General legal framework

• Author: Frances Meenan
• Pages: 7-7

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2 General legal framework

2.1 Constitution

2.1.1 Constitutional ban on sex discrimination

The Irish Constitution of 1937 forbids any exclusion by reason of sex from Irish nationality

and citizenship. Article 40 states that ‘all citizens shall, as human persons, b e held equal

before the law’ and proceeds to allow the State, in its enactments, to ‘have due regard to

differences of capacity, physical and moral, and of social function.’ Article 45 provides that

all citizens, ‘men and women equally’, have the right to ‘an adequate means of livelihood’,

and directs the State to ensure that they may ‘through their occupations find the means

of making reasonable provision for their domestic needs.’7

2.1.2 Other constitutional protection of equality between men and women

Ireland acceded to the Convention on the Elimination of All Forms of Discrimination Against

Women, and the Irish Human Rights and Equality Commission made its submission in

January 20178 and provides a useful report on the main areas of equality in Ireland.

However, the Convention is not incorporated into Irish la w.9 The Commission has

recommended that the Convention be incorporated into Irish law.

2.2 Equal treatment legislation

The Employment Equality Acts 1998 to 2015 are concerned with matters in relation to

employment; the Equal Status Acts 2000 to 2015 are concerned with the provision of

goods and services; the Pensions Acts 1990 to 2018 are concerned with pensions. Th e

Irish Human Rights and Equality Commission Act 2014 established the Irish Human Rights

and Equality Commissio n to, inter alia, provide information to the public and keep under

review the effectiveness of the equality10 and human rights legislation.

The Employment Equality Acts ,11 the Equal Status Acts12 and the Pensi ons Acts13 provide

for the following discriminatory ground s: namely gender, civil statu s, family status, age,

religion, race, disability, sexual orientation and being a member of the Traveller

community. There are a number of other statutes which provide for maternity, pat ernity

and parental leave entitlements and protection.

7 Article 41.2 provides: ‘1. In particular, 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. 2. 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’. There has been considerable debate on having a constitutional

referendum to amend this wording. Presently the Citizens’ Assembly on Gender Equality is considering such

provisions in the Constitution.

8 Based on the combined sixth and seventh report to the UN Committee. Ireland acceded to the Convention

in 1985. https://www.ihrec.ie/app/uploads/2017/02/Ireland-and-the-Convention-on-the-Elimation-of-All-

Forms-of-Discrimination-Against-Women.pdf.

9 Article 29.6 of the Constitution of Ireland provides that ‘no international agreement shall be part of the

domestic law of the State save as may be determined by the Oireachtas [parliament]’.

10 If there is a claim under the Employment Equality Acts 1998 (as amended), the Equal Status Acts 2000 (as

amended), the Pensions Acts 1990 (as amended), the Maternity Protection Acts 1994 (as amended), the

Adoptive Leave Acts 1996 (as amended), the Parental Leave Acts 1998 (as amended), the Paternity Leave

and Entitlements Act 2016, the Carer’s Leave Acts 2000 (as amended) and the Parent’s Leave and Benefit

Act 2019 then in the first instance, the claim is referred to the Director General of the Workplace Relations

Commission. Alternatively, if there is a claim under the Employment Equality Acts, the Equal Status Acts

and the Pensions Acts on grounds of sex, the complainant may elect to initiate their claim in the Circuit

Court with unlimited jurisdiction as to damages that may be awarded.

11 Section 6 of the Employment Equality Act 1998 (as amended).

12 Section 3 of the Equal Status Act 2000 (as amended).

13 Section 66 of the Pensions Act 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

(as amended).