Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the information in the Government’s first report on the Convention, as well as the attached documentation and statistics. The Government is requested to provide information on the following points.

1. Article 1 of the Convention. The Committee notes that the Constitution of Ireland provides for equality before the law for citizens. It also notes that article 40.1 provides that equality before the law does not mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function", and that article 41.2 affirms the particular value of the life of women in the home and that the State will act to ensure that women will not be forced by economic necessity to employment "to the neglect of their duties in the home". The Committee is concerned that these provisions might encourage stereotypical treatment of women in the context of employment contrary to the Convention. It requests the Government to consider reviewing these provisions in order to minimize or eliminate any possible tension between them and the promotion of equal opportunity of men and women in employment and occupation.

2. The Committee notes the Equal Employment Act, 1998 ("the Act"), as amended and buttressed by the Equal Status Act, 2000, and its wide range of protection against employment discrimination. In particular, the Committee takes note of the Act’s protection against employment discrimination based on all the grounds specified in the Convention, other than political opinion and social origin. The Committee asks the Government if it is considering amending the Act to bring its coverage into line with the Convention, by including a prohibition of discrimination in employment on the grounds of political opinion and social origin. In the meantime, the Committee requests the Government to provide information on any practical steps it is taking to combat discrimination in employment based on either of these grounds. Noting that section 6(2) of the Act also prohibits discrimination based on marital status, family status, sexual orientation, age, disability and membership in the traveller community, the Committee asks the Government if it has extended, or if it intends in the future to extend, its interpretation of the application of the Convention to these grounds and to any other that the Minister deems should be covered by the Act.

3. With regard to the prohibition of indirect discrimination under the Act, the Committee notes that the definition of "indirect discrimination" on the basis of gender in section 22 differs somewhat from the definition of "indirect discrimination" on the basis of the other prohibited grounds of discrimination in section 31, and requests the Government to explain what practical differences the two definitions may entail.

4. Article 1, paragraph 2. The Committee notes that any requirement that one has technical or professional qualifications for a particular post, where the qualification is "generally accepted", is exempted from the definition of discrimination under the Act. The Government is requested to provide information on whether this allows for qualifications to be required that extend beyond the inherent requirements of the job. Please also provide information on whether there are any safeguards to ensure against this provision being applied in practice in a manner that indirectly discriminates against persons on grounds contained in the Convention.

5. The Committee notes that under sections 25(3) and 37 of the Act, where a post involves duties outside the State, in a place where the laws or customs could not reasonably be performed by a person of the sex, race or religion in question, the post will be construed as having sex, race or religion (as the case may be) as an occupational qualification. Concerned that potentially discriminatory treatment in other jurisdictions may inadvertently have repercussions in Irish employment practice, the Committee requests the Government to describe how these provisions are employed in practice.

6. Noting that the Act protects from discrimination any person who has entered into or works under a contract of employment (section 8), the Committee requests the Government to clarify the extent of coverage under the Act or otherwise for persons, such as those engaged in certain occupations or self-employed persons, who work but are not employed.

7. In light of the fact that section 37(5) of the Act exempts from protection against discrimination, on all but the gender ground, employment in a private household, the Committee asks the Government for statistical information on private household employment practices. Additionally, the Committee requests that the Government provide information about any measures that are in place to ensure against any discriminatory practices in the context of domestic employment.

8. The Committee notes that section 12(7) of the Act provides that discrimination based on race, inter alia, does not occur when preferential treatment in vocational training, specifically regarding fees or allocation of places, is provided to citizens of Ireland or nationals of another Member State of the European Union; and, in addition, it permits differential treatment as regards race in the awarding of sponsorships, scholarships, bursaries and other awards where "reasonably justifiable, having regard to traditional or historical considerations". The Committee is concerned that these provisions may have a discriminatory effect on the basis of race with respect to vocational training and awards, which would be inconsistent with the Convention, and asks if the Government is considering repealing or modifying the provision. In the meantime, the Committee encourages the Government to monitor the provision of such training and awards to ensure that neither direct nor indirect race-based discrimination occurs, and it requests that the Government provide the Committee with information on its efforts in this regard.

9. Article 2. The Committee notes the expansion of powers of the newly named Equality Authority ("Authority"), as well as the creation of the Office of the Director of Equality Investigations ("ODEI") and the Human Rights Commission. It also notes the wide range of constructive and informative activities that these statutory bodies (particularly the Authority and ODEI) are engaged in, that are directed specifically to combating discrimination in employment and promoting equal employment opportunities, such as the development and implementation of the code of practice on sexual harassment and harassment in the workplace, the Authority’s research into and lobbying on behalf of collecting employment data disaggregated by all the Convention’s prohibited grounds of discrimination, and the carrying out of equality reviews. The Committee requests the Government to continue to provide information on the activities of these bodies.

10. Article 3. The Committee notes the Government’s cooperation with a wide range of social partners, including employers’ and workers’ organizations, in the promotion of its national policy, by means of social partnership agreements (including the Programme for Fairness and Prosperity, and Sustaining Progress). It requests the Government to continue providing information on the details of such cooperative arrangements in so far as they bear on the principles of the Convention, including any new programmes and practices developed under them. It also requests further information on applicable progress made in pursuit of the National Employment Action Plan goals.

11. Noting the Act’s application to most employment under the direct control of national authorities, the Committee requests the Government to provide details of efforts by such authorities, including affirmative action plans and policies, employee and management training programmes, the provision of vocational guidance, training and placement services, and other related practices, designed to further the goals of the national policy to promote equal opportunity and to eliminate discrimination in employment.

12. Article 4. The Committee notes the Government’s statement that there are no legislative or administrative appeal mechanisms in place against measures taken in cases where persons are suspected of or engaged in activities prejudicial to the security of the State. However, the Committee draws the Government’s attention to the fact that the Convention requires the Government to provide for an effective right to appeal of persons to which employment opportunities have been denied for reasons related to state security (see 1988 General Survey on the Convention, paragraph 137). The Committee therefore requests the Government to provide information on whether such cases have arisen and on how the requirements of the Convention are guaranteed in such cases.

13. Article 5. The Committee notes that current legislation permits the taking of positive measures in certain contexts to remove existing employment inequalities, particularly for women, and also for travellers and for victims of discrimination in the provision of training or work experience. In this connection, it requests the Government to furnish further details as to what particular kinds of actions and programmes are contemplated, as well as further information about any such efforts that are already in place or planned. In addition, the Committee asks the Government if it contemplates extending the scope of permissible positive action to reach inequalities in other aspects of the employment context, and for the other grounds of discrimination recognized by the Convention.