The Key Elements

In order for discrimination to be established as occurring in contravention of the norms discussed above there must be (a) a difference in treatment between (b) persons who are in analogous or relatively situations by (c) reference to one of the prohibited grounds where (d) there is no objective and reasonable justification for this difference in treatment.

A difference in treatment may arise from action taken by the state in the form of, e.g., prohibiting or requiring certain conduct, imposing or removing certain disqualifications, giving or denying various opportunities or affecting particular interests or possessions.

Persons claiming to be subject to discrimination will need to demonstrate that their position is analogous or relatively similar to that of others benefiting from more favourable treatment and thus identify an appropriate comparator.²¹⁸⁷

Tribunals applying global and European norms against discrimination have recognised that discrimination may be either direct or indirect in character. Discrimination will be direct where it is established that the reason for the difference in treatment was a prohibited ground whereas it will be indirect where a condition, practice, requirement or rule has a disproportionate impact upon a particular class or group of persons despite being neutral on its face with respect to the treatment of different classes or groups. Indirect discrimination may also arise from a de facto situation.²¹⁸⁸ In assessing this impact, statistical evidence can be sufficient to put the burden on the State concerned to justify the difference in treatment.²¹⁸⁹