1. Introduction

Direct discrimination is the most straightforward form of unlawful conduct under the Employment Equality Acts 1998 to 2015. It occurs where a person is treated less favourably than another person is, has been or would be treated in a comparable situation, by reason of one of the nine protected characteristics.

Direct discrimination cannot, in general, be objectively justified. This article considers the elements of a direct discrimination complaint, the comparator requirement, and the limited statutory exceptions that exist.

2. Legislation and Case Law

SSection 6(1) of the Acts defines discrimination as occurring where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the nine grounds set out in Section 6(2): gender, civil status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community.

The Court of Justice in Coleman v Attridge Law C-303/06 held that direct discrimination by association is unlawful: an employee may complain of discrimination on grounds of disability where the discrimination relates to a third party with whom the employee is associated (in that case, the employee’s child).

Section 16 of the Acts (disability), Section 25 (gender), Section 34 (age), Section 36 (race) and Section 37 (religion) contain limited statutory exceptions where occupational requirements or other defined objectives permit differential treatment.

Article 2(2)(a) of Directive 2000/78/EC and equivalent provisions of Directive 2006/54/EC prohibit direct discrimination on each of the recognised grounds, with limited and tightly construed exceptions. 

3. Decision

The WRC will examine whether the less favourable treatment occurred and whether it was on grounds of a protected characteristic. The Section 85A burden of proof framework applies: once primary facts are established, the burden shifts to the respondent.

Direct discrimination is generally not amenable to objective justification, with the exceptions provided by statute. Age, however, is treated differently under Section 34(4), which permits objective justification for differences in treatment.

Compensation up to two years’ remuneration may be awarded under Section 82(4), and an additional order may be made requiring the employer to take specified action to prevent recurrence.

4. Takeaway

Employers should ensure that decision-making criteria are explicit, objective and consistently applied. Subjective criteria such as “cultural fit” or “team chemistry” can mask direct discrimination and are difficult to defend if challenged.

Complainants should focus on identifying the specific decision-maker, the timing of the adverse decision, and any contemporaneous communications that may indicate the influence of a protected characteristic on the decision.

5. Further information

This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.

6. About Crushell & Co

Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.

We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.

Connect: @CrushellLaw or www.crushell.ie