Gender and Services

‘Goods’ are any moveable property – such as items you can buy or sell. 

‘Services’ are any sort of service or facility that is available to the public generally or to a section of the public. The definition covers both the services and the facility (the place where people use the services).  For example, it covers both education and schools, or both healthcare and clinics.  

‘Services’ include facilities for:

• Banking, insurance, grants, loans, credit or financing
• Entertainment, recreation or refreshment
• Cultural activities
• Transport and travel
• Activities or services provided by a club (which is available to the public or a section of the public)
• Professional trades or services, such as plumbing or financial advice
• Educational services
• Public services provided by the State, such as the HSE or local authorities

This is not a full list. The Equal Status Acts take a broad view of what a service is.

The general rule is that there can be no discrimination or harassment on any of the grounds in relation to:

• Getting accommodation
• Accommodation being terminated

The accommodation in question must be available to the public generally or to a section of the public.

Schools must not discriminate against a pupil or student in relation to: 

• Admission or the terms or conditions of admission to the school
• Access to any course, facility or benefit at the school
• Any other terms or conditions of participation in the school
• Expulsion or any other punishment or penalty 

In the ESA, the term ‘schools’ covers all public and private educational settings, including pre-school services and universities. 

Where someone treats you less favourably than another person in a similar situation because of a different personal characteristic or circumstance that falls under the protected grounds.

Where a policy or provision applying to everyone puts you at a disadvantage because of a personal characteristic or circumstance that falls under the protected grounds.

Where someone treats you less favourably than another person in a similar situation because they have incorrectly assumed (‘imputed’) that you fall under the protected grounds.

Where you are treated less favourably than another person in a similar situation because of your connection or relationship with someone who falls under the protected grounds.

If someone treats you less favourably because you are a different gender to someone else.

If someone treats you less favourably because you have a different civil status to someone else.

If someone treats you less favourably because you have a different family status to someone else. (Note: some situations falling within this ground may also fall within the gender ground.)

If someone treats you less favourably because you have a different sexual orientation to someone else.

If someone treats you less favourably because you are older or younger than someone else and it is without a good reason (‘objective justification’). (Note: this ground does not cover alleged discrimination against children in schools.)

If someone treats you less favourably because you have a different religion to someone else, or, for example, because you do not have a religion and someone else does.

If someone treats you less favourably because you are a member of the Traveller community and someone else is not.

If someone treats you less favourably because you have a different skin colour, nationality or ethnicity to someone else.

If someone treats you less favourably because you have a disability and someone else has a different disability or does not have a disability.

If someone treats you less favourably because you are receiving rent supplement, housing assistance payment (HAP), or another type of social welfare payment and someone else is not.

Harassment is any form of unwanted conduct related to any of the specified grounds. Sexual harassment is any form of unwanted verbal, nonverbal or physical conduct of a sexual nature.

In both cases, it is conduct 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.

In both cases, the unwanted conduct may include acts, requests, spoken words, gestures or the production, display or circulation of written words, emails and social media, text messages, pictures, or other material.

A person’s rejection of, or submission to, sexual or other harassment may not be used by any other person as a basis for a decision affecting that person.

The person in charge of running any place where goods, facilities or services are offered to the public is defined as a ‘responsible person’.

The responsible person must ensure that any person who has a right to be there is not sexually harassed or harassed. The responsible person must be able to prove that they took ‘reasonably practicable’ steps to prevent any sexual harassment or harassment. 

The ESA protects persons and/or witnesses who have brought a complaint under the ESA from being discriminated.

For example, it is victimisation if you are threatened or treated badly because:

• You make a complaint of discrimination by a service provider
• You have been involved in a discrimination case at the WRC
• You help someone else to make a claim
• You are involved as a witness in a discrimination case at the WRC
• You have taken a discrimination claim to the WRC or court;
• You tell a service provider that you intend to do any of the things mentioned in this list

Public authorities can treat certain nationals of other countries differently, on the basis of their nationality, if they are: 

• outside Ireland, or
• unlawfully present in Ireland (with regard to the Immigration Act 2004), or
• being treated in accordance with any legal provision or condition in relation to entering or living  in Ireland

A provider of goods, services, accommodation or related services can refuse a service or accommodation in certain cases. Refusal is legal when a reasonable person, who is familiar with the provider, has good reason to believe that providing the service or accommodation would mean a substantial risk of criminal or disorderly conduct, or damage to property in that area.

Treating a person differently does not amount to discrimination where it takes place solely under clinical judgement in connection with a diagnosis of illness or medical treatment.

Treating a person differently does not amount to discrimination if the person is incapable of entering into an enforceable contract or giving informed consent.

• Difference in treatment on any of the grounds (except for the gender ground) may be permitted in the provision of annuities, pensions, insurance policies or any other matters involving the assessment of risk.
• Any difference in treatment must be decided on the basis of actuarial or statistical data, or other relevant underwriting or commercial factors, and it must be reasonable in light of the data or other relevant factors.

The Equal Status Acts do not apply to the disposal of goods by will or by gift.

The ESA permits difference in treatment where the goods or service could reasonably be considered suitable only to meet the needs of certain individuals.

The Equal Status Acts do not apply to actions that are required by law, even if the actions appear to discriminate against people affected by one of the protected grounds on the list above.  These actions are known as ‘any enactment or order of a court’ – see below.

For example, the law on social welfare states which categories or groups of people may be entitled to social welfare payments. This means that limiting payments to these categories of people is an action required by law. The categories cannot be changed to include other people who may also need help, even though the law might appear to be discriminating. 

Case study: 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 and could not be changed.

Enactments include:

• Irish laws and statutes passed by the Oireachtas
• 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

Court orders put these enactments into effect.

The WRC and the courts have no power to challenge measures laid down by ‘any enactment or order of a court’. 

The exemptions in Section 14 of the ESA do not apply to: 

• Schemes for how to put laws or regulations into practice
• Circulars advising government departments or public sector bodies on how to apply the law

This means that schemes and circulars which interpret the law (instead of simply stating it) may be covered by the Equal Status Acts. In this situation, schemes and circulars can be challenged as discriminatory (on one of the protected grounds).

However, if schemes and circulars are created by statute, they have the legal authority of a law, and the Section 14 exemptions will apply.

Case study: Disabled passenger turned down for a tax allowance 

A car passenger with multiple disabilities 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 HSE refused to authorise it. The passenger complained that this amounted to discrimination based on a narrow interpretation of disability. However, the HSE argued that it had followed the rules laid down in the Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations 1994. The judge agreed with the HSE because its decision was based on a statement of law and not based on its interpretation of the law.

If discrimination is not required by law, then it may be covered by the ESA. This means that you can make a complaint of discrimination (because exemptions to Section 14 do not apply). 

First you must tell the respondent about the incident of discrimination and that you intend to make a complaint about them to the WRC. The goods or service provider who discriminated against you are called the respondent.

You cannot take a case to the WRC under the ESA unless you have contacted the respondent and given them time to reply. You have two months from the last date of discrimination to tell the respondent about the incident of discrimination and that you intend to make a complaint to the WRC. 

In exceptional circumstances, the WRC may extend this period of two months by another two months. This brings the maximum time limit for notifying the respondent to four months. The WRC very rarely allows this extra time.  

After notifying the respondent, you should receive a reply within one month. If you get no reply within that time, or if you get a response that you are not satisfied with, you may then bring the complaint to the WRC. You should use the WRC Complaint Form. 

You must submit the complaint within six months of when the alleged discrimination took place or, if it happened several times, within six months of the last date of discrimination. Very occasionally, the WRC may extend this time limit from six months to 12 months. It does this very rarely.

If ongoing discriminatory practices stop, you have six months from the date they stopped to complain to the WRC. A shopkeeper has a sign in their window banning all dogs, including guide dogs, from entering the shop. Then they remove the sign and allow people with guide dogs to enter. This means that the six-month time limit for bringing a complaint starts from the day they remove the sign.

Some situations are not so clear-cut. Sometimes significant gaps will occur between discriminatory actions or practices. This makes it more difficult to determine whether there is a ‘continuing breach’. 

In these instances, there may be a series of separate things that are done, or not done, which result in discrimination. If so, one or more instances of discrimination may be outside the six-month time limit. But where the discrimination is sufficiently connected to discrimination that did fall within the time limit, it may be possible to consider them as part of a ‘continuum’. It is important to be cautious. Different people may have different ideas about whether or not there has been a continuing breach.

If you want to complain about your own situation, you should do so as soon as possible to keep within the six-month time limit. Do this even where you believe there may be continuing discrimination, or if you are not sure it is still happening.