On the last occasion I said I would look carefully at this promotion section, section 3 (6), between now and Report Stage. I made the point that I was anxious to see that we advance in the promotion area because it is at the heart of this Bill. I agree that anything proposed by us must be practical and with this criteria in mind I will look very closely at it between now and Report Stage.
Anti-Discrimination (Employment) Bill, 1975: Committee Stage (Resumed).
Debate resumed on amendment No. 13a:
In page 4, lines 19 to 23, to delete subsection (6).
—(Deputy G. Fitzgerald.)
I had expected the Minister to have had more to say on this subsection. I agree with the Minister that we must improve the promotion opportunities of women and ensure that equality exists. It would appear that this is a subsection which cannot be complied with. That being the case, I do not regard it as a subsection that should be left in the Bill. We are referring to section 3 which refers to discrimination by employers being prohabited. I and my part want to co-operate with the Minister in ensuring that discrimination is prohibited, but it would be disastrous for this House to pass a section or a subsection that would contain something that would encourage contention or controversy among an existing staff. On the last occasion when things became a little heated on all sides, I mentioned a number of people to the Minister. If ten people are equally qualified for promotion opportunities and there are only four vacancies it would appear that under this section the six people who are not promoted have a grievance for redress although in effect there were no positions to which they could be promoted. This may seem silly but it is my reading of the subsection. We should not allow legislation to go through in this way.
Having regard to the question of equal opportunity let us assume that the ten people are made up of five men and five women and that two men and two women are promoted. This subsection provides that any one of those six has the right to accuse an employer of discrimination since he or she, with the other four, is equally qualified. The subsection reads that a person shall be taken to discriminate against an employee if he refuses or omits deliberately to promote a person to a post for which he is qualified in circumstances in which other person equally qualified are promoted. This does not take account of the promotional outlets not being available.
It is obvious from reading the subsection that Deputy Fitzgerald is right. We must endeavour to impress on the Minister the hopeless position that would obtain in the event of this subsection being passed without amendment. Deputy Fitzgerald illustrated the situation that would apply by reffering to a hypothetical case of ten persons in a situation in which all were equally qualified but where there were only four vacancies. At any time the matter of promotion is a delicate one but by including this subsection we would contribute to further industrial disorder and disruption. In any sphere of economic activity it has generally been the case in the past that, all things being equal, the person with the longest service was promoted but nowadays the situation is more complex. Naturally, though, an employer will pick for promotion the people he consider best suited for the job conall the people in contention were worthy of promotion and were capable of carrying out the duties involved in work at a high level but if there are not enough vacancies what is an employer to do? An employee in such circumstances would take the line that the Dáil seemed to think that all the people concerned should be promoted.
The Minister has had a full week to look at this matter, discussion of which ended in a rather unmannerly fashion on the last occasion. I need hardly stress that the bad manners did not emanate from this side of the House. If the Minister refuses to comply with our request to amend the subsection let it be on his head that we are sowing the seeds of disruption in industrial and commercial concerns. However, I am still hoping that the Minister will meet us on this point in order that this Bill, like the two previous ones, may make a contribution towards better industrial relations.
As I have explained to Deputies, part of the difficulty here may lie in the drafting of the subsection. That is something we must look at between now and Report Stage. Deputies will appreciate that it is necessary to provide for a situation in which bias exists in relation to opportunities of promotion. We must provide, too, in regard to the question of selection for promotion as well as the actual promotion itself. All we seek in this subsection is to give to a prospective candidate for promotion the right to challenge a decision if she considers that she was more suitably qualified but that by reason of being a woman, she was not selected. In section 2 we define carefully what is meant by discrimination.
I am anxious that no legislation be passed at any stage which would be impracticable. We must ensure that the provisions of any legislation must be capable of being implemented. To that extent I undertake to look carefully at this subsection between now and Report Stage in order to see whether there is any way in which I can meet some of the objections raised by the Deputies and which are based mainly on their fears that the legislation will be impracticable.
The point has been made that perhaps the section as drafted issues an open invitation to anyone who might have trivial reasons for invoking the power of the Bill. It is not my intention to permit such a state of affairs to develop. Consequently, as I undertook on the last occasion on which we discussed this matter to reconsider it, I undertake again to have another look at it before Report Stage.
I might add that there are provisions on those lines in similar legislation in other EEC countries where this type of legislation has been operating for much longer than has been the case here. I recall that the UK legislation, for example, has a section on the lines of the one we are dealing with although it is not couched in identical terms. But its aim is to ensure equality of promotion and to ensure, also, that prejudices based on sex will no longer prevent promotion in industry. Deputies are aware that we have a dismal record in relation to women holding senior positions in industry.
Progress reported; Committee to sit again.