Article 14 of the European Convention on Human Rights provides that the enjoyment of rights and freedom set forth in the Convention shall be secured without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinions, national or social origin, association with a national minority, property, birth or other status.
The equality right must be therefore linked to another right under the Convention. The Article may be applicable if the action is within the scope of the other grounds.
There is a protocol which Ireland has not yet ratified which provides for the right to be established substantively as against public authority.
Type of Discrimination
The discrimination must be based on characteristics listed or other status. Accordingly, the list is non-exclusive.
The courts have held that it includes age, sexual orientation, marital status, trade union membership, military status, professional status, imprisonment or other personal characteristic or status.
The prohibition applies to discrimination, both direct and indirect. Indirect discrimination is action that has a disproportionately adverse effect on a particular category.
States made treat persons differently whose status and situation are different. There must be an objective and reasonable justification for the differentiation.
The justification must be based on facts and have a rational foundation which is proved in order to rebut the claim of discrimination. The legitimate governmental issues may include national security, linguistic policy, safety, economic welfare etc. In practice, states are given a wide leeway unless there is manifest evidence to undermine the justification.
The law must be proportionate and represent a fair balance between the respective governmental interests and the individual freedom concerned. States have wide latitude in setting social and economic policies. Provided that the state action is within this wide area, it will not breach the Convention.
The courts will have regard to standards in different countries. If standards are patently at variance with equivalent standards in other countries, they may be found to be discriminatory. Courts will look at the evolution of society.
Proportionality & Suspect Grounds
Where the differentiation is limited, it may be justified by a less or lighter public interest. This is, in effect, proportionality.
On the other hand, in the case of certain types of discrimination, there must be good weighty reasons and objective justifications. Where differentiation is on the basis of race, sex, nationality, sexual orientation, religion, or illegitimate status, the grounds are suspect, as under US practice.
The Charter of Fundamental Rights under EU law provides that any discrimination based on grounds such as sex, race, colour, ethnic or social origin, genetic features, language, religion, belief, political or other opinions, membership of a national minority, property, birth, disability, age or sexual orientation are to be prohibited.
In the application of the treaty, discrimination on grounds of nationality is prohibited. This protection is supplemental to other provisions in the treaty and European union law asserting equality.
EU Treaty Equality
An equality provision has been in the European Union treaties since its foundation. The treaties had an immediate impactful effect in Ireland in terms of employment equality, legislation and anti-discrimination legislation.
The treaty on European Union gives legislative competence to the EU to take action to combat discrimination based on sex, racial or ethnic origin, religious belief, disability, age or sexual orientation.
The early Equal Pay Directive required equal pay for work of equal value between men and women. In 1975 an Equal Treatment Directive required the elimination of discrimination on grounds of sex, marital and family status. Similar prohibitions on discrimination apply to employment and, motherhood, and pregnancy.
The Equal Treatment in Employment Directive deals with certain wider concepts, including harassment and requires equality bodies to enforce equal treatment in employment. The Burden of Proof Directive shifts the burden of proof to the State in sex discrimination cases. The Goods and Services Directive requires equal treatment in relation to the provision of goods and services in the public sphere.
The Employment Equality Directive provides a general framework to combat discrimination on the grounds of religion, disability, age, and sexual orientation as regards employment and occupation. The Racial Equality Directive prohibits direct and indirect discrimination outside of the employment context, and it applies to a range of goods and services.
Generally, discrimination on the above grounds is prohibited in the context of employment. The prohibition applies to direct and indirect discrimination. Indirect discrimination is de facto discrimination, where measures apply disproportionately to particular classes of persons.
There must be an objective justification for any classification and differences. They must be proportionate and reasonable.