Observation (CEACR) - adoptée 2012, publiée 102ème session CIT (2013)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Irlande (Ratification: 1999)

Articles 1 and 2 of the Convention. Equality of opportunity and treatment for men and women. The Committee recalls that article 41.2 of the Constitution provides that “the State recognizes 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”. In its previous comments, the Committee expressed concern that these provisions might encourage stereotypical treatment of women in the context of employment, contrary to the Convention, and it requested the Government to consider reviewing them. The Committee notes the Government’s indication that the Programme for the Government of National Recovery 2011–16 includes a commitment to establishing a Constitutional Convention to consider comprehensive constitutional reform, with a mandate to consider, among others, amending “the clause on women in the home” and encouraging greater participation of women in public life. According to the Programme, a report is to be established within 12 months on this issue, among others. The Committee hopes that the Government will be able to report progress in the near future concerning the 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 for men and women in employment and occupation, and asks the Government to provide information on any developments in this respect. Please provide detailed information on the establishment of the Constitutional Convention, and provide any report or recommendations adopted on the revision of article 41.2 of the Constitution and any follow-up thereto.

Article 1(2). Inherent requirements of the job. In its previous comments, the Committee recalled that section 2 of the Employment Equality Act excludes from the scope of the Act with respect to access to employment “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”. Under section 2, 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”. The Committee pointed out that the definition of personal services affecting private or family life appears to be broad and non-exhaustive, and open to extensive interpretation. It noted 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 discriminatory grounds listed in section 6(2) of the Act – gender, marital status, family status, sexual orientation, age, disability, race, membership of the Traveller community – without such decisions being considered discriminatory. The Committee notes that in its report the Government refers once again to the need to balance the competing rights to respect private and family life and to equal treatment and that it reaffirms that the exclusion only applies to the access of domestic workers to employment. According to the Government, there is the possibility for a tribunal or a court to construe and apply the relevant provisions in a manner consistent with the human rights of the employer, employee and recipient of such personal services. The Committee recalls that the Convention is intended to promote and protect the fundamental right to non-discrimination and equality of opportunity and treatment in employment and occupation of all workers and that it only allows for exceptions to the principle of equal treatment in so far as they are based on the inherent requirements of a particular job. The Committee recalls that there are very few instances where the grounds listed in the Convention actually constitute inherent requirements of a job and exceptions relating to inherent requirements should be interpreted restrictively and on a case-by-case basis. 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 (see General Survey on fundamental Conventions, 2012, paragraphs 827–831). The Committee therefore requests the Government to take steps to amend 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 the inherent requirements of the job, as strictly defined.

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