Work & Race Discrimination
Discrimination on the ‘race ground’ occurs where there is less favourable treatment of one person compared to another person because they are of different race, colour, nationality or ethnic or national origins.
Am I protected?
You are protected by law if you are:
- a full-time, part-time and temporary employee;
- a public or private sector employee;
- a self-employed contractor or partner in a partnership;
- an office-holder in state or local authorities
- seeking work through employment agencies;
- a trainee doing vocational training;
- a member of a trade organisation, union or a professional body;
- doing paid work experience.
Note: volunteers are not covered.
The law also covers many types of situations, such as:
- job advertising and access to employment;
- terms and conditions of employment, such as equal pay;
- promotion, dismissal, classification and re-grading of posts;
- pensions and retirement;
- collective agreements, for example through a union.
Am I entitled to equal pay?
The Employment Equality Acts provide for equal pay for like work.
'Like work' is defined as work that is the same, similar or work of equal value.
It is a term of everyone’s contract of employment that there is an entitlement to equal pay. Equal pay claims can be taken on any of the nine protected grounds.
What does equal pay mean?
The EEA refer to ‘remuneration’, which is broader than ‘pay’. It is defined in section 2(1) EEA as including ‘any consideration, whether in cash or in kind, which the employee receives, directly or indirectly, from the employer in respect of the employment…’.
The definition is wide and includes, for example, allowances, bonuses and eligibility for same, performance payments, and non-cash benefits such as cars and mobile phones.
What is like work?
Under section 7 (1) EEA 'like work' is work that:
- is performed in the same or similar conditions as another employee, or is interchangeable with the work of another employee, or
- is of equal value to the work performed by another employee.
The equal value provision allows dissimilar jobs to be compared and to be considered 'like work'.
What must I establish to take an equal pay case?
The onus of proof is on the person making the complaint to establish the basic facts. The person must identify a comparator with whom they are performing like work.
They must also establish the discriminatory ground, and the pay differential. If these elements can be established, the employer must then demonstrate that the difference in pay is on grounds other than a discriminatory ground.
Therefore, no time limit for equal pay claims is provided in the EEA and so the six-year limitation period provided under the Statute of Limitations 1957 in respect of breach of contract is the appropriate time limit.
A claim for equal pay must be made within six years of the disparity (or difference) in pay.
What should I look out for in the hiring process?
Employers have to ensure that hiring requirements and interviews do not discriminate against people, even unintentionally.
Example An employer advertises for "Irish only."
Example An employer requires Irish work experience to the disadvantage of non-Irish candidates.
Example An employer requires a candidate to have a Leaving Certificate, not an equivalent from another country.
Example An employer refuses to employ a person on a non-European Economic Area (EEA) work permit.
Certain questions asked at interview or during the selection process can also be discriminatory.
Example An employer refuses to employ an asylum seeker on the basis of their residence in a Direct Provision centre.
Legitimate aim
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.
Transparency
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.
Are language requirements discriminatory?
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.
What are my rights as an EU citizen working in Ireland?
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.
As EU citizen living in Ireland, can I access work in the public sector?
Section 36 of the EEA allows for some public sector employers to impose requirements based on citizenship or proficiency in the Irish Language. This blanket restriction does not however apply based on EU nationals, exercising their free movement right to work in Ireland.
Under section 36 of the EEA, it is lawful to restrict access to certain public sector jobs involving:
- the exercise of public authority powers
- the safeguarding of general interests of the state.
These may include certain posts in the diplomatic service, the police and security forces, the judiciary and also the tax authorities. However, even with respect to these post which do not involve the exercise of public authority, such as administrative or technical support roles, should be open to other EU nationals.
The right to work - Directive 2004/58/EC
The right to work extends to family members of EU workers. This stems from Article 24 of Directive 2004/58/ (The free movement of workers directive) which provides that all union citizens residing in the territory of the host member state shall enjoy equal treatment with the nationals of that Member State, and that this benefit extends to family members who are not nationals of a Member State and who have the right of residence or permanent residence.
This means that a family member of an EU national should in principle have access to jobs in the public sector, subject only to limited situations as set out above.
Can I bring my family to Ireland as an EU worker?
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.
What's covered?
The Employment Equality Acts 1998–2015:
- promote equality;
- prohibit discrimination (with some exemptions) across nine specified grounds (Age, Civil Status, Disability, Family Status, Gender, Membership of the Traveller Community, Race, Religion, Sexual Orientation);
- prohibit sexual harassment and harassment across nine grounds;
- prohibit victimisation;
- require reasonable accommodation for people with disabilities in relation to access, participation and training in employment;
- allow positive action measures to ensure full equality in practice across all nine specified grounds.
The Employment Equality Acts also implement the following EU Directives – The Framework Directive, the Gender Recast Directive, and the Race Directive.
How do I know if I’m being unfavourably treated?
Different types of discrimination are prohibited under the Employment Equality Acts. These include:
Direct discrimination
This is defined as the treatment of a person in a less favourable way than another person who is in a comparable situation, because they differ on any of the nine grounds described above.
This is a difference which:
- exists;
- existed but no longer exists;
- may exist in the future; or
- is imputed to the person concerned (this occurs where a person is labelled as differing under the specified grounds even though this is not the case).
Discrimination by association
This occurs when a person who associates with another person is treated less favourably because that other person differs under any of the nine grounds.
Indirect discrimination
This happens where an apparently neutral provision, criterion or practice which appears unproblematic at first sight, puts a person differing under any of the nine grounds at a particular disadvantage, compared with another person.
This provision, criterion or practice will not amount to discrimination where the employer can show:
- that the provision, criterion or practice is objectively justified by a legitimate aim; and
- that the means of achieving that aim are appropriate; and
- that the means of achieving that aim are necessary.
Instructing discrimination
This occurs when someone gives an order or instructs another person who is in some way dependent, such as an employee, to discriminate against another person.
What positive actions can my employer take for equality?
Positive action
In addition to prohibiting discrimination, the Employment Equality Acts also aim to ensure full equality in practice through positive actions (i.e. more favourable treatment to persons who have a characteristic protected under any of the grounds).
In practice, this means that employers can adopt and maintain specific policies and practices to prevent or compensate for disadvantages linked to any of the grounds.
This might include, for example, providing flexible working hours, e-working, or offering work internships and/or training programmes, or other work benefits that attach to any of the nine grounds.
Vicarious liability
Employers are liable for any acts of discrimination by an employee, or third parties (such as service users, contractors and other business contacts) in the course of his or her employment.
However, it is a defence if the employer can prove that he or she took reasonably practicable steps to prevent the discrimination.
What can I do if I am being harassed or sexually harassed?
Harassment and sexual harassment
Sexual harassment and harassment of an employee (including agency workers or trainees) is prohibited in the
workplace or in the course of employment by:
- another employee;
- the employer;
- clients, customers or other business contacts of an employer. These include any other person with
whom the employer might reasonably expect the victim to come into contact and the circumstances
of the harassment as such that the employer ought reasonably to have taken steps to control it.
The Employment Equality Acts prohibit the victim from being treated differently by reason of rejecting or accepting the harassment (or where it could reasonably be anticipated that he or she would be so treated).
What is harassment and sexual harassment?
Harassment is any form of unwanted verbal, nonverbal or physical conduct related to any of the nine 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 text messages, pictures or other material.
Sexual harassment or harassment of an employee by another employee, employer, client, customer or other business contact, is discrimination by the employer.
It is a defence for an employer to prove that the employer took reasonably practicable steps to prevent the person harassing or sexually harassing the victim.
What if my employer retaliates against me for complaining?
Victimisation
It is unlawful for an employer to penalise an employee for making a complaint under either the Employment Equality Acts 1998–2015 or the Equal Status Acts 2000–2018.
Victimisation occurs where the dismissal or other adverse treatment of an employee is a reaction by the employer to:
- a complaint of discrimination made by the employee to the employer;
- any proceedings by a complainant;
- an employee having represented or otherwise supported a complainant;
- the work of an employee having been compared with that of another employee, for any of the purposes of these Acts, or any enactment repealed by these Acts;
- an employee having been witness in any proceedings under these Acts or any such repealed enactment;
- an employee having opposed by lawful means an act which is unlawful under these Acts or any such
repealed enactment; or - an employee having given notice or an intention to take any of the actions mentioned in 1 to 6 above.
What's not covered?
The prohibition on discrimination is subject to a number of general and grounds-based exemptions.
These are the most common exemptions and not an exhaustive list of exemptions provided for under the Employment Equality Acts.
Exemptions to the race ground
The race ground
There is an exemption for any action taken in accordance with the Employment Permits Act 2003-2014.
The age ground and the race ground
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.
Different treatment is allowed by vocational or training bodies in relation to 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.
Occupational requirement exemption
The Employment Equality Acts allow for difference in treatment which is based on a characteristic related to one of the nine grounds, if the employer can demonstrate that:
- the characteristic constitutes a genuine and determining occupational requirement; and
- the objective is legitimate; and
- the requirement is proportionate.
Exemptions for specific jobs
Employment in another person’s home for the provision of personal services
There is an exemption in relation to access to such employment. However, this exemption does not extend to other areas such as conditions of employment; etc.
Officers or servants of the State
It is not discrimination under the Employment Equality Acts for civil service employers, including An Garda Síochána, the Defence Forces and the civil service more generally to require employees to fulfil any or all of the following requirements – residence, citizenship and proficiency in the Irish language.
Teachers in primary and post primary schools
The application of any provision in relation to proficiency in the Irish language is allowed.
Exemptions in relation to all types of employment
Capacity and competence
An employer is not required to employ someone who will not undertake the duties or is not fully competent or capable of doing the job. However, a person with a disability is fully competent and capable of undertaking any duties, if the person would be so fully competent and capable on reasonable accommodation being provided by the employer.
Educational, technical or professional qualifications
The Employment Equality Acts allow requirements in relation to the holding of pecified educational, technical or professional qualifications which are generally accepted qualifications for the post in question.
Benefits in respect of an employee’s family
The Employment Equality Acts allow employers to provide certain benefits in respect of employee’s families and family events and in relation to the provision of childcare or other care provision.
Case Studies
Exploitation and disrimination of an EU worker
Case | A former employee v An employer |
---|---|
Topic | The Commission provided legal assistance (including legal representation before the WRC) to an EU national who was subject to severe labour exploitation at a family-run bed and breakfast. This included claims for non-payment of wages, holidays, rest breaks and overtime, as well as alleged discrimination on grounds of race, disability, gender and civil status. |
Outcome | The matter was listed for hearing before the WRC in September 2016 – however the case settled. The terms of the settlement were as follows: the former employee received €20,000 from the employer as well as an acknowledgment that the employer would respect their obligations under employment legislation going forward. The employer further agreed to provide a good reference and not to say or write anything negative about their former employee. Separately, the employer was also convicted of offences of failure to keep properrecords, and producing false and misleading records under the Organisation of Working Time Act 1997 and not paying the minimum wage under the National Minimum Wage Act 2000. |
Law | EEA |
Year | 2016 |
Race harrassment by a third party in the public sector
Case | An Employee v. A Public Sector Employer |
---|---|
Topic | The Commission represented a public sector employee before the Workplace Relations Commission (‘the WRC’) in relation to a complaint of third party racial harassment under the EEA. The employee’s case was that she had been subjected to racial harassment from her employer’s service users over a number of years. |
Outcome | The matter was resolved in June 2017 to the satisfaction of all parties following a mediation process facilitated by the Workplace Relations Commission. |
Law | EEA |
Year | 2017 |
Search database for more case studies
What's next?
Make a complaint to the Workplace Relations Commission
The Workplace Relations Commission (WRC) is the body that hears discrimination complaints under Ireland’s equality laws. The WRC deals with both employment and service/goods related claims. There is no fee to bring a case to the WRC and complaints can be made online.
Learn more about the WRC process
Contact us
We, the Irish Human Rights and Equality Commission, have a statutory role to fight discrimination and provide information on equality and human rights in Ireland. Please note however that we are not a court and we do not decide on discrimination claims.
Learn more about how to contact us
Contact another organisation
You may find that another organisation could better help you with your issue.
-
Employment rights / Equal treatment in services
Workplace Relations Commission
Information and Customer Services (ICS), formerly known as Workplace Relations Customer Services, is responsible for the provision of information relating to employment rights, equality and industrial relations matters by means of a telephone call-in service manned by experienced Information OfficersInformation and Customer Services
Workplace Relations Commission
O’Brien Road
Carlow
R93 E920
Phone: 059 9178990 | Lo-call: 1890 80 80 90 * (09.30 - 17.00, Monday to Friday)
Web: https://www.workplacerelations.ie/en/contact_us/contact-details/
-
Employment law clinic
Community Law and Mediation Centre and Arthur Cox
The Community Law and Mediation Centre and Arthur Cox staff an employment law clinic at the Citizens Information Centre on O’Connell Street once a month from 9:30 - 1pm.Citizens Information Centre on O’Connell StreetPhone: 01 847 7804 or 061 536 100
-
Workplace bullying
Health and Safety Authority
The Employment Equality Acts do not extend to generalised bullying or harassment which is not linked to the discriminatory ground. For further information on bullying or harassment not connected to the nine grounds you should contact the Health and Safety Authority (HSA). The HSA provides information and advice on bullying in the workplace. The HSA makes sure that the system of work is not one where bullying is facilitated or tolerated. Where bullying is identified (through a legitimate complaint) employers should have a proper system to deal with bullying complaints, and act reasonably in implementing that system. The HSA can assess this system and make recommendations, and where required, use powers of enforcement to ensure the system is reasonable and the management of bullying does not represent a risk to the employee’s health and/or safety.Workplace Contact Unit
Health and Safety Authority
Metropolitan Building
James Joyce Street, Dublin 1Phone: 1890 289 389
Web: http://www.hsa.ie
-
Information on worker's rights
Workers’ Rights Centre
If you are concerned with your treatment in the workplace, the Workers’ Rights Centre (WRC) provides information, advice or representation in relation to a disciplinary process, workplace legislation, bullying, maternity rights or any other individual dispute with your employer.Workers’ Rights Centre
33 Eden Quay, Dublin 1
WRC Contact:
Lo-call: 1890 747 881 -
Labour unions
Join a union
You may wish to note that all workers have the right to join a union if they so choose. The following website may of assistance to you in this regard: https://www.unionconnect.ie/joinaunion/ -
Anti-racism
INAR (the Irish Network Against Racism)
INAR (the Irish Network Against Racism) is a national network of anti-racism civil society organisations which aims to work collectively to highlight and address the issue of racism in Ireland.Irish Network Against Racism
28 North Great George’s Street
Dublin 1
REPORT RACISM: www.iReport.ie -
Immigration
Immigrant Council Of Ireland
Immigrant Council Of Ireland provides practical information and advice on all immigration related issues. Its Independent Law Centre supports the most vulnerable migrants, including victims of trafficking, so they can live lives free from oppression.Immigrant Council of Ireland,
2 St Andrew Street,
Dublin 2 -
Asylum seekers and refugees
Irish Refugee Council
Irish Refugee Council provides services and support to people seeking protection and those recognised as refugees in Ireland.Irish Refugee Council,
37 Killarney Street
Dublin 1
D01 NX74 -
Immigration and asylum
The Refugee Legal Service
The Legal Aid Board provides confidential and independent legal services to persons applying for international protection in Ireland. If you are applying for international protection in Ireland, you can obtain legal advice and assistance from the Legal Aid Board to assist you with your application. You may register with the Legal Aid Board at any stage of the asylum process, but it is advisable to do so at the earliest possible stage of the process.The Refugee Legal Service
48-49 North Brunswick Street
George’s Lane
Dublin 7 -
Immigration and asylum
International Protection Office, Irish Naturalisation and Immigration Service
The International Protection Office (IPO) is an office within the Irish Naturalisation and Immigration Service (INIS) responsible for processing applications for international protection under the International Protection Act 2015. It also considers, as part of a single procedure process, whether applicants should be given permission to remain.International Protection Office,
Irish Naturalisation and Immigration Service,
79-83 Lower Mount Street,
Dublin 2,
D02ND99 -
Migrant and refugee rights
Nasc
Nasc is the Irish word for “link”. They link migrants and refugees to their rights.34 Paul Street, 1st Floor
Cork City, T12 W14H
-
Migrant Rights
Doras
Doras is an independent, non-governmental organisation working to promote and protect the rights of migrants in IrelandDoras,
Central Buildings,
51a O’Connell Street,
Limerick. V94 W275 -
Immigration and asylum
International Organization for Migration
The International Organisation for Migration (IOM) works to help ensure the orderly and humane management of migration, to promote international cooperation on migration issues, to assist in the search for practical solutions to migration problems and to provide humanitarian assistance to migrants in need, including refugees and internally displaced people.International Organization for Migration
116 Lower Baggot Street,
Dublin 2,
Ireland
-
Migrant Rights
Migrant Rights Centre
Migrant Rights Centre Ireland is a national organisation working for justice, empowerment and equality for migrants and their families3 Lower
Dorset Street Lower
Dublin
D01 Y893 -
Returning migrants
Cross Care
Crosscare Migrant Project is a Dublin based NGO providing information and advocacy support to Irish emigrants and people who have moved to Ireland.Cross Care,
Crosscare Migrant Project
1 Cathedral Street, Dublin 1
D01 EF86
Email: migrantproject@crosscare.ie
Phone: +353 (0)1 873 2844
-
Legal advice
Free Legal Advice Centres
The Free Legal Advice Centre (FLAC) provide confidential, basic legal advice for free and in person across all areas of law. FLAC offers a network of advice clinics around Ireland and you may be able to identify the most suitable one at the following link: Legal Advice Clinic.Free Legal Advice Centres,
13 Lower Dorset Street,
Dublin 1,
Ireland
Phone: Lo-Call: 1890 350 250
Web: https://www.flac.ie/
-
Legal aid
The Legal Aid Board
The Legal Aid Board is the statutory, independent body responsible for the provision of civil legal aid and advice to persons of modest means. Legal advice is any oral or written advice given by a solicitor or barrister, including writing letters and negotiations. Legal aid is representation by a solicitor or barrister in court proceedings. The Legal Aid Board has a number of centers across the country, and the best way to find the one most convenient to you is to contact the Legal Aid Board directly. -
Citizen's Information Centres
Citizen's Information
Citizens Information Centres (CICs) provide free, impartial information, advice and advocacy from more than 215 locations around the country.Find a Citizens Information Centre
https://centres.citizensinformation.ie/Phone: 0761 07 4000
Browse the database of organisations working on human rights and equality issues in Ireland.