The Equal Status Acts 2000-2018 make it unlawful to discriminate between people on certain grounds. However, the law allows exceptions to this rule in certain situations. On this page, we explain the main exception, or exemption, to the laws on equality and discrimination.
What is discrimination?
Discrimination means treating someone less favourably than other people because of certain characteristics, known as the protected grounds of discrimination. The laws on discrimination apply only to people who have at least one of the characteristics below.
The Equal Status Acts 2000-2018 make it unlawful to discriminate on any of the following protected grounds:
- Gender (male, female, transgender, non-binary)
- Civil status (single, married, separated, divorced, widowed, in a civil partnership)
- Family status (such as pregnant, parent or carer)
- Sexual orientation (such as heterosexual, LBGTQ+)
- Religion (including religious background and those who have no belief)
- Age (for people aged 18 or over)
- Disability (intellectual, mental or physical)
- Race (colour, nationality, ethnic or national origin)
- Membership of the Traveller community
- Receiving rent supplement, housing assistance, or any payment under the Social Welfare Acts
The Acts apply to the provision of:
- Goods and services
- Accommodation
- Education
What are the exceptions to the prohibition on discrimination?
Section 14 of the Equal Status Acts provides for certain exceptions or exemptions. Some of these apply in specific limited circumstances, and you can find details about them in the IHREC Your Rights guides on particular issues – such as housing, insurance, employment and education.
There is also a general exemption that can potentially apply in any situation i.e. where an action is required by law.
Exceptions or exemptions required by law
The Equal Status Acts do not apply to actions that are required by law, even if they provide for a difference in treatment between people who have one or more of the protected grounds on the list above. Required by law can mean required by legislation or by decisions made by a court.
For example, the law on social welfare sets out which categories of people are eligible for particular social welfare payments. This means that the social welfare law can provide for treating people differently.
Example: No maternity benefit after a surrogate birth
A mother whose child had to be born by surrogacy because of her disability was not allowed to claim maternity benefit. She was told this was because she had not been pregnant or given birth. She complained that this amounted to discrimination on grounds of disability, gender and family status. The judge was unable to agree with her or award compensation, because the rules for claiming maternity benefit had been set by the Social Welfare Act 2005 . They were therefore required by law and covered by the exemption in the Equal Status Acts.
What is ‘any enactment or order of a court’?
Enactments may include:
- Irish laws and statutes passed by the Oirechtas
- Regulations (which may be called ‘statutory instruments’) to govern how laws and statutes work (such as the rules on social welfare and tax)
- Laws of the EU
- Laws passed by international convention
What about administrative schemes or departmental circulars?
The wording of section 14(1) makes it clear that the exception does not apply to discrimination provided for under administrative schemes or departmental circulars unless those schemes or circulars are themselves made under a particular piece of legislation.
When is an action required by law?
The exemption in section 14(1) is limited to actions which are required by the relevant law. It does not therefore apply where, for example, a statute allows for the possibility of different treatment but does not require it. This means that where a decision maker has a discretion in relation to a decision and is not obligated to make it in a particular way, the exemption does not apply as the discriminatory treatment is not “required by law”.
Example: Disabled passenger turned down for a tax allowance
A complainant applied for a Medical Certificate so he could get a tax allowance (or concession) from Revenue towards the cost of adapting a car-seat. The complainant was assessed under the Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations 1994. The HSE held that the complainant did not meet the definition of disability under the Regulations and ultimately refused to authorise the allowance.
The complainant made a complaint of discrimination on the ground of disability, arguing that the definition in the Regulation was too narrow. However, the Equality Officer who heard the case held that the HSE had simply been applying criteria which were required by law. In such circumstances, the actions of the HSE did not amount to discrimination.
Example: Is refusing a driving licence to an asylum seeker discrimination required by law?
An asylum seeker living in Ireland under a temporary residence certificate was refused a learner driver permit by the Road Safety Authority (RSA) because she was not in ‘normal residence’ here. She argued that this amounted to indirect racial discrimination because it affected asylum seekers who were, by necessity, temporary residents from a different ethnic background. The WRC agreed with her, but the RSA appealed on the ground that normal residence was required by statute. Both the Circuit Court and the High Court agreed that the RSA had not refused the permit because of racial discrimination but because the law obliged it to do so.
Example: If discrimination is in social welfare law, it is not covered by the Equal Status Acts
Various social welfare policies have been challenged on the grounds that they discriminate against certain groups. For example, older workers might think they face discrimination on grounds of age in the way that PRSI contributions are collected. Or a father might complain that he meets discrimination on the ground of gender because child benefit is paid to the mother instead of to him. However, in both cases the rules are required by law, the State were available to rely on the exception set out in S.14 of the Equal Status Acts.