Race and Work

There is an exemption for any action taken in accordance with the Employment Permits Act 2003-2014.

Different treatment is allowed by vocational or training bodies in relation to:

• fees and the allocation of places to people who are Irish citizens or EU nationals and those who are not.
• assistance to particular categories of persons by way of sponsorships, scholarships, bursaries, but only to the extent that the assistance is reasonably justified having regard to traditional and historical considerations.

Different treatment is allowed by universities or other third level institutions in relation to the allocation of places for mature students.

Under the Employment Equality Acts 1998-2015 and the Pensions Acts 1990-2011 differing treatment on the Age Ground is permissible in certain circumstances and may not constitute a breach of the principle of equal pension treatment.

Provided there is no discrimination on the Gender Ground, a scheme can treat persons with different ages or lengths of service differently when deciding to fix ages for admission under an occupational benefit scheme or for entitlement to benefits under the scheme, including fixing different ages for employees or groups of categories of employees.

Officers or servants (employees) of the State

It is not discrimination if some civil servants and public servants (including members of the Civil Service, Gardaí or Defence Forces) have to meet special requirements. 

These may include being Irish speakers, citizens or residents.

Primary and post-primary teachers

Employers can require teachers to be proficient in the Irish language.

There is no explicit protection against discrimination on the language ground in Irish law.

In reporting to the UN Human Rights Committee in 2014, the former Irish Human Rights Commission recommended that the scope of equality legislation in Ireland be extended to address discrimination on additional grounds, including language grounds, in line with the international human rights framework.

Discrimination on the language ground may constitute discrimination based on race.

Under the EEA, differences of treatment are allowed in limited cases where there is a genuine occupational requirement for a particular job. This exception applies to race, as well as the other grounds of discrimination. However, an occupational requirement, such as a language requirement, must be objectively justifiable and proportionate to the aims pursued.

In Noonan Services v A Worker EDA1126, the Labour Court held that requiring employees in a cleaning company to be able to speak English amounted to indirect discrimination on the race ground. However, the requirement to speak English was objectively justified because employees needed to have competence in the English language in order to communicate with other employees and regulatory officials who supervised their cleaning work.

In Aer Lingus v Kacmarek, Turczyk & Wilczkiew EDA1712, three Polish employees of Aer Lingus challenged the legality of their employer’s policy which required that they speak English while in the workplace. However, they were allowed to speak in any language during their official breaks. While noting that the policy was indirectly discriminatory against workers whose first language was not English, the Labour Court found that the policy was objectively justified as a means of ensuring that employees were fully integrated into the workforce and preventing the exclusion or isolation of other employees. To justify any such policy, there must be a close connection between the language requirements and the particular duties of the employee concerned.

Not all differences of treatment are prohibited under the EEA. For instance, section 36 of the EEA allows different criteria to be applied with respect to persons holding office under, or in the service of, the State, or otherwise as a civil servant and employees of local authorities, on the basis of proficiency in the Irish language, residency and citizenship. Similarly, section 36(3) permits a requirement for teachers to have a proficiency in the Irish language. In this way, section 36 EEA provides exceptions to what might otherwise be indirect discrimination on grounds of nationality.

Common barriers to free movement and discriminatory practices include:

• Different recruitment practices;
• Nationality conditions for accessing posts;
• Different working conditions in practice (eg. pay, grade and promotions);
• Problems accessing benefits which are subject to conditions more easily met by a national than by EU citizen of another member state (eg application of the ‘Habitual Residence Condition’ in Ireland);
• Difficulties accessing services (eg. opening a bank account, hiring a car);
• Professional qualifications acquired in other member states not taken into account or given less weight.

The principle of free movement of workers is enshrined in Article 45 of the Treaty on the Functioning of the European Union (‘TFEU’). This prohibits discrimination based on nationality between workers of the member states as regards employment, remuneration and other conditions of work and employment. The Treaty provisions provide that, subject to limitations justified on grounds of public policy, public security or public health, workers have the right to accept offers of employment and to move freely within the territory of the member states in order to take up such offers.

The Treaty rules on free movement of persons initially applied only to economically active persons (i.e. employed persons and jobseekers). In 1993, the Maastricht Treaty gave new life to the EU rules on free movement of persons, enshrining the Article 20 right of EU citizenship and giving, in Article 21, all EU citizens and their family members the right, in principle, to move and reside freely within the EU. These provisions must be viewed in the context of the general principle of non-discrimination based on nationality under Article 18 of the TFEU and in Article 21(2) of the Charter of Fundamental Rights of the European Union.

Secondary legislation sets out more detailed rules to regulate free movement, through Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the member states. Who is classed as a ‘family member’ is defined at Article 2.

The specific rights concerning free movement of workers and their family members are provided in EU Regulation 492/2011.  Accordingly, all EU citizens and their family members have the right to move and reside freely within the territory of the member states including the right not to be discriminated on grounds of nationality regarding:

• access to employment;
• working conditions;
• social and tax advantages;
• access to training;
• membership of trade unions;
• access to housing;
• access to education, apprenticeships and training for their children, etc.

Inactive EU citizens have the right to reside in another member state for more than three months if they have sufficient resources and comprehensive sickness insurance cover.

The free movement of people also applies to countries which are part of European Free Trade Area, as a result of the Agreement creating the European Economic Area (‘EEA’) and the Agreement on the Free Movement of Persons (‘AFMP’) with the Swiss Federation.

Although it did not create any new substantive rights, Directive 2014/54/EU was adopted in order to facilitate the free movement of EU workers and members of their family and make the rights more effective. Article 4 of the Directive stipulates that “each member state shall designate one or more structures or bodies (…) for the promotion, analysis, monitoring and support of equal treatment of Union workers and members of their family without discrimination on grounds of nationality (…) and shall make the necessary arrangements for the proper functioning of such bodies”.

The Irish Equality and Human Rights Commission was made the Article 4 ‘Designated Body’ for Ireland under the IHREC Act 2014. In certain circumstances, the Commission may offer legal and/or other assistance to EEA workers and their families to vindicate their rights under the Directive and the IHREC Act 2014. It also has functions for the promotion, analysis, monitoring and support of equal treatment of workers and members of their family without discrimination on grounds of nationality.