Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Ireland (Ratification: 1999)

Articles 1(1)(a) and 2 of the Convention. Gender discrimination and equality of opportunity and treatment for men and women. In its previous comments, the Committee had noted that a Constitutional Convention had voted in favour of recommending that article 41.2 of the Constitution, which provides that “mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home”, be amended by replacing the word “mothers” with “carers”. The Committee had noted that this proposed amendment, while aiming at recognizing the role of caregivers in society, was likely to apply in practice mainly to women and that it might continue to hinder the inclusion of women in the labour market, or impede their ability to re-enter the labour market. It therefore requested the Government to ensure that the Constitution did not encourage direct or indirect stereotypical treatment of women in the context of employment and occupation. The Committee notes the Government’s statement in its report that the Programme for a Partnership Government, published in May 2016, proposed to hold a referendum on article 41.2 of the Constitution and that this referendum is not due to take place before 2018. It further notes the policy statement of the Irish Human Rights and Equality Commission (IHREC), on article 41.2 of the Constitution (June 2018) in which IHREC expresses the view that article 41.2 perpetuates gender stereotypes and that it should be amended to: (i) be rendered gender neutral; (ii) reference “family life”, and that “family life” should be understood as including a wide range of family relationships and include situations where family members do not live in the same house; and (iii) recognize and support care work, including parents and others providing family care. The Committee requests the Government to provide information on the measures taken to implement the recommendations of the Irish Human Rights and Equality Commission. It further urges the Government to take the opportunity presented by the current constitutional review process to ensure that article 41.2 of the Constitution does not encourage, directly or indirectly, stereotypical treatment of women in the context of employment and occupation and to provide information on the specific steps taken in this regard.

Article 1(1)(a). Discrimination based on political opinion or social origin. The Committee recalls that in its previous comment, noting that the grounds of discrimination prohibited under the Employment Equality Act do not cover political opinion and social origin, it had asked the Government to take steps to ensure legislative protection against discrimination in employment and occupation based on political opinion and social origin, and to provide information on the progress made in this regard as well as on the measures taken to ensure protection against discrimination based on these two grounds in practice. The Committee notes with concern the Government’s repeated statement that it has no immediate plans to amend the equality legislation so as to include social origin and political opinion as prohibited grounds of discrimination. Recalling that is has consistently stated that where legal provisions are adopted to give effect to the Convention, they should include at least all of the grounds of discrimination set out in Article 1(1)(a) of the Convention, the Committee urges once again the Government to take steps to ensure legislative protection against discrimination in employment and occupation based on political opinion and social origin, and to provide information on any progress made in this regard. It also reiterates its requests to the Government to provide information on the measures adopted or envisaged to ensure protection against discrimination based on political opinion and social origin in practice.

Article 1(2). Inherent requirements of the job. In order to ensure that any exception to the principle of non-discrimination enshrined in the Convention is restricted to the inherent requirements of a particular job, the Committee previously urged the Government to take steps to amend the relevant provisions of section 2 of the Employment Equality Act which excludes from the Act’s scope “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”. Section 2 thereby permits employers of domestic workers to make recruitment decisions on discriminatory grounds. The Committee notes the Government’s statement that while the exception in section 2 applies to recruitment, once in employment, discrimination is prohibited against such workers. The Government further indicates that employers are encouraged to implement non-discriminatory practices through the voluntary Code of Practice for Protecting Persons Employed in Other People’s Homes. The Committee notes however that this Code of Practice only protects domestic workers from discrimination once they are employed and not in their access to employment. It recalls in this regard that there are very few instances where the grounds listed in the Convention actually constitute inherent requirements of the job. For example, distinctions on the basis of sex may be required for certain jobs, such as those in the performing arts or those involving physical intimacy. These distinctions should still be determined on an objective basis and take account of individual capacities. Overly broad exceptions in equality legislation excluding domestic workers from the protection of discrimination in respect of access to employment, may lead to discriminatory practices by employers against these workers, contrary to the Convention. The Committee considers that the right to respect for private and family life should not be construed as protecting conduct that infringes the fundamental right to equality of opportunity and treatment in employment and occupation, including conduct consisting of differential treatment of candidates for employment on the basis of any of the grounds covered by Article 1 of the Convention where this is not justified by the inherent requirements of the particular job (see 2012 General Survey on fundamental Conventions, paragraph 830). In this regard, the Committee wishes to draw attention to the fact that: (i) no provision in the Convention limits its scope as regards individuals or branches of activity; and (ii) the protection afforded by the Convention includes all aspects of employment and occupation – including access to employment and to particular occupation. Welcoming the recent ratification by Ireland of the Domestic Workers Convention, 2011 (No. 189), the Committee refers the Government to its comments adopted in 2017 under that instrument. The Committee urges the Government once again to take steps to amend the relevant parts of section 2 of the Employment Equality Act, so as to ensure that any limitations on the right to non-discrimination in all aspects of employment and occupation are restricted to the inherent requirements of the particular job, as strictly defined.

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