Observation (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

Articles 1 and 2 of the Convention. Equality of opportunity and treatment of men and women. The Committee recalls its previous comments concerning article 41.2 of the Constitution of Ireland which provides that “the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved” and that “the State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home”. The Committee expressed concern that these provisions might encourage stereotypical treatment of women in the context of employment, contrary to the Convention and requested the Government to consider reviewing them. In this regard, the Committee notes that the All-Party Oireachtas Committee on the Constitution revisited the issue of article 41.2 of the Constitution in its Tenth Progress Report of 2006, concluding that a change of these provisions was desirable and recommending amendments. The Committee requests the Government to continue to provide information on the progress made with regard to the recommended revision of article 41.2 of the Constitution with a view to eliminating any tension between this provision and the principle of equality of opportunity and treatment of men and women in employment and occupation.

Article 1(1)(b). Additional grounds of discrimination. The Committee recalls that, for the purpose of this Convention, the term “discrimination” includes differential treatment based on any of the grounds listed in Article 1(1)(a), as well as on any additional ground as may be determined by the Member concerned in accordance with Article 1(1)(b). In its previous comments, the Committee noted that the Employment Equality Act covers a number of grounds beyond those expressly listed in Article 1(1)(a) of the Convention (marital status, family status, age, disability, sexual orientation and membership of the Travelling Community) and invited the Government to indicate whether it considers that these grounds are covered by the Convention in respect of Ireland, pursuant to Article 1(1)(b). In its report, the Government confirms that section 6(2) of the Act includes these additional grounds in the definition of discrimination. The Committee also notes the Government’s indication that these provisions were drafted in accordance with the usual legislative procedures, including consultations with employers’ and workers’ organizations and representatives of the Travelling Community. Noting with interest the Government’s statement that it considers the grounds of marital status, family status, age, disability, sexual orientation and membership of the Travelling Community to be within the parameters of Article 1(1)(b), the Committee requests the Government to continue to provide information on the measures taken to promote and ensure equality of opportunity and treatment in employment of occupation, with a view to eliminating discrimination based on these additional grounds in respect thereof.

Article 1(2). Inherent requirements of the job. The Committee recalls that section 2 of the Employment Equality Act provides that “persons employed in another person’s home for the provision of personal services for persons residing in that home where the services affect the private or family life of such persons” are not considered employees under the Act as far as access to employment is concerned. The term “personal services” includes “but is not limited to services that are in the nature of services in loco parentis or involve caring for those residing in the home” (section 2). The Committee notes that these provisions deprive certain domestic workers from protection against discrimination in respect of access to employment. Noting from the Government’s report that this exception is meant to balance the competing rights to respect of one’s private and family life and to equal treatment, the Committee notes that these provisions, in practice, would appear to have the effect of allowing employers of domestic workers to make recruitment decisions on the basis of the grounds listed in section 6(2) of the Act, without such decisions being considered discriminatory.

The Committee recalls that the Convention is intended to promote and protect the fundamental right to equality of opportunity and treatment in employment and occupation and that it only allows for exceptions from the principle of equal treatment as far as they are based on the inherent requirements of the particular job. It therefore considers that the right to respect for one’s private and family life should not be construed as protecting conduct that infringes on this fundamental right (including conduct consisting of differential treatment of candidates for employment on the basis of any grounds covered by Article 1 of the Convention where this is not justified by the inherent requirements of the particular job in question). The Committee also notes that the definition of personal services affecting private or family life contained in section 2 of the Act appears to be broad and non-exhaustive, and open for extensive interpretation. The Committee considers that the exclusion of domestic workers from the protection against discrimination in respect to access to employment, as currently provided for in section 2, may lead to discrimination against these workers contrary to the Convention. The Committee requests the Government to provide information on the practical application of these provisions, including information on any relevant administrative or judicial decisions. It also requests the Government to indicate whether it is considering amending the relevant parts of section 2 of the Employment Equality Act to ensure that decisions concerning the recruitment of all domestic workers cannot be based on any of the grounds contained in section 6(2) of the Act except where this is justified on the basis of inherent job requirements.

The Committee is raising other points in a request addressed directly to the Government.