Race and Work

An employee – works or has worked under a contract of employment. Employment means performing a service under the direction of another person in return for pay. Contracts include contracts of apprenticeship and any other written or verbal agreements where you agree to provide work or service to another person.

An agency worker – provides an employment agency with work or service for another company or employer, whether or not the other company or employer signs the contract.

Vocational training – is instruction in the skills or knowledge you need to do a particular job.

Members of certain bodies – belong to workers organisations, trade unions or professional associations that set standards for their members.

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.

By law, harassment at work is any unwanted behaviour or actions that:

• Violate your dignity – that is, the purpose or effect of the behaviour is to make you feel degraded, and
• Are intimidating, hostile, humiliating or offensive to you.

Harassment under Irish equality law, is unwanted behaviour related to one or more of  the ‘protected grounds’ listed below.

The unwanted actions may either deliberately aim to violate your dignity or unintentionally have that effect.

Many kinds of behaviour could be defined as harassment, such as spoken words, gestures, and displaying or sharing words, pictures or other material.

Harassment could be one single incident or a pattern of behaviour.

It does not have to be directed at one specific person for that person to feel they have experienced harassment.

The law on harassment and sexual harassment in the workplace is set out in the Employment Equality Acts 1998-2015 (EEA).

Sexual harassment is any form of unwanted words or physical actions of a sexual nature which deliberately or unintentionally violate your dignity and create an intimidating, humiliating or offensive environment for you.

• Conduct of a sexual nature can take many different forms, ranging from suggestive messages to unwanted physical contact or sexual advances.
• It need not involve physical contact, nor does it need to take place many times. A single act is sufficient to be considered as sexual harassment.
• The conduct must be unwanted. A complainant themselves will know whether the conduct was unwanted.
• The language or actions used do not need to be explicitly sexual as sexual harassment could be a result of a hostile environment created for an employee.

Example: When sexual harassment is not obviously sexual

A woman working in a hotel complained about a male co-worker who treated her in a sexist manner. She said she was called offensive terms, laughed at and excluded from conversations. The Labour Court decided that this treatment was sexual harassment because it was a direct result of the man’s negative views towards women.

It decided that the employer was responsible for the sexual harassment even though none of the actions could be described as sexual.

Victimisation occurs where your employer dismisses you or treats you badly because of any of the following reasons.

• You complain to your employer about discrimination.
• You take legal action against your employer.
• You help someone else make a complaint.
• Your work is compared with that of another employee in relation to one of the discriminatory grounds covered by the EEA or by previous laws on discrimination.
• You have acted as a witness in any legal proceedings under the EEA or previous laws on discrimination.
• You have opposed by lawful means a practice which is unlawful under the EEA or previous laws on discrimination.
• You have told your employer you intend to take any of the actions listed here.

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.

Employers can insist that job applicants hold the qualifications considered necessary for the job and can reject applicants who do not hold them.

An employer can expect their employee to be competent and capable of doing their job. They do not have to employ someone who is unwilling or unable to carry out their duties in full. However, an employer cannot dismiss or reject a person with a disability who would be fully competent and capable of doing the job if some practical changes (known as ‘reasonable accommodation’) were made for them. 

Employers can provide certain benefits to employees who have families (for example, flexi-time or onsite childcare facilities). 

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.

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

The Defence Forces are allowed to treat employees differently on grounds of age and disability.

EEA rules do not apply where someone is taken on to provide a personal service in a private home (for example, as a childminder or carer).

The Gardaí and the Prison Service can assign certain tasks to either men only or women only, such as body-searching, controlling violent individuals or crowds, and rescuing hostages. They can also state 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, as needed.

Certain bodies may give preference to employees of a particular religion where it is reasonable to do so to maintain the religious ethos of the institution. They may also take reasonable steps to prevent an employee from undermining the religious ethos of that institution.

In some cases, the EEA allows employers to offer different pay rates to workers who are disabled if their disability means that they cannot do the same amount of work in the same time as a co-worker who does not have a disability. 

Discrimination on any of the nine protected grounds is generally prohibited. However, the EEA allows people affected by any of the nine grounds to be treated differently, within reason, if they do not meet an essential requirement for the job.  

For example, it may be reasonable to put age limits on a job demanding physical strength.  

Employers have to show that every condition of employment is justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary. However, employers should ensure that any qualities required of an employee are clearly linked to the job in question.

Employers should be able to show that there was no discrimination at any point of the hiring process. An employer may be discriminating against you if there is a lack of transparency in the process, such as unclear selection criteria.

Good practices include:

• Interview and selection procedures are clear and transparent, and comply with the organisation's policies;
• Interview notes and minutes are retained;
• Members of the interview panel are independent of the employer, have extensive experience and are trained in the requirements of anti-discrimination law;
• A pre-interview meeting is held at which the panel draws up questions relating to key areas;
• Marks are allocated for critical attributes required for the duties of the position based on objective pre-determined criteria;
• People with disabilities are reasonably accommodated to allow them apply for the job. For example, providing suitable technology for an interview.

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.

If discriminatory practices stop, you have six months from the date they stopped to complain to the WRC. 

For example:

• An employer pays unequal wages to men and women who carry out ‘like work’. The employer then changes their practice and begins paying men and women equal wages. This means that the six-month time limit for bringing a complaint starts running from the date that equal pay is introduced.
• 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.

If you think discrimination is still happening, you should complain as soon as possible after the most recent incident. If you do not complain promptly, you may risk missing the deadline. 

If there are long gaps between acts of discrimination (for example, unfair practices in annual pay reviews), the earlier incidents may fall outside the six-month time limit. If you can show they are similar to more recent events, the WRC may consider the whole series part of a continuing breach. However, different people may have different ideas about whether or not there has been a continuing breach. For example, an   employer may argue that they ended their discriminatory practices more than six months before you complained.