Exemptions under the Equal Status Acts - IHREC - Irish Human Rights and Equality Commission

Exemptions under the Equal Status Acts

Under the Equal Status Acts there are certain exemptions in relation to the provision of goods and services, that allow people to be treated differently.

These include:

  • General exemptions that apply to statutory bodies and others;
  • Exemptions that relate to all the nine grounds while others may relate to specific grounds, e.g. gender; and
  • Exemptions in relation to schools and education institutions.

For further information on each of these please read below:

General Exemptions

Exemptions On All Grounds

Exemptions on Specific Grounds

Education Exemptions

Housing Exemptions

General Exemptions

There are several general exemptions in the Acts. These exemptions should be read restrictively and should not be allowed to unduly restrict the general prohibition on discrimination.

Statutory exemption

  1. A general exemption provides that nothing in the Act shall prohibit the taking of any action that is required under:
  • Statutory provision, court order
  • Any act done or measure adopted by the EU or
  • Any international treaty which imposes an obligation on the State. Only actions that are mandatory are covered. Where the measure leaves some discretion the anti-discrimination provisions do apply.
  1. The Acts allow preferential treatment or the taking of positive measures which are bona fide intended to:
  • Promote equality of opportunity for disadvantaged persons;
  • Cater for the special needs of persons, or a category of persons who because of their circumstances, may require facilities, arrangements, services or assistance.
  1. Certain Non-Nationals Public authorities can treat certain non-nationals differently, on the basis of their nationality, who are outside the State or unlawfully present in it (for the purposes of the Immigration Act 2004) or in accordance with any provision or condition made by or under any enactment and arising from his or her entry to or residence in the State.
  1. Risk of criminal or disorderly conduct where a provider of goods/services, or a person providing accommodation or related services, can refuse service/accommodation to a person if a reasonable individual, having the knowledge and experience of the provider, would form the belief that the provision of service/accommodation to the customer would produce a substantial risk of criminal or disorderly conduct or behaviour, or damage to property in or around the area where the service is provided.

Other Exemptions

  • The different treatment of a person does not constitute discrimination where the person is treated solely in the exercise of a clinical judgement in connection with a diagnosis of illness or his/her medical treatment.
  • Treating a person differently does not constitute discrimination if the person: – is incapable of entering into an enforceable contract or – is incapable of giving informed consent and for that reason the treatment is reasonable.
  • Providers of goods and services, providers of accommodation and clubs are allowed to impose and maintain a reasonable preferential fee, charge or rate in respect of anything offered to persons together with their children, married couples, persons in a specific age group and persons with a disability.

Exemptions on all grounds

The Acts allow people to be treated differently on any of the grounds in relation to:

  • Insurance Covering annuities, pensions, insurance policies and other matters relating to risk assessments but only if the differences are based on actuarial or statistical data or other relevant underwriting or commercial factors and are reasonable having regard to the data or other relevant factors;
  • Wills/Gifts, where goods are disposed of by will or by gift;
  • Promotion of special interests, where services are provided for the principal purpose of promoting for a bona fide purpose and in a bona fide manner, the special interests of persons in a particular category, but only to the extent that the different treatment is reasonably necessary;
  • Special Needs, where goods and services are provided which can reasonably be regarded as being suitable only to the needs of certain persons.

Exemptions on specific grounds

The Equal Status Acts allow people to be treated differently on specific grounds:

Gender

The Acts allow people to be treated differently on ground of gender in relation to:

  • Cosmetic Services, covering cosmetic, aesthetic or similar services which involve physical contact (e.g. hairdressing);
  • Privacy/Embarrassment, where embarrassment or breach of privacy could reasonably be expected to happen on account of the presence of a person of another gender.

Religion

The Acts allow people to be treated differently on the religion ground in relation to:

  • Religious goods and services, where the goods and services are provided for religious purposes.

Age

The Acts allow people to be treated differently on the age ground in relation to:

  • Adoption/Fostering, where age requirements are applied for a person to be an adoptive or foster parent where this is reasonable having regard to the needs of the child.

Gender, age, disability and/or race/nationality

The Acts allow people to be treated differently on the grounds of age, disability, and/or race/nationality in relation to:

  • Sporting events, where the Acts allow people to be treated differently on the basis of their gender, age, disability or nationality in relation to providing or organising sporting facilities or events but only if the differences are reasonably necessary and are relevant;
  • Drama and Entertainment, where the Acts allow people to be treated differently on the gender, age, disability or race ground in connection with a dramatic performance or other entertainment but only if the differences are reasonably required for reasons of authenticity, aesthetics, tradition or custom.

Education exemptions

Gender

Single sex schools are allowed. Primary and secondary schools may be boys only or girls only.

Religion and Gender

Institutions providing religious training to ministers of a particular religion may admit students of only one gender or religious belief.

Educational establishments – special exemptions

Religious tradition (Ethos) of the school
The Acts allow primary and post-primary schools which follow the values of a particular religion to give preference to applicants of that religion. Primary and post-primary schools may refuse to admit a student who is not of that religion. However, they must prove that the refusal is essential to maintain the ethos of the school. It is not a refusal under the Acts if the school is fully subscribed and an applicant is put on a waiting list.

Mature students
The Acts allow universities or other third-level or adult education institutions to treat mature students differently in the allocation of places. Example Mature students may not need to apply for a university place through the Central Applications Office (CAO) points system.

Scholarships
The Acts allow universities or other third-level or adult education institutions to treat some students differently by way of sponsorships, scholarships, bursaries, and so on. However, these awards must be in keeping with tradition. For example, a scholarship that was established by a law firm might only be open to students studying law.

Student exchange
The Acts allow universities and other third-level or adult education institutions to select particular students to take part in student exchange programmes. For example, they might limit places to students who have reached a certain mark in exams.

Grants, fees, allocation of places
The Acts allow universities and other third-level or adult education institutions to treat non European Union (EU) nationals differently in relation to fees, educational grants and the allocation of places.

Sporting facilities and events
The Acts allow educational establishments to treat people differently on the basis of gender, age or disability but only to the extent that the differences are necessary having regard to the nature of the facilities or events. Example A school organising a sports day could categorise certain competitions according to age and gender.

Disability
The Acts allow educational establishments to treat students with disabilities differently. First of all, they must provide reasonable accommodation arrangements for the students (at no more than a ‘nominal’ cost – see page 10 of this booklet), so that they can learn and participate at the same level of others (e.g. sign language interpreters, scribes, access to classrooms, information and materials in different formats, loop systems, etc.). However, a school may not have to keep on a student with a disability if the school can show that this would make it impossible or extremely difficult to teach other students.

Housing Exemptions

Gender

In relation to shared accommodation the Acts allow people to be treated differently in relation to personal privacy where lack of privacy might cause embarrassment.

Mixed grounds

The Acts allow housing authorities to treat people differently in relation to housing based on:

  • family size;
  • family status;
  • civil status;
  • disability;
  • age; or
  • membership of the Traveller community.

The Acts also allow for different treatment for housing accommodation provided by or on behalf of the Minister for Justice and Equality on these grounds and also on the grounds of gender and nationality.

All grounds

The Acts allow people to be treated differently on any of the nine grounds in relation to the following:

A person’s home

This covers where accommodation is provided by a person in their private home. For example, if a home-owner took in a lodger and then discovered that this was disrupting their private or family life, they would not be discriminating if they asked the lodger to leave.

Use of the accommodation by people in a particular category

This covers accommodation reserved for a particular category of people, for example, retirement homes for older people, hostels for homeless people, and so on.

Wills and gifts

The person making the will or gift can choose who they wish to benefit.

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