religious, educational, and medical institutions

Certain religious, educational, and medical institutions, whose objectives include the provision of services in an environment which promotes religious values, are not regarded as engaging in discrimination for the purposes of the Acts if they –

• give more favourable treatment, on the religion ground, to an employee where it is reasonable to do so in order to maintain the religious ethos of the institution, or
• take action which is reasonably necessary to prevent an employee from undermining the religious ethos of that institution.

However, in the case of more favourable treatment on the religion ground by an institution that is in receipt of public funds, this treatment must not amount to discrimination on any of the other protected grounds, and the religion or belief of the employee must constitute a genuine occupational requirement having regard to the institution’s ethos, the nature of its activities, and the context in which those activities are carried out.

Similarly, any action taken by a publicly funded religious, educational or medical institution to prevent an employee from undermining its religious ethos must be objectively justified.

Exemptions on the Basis of the Nine Grounds

The Employment Equality Acts allow for employees to be treated differently in certain circumstances.

Employees can be treated differently on the following grounds:

All grounds

The Acts allow for people to be treated differently on any of the nine grounds if they do not meet a particular requirement that is essential for the job. For example, it might be reasonable to exclude people over the age of 60 from a job that demands a high level of physical fitness.

The Gender ground and the Civil Status ground

The Acts allow for benefits to be conferred on women employees who are pregnant or breastfeeding and this is not discrimination on the gender ground. In Ireland, there are separate laws regarding Maternity Protection and Adoptive Leave. Anything that is legal under that legislation is not discrimination on the civil status ground.

The Age ground

The Acts allow for employees to be treated differently on the age ground in several circumstances. For example:

• an employer may set a minimum age up to 18 years when recruiting and they may offer a fixed-term contract to a person over the compulsory retirement age where there is an objective justification for doing so;
• occupational benefits (such as illness benefits or severance pay) can be different for individual employees based on their age, however, this different treatment only applies on the age ground;
• An employer can set different ages for the retirement of employees;
• In Ireland, there are separate laws such as the Protection of Young Persons (Employment) Act 1996 and the National Minimum Wage Act 2000. Anything that is legal under those rules is not discrimination on the age ground.

Mixed grounds

Under the Acts, vocational or training bodies are allowed to give different treatment in relation to fees and allocation of places to people who are nationals of an EU member State. Vocational and training bodies are allowed to give different treatment in relation to age and nationality when awarding sponsorships, scholarships, grants and so on. However, the award must be in keeping with the traditions of the institution.

For example, a scholarship paid for by a foreign embassy might only be available to students from that country. Universities or other third-level institutions can give different treatment on the age ground in relation to allocating places to mature students.

The Religion ground

Under the Acts, certain religious, educational and medical institutions can give different treatment on the religion ground. Certain employees or job applicants might receive favourable treatment if it were necessary to maintain the religious ethos of the institution. These institutions can also take action against an employee without discriminating if they work against the established standards and traditions of the institution. These institutions can also reserve places on certain teaching and nursing courses if the education and health authorities consider this necessary to keep up the numbers of teachers and nurses.

The Race ground

Anything that is legal under the Employment Permits Acts 2003-2014 is not discrimination on grounds of nationality.

The Disability ground

Under the Acts, employers are allowed to offer different pay rates to disabled workers if their disability means that they cannot do the same amount of work in the same time as a co-worker without a disability.

Please note that these factsheets are for information only. They do not constitute legal advice and should not be treated as such.