THE INTERNATIONAL CONVENTION ON THE PROTECTION AND PROMOTION OF THE RIGHTS AND DIGNITY OF PERSONS WI

1
THE INTERNATIONAL CONVENTION ON THE PROTECTION
AND PROMOTION OF THE RIGHTS AND DIGNITY OF
PERSONS WITH DISABILITIESGaps in Irish Equality
Law where the Convention should Inspire Law Reform

• By Eilís Barry BL, Legal adviser to the Equality
  Authority

2

• Education Act 1998
• Education Welfare Act 2000
• Equal Status Act 2000
• Education for Persons with Special Education
  Needs Act 2004
• Disability Act 2005

3

• The Employment Equality Acts 1998 2004 and the
  Equal Status Acts 2000 2004
• promote equality
• prohibit discrimination (with significant
  detailed exemptions) on nine discriminatory
  grounds
• prohibit sexual harassment and harassment
• prohibit victimisation
• require reasonable accommodation of people with
  disabilities
• allow positive action measures

4

• "disability" means
• (a) the total or partial absence of a person's
  bodily or mental functions, including the absence
  of a part of a person's body,
• (b) the presence in the body of organisms
  causing, or likely to cause, chronic disease or
  illness,
• (c) the malfunction, malformation or
  disfigurement of a part of a person's body,
• (d) a condition or malfunction which results in a
  person learning differently from a person without
  the condition or malfunction, or
• (e) a condition, disease or illness which affects
  a person's thought processes, perception of
  reality, emotions or judgement or which results
  in disturbed behaviour

5

• CONVENTION PREAMBLE
• (e) Recognizing that disability is an evolving
  concept and that disability results from the
  interaction between persons with impairments and
  attitudinal and environmental barriers that
  hinders their full and effective participation in
  society on an equal basis with others,and
• Person with disabilities include those who have
  long-term physical, mental, intellectual or
  sensory impairments which in interaction with
  various barriers may hinder their full and
  effective participation in society on an equal
  basis with others.

6

• DISCRIMINATION
• Section 3 Equal Status Act 2000 as amended by
  section 48 Equality Act 2004
• 3.(1) For the purposes of this Act
  discrimination shall be taken to occur
• (a) where a person is treated less favourably
  than another person is, has been or would be
  treated in a comparable situation on any of the
  grounds specified in subsection (2) (in this Act
  referred to as the discriminatory grounds)
  which
• (i) exists,
• (ii) existed but no longer exists,
• (iii) may exist in the future, or
• (iv) is imputed to the person concerned,
• (b) where a person who is associated with another
  person
• (i) is treated, by virtue of that association,
  less favourably than a person who is not so
  associated is, has been or would be treated in a
  comparable situation, and
• (ii) similar treatment of that other person on
  any of the discriminatory grounds would,
• by virtue of paragraph (a), constitute
  discrimination,
• or
• (c) where an apparently neutral provision puts a
  person referred to in any paragraph of section
  3(2) at a particular disadvantage compared with
  other persons, unless the provision is
  objectively justified by a legitimate aim and the
  means of achieving that aim are appropriate and
  necessary.

7

• CONVENTION
• Article 2
• Discrimination on the basis of disability means
  any distinction, exclusion or restriction on the
  basis of disability which has the purpose or
  effect of impairing or nullifying the
  recognition, enjoyment or exercise, on an equal
  basis with others, of all human rights and
  fundamental freedoms in the political, economic,
  social, cultural, civil or any other field. It
  includes all forms of discrimination, including
  denial of reasonable accommodation

8

• POSITIVE DUTY / MAINSTREAMING
• Article 4 (c) Convention
• Ireland by virtue of undertakes
• To take into account the protection and
  promotion of the human rights of persons with
  disabilities in all policies and programmes.
• section 75 of the Northern Ireland Act which
  imposes a duty on specified public authorities to
  have
• due regard to the need to promote equality of
  opportunity in carrying out their public
  functions.

9

• SCOPE EQUALITY
• Employment,
• self-employment,
• provision of goods and services,
• accommodation,
• educational establishments
• Functions of the State
• SCOPE CONVENTION
• the political, economic, social, cultural, civil
  or any other field.

10

• EXEMPTIONS
• Statutory Exemption
• 14. Nothing in this Act shall be construed as
  prohibiting
• (a) the taking of any action that is required by
  or under
• (i) any enactment or order of a court,
• (ii) any act done or measure adopted by the
  European Union, by the European Communities or
  institutions thereof or by bodies competent under
  the Treaties establishing the European
  Communities, or
• (iii) any convention or other instrument imposing
  an international obligation on the State

11

• CONVENTION
• Article 4(1)(b)
• (b) To take all appropriate measures, including
  legislation, to modify or abolish existing laws,
  regulations, customs and practices that
  constitute discrimination against persons with
  disabilities

12

• REASONABLE ACCOMMODATION EQUALITY
• There are differing standards in relation to
  reasonable accommodation in the Employment
  Equality Acts 1998 2004 and the Equal Status
  Acts 2000 2004.
• An employer is obliged to take appropriate
  measures to enable a person who has a disability
  
• to have access to employment
• to participate or advance in employment
• to undertake training
• unless the measure would impose a
  DISPROPORTIONATE BURDEN on the employer.

13

• A much less onerous obligation is imposed under
  the Equal Status Acts 2000 2004.
• A person selling goods or providing services, a
  person selling or letting accommodation or
  providing accommodation, educational
  establishments and clubs must do all that is
  reasonable to accommodate the needs of a person
  with a disability. This involves providing
  special treatment or facilities in circumstances
  where without these, it would be impossible or
  unduly difficult to avail of the goods, services,
  accommodation etc.
• Nominal cost

14

• REASONABLE ACCOMMODATION CONVENTION
• Reasonable accommodation means necessary and
  appropriate modification and adjustments not
  imposing a disproportionate or undue burden,
  where needed in a particular case, to ensure to
  persons with disabilities the enjoyment or
  exercise on an equal basis with others of all
  human rights and fundamental freedoms

15

• CHILDREN WITH DISABILITIES
• Article 7 provides
• 1. States Parties shall take all necessary
  measures to ensure the full enjoyment by children
  with disabilities of all human rights and
  fundamental freedoms on an equal basis with other
  children.
• 2. In all actions concerning children with
  disabilities, the best interests of the child
  shall be a primary consideration.
• 3. States Parties shall ensure that children with
  disabilities have the right to express their
  views freely on all matters affecting them, their
  views being given due weight in accordance with
  their age and maturity, on an equal basis with
  other children, and to be provided with
  disability and age-appropriate assistance to
  realize that right.

16

• Section 3(3) of the Equal Status Acts 2000
  2004 provides that
• (3) Treating a person who has not attained the
  age of 18 years less favourably or more
  favourably than another, whatever that other
  person's age, shall not be regarded as
  discrimination on the age ground.

17

• EDUCATION
• Article 24(c) of the Convention requires that
• Reasonable accommodation of the individuals
  requirements is provided

18

• HEALTH
• Article 25(e) of the Convention prohibits
• discrimination against persons with disabilities
  in the provision of health insurance, and life
  insurance where such insurance is permitted by
  national law, which shall be provided in a fair
  and reasonable manner
• In contrast, section 5(d) of the Equal Status
  Acts 2000 2004 allows
• differences in the treatment of persons in
  relation to annuities, pensions, insurance
  policies or any other matters related to the
  assessment of risk where the treatment
• (i) is effected by reference to
• (I) actuarial or statistical data obtained from a
  source on which it is reasonable to rely, or
• (II) other relevant underwriting or commercial
  factors,
• and
• (ii) is reasonable having regard to the data or
  other relevant factors,

19

• WORK
• Enable persons with disabilities to have
  effective access to general technical and
  vocational guidance programmes, placement
  services and vocational and continuing training

20

• Examine impact of Convention on Education Act
  1998, Education and Welfare Act 2000, Education
  for Persons with Special Education Needs Act 2004
  and the Disability Act 2005

21

• Compliance with the Convention would be assisted
  by
• Amend definition of discrimination in the
  Employment Equality Acts 1998 2004 and the
  Equal Status Acts 2000 2004
• Introduce a positive duty to promote equality
• Expand the scope of the Equal Status Acts 2000
  2004 to include the function
• Delete the statutory exemption in the Equal
  Status Acts 2000 2004
• Amend the reasonable accommodation provisions in
  the Equal Status Acts 2000 2004 to delete the
  nominal cost exemption
• Removing the blanket exemption on the age ground
  concerning children under 18
• Amend the exemption in section 5(d) of the Equal
  Status Acts 2000 2004 in relation to insurance
• Examine the situation of people in Sheltered
  Workshops