Aodhán Ó Ríordáin (Dublin North Central, Labour) | Oireachtas source

The principal equality directives have essentially the same definition of indirect discrimination. I will quote from the Framework Employment Directive 2000/78/EC, which contains the following definition: "indirect discrimination should be taken to occur when an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage ...".

There is more in the text of the directive but that quote captures the key point, and I will quote from this one directive only in the interests of brevity.

The wording of the directives was not followed when the directives were transposed into Irish Law. The words "would put" was replaced with the word "puts", as follows, for example, in section 19(4) of the Employment Equality Act: "Indirect discrimination occurs where an apparently neutral provision puts persons of a particular gender (being As or Bs) at a particular gender at a particular disadvantage in respect of remuneration compared with other employees of their employer."

The reason for this is that there was a view at the time the Acts were drafted that the term "would put" could lead to persons taking cases where they did not have locus standior were not members of the particular ground under which they were claiming discrimination. Therefore, the word "puts" replaces the words "would put".The case law is now clear: to claim indirect discrimination, a person must assert membership of a particular class of persons to whom the Acts apply and must demonstrate actual personal detriment. Speculative or theoretical claims are not permissible. It is proposed, therefore, that the definitions of indirect discrimination in Irish equality legislation be amended to follow precisely the EU definitions. Amendments are required to the Employment Equality Acts, the Equality Status Acts and the Pensions Acts, as is evident from the text of amendment No. 4. Essentially, we are replacing the indicative with the subjunctive. We are bringing our legislation into line with the actual language used in the EU directives but not making any change to the actual law as it is applied in practice. In addition, arising from amendments Nos. 4, 10 and 11, this issue comes up in respect of amendment No. 7. However, as the main issue in that amendment relates to advertising, we will discuss it with the next group of amendments but without my repeating this element of the explanation. The nature of the Equality Acts is such that technical adjustments are required in individual sections that relate to more than one of the substantive amendments I am recommending. I hope, therefore, that Members will bear with me.